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Blackstone's Criminal Practice 2009

June 2008

June Update 2008

Updates to Blackstone's Criminal Practice 2008 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

The June update primarily covers developments occurring or reported in May 2008.

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• Part A: General Principles of Criminal Law
• Part B: Offences
• Part D: Procedure
• Part E: Sentencing
• Part F: Evidence
• Appendices
• New Legislation

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Part B Offences

B2 Non-fatal Offences Against the Person

B2.52 Wounding or Causing GBH with Intent: Indictment

The form of indictment required for an offence under the Offences Against the Person Act 1861, s. 18, was considered by the Court of Appeal in Hodgson [2008] EWCA Crim 895. The indictment in this case carelessly referred to ‘inflicting’ (rather than causing) grievous bodily harm, contrary to s. 18, and omitted any reference to the specific intent required. The court nevertheless declined to declare it invalid. Section 18 creates an offence which can be committed with more than one specific intent, and an indictment that fails to specify the intent alleged could properly be criticised as defective. It does not follow, however, that such an indictment necessarily fails to give reasonable information as to the nature of the charge, let alone charges an offence unknown to law.

The appellants in Hodgson understood the charges they faced and knew they were pleading guilty to causing grievous bodily harm to the victim with intent to cause such harm. Their convictions were safe.

B3 Sexual Offences

B3.83 Arranging or Facilitating Commission of a Child Sex Offence

The offence created by the Sexual Offences Act 2003, s. 14, was examined by the Court of Appeal in Prosecution Appeal (No. 1 of 2008); R [2008] EWCA Crim 619.

D was the client of a prostitute. He asked her whether she knew of any girls aged 12 or 13 who were working as prostitutes. She replied that she did not know of any such girls, but he persisted and sent her text messages, asking whether she had ‘got the 12 year old sorted yet?' She never agreed to his request but instead reported the matter to the police. The question arose whether D’s acts could amount to an offence under s. 14, and whether, if not, they could amount to an attempt to commit that offence.

As the court noted, s. 14 is itself a kind of preparatory offence, and may be easier to establish than a charge of attempting to commit one of the ‘ulterior’ offences under ss. 9 to 13 of the Act, because it does not require any act that is ‘more than merely preparatory’ to one of those offences. Nor does it require any agreement (if it did, it would add little that is not already covered by the law of conspiracy). But, given that D asked the prostitute to arrange things for him, and that she did not do so, he could not be said to have done more than attempt to commit the s. 14 offence. Whether he got beyond mere preparation for the purposes of the Criminal Attempts Act 1981, s. 1, would ultimately be a question of fact for the jury.

Moses LJ said:

7. . . . [Section 14] does not limit the stage at which criminal liability is imposed to what would hitherto be regarded as an attempt; in other words, to a proximate stage before the commission of the full offence. The section widens liability to steps taken with the requisite criminal intent by way of preparation. The section is astute in not further defining or limiting those steps other than by requiring the objective of those steps, ‘the something’, the doing of which involves the commission of the offences specified; see section 14(1)(b).

8. The section does not require an agreement or arrangement. It does not require the consent or acquiescence of anyone else. An arrangement may be made without the agreement or acquiescence of anyone else. A defendant may take steps by way of a plan with the criminal objective identified in the section without involving anyone else and the mere fact that no-one else is involved would not necessarily mean that no arrangement was made. In those circumstances, we reject the submission … that, absent any agreement, formal or informal, there can be no arrangement.

12. . . . The substantive offence was, as we have said, the very acts of preparation with which [D] was charged. In this case the jury was entitled to take the view that what he did in making the request of the prostitute was an attempt and not the mere preparation to make an arrangement. [D] need have done no more than make the request. Once that request had been accepted then something had been arranged and [D] could properly be said to have arranged something the doing of which would involve the commission of an offence, in other words sexual activity with a child. The judge erred in regarding the request as an act preparatory to an attempt. On the contrary, it was the final thing he needed to do before the full offence was committed.

B3.124 Offences against Persons with a Mental Disorder Impeding Choice

On a charge of sexual activity with a person who has a mental disorder impeding choice, contrary to the Sexual Offences Act 2003, s. 30(1), difficult questions can arise when attempting to apply the test of incapacity specified in s. 30(1)(c), under which the alleged victim must be ‘unable to refuse because of or for a reason related to a mental disorder’. By s. 30(2), a person is unable to refuse if . . . (a) he lacks the capacity to choose whether to agree to the touching (whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason), or (b) he is unable to communicate such a choice to the alleged offender.

There is clearly some overlap here between the concept of ‘inability to refuse’ for the purposes of s. 30(2) and that of incapacity to give consent (under s. 74) for the purposes of offences such as rape and sexual assault. In X City Council v MB [2006] 2 FLR 968, where the issue of capacity to consent to sexual relations was considered in the civil context of the respondent’s capacity to marry, Munby J regarded the common-law test of capacity to consent as being preserved by s. 74. He said:

‘The . . . question is whether she (or he) lacks the capacity to understand the sexual nature of the act. Her knowledge and understanding need not be complete or sophisticated. It is enough that she has sufficient rudimentary knowledge of what the act comprises and of its sexual character to enable her to decide whether to give or withhold consent.’

In C [2008] EWCA Crim 1155 the Court of Appeal approved MB and suggested that there is little, if any, difference between the test laid down by SOA s.30(2) and the common-law test of capacity to consent.

The court held that s. 30(2)(a) provides a comprehensive definition of incapacity for the purposes of s. 30(1). It applies not only where a complainant is unable to choose to refuse sexual activity, but also where she is unable to choose to agree to it. An acute episode of a mental disorder that results in an inability to take a rational decision about sexual activity, notwithstanding that the sufferer understood the nature of sexual activity, could fall within the words ‘for any other reason.’ On the other hand, an irrational fear that prevents the exercise of choice cannot be equated with lack of capacity to choose. A lack of capacity to choose to agree to sexual activity cannot be either 'person specific' or 'situation specific'. See also X Local Authority v MM [2007] EWHC 2003 (Fam).

B4 Theft, Handling and Related Offences

B4.38 Intention Permanently to Deprive

The Theft Act 1968, s. 6(1) was considered by the Court of Appeal in Raphael [2008] EWCA Crim 1014. One of the charges on which the appellants had been convicted was count 1: conspiracy to rob A by forcibly taking his car and then inviting him to pay for its safe return. The court had no difficulty in concluding that such conduct could indeed amount to robbery. Sir Igor Judge P said:

47. The express language of section 6 specifies that the subjective element necessary to establish the mens rea for theft includes an intention on the part of the taker ‘to treat the thing as his own to dispose of regardless of the other's rights’. In our judgment it is hard to find a better example of such an intention than an offer, not to return Adeosun's car to him in exactly the same condition it was when it was removed from his possession and control, but to sell his own property back to him, and to make its return subject to a condition or conditions inconsistent with his right to possession of his own property.

48. This is not a case in which the vehicle was taken for what is sometimes inaccurately described as a ‘joy ride’. Section 12 of the Theft Act has no application to it. It was only ‘abandoned’ after the purpose of the robbery had been frustrated and its possible usefulness to the robbers dissipated. Equally the appropriation of the car was not conditional in the sense described in Easom (1971) 55 Cr App R 410, where it was held that theft was not established if the intention of the appropriator of the property was ‘merely to deprive the owner of such of his property as, on examination, proves worth taking and then, on finding that the booty is to him valueless, leaves it ready at hand to be re-possessed by the owner’.

B6 Falsification, Forgery and Counterfeiting

B6.94 False Trade Descriptions in respect of Goods

The principal offence-creating provisions of the Trade Descriptions Act 1968 have been repealed (with some minor exceptions and provisos) by the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008 No. 1277). The new Regulations (the CPUTR) implement Directive 2005/29/EC of the European Parliament and of the Council concerning unfair business-to-consumer commercial practices together with article 6.2 of Directive 1999/44/EC of the European Parliament and of the Council on certain aspects of the sale of consumer goods and associated guarantees. They are supplemented by the Business Protection from Misleading Marketing Regulations 2008 (SI 2008 No. 1276) which implement Directive 2006/114/EC of the European Parliament and of the Council concerning misleading and comparative advertising.

The repeals took effect, and the new regulations came into force, on 26 May 2008.

Regulation 3(1) of the CPUTR prohibits (but does not itself criminalise) a range of ‘unfair commercial practices’. Such practices are not confined to those that involve misleading acts or omissions. A commercial practice is defined in reg. 2 as an act, omission, course of conduct, representation or commercial communication (including advertising and marketing) by a trader, which is directly connected with the promotion, sale or supply of a product to or from consumers, whether occurring before, during or after a commercial transaction (if any) in relation to a product. By reg. 3(3), a commercial practice is deemed unfair if (a) it contravenes the requirements of ‘professional diligence’ (skill and care commensurate with honest market practice or good faith); and (b) it materially distorts or is likely to materially distort the economic behaviour of the ‘average consumer’ with regard to the product. These concepts are further defined in reg. 2.

By reg. 3(4), a commercial practice is also deemed unfair if (a) it is a misleading action under the provisions of reg. 5; (b) it is a misleading omission under the provisions of reg. 6; (c) it is aggressive under the provisions of reg. 7; or (d) it is listed in sch. 1.

Regulations 5 and 6 define misleading actions and omissions. By reg. 7(1) (which should be read in conjunction with reg. 7(2) and (3)), a commercial practice is ‘aggressive’ if in its factual context, taking account of all of its features and circumstances:

1. it significantly impairs or is likely significantly to impair the average consumer’s freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
2. it thereby causes or is likely to cause him to take a transactional decision he would not have taken otherwise.

Schedule 1 lists over 30 commercial practices that are deemed inherently (and ‘in all circumstances’) unfair. Many of these practices involve false or misleading statements, and most but not all may give rise to criminal liability under reg. 12.

By regs. 8 to 12, a trader (defined in reg. 2 as any person who in relation to a commercial practice is acting for purposes relating to his business, and anyone acting in the name of or on behalf of a trader) may incur criminal liability for engaging in specified unfair commercial practices.

Strict liability is applicable to offences under regs. 9 to 12, subject to defences of due diligence (reg. 17) or innocent publication of an offending advertisement (reg. 18) but the reg. 8 offence requires proof of knowledge or recklessness, which is given an extended and objective meaning under reg. 8(2).

Persons other than traders may incur liability under reg. 16 where their acts or defaults cause traders to commit offences under regs. 9 to 12, or acts, etc., that would have involved offences but for the availability of defences under reg. 17 or 18. As to offences by corporations or Scottish partnerships, see reg. 15.

Enforcement of the CPUTR is entrusted in England and Wales to the OFT and local weights and measures authorities. Their duties and powers of investigation and enforcement are governed by part 4.. By reg. 13, all offences under regs. 8 to 12 are triable either way and punishable on indictment by a fine and/or imprisonment for a term not exceeding two years. Following summary conviction, the maximum penalty is a fine not exceeding the statutory maximum. There is also a summary offence of obstructing authorised officers (reg. 23) punishable by a fine not exceeding the statutory maximum.

By reg. 14(1), no proceedings for an offence under the regulations may be commenced after the end of the period of three years beginning with the date of the commission of the offence, or the end of the period of one year beginning with the date of discovery of the offence by the prosecutor, whichever is earlier. A certificate signed by or on behalf of the prosecutor and stating the date on which the offence was discovered by him shall be conclusive evidence of that fact and a certificate stating that matter and purporting to be so signed shall be treated as so signed unless the contrary is proved (reg. 14(2)).

Notwithstanding anything in the Magistrates’ Courts Act 1980, s. 127(1), an information relating to an offence under the CPUTR which is triable by a magistrates’ court in England and Wales may be so tried if it is laid at any time before the end of the period of 12 months beginning with the date of the commission of the offence (reg. 14(3)).

The Business Protection from Misleading Marketing Regulations 2008 (BPMMR) prohibit misleading business-to-business advertising and set out the conditions under which comparative advertisements (which is any advertisement which identifies a competitor or a competitor’s product) are permitted. The BPMMR broadly follow the pattern of the CPUTR. A ‘misleading’ advertisement (defined as one which deceives or is likely to deceive the traders to whom it is addressed or whom it reaches; and by reason of its deceptive nature is likely to affect their economic behaviour; or which for those reasons, injures or is likely to injure a competitor, is prohibited under reg. 3. By reg. 6, a trader who engages in such advertising commits a criminal offence, subject to any ‘due diligence’ or ‘innocent publication’ defences under regs. 11 and 12. In contrast, breaches of the rules relating to comparative advertising (reg. 4) are criminalised only if the advertisement thereby becomes misleading under regs. 3 and 6.

Persons other than traders may incur liability under reg. 9 where their acts or defaults cause traders to commit offences under reg. 6, or acts that would have been offences but for defences under regs. 11 or 12. As to offences by corporations or Scottish partnerships, see reg. 8.

Civil or criminal enforcement of the BPMMR is entrusted in England and Wales to the OFT and to local weights and measures authorities. Their powers of investigation and enforcement are governed by part 3. By reg. 7, an offence under reg. 6 is triable either way and punishable on indictment by a fine and/or imprisonment for a term not exceeding two years. Following summary conviction, the maximum penalty is a fine not exceeding the statutory maximum. There is also a summary offence of obstructing authorised officers (reg. 25) punishable by a fine not exceeding the statutory maximum.

Regulation 10 of the BPMMR deals with time-limits on prosecutions. These are similar to those that apply under the CPUTR, reg. 14 (see above).

B6.113 False Trade Descriptions in respect of Services, Accommodation or Facilities

The principal offence-creating provisions of the Trade Descriptions Act 1968 have been repealed (with some minor exceptions and provisos) by the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008 No. 1277). See B6.94 above.

B6.123 Misleading Price Indications

The Consumer Protection Act 1987, part III (misleading price indications to consumers) has been repealed and replaced by the Consumer Protection from Unfair Trading Regulations 2008 (SI 2008 No. 1277). See B6.94 above.

B12 Offences Relating to Weapons

B12 121 Offensive Weapons: Sentencing

Celaire [2003] 1 Cr App R (S) 160 (sub nom Poulton [2003] 4 All ER 869) and the Magistrates’ Courts Guidelines relating to the carrying of offensive weapons were each considered in Bleazard [2008] EWCA Crim 1231, where the Court of Appeal noted that offences involving knife crime have recently escalated into epidemic proportions. Where a person is found to be carrying a knife or offensive weapon without a reasonable excuse, he should be brought before the courts and prosecuted. Even if the defendant has done no more than carry a weapon, the courts must bear in mind the harm which might foreseeably have been caused. Carrying a knife or offensive weapon is a serious offence which must be treated with the seriousness which it deserves.

The situation now is much graver than it was when Celaire was decided. Accordingly, the guidance in that case should be applied with the current grave situation in mind; and the Magistrates' Courts Sentencing Guidelines as to bladed articles and offensive weapons should normally be applied at the most severe end of the appropriate range of sentences.

B23 Illegal Entry and Deception

B23.6 Defences

The Court of Appeal’s ruling in Asfaw [2006] EWCA Crim 707 was reversed by the House of Lords in Asfaw [2008] UKHL 31. The Appellate Committee ruled that the appellant, a refugee who had arrived in England directly from Ethiopia, en route to her intended destination in the USA, retained her entitlement to protection under Article 31 of the 1951 Convention and 1967 Protocol relating to the Status of Refugees when, in attempting to leave for America, she presented a false passport to the airline that was to carry her on the second leg of her journey. The Immigration and Asylum Act 1999, s. 31(3) is intended to give effect to the Convention and Protocol Once she had been acquitted on count 1 of the indictment against her (which charged an offence contrary to the Forgery and Counterfeiting Act 1981, s. 3) it was an abuse of process to proceed with the second count, under which she was charged with attempting to obtain services by falsely representing that she was authorised to use the passport, contrary to the Criminal Attempts Act 1981, s 1(1). The s. 31 defence did not apply to this count, but it was based on exactly the same facts as the first count, to which the defence did apply.

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Part D Procedure

D1 Powers of Investigation

D1.182 Entry and Search under Warrant: Conditions for Issuing a Warrant

In Redknapp v Metropolitan Police Commissioner [2008] EWHC 1177 (Admin), the claimant was awarded damages after his home had been searched in a ‘dawn raid’ on the authority of search warrant that was invalid because the conditions required by the Police and Criminal Evidence Act 1984, s. 8(1)(e) and (3), had not been identified. Giving the judgment of the Divisional Court, Latham LJ said (at [13] to [15]:

‘This court has complained in the past about slipshod completion of application forms such as this. . .

The obtaining of a search warrant is never to be treated as a formality. It authorises the invasion of a person's home. All the material necessary to justify the grant of a warrant should be contained in the information provided on the form. If the magistrate or judge in the case of an application under [PACE 1984] section 9, does require any further information in order to satisfy himself that the warrant is justified, a note should be made of the additional information so that there is a proper record of the full basis upon which the warrant has been granted.’

In this case, however,

‘The application for the warrant did not identify which of the conditions in section 8 (3) was being relied on; and, as I have said, I cannot see anything in D.C. Driscoll's statement which clearly identifies the fact that the magistrate was clearly told anything which could remedy that defect. I am not prepared to infer from the contents of the statement that the magistrate must have been told, or that there is enough in the statement to indicate that there was material before the magistrate which could have justified him in concluding that at least one of the conditions was met. As I have already said, it is wholly unsatisfactory, where the validity of such a warrant is in issue, to be asked to rely on anything other than the application itself, and if necessary, a proper note or record of any further information given orally to the magistrate. As the conditions set out in 8(3) have accordingly not been met, the warrant was unlawfully issued.’

That sufficed to dispose of the case, but the claimants had also argued that a valid warrant could not be both a ‘specific premises warrant’ and an ‘all premises warrant’. The court disagreed. Latham LJ said (at [16]):

‘Whilst the act distinguishes descriptively between ‘a specific premises warrant’ and an ‘all premises warrant’, there is no indication in PACE itself that one warrant cannot include both types. In those circumstances, I do not think that we should conclude that Parliament intended such a warrant to be unlawful. Provided the relevant information is given to the magistrate, there can be no vice in such a warrant.’

Underhill J agreed with this judgment, and took the opportunity to correct an earlier judgment of his own. In R (C) v Chief Constable of ‘A’ Police [2006] EWHC 2352 (Admin) he had said (obiter) that even in a case where a justice was misled, in bad faith, by the officer seeking the warrant, the warrant issued by the justice would not thereby be invalidated. He now acknowledged (at [27]) that this was wrong:

‘The observation was obiter because what I was there concerned with was simply an allegation that the police had carelessly failed to ascertain facts which, if known and revealed to the justice issuing the warrant, might have put matters in a different light. In the light of the authorities put before us in the present case, I am clear that what I said was wrong. Those authorities clearly establish that a failure by the police to disclose material facts known to them may invalidate the warrant.’

D5 Preliminary Proceedings in Magistrates’ Courts

D5.2 The Written Charge and Requisition Procedure

The Criminal Justice Act 2003 (Commencement No. 21) Order 2008 (SI 2008 No. 1424) brings ss. 29(1) to (3), (5) and (6) and 30 of the Act (new method of instituting proceedings) into force on 9 June 2008 for criminal proceedings instituted by public prosecutors in magistrates’ courts sitting in specified areas of Cheshire.

D11 The Indictment

D11.4 Procedural Breaches

Clarke [2008] UKHL 8 (noted in the March update) was distinguished by the Court of Appeal in Hodgson [2008] EWCA Crim 895. See B2.52 above. The court nevertheless warned that an indictment is no mere formality. It is the foundation of the prosecution; and it is the responsibility of counsel to ensure that the indictment is in proper form before arraignment.

D11.15 Counts for Summary Offences

Where a summary offence is added to an indictment in accordance with the CJA 1988, s. 40, that offence may properly be left to the jury even if the judge rules that there is no case to answer in respect of any indictable offences. To withdraw the summary charge in such circumstances and retry it before a magistrates’ court would be wasteful of resources and in conflict with the desirability of processing criminal proceedings promptly: Plant [2008] EWCA Crim 960.

D18 Trial on Indictment: The Prosecution Case

D15.41 Objections to Prosecution Evidence

Where a prosecution is properly brought, a judge has no power to prevent the prosecution from presenting its admissible evidence merely because he considers that the evidence will prove insufficient to justify a conviction. The suggestion that it should be open to the defence to raise such an issue before a trial begins would be likely to lead to lengthy additional pre-trial hearings, and that would be most undesirable: Plant [2008] EWCA Crim 960.

D18 Trial on Indictment: Retirement of the Jury and Verdict

D18.12 Prohibition of Further Evidence once Jury Enclosed

There was once an absolute principle that no further evidence should be given after the judge’s summing-up had been concluded and after the jury had retired, but in recent years, that principle has been subject to some relaxation, notably where such evidence appears to assist the defence case. See Karayaka [2005] EWCA Crim 346; Hallam [2007] EWCA Crim 1495. In Khan [2008] EWCA Crim 1112, defence counsel had supported the late admission of evidence which answered a question put by the jury after retirement and corrected a misleading impression given by the prosecution’s evidence, which had been inaccurate and incomplete in certain respects; when, despite this, the appellant was convicted, he appealed on the basis that the prohibition had been infringed. The appeal was dismissed. Gage LJ said (at [41]:

‘In this case we see no reason in principle why the judge should not have agreed to allow the evidence in respect of the jury’s second question to be put before it. On the contrary, we can see every reason why he should have allowed this evidence to go before the jury. The defence invited the judge to do so on the basis that the evidence assisted the appellant’s case. It was evidence which trial counsel believed was capable of supporting the appellant’s case in an area which both counsel felt the appellant’s evidence was weak and required some support. We have no doubt that the appellant agreed to this course of action.’

D25 Appeal to the Court of Appeal

D25.12 Directions Concerning Loss of Time and Frivolous Appeals

Hart [2007] 1 Cr App R 412 was considered in Brind [2008] EWCA Crim 934, , this time in the context of applications for permission to appeal against conviction. The Court of Appeal reminded practitioners that the forms relating to appeal had been amended. Form SJ now includes an opportunity for the single judge considering the matter to indicate whether in his view that application is without merit. Where that part of the form has been so completed by the single judge, an applicant who persists must expect the court to order that time served should not count.

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Part E Sentencing

E8 Suspended Sentences under the CJA 2003

E8.9 Powers Available to Deal with Breach

In Sheppard [2008] EWCA Crim 799 the court considered an appeal by a defendant against whom a 12-month suspended sentence had been activated in full following repeated breaches of its terms. Unpaid work was not done and several supervision and counselling appointments were missed. The defendant submitted that he had complied with some parts of the supervision order and that it was wrong in principle to impose the full term; but his appeal was dismissed.

The court noted that community orders and suspended sentences were seen by some sections of the public as a soft alternative to prison. For the public to have confidence in them, they must properly be enforced by the courts. Where there are repeated breaches, defendants should be made to realise that they risk reactivation of the full sentence originally imposed. The probation service spends much time and effort providing the services in respect of which community orders depended. It was important that courts ensure that such time and resources are not wasted on those defendants who only comply with the terms of the orders when they feel like it. It is also important that the probation service know that courts might well impose full terms when community orders and suspended sentence orders are breached; and they can then give a clear message to those who are subject to such orders.

E21 Confiscation Orders

E21.14 Determination of Benefit from Criminal Conduct: Joint Enterprise and Individual Benefit

May [2005] 1 WLR 2902, [2005] 3 All ER 523, Green [2007] EWCA Crim 1248, [2007] All ER (D) 439 (May) and Chrastny (No 2) [1991] 1 WLR 1385, [1992] 1 All ER 193 have been affirmed by the House of Lords in May [2008] UKHL 28 and Green [2008] UKHL 30. This confirms that where D jointly with others is found to have obtained a benefit from his offending, he should ordinary have a confiscation order made against him for the total amount found to have been unlawfully obtained, provided he has realisable assets equal to or in excess of that amount.

Porter [1990] 1 WLR 1260 is not authority that the court has power to apportion liability between parties jointly liable, a procedure which would be contrary to principle and unauthorised by statute.

On the other hand, the House of Lords in May approved the approach of the Court of Appeal in Olubitan [2003] EWCA Crim 2940, [2004] 2 Cr App R (S) 70, where D was convicted of conspiracy to defraud. At the confiscation hearing he was found to have benefited to the extent of £123,000 and an order was made in the smaller sum of £88,000. The evidence, however, showed that he had joined the conspiracy on the day that police action brought it to an end by interception of a dummy consignment arranged to trap the conspirators. It was therefore ‘rightly held’ on appeal that on these facts D had obtained nothing from his participation in the conspiracy.

These cases all concerned orders made under provisions of the Drug Trafficking Act 1994 and the CJA 1988 that are no longer in force, but the Appellate Committee concluded its unanimous opinion in May with the following ‘endnote’ (at [48]) which addresses the current law and the position of ‘couriers, custodians and other very minor contributors’:

The committee would conclude by drawing attention to the current importance of the power to make confiscation orders. In the period April 2007 - February 2008 the courts in England and Wales made 4,504 such orders in sums totalling £225.87 million. In recent years the number of orders and the sums confiscated have steadily risen. Recognition of the importance and difficulty of this jurisdiction prompts the committee to emphasise the broad principles to be followed by those called upon to exercise it:

1. The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.
2. The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.
3. In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.
4. In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.
5. In determining, under the 2002 Act, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.
6. D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.

E23 Exclusions and Disqualifications

E23.15 Financial Reporting Orders

In Adams [2008] EWCA Crim 914 the Court of Appeal considered the status of financial reporting orders. The court held that such orders form part of the sentence of the court and may be appealed against in accordance with the Criminal Appeal Act 1968. They are not however ‘penalties’ for the purposes of the ECHR, Article 7, which (inter alia) bars the retroactive imposition of higher penalties than those in force when the offence was committed. They are preventative measures which enable the courts to keep control over those in respect of whom there is a risk that they might indulge in criminal activity.

Part F EVIDENCE

F4 Competence and Compellability of Witnesses

F4.14 The Spouse or Civil Partner of the Accused

In L [2008] EWCA Crim 973, L was charged with raping his adult daughter, V, in 2007 and with a course of sexual abuse of his daughter that allegedly started when she was just 11 years old. L’s wife, W, made a statement to the police after the alleged rape which, if true, was highly damaging to L’s defence, but declined to testify against him on that charge on the basis that she was not compellable under the Police and Criminal Evidence Act 1984, s. 80. A ‘nice point’ arose on appeal as to whether she could have been compelled to testify on the basis that her evidence of that incident was also of some relevance to the other counts, realting to when V was aged under 16, but this was never decided.

At the trial, the judge instead allowed hearsay evidence to be given of what W had said in her statement to the police, on the basis that this was admissible in the interests of justice under the Criminal Justice Act 2003, s. 114(1)(d). L appealed on the basis that this ought not to have been allowed.

On appeal, it was held that L’s conviction would not have been unsafe even if the evidence had been wrongly admitted, but (obiter) that on the facts of the case the judge’s decision had been justified. The court opined that police are not obliged to remind a suspect’s spouse of the possibility that she might not be compellable witness before questioning her, but in some cases this might be desirable in order to show that she was willing to make a statement anyway. If she does refuse to testify and is not compellable, the Police and Criminal Evidence Act 1984, s. 80 does not preclude the use of an earlier statement, but whether it is right to admit it ‘must depend upon the facts of the individual case’.

L is surely not the last word on this issue. Section 80 may be an improvement on the common-law doctrine of non-compellability, but it draws some arbitrary distinctions. D’s spouse can be compelled to testify where he is charged with kissing a girl of 15, but not where he is charged with raping and murdering a girl of 16, or indeed a woman of 61. Why not? There is much to be said for treating spouses the same as siblings, parents or close friends: i.e. as compellable witnesses.

F6 Examination–in-chief

F6.20 Recent Complaints

and

F6.24 Statements in Rebuttal of Allegations of Recent Fabrication

The Court of Appeal has confirmed in T [2008] EWCA Crim 484 that the Criminal Justice Act 2003, s. 120(4) and (7) does not enable hearsay evidence to be given in the form of ‘recent complaints’ from witnesses who are not themselves complainants in respect of the alleged offence to which the proceedings relate. The court also confirmed in this case that s. 120(2) does not itself deal with the admissibility of statements which appear to rebut suggestions of later fabrication, but only of the use to which such statements (once admitted) may be put.

In some cases it may not be possible for a judge to make a decision on admissibility until he has heard evidence of the complainant and the nature of the challenge put in cross-examination.

F10 Opinion Evidence

F10.2 Non-expert Opinion Evidence

In Haynes [2008] All ER (D) 315 (May) the Court of Appeal examined the borderline between (inadmissible) non-expert opinion evidence and admissible testimony that merely represents a witness’s attempt to explain and interpret the facts he has perceived. H was convicted, as a secondary party, of causing death by dangerous driving. The principal offender, C, was another motorist, not known to H, who killed a cyclist when his car overturned as he attempted to overtake H on a bend. C had consumed a large amount of alcohol and his driving was manifestly dangerous. The only question was whether H had been racing with C, and thus encouraging C’s behaviour. Witnesses who saw (or in one case merely heard) the incident were allowed to say that they had seen (or heard) the two cars racing. The one who had merely heard did however have several years experience of motor racing.

Dismissing H’s appeal, the court held that the evidence in question was ‘on the borderline of opinion and conclusion’. It was the the way ordinary people expressed themselves and tried to explain what they had seen.

F10.3 Expert Opinion Evidence

Robb [1991] 93 Cr App R 161 and O'Doherty [2003] 1 Cr App R 77 were considered by the Court of Appeal in Flynn [2008] EWCA Crim 970. See further F19.29 below.

F10.22 Expert Opinion Evidence: Function and Weight

In Holdsworth [2008] EWCA Crim 971 the Court of Appeal allowed D’s appeal against her conviction for the murder of an epileptic child she had been babysitting. The conviction had been based primarily on expert medical evidence that suggested she had struck the child’s head repeatedly against banisters in the house. On appeal, fresh expert evidence was heard that offered an alternative explanation for the child’s injuries. The Crown’s experts did not accept this new theory, but recognised that D’s expert was an internationally acclaimed expert in epilepsy, and that any theory advanced by him on this subject was entitled to very careful consideration.

Ordering a retrial, Toulson LJ said (at [57] and [59]):

Conclusions of medical experts on the cause of an injury or death necessarily involve a process of deduction, that is inferring conclusions from given facts based on other knowledge and experience. But particular caution is needed where the scientific knowledge of the process or processes involved is or may be incomplete. As knowledge increases, today's orthodoxy may become tomorrow's outdated learning. Special caution is also needed where expert opinion evidence is not just relied upon as additional material to support a prosecution but is fundamental to it. . .

. . .

We add as a postscript that any re-trial will require a high level of case management. We draw attention, in particular, to the observations of this court in Harris [[2005] EWCA Crim 1980] at [273], regarding the powers of the court to make provision for experts to consult together and, if possible, agree points of agreement or disagreement with a summary of reasons.

F12 Evidence of Bad Character of Accused

F12.20 CJA 2003: Explanatory Evidence

Chohan [2002] All ER (D) 392 (Feb), Edwards [2005] EWCA Crim 1813 and Edwards [2005] EWCA Crim 3244 (sub nom Smith [2006] 1 WLR 1524) were considered in D [2008] EWCA Crim 1156, in which the Court of Appeal issued a much needed warning against the blurring of essential distinctions between evidence of disposition (admissible under the Criminal Justice Act 2003, s. 101(1)(d), subject to the safeguards provided by ss. 101(3) and (4) and 103) and essential background evidence which is admissible under s. 101(1)(c) and is not then subject to the same safeguards. In some cases, evidence of bad conduct that was most obviously relevant (if relevant at all) to the accused’s disposition has been admitted as background evidence, but this is unsatisfactory and greater caution should be applied in future.

F14 Evidence of Bad Character of Person other than Accused

F14.8 Credibility as a ‘Matter in Issue’

It was held in Hanson [2005] EWCA Crim 824, [2005] 1 WLR 3169 that a defendant’s previous convictions are unlikely to have any significant bearing on his credibility as a witness under the Criminal Justice Act 2003, s 101(1)(d), unless they demonstrate a propensity to tell lies or commit perjury. Can the same be said of the previous convictions of a prosecution witness? The Court of Appeal so assumed in Garnham [2008] EWCA Crim 266, where G was not allowed to warn the jury that V, a prostitute who accused him of rape, had 65 previous convictions for theft and other offences of dishonesty. The court agreed with the trial judge that a propensity for dishonesty was not the same as a propensity to untruthfulness and that in the circumstances these convictions were not of substantial (if any) probative value. V’s standing might have required reconsideration in respect of one of those convictions if it transpired that she had been convicted after a trial at which her evidence was disbelieved, but counsel did not pursue that matter, and G’s conviction was quashed on other grounds.

With respect, the idea that the previous convictions of a prosecution witness have no great bearing on his credibility unless they involve evidence of perjury or lies was firmly rejected in Stephenson [2006] EWCA Crim 2325, where Hughes LJ distinguished Hanson:

It does not follow [from Hanson] that previous convictions which do not involve either the making of false statements or the giving of false evidence, are incapable of having substantial probative value in relation to the credibility of a non-defendant under [the CJA 2003] section 100, or for that matter of a co-accused where the application is made by him under section 101(1)(e). The same degree of caution which is applied to a Crown application when considering relevance and discretion does not fall to be applied when what is at stake is a defendant's right to deploy relevant material to defend himself against a criminal charge.

Stephenson

was overlooked by the court in Garnham, but is surely to be preferred. A witness who has a string of convictions, whether for offences of dishonesty or for other serious crimes, must surely be less worthy of belief than one of previously impeccable character. Do we really suppose that a drug trafficker, bank robber or professional hit-man would have any great moral scruples about committing perjury if he thought he would get away with it?

The jury did at least know V was a prostitute. Prostitutes are unlikely to be viewed by juries as witnesses of impeccable character. To some extent, perhaps, this reduces the impact of the ruling in this particular case, in which a retrial was ordered.

F16 Exceptions to the Rule Against Hearsay

F16.20 Hearsay Admissible in the Interests of Justice

See L [2008] EWCA Crim 973, which is examined at F4.14.

F18 Evidence of Identification

F18.16 Dock Identification

The Privy Council has confirmed in The State v Young [2008] UKPC 27 that there is no absolute rule by which dock identification is inadmissible at common law. Whether evidence of that kind can safely be relied upon may be another matter. See also Pipersburgh v The Queen [2008] UKPC 11.

F18.20 The Turnbull Guidelines

One might suppose that an initially tentative visual identification, made by a rape victim who appears to have been drugged or intoxicated at the time, and whose identification does not appear to square with the DNA evidence or with her own account of the incident, would be considered so weak that the defendant would be found to have no case to answer. But no. In Ghafuri [2008] EWCA Crim 968, V complained of being raped by two young men at a party. She firmly identified one of the rapists (male 1) as X, whose DNA was found in semen left on V’s clothing. His guilt seems clear enough. She also (but more tentatively) identified the appellant as the second rapist (male 2), but the appellant’s DNA was not found. Instead, DNA tests identified semen from a third man, Y, who was also convicted. Y’s guilt also seems clear enough. How then was the appellant’s case left to the jury? He was a friend of X and Y and it is possible that he was also a party to the rapes they committed; but he was not charged on the basis that he was a party to their offences. He was charged on the basis that he was one of the two men V identified as her two rapists, and in that respect the DNA evidence appeared to contradict her testimony. Perhaps Y also raped her when she was unconscious, wearing a condom and without leaving any DNA behind, but perhaps her identification of the appellant was mistaken. Either explanation seems possible.

As the Court pointed out, this was not a case of identification by way of a ‘fleeting glimpse’. The appellant was one of a very limited number of potential perpetrators of the rape. Counsel for the appellant nevertheless identified a series of weaknesses in the prosecution case, none of which appear to have been properly answered on appeal:

1. The complainant had only ever complained of being raped by two men.
2. The DNA evidence established the presence of semen from two men on the complainant's clothing, which originated from the co-accused but not the appellant.
3. There was no scientific evidence to support the complainant's identification of the appellant as one of her attackers.
4. The complainant's account of the rape by the men left her in excruciating pain, yet she had no knowledge of a further attack by a third rapist.
5. The circumstances in which the complainant was able to assimilate information at the time of the rapes, from which she was later to make her identification of the appellant as Male 2, were not good. Six matters were identified:
1. she was subject to some form of intoxicant;
2. she woke up in a darkened room;
3. her first complaint to the police was of waking up with a man on top of her as well as Male 2 holding her arms;
4. Male 2 was in silhouette;
5. Male 2 left the room and re-entered as a back-lit figure from the landing;
6. by the time Male 2 had raped her, she was in excruciating pain, injured, traumatised, crying, was trying to keep her eyes shut and was trying to wipe her tears away.
6. The description which the complainant had given to the police of Male 2 did not match the appellant, but was more consistent with it being a description of a fourth man (H) who was at one time a suspect, although she said he was not male 2.
7. On her own evidence the complainant was only ‘reasonably' sure of her identification of the appellant.
8. During the identification procedure she did not make an unqualified identification. The words she used were: ‘He looks familiar’.

The courts have sometimes permitted avoidable miscarriages of justice by paying mere lip service to the Turnbull guidelines, which require a judge to be proactive and stop the trail where identification evidence is both poor and inadequately supported by other evidence. Lessons could perhaps have been learned from cases such as Mulcahy and Mulcahy (No 2) (unreported, 16 October 1997 and 26 October 2000) where M was convicted of robbery on the basis of weak visual identification evidence which (as here) appeared to be contradicted, and not supported, by other evidence in the case. The Court of Appeal’s initial confidence in the safety of M’s conviction for robbery did not survive the subsequent identification (through fingerprint and other evidence) of the actual robber, and M’s conviction was belatedly quashed three years later.

One hopes that a similar injustice has not been perpetrated on this occasion.

F18.29 Voice Identification

The leading cases on voice identification evidence (namely Robb [1991] 93 Cr App R 161, Chenia [2003] 2 Cr App R 83 and O'Doherty [2003] 1 Cr App R 77) were considered by the Court of Appeal in Flynn [2008] EWCA Crim 970.

There was a conspiracy to rob a warehouse and this led to an unsuccessful attempt to commit the robbery using a stolen van. The question was whether the appellants were responsible for those offences. There was a considerable body of circumstantial evidence suggesting they were, including surveillance and forensic evidence linking them to the van itself; but in addition the police had secretly inserted a listening device into the van, and from this there had been obtained a recording of words spoken by the actual offenders shortly before the attempted robbery. Police officers who later interviewed the appellants claimed in their evidence to have recognised their voices from this recording, but expert witnesses who analysed the recordings were far less positive. The chief question for the Court of Appeal was whether the judge had erred by allowing the officers to give evidence identifying the appellants from their voices.

Gage LJ, giving the judgment of the court, began with some general observations concerning voice identification evidence, and it may be helpful to cite this part of his judgment more or less in full:

14. The first category, expert evidence, in this field can be of two types: firstly, auditory analysis and secondly acoustic/spectrographic analysis. The second category of evidence falls into a group described by the experts in this case as lay listener evidence. The latter requires that the witness possesses some special knowledge of the suspect that enables him or her to recognise the suspect's voice. The most common example of such evidence is the knowledge of a close relative or friend. However, there are other persons who may acquire sufficient special knowledge by their familiarity with the suspect's voice. For example, a person may acquire such familiarity by the frequency of his or her contact with the suspect. A yet further group may comprise those who acquire specialist knowledge by listening to a sample of the speech of a known person and comparing it with a recording of a disputed voice. The latter are referred to in some judgments and academic papers on this topic as ad hoc experts. In our opinion, this description is unhelpful, since those who acquire the specialist knowledge cannot in our view properly be referred to as experts.

Evidence heard by the Court of Appeal satisfied the judges that:

• Identification of a suspect by voice recognition is more difficult than visual identification.
• Identification by voice recognition is likely to be more reliable when carried out by experts using acoustic and spectrographic techniques as well as sophisticated auditory techniques, than lay listener identification.
• The ability of a lay listener correctly to identify voices is subject to a number of variables. There is at present little research about the effect of variability but the following factors are relevant.
• Research shows that a confident recognition by a lay listener of a familiar voice may nevertheless be wrong. One study used telephone speech and involved 14 people representing three generations of the same family being presented with speech recorded over both mobile and land-line telephones. The results showed that some listeners produced misidentifications, failing to identify family members or asserting some recordings did not represent any member of the family. The study used clear recordings of people speaking directly into the telephone.
• The crucial difference between a lay listener and expert speech analysis is that the expert is able to draw up an overall profile of the individual's speech patterns, in which the significance of each parameter is assessed individually, backed up with instrumental analysis and reference research. In contrast, the lay listener's response is fundamentally opaque. The lay listener cannot know and has no way of explaining, which aspects of the speaker's speech patterns he is responding to. He also has no way of assessing the significance of individual observed features relative to the overall speech profile. The latter is a difference between visual identification and voice recognition; and the opaque nature of the lay listener's voice recognitions will make it more difficult to challenge the accuracy of their evidence.

Gage LJ then turned to the evidence in this case. For various reasons, the voice identifications made by the police officers, which the experts could not replicate or support, were held to be highly suspect and their prejudicial effect greatly outweighed any slight probative value they might have had. Gage LJ identified some poor police practices that further weakened the value of the evidence:

1. 53. . . . First, in our opinion, when the process of obtaining such evidence is embarked on by police officers it is vital that the process is properly recorded by those officers. The amount of time spent in contact with the defendant will be very relevant to the issue of familiarity. Secondly, the date and time spent by the police officer compiling a transcript of a covert recording must be recorded. If the police officer annotates the transcript with his views as to which person is speaking, that must be noted. Thirdly, before attempting the voice recognition exercise the police officer should not be supplied with a copy of a transcript bearing another officer's annotations of whom he believes is speaking. Any annotated transcript clearly compromises the ability of a subsequent listener to reach an independent opinion. Fourthly, for obvious reasons, it is highly desirable that such a voice recognition exercise should be carried out by someone other than an officer investigating the offence. It is all too easy for an investigating officer wittingly or unwittingly to be affected by knowledge already obtained in the course of the investigation.
2. 54. This case provides an example of why these minimal safeguards should have been observed. No notes were made by any of the police officers of the dates and times when they attempted to recognise the voices on the covert recording from the Sprinter van. There is an important inconsistency in the evidence [as to when transcripts were prepared].
3. 55. It is not clear if the judge, when he gave his ruling, was aware of this discrepancy. It does not feature in his ruling. However, the discrepancy further hindered the ability of counsel for Flynn to challenge the accuracy of DC Fleck's evidence. This discrepancy and the failure of the officers to record essential details of how and when the transcript was compiled, and the dates when each listened to the tape, coupled with the dangers to the use of voice recognition evidence by lay listeners, are all sufficient in our judgment to make it unfair for the evidence to be admitted. For these reasons we would also have excluded this evidence and in our judgment the judge was wrong not to exclude it under s.78 of PACE.

A further problem was that the trial judge had wrongly instructed the jury not to attempt to compare the voices heard on the covert recording with the voices of the appellants which they had heard when they gave evidence in the trial. One can understand why the judge ruled as he did. In Chenia, the Court of Appeal had previously said:

on the particular facts of this case, where the jury were unassisted by expert evidence, they should have been warned that they should not compare one voice with another by comparing the characteristics of each because of the dangers of doing so.

But these facts were not replicated in Flynn. A retrial was ordered.

Gage LJ then added the following postscript to the judgment:

1. 62. As appears from the above we have been dealing in these appeals with issues arising out of voice recognition evidence. Nothing in this judgment should be taken as casting doubt on the admissibility of evidence given by properly qualified experts in this field. On the material before us we think it neither possible nor desirable to go as far as the Northern Ireland Court of Criminal Appeal in O'Doherty which ruled that auditory analysis evidence given by experts in this field was inadmissible unless supported by expert evidence of acoustic analysis. So far as lay listener evidence is concerned, in our opinion, the key to admissibility is the degree of familiarity of the witness with the suspect's voice. Even then the dangers of a mis-identification remain; the more so where the recording of the voice to be identified is poor.
2. 63. The increasing use sought to be made of lay listener evidence from police officers must, in our opinion, be treated with great caution and great care. In our view where the prosecution seek to rely on such evidence it is desirable that an expert should be instructed to give an independent opinion on the validity of such evidence. In addition, as outlined above, great care should be taken by police officers to record the procedures taken by them which form the basis for their evidence. Whether the evidence is sufficiently probative to be admitted will depend very much on the facts of each case.
3. 64. It goes without saying that in all cases in which the prosecution rely on voice recognition evidence, whether lay listener, or expert, or both, the judge must give a very careful direction to the jury warning it of the danger of mistakes in such cases.

F18.30 Dental or Skin Impressions

The difficulty of identifying an offender by means of ear-print evidence was noted by the Court of Appeal in Kempster (No. 2) [2008] EWCA Crim 975. Such evidence may be admissible, but very detailed and precise matching is required if a conviction is to be based on it. The expert witnesses in this case were agreed that ear-prints present a different and more difficult problem than fingerprints. Ears are cartilaginous structures which are flexible and deform when subjected to pressure. Further, ear-prints are usually left by those who are listening for something or someone by pressing their ear against a surface, and will not necessarily remain motionless but may adjust their position thereby further distorting the shape of the ear and the mark that it leaves.

Latham LJ said:

1. 27. It is clear . . . that ear-print comparison is capable of providing information which could identify the person who has left an ear-print on a surface. That is certainly the case where minutiae can be identified and matched. Where the only information comes from the gross features, we do not understand him to say that no match can ever be made, but there is likely to be less confidence in such a match because of the flexibility of the ear and the uncertainty of the pressure which will have been applied at the relevant time. Miss McGowan [The Crown’s expert] still remains of the view that gross features are capable of providing a reliable match.
2. 28. On the basis of the evidence that we have heard, we are of the view that the latter can only be the case where the gross features truly provide a precise match. We have no doubt that evidence of those experienced in comparing ear-prints is capable of being relevant and admissible. The question in each case will be whether it is probative. In the present case, having heard both Dr Ingleby [for the appellant] and Miss McGowan, and in particular having seen the various prints from which comparisons have been made, we are struck by the gross similarity of the shape and size of the ear-prints used for the comparison, and by the close similarity of the notch and the nodule on each. This, in our view, establishes that the ear-print at the scene is consistent with having been left by the appellant. But having examined the comparisons of the gross features, it is also apparent to us that they do not provide a precise match. The differences may well be explicable by differences in pressure, or movement, but the extent of the mismatch is such as to lead us to the conclusion that it could not be relied on by itself as justifying a verdict of guilty.

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NEW legislation

Business Protection from Misleading Marketing Regulations 2008 (SI 2008/1276)

These Regulations implement Directive 2006/114/EC concerning misleading and comparative advertising.

Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277)

These Regulations implement Directive 2005/29/EC concerning unfair business-to-consumer commercial practices together with Article 6.2 of Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. They introduce a new regime covering many aspects of consumer offences. They prohibit unfair commercial practices and create offences. They also deal with enforcement.

The new regulations largely replace the Trade Descriptions Act 1968 and repeal its principal provisions. Other repeals effected by the Regulations include the Fraudulent Mediums Act 1951, the Mock Auctions Act 1961, the Weights and Measures Act 1985, s. 29 (false representations as to quantity), the Consumer Credit Act 1974, s. 46 (false or misleading credit or hire advertisements) and the Control of Misleading Advertising Regulations 1988 (SI 1988/915).

Violent Crime Reduction Act 2006 (Commencement No. 6) Order 2008 (SI 2008 No. 1407)

This Order brings chapter 2 of the Act (ss. 15 to 20) into force on 5 June 2008. These provisions relate to alcohol disorder zones.

Criminal Justice Act 2003 (Commencement No. 21) Order 2008 (SI 2008 No. 1424)

This Order brings ss. 29(1) to (3), (5) and (6) and 30 (new method of instituting proceedings) into force on 9 June 2008 for criminal proceedings instituted by public prosecutors in magistrates’ courts sitting in specified areas of Cheshire.

Criminal Justice and Immigration Act 2008 (Commencement No. 1 and Transitional Provisions) Order 2008 (SI 2008 No. 1466)

This Order brought s. 26 of the Act (release of long-term prisoners under the Criminal Justice Act 1991) into force on 9 June 2008 except insofar as it inserts s. 33(1C) and (1D) into the 1991 Act. Associated provisions in schs. 26 and 27 are also brought into force on that date.

The Extradition Act 2003 (Amendment to Designations) Order 2008 (SI 2008 No. 1589)

This Order amends the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 so as to add the United Arab Emirates to the lists of countries specified in the Order.

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