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Blackstone's Criminal Practice 2009

Updates

March 2008

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Blackstone's Criminal Practice 2009

March 2008

March 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 march update primarily covers developments occurring or reported in February 2008.

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

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A5 Parties to Offences

A5.17 Corporate Liability

The principal question that arose in W Stevenson & Sons (a partnership) [2008] EWCA Crim 273 was whether it was possible to impose criminal liability on a common partnership as a separate entity from the individual partners. At common law the answer appears to be 'no', because such a partnership (unlike a registered company or an LLP) does not have legal personality. Partnership is not an entity but a relationship between persons carrying on business together with a view to profit, and the liabilities of a partnership firm are ultimately those of the partners.

Under the Interpretation Act 1978, where an enactment passed after 1889 purports to impose criminal liability on 'persons' this may include unincorporated associations; but the court in Stevenson & Sons could find no report of any case in which this has been relied upon in order to impose such liability on a firm. In Clode v Barnes [1974] 1 WLR 544, for example, the preferred approach was to prosecute each partner individually.

Whether a statutory offence is capable of applying to a partnership firm is a matter of construction. In some cases, however, legislation makes clear and specific provision for criminal liability to be imposed on firms and for any fine to be paid out of partnership assets. Such provisions are clearly lawful. A recent example is provided by the Corporate Manslaughter and Corporate Homicide Act 2007, s. 1(2). Where such provisions apply (as in Stevenson & Sons), individual partners have no locus standi to appeal against a conviction imposed on the firm.

PART B OFFENCES

B1 Homicide and Related Offences

B1.128 Corporate Manslaughter

The Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 1) Order 2008 (SI 2008 No. 401) brings all of the provisions of the Act into force on 6 April 2008 with the exception of ss. 2(1)(d) (duty owed to a person in custody etc. to be a relevant duty of care) and 10 (power to order conviction etc. to be publicised). Until s. 2(1)(d) is brought into force, s. 20 (abolition of the common-law offence of manslaughter by gross negligence in its application to corporations and other organisations) does not apply to an offence committed by the breach of any such duty as is referred to in s. 2(1)(d) and other consequential modifications apply.

B2 Non Fatal Offences Against the Person

In Cockburn [2008] EWCA Crim 316, the appellant set up a device designed to injure thieves or intruders on his farm. The device consisted of a spiked metal object made from two pieces of heavy steel plate into which about 20 4-inch long nails, protruding at different angles, were welded. It was connected by a metal rod or wire to the roof frame of a shed on the appellant's land. Another wire connected it to the shed door. When the shed door was opened it was activated and the force of gravity caused it to swing downwards and catch the person entering through the door.

Unfortunately, the device injured an army officer who was conducting a lawful investigation of the appellant's property. This led to the appellant being charged with assault occasioning actual bodily harm (OAPA 1861, s. 47), wounding with intent to grievous bodily harm (s. 18), and the rarely charged offence of setting a mantrap with intent, contrary to s. 31 of the Act, which provides:

Whosoever shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with intent that the same or whereby the same may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, shall be guilty . . . Provided that nothing in this section contained shall extend to make it illegal to set or place any gin or trap such as may have been or may be usually set or placed with the intent of destroying vermin: Provided also, that nothing in this section shall be deemed to make it unlawful to set or place, or cause to be set or placed, or to be continued set or placed, from sunset to sunrise, any spring-gun, man-trap, or other engine which shall be set or placed, or caused or continued to be set or placed in a dwelling house for the protection thereof.

He was convicted both of the s. 47 assault and of the s. 31 offence. Somewhat surprisingly, he was acquitted of the s. 18 offence; presumably because the jury were not sure as to whether he intended to cause really serious injury.

He appealed only against the s. 31 conviction. It is unfortunate that he did not also appeal against his conviction under s. 47, because such an appeal would have invited a long overdue analysis of the question whether an assault or battery can be committed by the setting of a trap. As pointed out in Blackstone's Criminal Practice 2008 at B2.9, there is a significant conflict of authority on that question, which was overlooked both in DPP v K [1990] 1 WLR 1067 and in DPP v Santa-Bermudez (2004) 168 JP 273.

On the s. 31 issue, the court could see no reason for giving (and every reason, given the evident purpose behind the legislation, for not giving) the words 'spring-gun' or 'man-trap' or 'other engine' an unduly narrow meaning. Distinguishing Munks [1963] 3 All ER 757, in which it was held that a door handle connected to the mains electricity supply was not a 'man-trap or other engine' within the meaning of that section, Sir Igor Judge P said:

In Munks, the placing of cables on or by a door through which an electric current could pass was held not to be sufficient of a mechanical contrivance to be an 'engine'. In the present case, using ordinary language, the contraption was certainly a contrivance. It was mechanical, since as a mechanism, it was triggered into dangerous movement by inadvertent pressure on a wire or string. In short therefore it is properly described as a mechanical contrivance or machine, and it unquestionably is an 'other engine' for the purposes of section 31 of the 1861 Act.

The court observed that:

Since 1827, spring-guns and other engines calculate to kill or inflict grievous bodily harm have been illegal in England unless kept in a dwelling house at night as a protection against burglars.

Where such a device is set inside a dwelling at night to protect it from burglars, a prosecution under s. 31 could not succeed. That does not mean, of course, that any death or injury caused by such a machine would be lawfully inflicted, especially where, as in this case, the victim is not a burglar at all.

B2.3 Assault and Battery: Sentencing Guidelines (Basic Offence)

The SGC has issued new definitive guidelines covering assault and other offences against the person. They apply to offenders sentenced after 3 March 2008 who are aged 18 or over. Where the victim is aged 15 or under, the separate guidelines on assaults on children and cruelty to a child apply. The Guidelines can be consulted at www.sentencing-guidelines.gov.uk.

B2.4 Assault and Battery: Sentencing Guidelines (Racially or Religiously Aggravated Form of Offence)

B2.12 Consent

The CPS has issued a policy statement explaining how they deal with cases involving the intentional or reckless sexual transmission of infection. See www.cps.gov.uk.

B2.20 Assault with Intent to Resist or Prevent Arrest: Sentencing

The SGC has issued new definitive guidelines covering assault and other offences against the person. They apply to offenders sentenced after 3 March 2008 who are aged 18 or over. The Guidelines can be consulted at www.sentencing-guidelines.gov.uk.

B2.25 Assault Occasioning Actual Bodily Harm: Sentencing Guidelines (Basic Offence)

B2.26 Assault Occasioning Actual Bodily Harm: Sentencing Guidelines (Racially or Religiously Aggravated Form of Offence)

B2.30 Assault on Constable in Execution of His Duty: Sentencing

B2.41 Wounding or Inflicting Grievous Bodily Harm: Sentencing Guidelines (Basic Offence)

B2.46 Wounding or Inflicting Grievous Bodily Harm: Sentencing Guidelines (Racially or Religiously Aggravated Form of Offence)

B2.54 Wounding or Causing Grievous Bodily Harm with Intent: Sentencing Guidelines

B2.117 Child Cruelty: Sentencing Guidelines

The SGC has issued new definitive guidelines covering assaults on children and cruelty to a child. They apply to offenders sentenced after 3 March 2008 who are aged 18 or over. The Guidelines can be consulted at www.sentencing-guidelines.gov.uk.

B3 Sexual Offences

B3.12 Conclusive Presumptions about Consent

B3.33 Causing a Person to Engage in Sexual Activity without Consent

The concept of 'deception as to the nature or purpose of the relevant act' (which creates a conclusive presumption of non-consent under the Sexual Offences Act 2003, s. 76) was considered in the context of an offence under s. 4 of that Act in Devonald [2008] EWCA Crim 527.

In this case, D had been angered by his daughter's former boyfriend, V, and exacted revenge by contacting V on the internet and pretending to be a young woman who wanted to see him expose himself in front of a webcam and masturbate for her. V fell for the deception and did as he was asked. D was convicted of causing V to engage in sexual activity without consent (on the basis that V's apparent consent was vitiated by the deception) and this conviction was upheld on appeal.

In the context of alleged offences under the Sexual Offences Act 2003, ss. 1 to 3, any reference to deception as to the 'nature or purpose' of the relevant act means the purpose of the defendant in doing that act, or the nature of the act that he commits. In relation to offences under s 4, one might perhaps suppose that 'the relevant act' must be the sexual activity that the complainant is caused to engage in, but s 77 provides that the 'relevant act' is that of the defendant in causing this activity. The complainant need not be deceived as to the nature of his own act, and cannot be deceived as to his own purpose in so acting. It is the defendant's purpose that matters. In Devonald, the court concluded that:

The learned judge ruled that it was open to the jury to conclude that the complainant was deceived as to the purpose of the act of masturbation. We agree. . . . It is difficult to see how the jury could have concluded otherwise than that the complainant was deceived into believing that he was indulging in sexual acts with, and for the sexual gratification of, a 20 year old girl with whom he was having an on line relationship. That is why he agreed to masturbate over the sex cam. In fact, he was doing so for the father of his ex girlfriend who was anxious to teach him a lesson, doubtless by later embarrassing him or exposing what he had done.

This however is not entirely correct: it was not V's purpose in masturbating that mattered, or the nature of his act, but D's purpose in causing him to behave in that way. V thought this was voyeuristic pleasure; but D's purpose was in fact to humiliate him. The fact that V thought he was masturbating for a young woman is perhaps of less importance. If V's purpose had been voyeuristic, as stated, would it have mattered that he was male rather than female; or middle-aged, rather than young?

B10 Terrorism, Piracy and Hijacking

B10.66 Possession of an Article for Terrorist Purposes

Rowe [2007] EWCA Crim 635 established that books, computer discs or other documents may be 'articles' within the meaning of the Terrorism Act 2000, s. 57; but in Zafar [2008] EWCA Crim 184, the Court held that, if s. 57 is to have the certainty of meaning that the law requires, it must be construed as applying only where D possesses an article in circumstances which give rise to a reasonable suspicion that he intends it to be used for the purpose of the commission, preparation or instigation of an act of terrorism. Possessing a document for the purpose of inciting other persons to commit an act of terrorism would satisfy that test; but it would not suffice to establish merely an indirect connection between possession of the item and potential terrorist acts. An airline ticket, for example, cannot become a s. 57 article, merely because it is possessed with a view to flying to Pakistan and enlisting for terrorist training there.

Although the appellants in Zafar possessed extremist literature, there was no evidence that they possessed this for the purpose of inciting each other, or anyone else, into acts of terrorism. Their convictions were therefore quashed. The court left open a further question, namely whether a general purpose article such as a computer, can be said to be 'possessed for the purpose of' any single use that is intended to be made of it. If D expects to give or receive instructions by telephone in connection with a proposed terrorist act, does he possess the telephone for terrorist purposes?

B10.71 Collection of Information

In K [2008] EWCA Crim 185, the court held that a document or record falls within the scope of the Terrorism Act 2000, s. 58, only if it is of a kind that is likely to provide practical assistance to a person committing or preparing an act of terrorism. A document that simply encourages the commission of acts of terrorism does not qualify; nor may the prosecution seek to demonstrate, by reference to extrinsic evidence, that an otherwise innocuous document, such as an A-Z guide to London, falls within s. 58 on the basis that it was intended to use it in connection with a terrorist offence. The court held that s. 58 (as so interpreted) is sufficiently certain to satisfy the requirements of the ECHR, Article 7.

B14 Offences against the Administration of Justice

B14.67 Assisting Escape and Harbouring Escapees

The Offender Management Act 2007 (Commencement No. 2 and Transitional Provision) Order 2008 (SI 2008 No. 504) inter alia brings into force on 1 April 2008 ss. 21 to 24 of the Act. These provisions relate to escape from prison and prison security. In particular, the Prison Act 1952, s. 39, is substituted.

B14.75 Contempt of Court Requiring Immediate Action

In AS [2008] EWCA Crim 138, the Court of Appeal issued guidance on the circumstances in which it may be appropriate for a judge of the Crown to deal summarily with a contempt of court. In this case, the alleged contempt, if established, would also have amounted to an offence of witness intimidation under the CJPO 1994, s. 51, and it was argued that this would have been the only 'correct' way to proceed.

The Court of Appeal disagreed. A distinction must be drawn between a 'truly summary' procedure, in which the judge deals more or less at once with the alleged contempt, and a more formal (but still summary) procedure which more closely resembles a prosecution in a magistrates' court.

The 'truly summary' procedure was described by Mustill LJ in Griffin (1989) 88 Cr App R 63, in these terms:

There is no prosecutor, or even a requirement that a representative of the Crown or of the injured party should initiate the proceedings. The judge is entitled to proceed of his own motion. There is no summons or indictment, nor is it mandatory for any written account of the accusation made against him to be furnished to the contemnor. There is no preliminary enquiry or filtering procedure, such as a committal. Depositions are not taken. There is no jury. Nor is the system adversarial in character. The judge himself enquires into the circumstances, so far as they are not within his personal knowledge. He identifies the grounds of complaint, selects the witnesses and investigates what they have to say (subject to a right of cross-examination), decides on guilt and pronounces sentence. This summary procedure, which by its nature is to be used quickly if it is used at all, omits many of the safeguards to which an accused is ordinarily entitled, and for this reason . . . the judge should choose to adopt it only in cases of real need.

In contrast, where the 'formal procedure' is adopted (as in AS), witnesses are called by a prosecutor, the defendant has the opportunity of examining them, and he may also give and/or call evidence in his own defence. There will be a reasoned judgment of the court against which an appeal lies to the Court of Appeal. Many of the objections that are often made to the 'truly summary' procedure are not really applicable, said the court, to the formal procedure; but the court agreed (at [21]) that even the formal procedure 'should only be invoked where circumstances make it necessary and proportionate to proceed in that way'.

The defendant in this case was accused of intimidating a witness, and it was at least arguable that prompt action was needed. Moreover:

It would have been disproportionate to refer the issue to the CPS for them to consider whether to commence separate proceedings in the magistrates' courts if a trial for contempt could be conducted fairly and without disadvantage to the appellant before the Crown Court. It would have been damaging to the interests of justice if the CPS took no action; indeed in the circumstances it could properly be described as the realistic way of dealing with what had happened. . .

B20 Offences Related to Drugs

B20.98 Making and Preserving Records of Production and Supply of Certain Scheduled Substances

The Controlled Drugs (Drug Precursors) (Community External Trade) Regulations 2008 SI 2008 No. 296) revoke and replace the Controlled Drugs (Substances Useful for Manufacture) Regulations 1991 with effect from 7 March 2008 and implement Council Regulation (EC) 111/2005.

B20.99 Enforcement of European Community Obligations

The Controlled Drugs (Drug Precursors) (Intra-Community Trade) Regulations 2008 (SI 2008 No. 295) revoke and replace the Controlled Drugs (Substances Useful for Manufacture) (Intra-Community Trade) Regulations 1993 with effect from 7 March 2008 and implement Council Regulation (EC) 273/2004.

B22 Offences Relating to the Proceeds of Criminal Conduct

B22.3 Money Laundering and Criminal Property

In Rose [2008] EWCA Crim 239, one of the defendants, W, was charged with an offence under the Proceeds of Crime Act 2002, s. 329, on the basis that he had 'acquired' (and was found in possession of) a child's motorcycle that had recently been stolen in a domestic burglary. He claimed that he had bought this from some youths for £20.

He submitted that he could not be guilty of any s. 329 offence in relation to it because the burglar/thief (whoever he was) could not have not obtained any 'interest' in it within the meaning of s. 340(10)(a).

The short answer to that argument may be that s. 340(10)(a) does not purport to provide an exhaustive definition of when a person can obtain property. It merely provides that a person does obtain property if he obtains an interest in it (thus silencing any possible argument that obtaining a mere interest does not suffice). It does not use the formula, 'if, but only if', which ought to have been used if it was meant to provide an exhaustive definition.

The court in Rose expressly left that point open, however, and rejected W's submission on the basis that a thief does, in fact, acquire some limited interest in the property he has stolen: see Costello v Chief Constable of Derbyshire Constabulary [2001] EWCA Civ 381, [2001] 1 WLR 1437. Richards LJ said:

The stolen motorcycle was property obtained by the thief, within the meaning of s. 340(10)(a), since the thief obtained a right to possession of it and, by s. 340(10)(d), an interest includes a right to possession; and it was self-evidently obtained as a result of or in connection with criminal conduct. It therefore constituted the thief's benefit from criminal conduct. It follows that the first part of the definition of criminal property, in s. 340(3)(a), was satisfied. The second part, in s. 340(3)(b), depended on whether the appellant knew or suspected that it constituted or represented such a benefit. That was an issue that the recorder properly left to the jury and that the jury decided against the appellant.

B23 Immigration Offences

B23.45 Offences under the Immigration, Asylum and Nationality Act 2006

The Immigration, Asylum and Nationality Act 2006 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008 (SI 2008 No. 310) inter alia brings the following provisions of the Act into force, on 29 February 2008: ss. 15 to 18 (penalty for employment of adult subject to immigration control), 21 and 22 (offence of so employing adult), 24 (temporary admission), 26 (repeal of Asylum and Immigration Act 1996, ss. 8 and 8A) and 50(3)(a) (repeal of Immigration Act 1971, s. 31A) and the relevant repeals in sch. 3.

PART D PROCEDURE

D2 The Decision to Prosecute and Diversion

D2.3 Sufficient Evidence to Charge

G v Chief Constable of West Yorkshire Police [2006] EWHC 3485 (Admin) was reversed by the Court of Appeal (Civil Division) in R (G) v Chief Constable of West Yorkshire Police [2008] EWCA Civ 28. The court held that, where there appears to be sufficient evidence to justify charging a suspect, the custody officer must at once decide which of the four alternative steps specified in the PACE 1984, s. 37(7) should be followed. Nothing in the PACE 1984 enables a custody officer to extend the detention of a suspect while advice is sought from the CPS as to the most suitable charge.

D2.33 Juveniles: Final warnings and Reprimands

In R (D) v Metropolitan Police Commissioner [2008] EWHC 442 (Admin), the Divisional Court rejected complaints that the prosecution of juvenile offenders amounted to an abuse of process because of a supposed 'reasonable expectation' that they would instead escape with a final warning.

The claimants, one of whom had previously been reprimanded, deliberately damaged four cars by jumping on them, causing damage initially estimated at £4,000 (later revised to £2,300). This would ordinarily have merited a final warning in accordance with ACPO gravity factor matrix but, without referring the matter to the CPS, the police decided that the youths should be charged with criminal damage. This decision was influenced by the prevalence of such crimes in the area, the fact that they had acted in a group, the value of the damage, their lack of remorse and the fact that the damage had been caused deliberately. To that end it was treated as a level 4 offence when it should strictly speaking have been classed only as a level 2 or at most a level 3 offence. The Divisional Court rejected a submission that this upgrading was impermissible:

It is true that the sergeant was in error when he moved the offences up from gravity score 2 to gravity score 4. The Guidance, as supplemented by the Circular, states that the gravity score "can only be up graded or down graded by one point irrespective of the number of factors present." Criminal damage simpliciter has a gravity score of 2 and therefore, even with multiple aggravating features, a particular case cannot rise above point 3. However, this by itself does not lead inexorably to the conclusion that the decision cannot survive scrutiny in this court. . . .

It was entirely reasonable for the sergeant to act on the information received from PC Haslett, including his estimate of damage to a total value of about £4,000. The fact that the eventual charges put the total damage at a total of £2,300 is nothing to the point. I reject the submission that Sergeant Page was under a duty to defer a decision until he had seen photographs or valuation evidence. That submission is symptomatic of submissions often advanced in cases such as this, whereby it is contended that there was only one way for the police to deal with the matter, namely that postulated on behalf of the claimant. There are often other ways of approaching a matter and such attempts to stifle the discretion of police officers are to be deprecated.

When the case came to court, it was initially adjourned so that the CPS could consider whether final warnings would after all be more appropriate, and it seems that some suggestion may have been made to the effect that such an outcome would be recommended, but the CPS ultimately decided to proceed with the prosecution, and the Divisional Court rejected arguments that this amounted to an abuse of process. In particular, the court did not accept that any firm representation had ever been made to the effect that a final warning would be given.

See also R (A) v South Yorkshire Police (2007) 171 JP 465, [2007] EWHC 1261 (Admin), [2007] All ER (D) 233 (Jul)

D3 Courts, Judges and Parties

D3.84 Open Justice: Juveniles

Where an adult defendant (even one in the public eye) is convicted of an offence, the embarrassment that might be caused to his children cannot ordinarily be any reason to prevent him from being named or identified by the media in reports of the case: C v CPS [2008] EWHC 148 (Admin). If, exceptionally, a court does consider making such an order (under the CYPA 1933, s. 39(5)), the court should generally ask members of the press whether they wish to make any representations. Orders under s. 39(5) should not be made as a matter of routine, and require a careful balance of matters relating to the public interest.

A defendant should consider the very high hurdles facing him in applying for an order under s. 39(5) of the 1933 Act. If a defendant wrongly seeks to invoke such an order and costs are incurred as a result, there is no reason why that defendant should not pay those costs.

D8 Assets Recovery

D8.2 Civil Procedures: Recovery Orders and Taxation

A civil recovery action cannot be sustained solely on the basis that a respondent has no identifiable lawful income to explain his wealth or lifestyle: the ARA must at least establish a good arguable case that a certain kind of criminal conduct occurred and that the property was obtained though such conduct: see R (Director of the ARA) v Green [2005] EWHC 3168; Director of the ARA v Szepietowski [2007] EWCA Civ 766; and most recently Director of the ARA v Olupitan [2008] EWCA Civ 104.

A similar rule now appears to apply in prosecution for money laundering offences under part 7 of the Proceeds of Crime Act 2002. See Prosecution Appeal No 11 of 2007, noted in last month's update at B22.3.

See also Director of the ARA v Virtosu [2008] EWHC 149 (QB) (noted in this update at F11.6)

D11 The Indictment

D11.4 Requirement that an Indictment be Signed: Procedural Breaches

The decision of the Court of Appeal in Clarke [2006] EWCA Crim 1196 was reversed, and Morais [1988] 3 All ER 161 once again applied, by the House of Lords in Clarke [2008] UKHL 8. Their lordships reasserted the principle that, unless and until an indictment is signed by the proper officer, there can be no valid trial on indictment. Nor can the 'somewhat adventitious addition of a signature on the indictment at the eleventh hour throw a blanket of legality over the invalid proceedings already conducted'.

As for the 'sea change' supposedly wrought by Sekhon [2003] 3 All ER 508, Soneji [2006] 1 AC 340 and Ashton [2007] 1 WLR 181, Lord Bingham said:

The decisions in R v Sekhon and R v Soneji are valuable and salutary, but the effect of the sea-change which they wrought has been exaggerated and they do not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect. This indeed the Court of Appeal recognised in R v Ashton, as earlier in R v Sekhon. I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. As is evident from the passage of Lord Lane's judgment from page 14 of the report quoted in paragraph 9 above, but not quoted in R v Ashton, a passage carrying all the authority of that distinguished judge, the court was not focusing on the mandatory/directory issue but was asking itself the right question. Pill LJ, although a party to the earlier decision, erred in thinking otherwise. I can see no basis upon which the court in R v Ashton could properly depart from the precedent in R v Morais, which was clearly binding on it. The court in the present case was, as a result, placed in a difficult position. The decision in R v Morais was, in any event, correct.

D14 Trial on Indictment: General Matters

D14.84 Presence of Accused at Trial

Jones [2003] 1 AC 1, [2002] UKHL 5 was applied in Taylor [2008] All ER (D) 272 (Feb), which the Court of Appeal held to be 'one of those rare cases' in which the judge was right to allow the prosecution to continue to adduce evidence in the defendant's absence.

D15 Trial on Indictment: The Prosecution Case

D15.70 Appeals by the Prosecution Against Adverse Rulings

Although the CJA 2003, ss. 62 to 67 (concerning prosecution appeals against qualifying evidentiary rulings) have yet to be brought into force, a judge's ruling on an evidential issue (eg, as to the inadmissibility of prosecution evidence) may nevertheless be a 'ruling which relates to one or more offences included in the indictment' so as to allow a prosecution appeal under the CJA 2003, ss. 58 to 61, which are in force. Prosecution Appeal (No. 2 of 2008); Y [2008] EWCA Crim 10, which was noted in last month's update, was followed in Prosecution Appeal (No. 31 of 2007); R [2008] EWCA Crim 370, in which the prosecution relied on s. 58 to challenge a judge's ruling which prevented them from calling expert evidence because of their failure to comply with the disclosure requirements of the CrimPR, r. 24.1. The prosecution agreed that if the appeal was rejected or abandoned the defendant would have to be acquitted; but he objected on the basis that the agreement was unjustified. The evidence was useful but not vital to the prosecution. There might be a case to answer even without it. The judge's ruling would have fallen within the scope of s. 62, had that provision been in force, but it could not properly be described as a 'terminating ruling' of the kind to which s. 58 applies.

The Court of Appeal rejected this objection. The Crown is to be trusted to act conscientiously and competently in the public interest in determining whether to make an acquittal agreement, which is the price it must pay for exercising its right of appeal under s. 58. The court has no power to decide whether an acquittal agreement is objectively justified on the facts of the case.

This was ultimately of no help to the prosecution, because the court then held that the judge had been fully entitled to rule as he did.

See also Prosecution Appeal (No 34 of 2007); O [2008] EWCA Crim 463.

D31 Extradition

D31.3 Part 1 Warrants

In Pilecki v Circuit Court of Legnica, Poland [2008] UKHL 7, the appellant had been convicted of a number of offences in Poland and had been sentenced to various terms of imprisonment. Some of the individual sentences were for periods of more than four months (and so could properly be subject to European Arrest Warrants) but others were for lesser periods. The Polish court had aggregated those shorter sentences for the purposes of its final judgment. In each case the aggregated sentence was for more than four months.

The question arose whether the aggregated sentences qualified, for the purposes of the Extradition Act 2003 as sentences of four months or more. The House of Lords held that they did. In cases where the fugitive has already been convicted, it is the length of the sentence alone that determines whether or not it falls within the scope of a European Arrest Warrant. No enquiry need be made in the requested state as to how an aggregate sentence was arrived at.

PART E SENTENCING

E21 Confiscation Orders

E21.18 Determination of Recoverable Amount

In Rose [2008] EWCA Crim 239, police officers executed a search warrant at R's premises and discovered four items of stolen property, namely, a trailer, its contents, a horse trailer and an agricultural vehicle. R was convicted of three counts of possession of criminal property, contrary to the Proceeds of Crime Act 2002, s. 329(1)(c). In confiscation proceedings the prosecution contended that R had benefited to the total of the agreed values of the property found in his possession, namely, £27,272.50. R submitted that the value of the property restored to its true owners should not be included in the calculation of benefit and the benefit figure, so that the correct figure was £8,272.50. In the event, a confiscation order was made in the sum of £8,272.50; but the prosecution successfully appealed against that order, pursuant to s. 31 of the Act, and an order in the full sum of £27,272.50 was substituted.

Having considered a range of authorities including Smith (David Cadman) [2002] 1 WLR 54, Wilkes [2003] EWCA Crim 848, [2003] 2 Cr App R (S) 625, and Ascroft [2003] EWCA Crim 2365, [2004] 1 Cr App R (S) 56, the Court of Appeal confirmed that where criminal property has passed through a defendant's hands, the benefit to him is the total amount involved (assessed on the basis of its market value, i.e., what it would have cost him to obtain the property legitimately). It is not confined to any such property which has been retained by him. Where the proceeds have been spent, a confiscation order may be made against other assets. If stolen property has been restored to its true owner, that is also irrelevant. The confiscation scheme is punitive and not merely compensatory.

(For other aspects of this case, see B22.3.)

E22 Recommendation for Deportation

Chahal v United Kingdom (Application 22414/93) 1 BHRC 405 was applied by the European Court of Human Rights (Grand Chamber) in Saadi v Italy ECHR App No 37201/06. Neither case directly affects the question whether a recommendation for deportation is made on conviction, but it does confirm that the actual decision to deport in accordance with such a recommendation may be frustrated under the ECHR, Article 3, if deportation would expose the deportee to a real risk of ill-treatment in his own country. The court rejected submissions made by the UK Government (as intervener) to the effect that any risk to the deportee should be balanced by consideration of the risks posed to the community should he be allowed to remain. The safety or welfare of the community appears to count for nothing in this context.

PART F EVIDENCE

F11 Admissibility of Previous Verdicts

F11.6 Foreign Convictions

In recent years the rule in Hollington v F Hewthorn & Co Ltd [1943] 1 KB 587, has suffered a fate akin to a death of a thousand cuts. Although never entirely abrogated, its ambit has gradually been pruned by statutory provisions such as the Civil Evidence Act 1968, s. 11 and the PACE 1984, s. 74. Although neither of those provisions gave foreign convictions any evidential status, the Court of Appeal in Kordasinski [2006] EWCA Crim 2984, [2007] 1 Cr App R 238 controversially held that such convictions may now be admissible as evidence of bad character under the CJA 2003. In Director of the ARA v Virtosu [2008] EWHC 149 (QB), the High Court has now pruned the rule again, by holding that a foreign conviction may now be admissible in civil recovery proceedings under the Proceeds of Crime Act 2002 as evidence to prove that a defendant has benefited from crime abroad. Tugendhat J said (at [43]):

In my judgment, in a case where a defendant to civil recovery proceedings has been convicted, Parliament cannot have intended that a conviction in a court outside the United Kingdom should be treated as irrelevant to prove the matters required by [the PCA 2002] s. 241. Such a conviction would have established the identical matter required to be established by s. 241(2)(a) and (3)(a). And where, as here, the foreign judgment is not simply a certificate in the form that would be adduced under the Civil Evidence Act 1968 s. 11, but contains a summary of the matters found proved by the foreign court, then that is evidence of the truth of those facts, and of such conduct being unlawful under the criminal law of the country where the conviction was entered.

F12 Evidence of Bad Character of Accused

F12.20 Evidence of Bad Character to Prove Guilt or Untruthfulness

Hanson [2005] 2 Cr App R 21, Beverley [2006] All ER (D) 49 (May), and Renda [2005] EWCA Crim 2862 were applied in Koc [2008] EWCA Crim 77.

Hanson was also considered in Lamaletie [2008] EWCA Crim 314 (see F12.42 below). The court observed in that case that evidence of convictions may sometimes be admissible as proof of disposition, even when details of the facts behind those convictions are missing. Underhill J said:

There is no rule that full details are necessary in every case where the Crown seeks to rely on previous convictions as demonstrating propensity: see R v Hanson . . . at paras 12 and 17. We certainly accept that it is good practice for such details to be available in case they are required; but whether they are necessary in order for the jury fairly to assess their relevance to propensity will depend on the facts of the particular case. In the present case it is at least strongly arguable that the jury could draw a relevant conclusion from the simple fact, without more, that Lamaletie had no fewer than six convictions for offences of violence over a period of as many years.

F12.33 Evidence of Bad Character Adduced by Co-Accused

In Jarvis [2008] EWCA Crim 488, J and a colleague (P) were jointly charged with the theft of jewellery that had been entrusted to their care. Each blamed the other; and in his evidence J also accused the owner of the jewellery, V, of inciting him to make a false insurance claim in respect of it. The prosecution were then granted permission to cross-examine J as to his alleged misconduct involving unauthorised expenses when he was the director of a company called London Goldsmiths. This was under the CJA 2003, s. 101(1)(g), on the basis of his attack on V; but for some reason the prosecution never took advantage of that, and a question then arose, late in the trial, as to whether P could do so under s. 101(1)(e), on the basis that it showed J to be a liar, and was thus relevant to his credibility as a witness. This was an important issue as between J and P because of the cut-throat defences being run.

J was convicted and appealed on the basis (inter alia) that the London Goldsmiths allegations did not demonstrate any propensity on his part to be untruthful in the witness box. The Court of Appeal rejected this argument. Hughes LJ said (at [30] to [31]):

We are quite satisfied that there is no warrant in the statute for restricting bad character evidence going to a propensity to untruthfulness to evidence of past untruthfulness as a witness. That would very largely and quite unwarrantably restrict the admission of very relevant evidence. If a witness or defendant in the case has a proven history of untruthful dealing with other people, serial lying and the like, that is plainly relevant and ought to be admitted, so long, of course, as it has substantial probative value on an issue arising between the relevant parties . . .

We are absolutely satisfied that the London Goldsmiths' evidence did come within gateway (e). Whether it merely went to untruthfulness or not, it did have substantial probative value on the issue of which of the only two candidates had retained — and inferentially stolen — the missing jewellery. Further, the London Goldsmiths' evidence was evidence of a propensity or tendency to be untruthful and the case satisfied the additional hurdle placed by section 104(1) because the appellant's case undermined that of the co accused.

F12.42 Attack on a Another Person's Character

The ambit and effect of the CJA 2003, s. 101(1)(g) was examined in Lamaletie [2008] EWCA Crim 314. The first issue that arose on appeal would be familiar to anyone versed in the workings of the Criminal Evidence Act 1898, s. 1(3)(ii) (or s. 1(f)(ii), as it used to be known). If the defendant runs a defence of self-defence, and supports this in his evidence and/or in a police interview with an account of how the complainant attacked him first, does that necessarily amount to 'an attack on another person's character' within the meaning of ss. 101(1)(g) and 106? The court's affirmative answer to that question arguably confirms the view expressed in Blackstone's Criminal Practice 2008, at F12.43, which is that 's. 101(1)(g) is so widely drawn as to compound all the unfairness of the old law'. The fact that the defendant is defending himself by presenting a version of the events that reflects badly on his accusers (or anyone else) is, it seems, enough to trigger potentially damaging revelations as to his character and criminal record. The court did however observe that the trial judge has a discretion in such cases:

It was of course open to the Recorder to take into account, as under the old law, the fact that the allegation was made in the context of raising a defence of self-defence as one of the considerations relevant to the exercise of his discretion under s. 101 (3).

The defendant's position is much worse under s. 101(1)(g) than it ever was under the old law, because he need not testify in order to 'lose his shield' nor need he even call evidence repeating any attack previously made on the other person in interview. The prosecution may do that (see Renda [2005] EWCA Crim 2862) subject only to what was said in Nelson [2006] EWCA Crim 3412.

A second point that arose in Lamaletie (also familiar to students of the old s. 1(f)(ii)) was that, although the Recorder had agreed to admit the bad character evidence on the basis that its relevance would be limited to the issue of credibility, the evidence adduced appeared primarily to be evidence of a propensity to commit the very kind of violent offence of which he was charged. The appellant complained that this was 'propensity evidence by the back door'. The court, however, was not troubled by this. The rationale behind s. 101(1)(g) is that the defendant's character may need to be known in order that the court can properly assess his credibility relative to that of the person whose character he has attacked, but as Lord Woolf CJ explained in Highton [2005] EWCA Crim 1985, [2006] 1 Cr App R 7:

A distinction must be drawn between the admissibility of evidence of bad character, which depends upon it getting through one of the gateways, and the use to which it may be put once it is admitted. The use to which it may be put depends upon the matters to which it is relevant rather than upon the gateway through which it was admitted. It is true that the reasoning that leads to the admission of evidence under gateway (d) may also determine the matters to which the evidence is relevant or primarily relevant once admitted. That is not true, however, of all the gateways. In the case of gateway (g), for example, admissibility depends on the defendant having made an attack on another person's character, but once the evidence is admitted, it may, depending on the particular facts, be relevant not only to credibility but also to propensity to commit offences of the kind with which the defendant is charged.

Moreover, a history of violence is not necessarily irrelevant to a defendant's credibility when he claims that he was acting in self-defence. The first appellant relied on Meyer [2006] EWCA Crim 1126, but the court 'could not find in Meyer any statement of general principle that a history of offences of violence was incapable of being treated as relevant to credibility'.

F18 Identification Evidence

F18.3 Identification Evidence and Identification Issues

Courtnell [1990] Crim LR 115 was considered in Panesar [2007] EWCA Crim 2510, where the court once again warned of the dangers of confusing a jury by directing them on identification issues when the real issue is one of witness credibility and veracity.

APPENDICES

Appendix 8 Sentencing Guidelines Council Guidelines

The SGC has issued new definitive guidelines covering assault and other offences against the person. Guidelines have also been issued covering assaults on children and cruelty to a child. They apply to offenders sentenced after 3 March 2008 who are aged 18 or over. The Guidelines can be consulted at www.sentencing-guidelines.gov.uk.

NEW LEGISLATION

Serious Crime Act 2007 (Commencement No. 1) Order 2008 (SI 2008 No. 219)

This Order brings the following provisions of the Act into force:

on 15 February 2008, ss. 85 (disclosure of information by Revenue and Customs) and 88 (extension of investigatory powers of Revenue and Customs) and sch. 12 and related repeals;
on 1 March 2008, the following provisions:

s. 24(9) and (10) (serious crime prevention order appeals);
s. 37 (in part) and sch. 2, paras 4 and 18 (functions of applicant authorities);
s. 40(1), (2) and (4) (costs in relation to authorised monitors – order-making powers);
s. 68(8) (interpretation of terms relating to disclosure of information to prevent fraud);
s. 71(1), (2), (4) and (5) (code of practice for disclosure of information to prevent fraud);
s. 73 (in part) and, for limited purposes, sch. 7, paras. 1, 2, 4 and 6 (data sharing);
s. 74(1), (2)(d) and (g) and (3) (abolition of Assets Recovery Agency – order-making powers).

Controlled Drugs (Drug Precursors) (Intra-Community Trade) Regulations 2008 (SI 2008 No. 295)

These Regulations revoke and replace the Controlled Drugs (Substances Useful for Manufacture) (Intra-Community Trade) Regulations 1993 with effect from 7 March 2008 and implement Council Regulation (EC) 273/2004.

Controlled Drugs (Drug Precursors) (Community External Trade) Regulations 2008 (SI 2008 No. 296)

These Regulations revoke and replace the Controlled Drugs (Substances Useful for Manufacture) Regulations 1991 with effect from 7 March 2008 and implement Council Regulation (EC) 111/2005.

Proceeds of Crime Act 2002 (Investigations in different parts of the United Kingdom) (Amendment) Order 2008 (SI 2008 No. 298)

This Order amends the principal Order of 2003 (SI 2003 No. 425) to take account of the abolition of the Assets Recovery Agency.

Proceeds of Crime Act 2002 (External Requests and Orders) (Amendment) Order 2008 (SI 2008 No. 302)

This Order amends the principal Order of 2005 (SI 2005 No. 3181) to take account of the abolition of the Assets Recovery Agency.

The Serious Organised Crime and Police Act 2005 (Commencement No. 12) Order 2008 (SI 2008 No. 306)

This Order brings into force, on 29 February 2008, s. 163(2) of the Act insofar as it inserts a new s. 113B into the Police Act 1997 (enhanced criminal record certificates).

UK Borders Act 2007 (Commencement No. 2 and Transitional Provisions) Order 2008 (SI 2008 No. 309)

This Order brings into force the following provisions of the Act:

on 29 February 2008, ss. 27 (employment: arrest) and 28 (employment: search for personnel records);
on 31 March 2008, ss. 25 (forfeiture of detained property) and 44 to 47 (search and seizure: nationality documents);
on 1 April 2008, ss. 26 (disposal of property) and 48 to 56 (Border and Immigration Inspectorate – some are in force for limited purposes only) and the schedule.

Immigration, Asylum and Nationality Act 2006 (Commencement No. 8 and Transitional and Saving Provisions) Order 2008 (SI 2008 No. 310)

This Order brings provisions of the Act into force as follows:

on 29 February 2008, ss. 15 to 18 (penalty for employment of adult subject to immigration control), 21 and 22 (offence of so employing adult), 24 (temporary admission), 26 (repeal of Asylum and Immigration Act 1996, ss. 8 and 8A) and 50(3)(a) (repeal of Immigration Act 1971, s. 31A) and the relevant repeals in sch. 3;
on 1 April 2008, ss. 4 (entry clearance), 33 (freight information – for limited purposes only) and 47 (removal: statutorily extended leave).

Police and Justice Act 2006 (Commencement No. 7 and Savings Provision) Order 2008 (SI 2008 No. 311)

This Order brings into force, on 14 March 2008, certain entries in sch. 2 to the Act (paras. 9 and 10) which relate to police authorities.

Corporate Manslaughter and Corporate Homicide Act 2007 (Amendment of Schedule 1) Order 2008 (SI 2008 No. 396)

This Order amends sch. 1 to the Act (which lists the government departments that can be guilty of corporate mansluaghter) so as to take account of various departmental reorganisations.

Corporate Manslaughter and Corporate Homicide Act 2007 (Commencement No. 1) Order 2008 (SI 2008 No. 401)

This Order brings all of the provisions of the Act into force on 6 April 2008 with the exception of ss. 2(1)(d) (duty owed to a person in custody etc. to be a relevant duty of care) and 10 (power to order conviction etc. to be publicised). Until s. 2(1)(d) is brought into force, s. 20 (abolition of the common-law offence of manslaughter by gross negligence in its application to corporations and other organisations) does not apply to an offence committed by the breach of any such duty as is referred to in s. 2(1)(d) and other consequential modifications apply.

Serious Crime Act 2007 (Disclosure of Information by Revenue and Customs) Order 2008 (SI 2008 No. 403)

This Order specifes the Chief Bureau Officer, the bureau legal officer and certain appointed persons as the persons in the Criminal Assets Bureau in Ireland to whom disclosure of information can be given under the Serious Crime Act 2007, s. 85.

Welfare Reform Act 2007 (Commencement No. 5) Order 2008 (SI 2008 No. 411)

Among the provisions brought into force on 7 April 2008 by this Order are ss. 46 and 47 of the Act. These increase the powers of local authorities to investigate and prosecute benefit fraud.

Social Security (Local Authority Investigations and Prosecutions) Regulations 2008 (SI 2008 No. 463)

These Regulations govern and restrict the extended powers of local authorities to investigate and prosecute benefit fraud under the Social Security Act 1992, ss. 110A and 116A.

Offender Management Act 2007 (Commencement No. 2 and Transitional Provision) Order 2008 (SI 2008 No. 504)

This Order brings into force the following provisions of the Act:

on 1 March 2008, ss. 5 and 11(2) and schs. 1 and 2 (establishment of probabtion trusts and transfers of property and staff);
on 1 April 2008, ss. 3(6), 7(1) and (2), 9, 12(1) and (2), 13, 14, 21, 22, 23, 24 and specified provisions of schs. 3, 4 and 5 relating thereto – the implemented provisions include those relating to escape from prison and prison security;
on 1 April 2008 but in Humberside, Merseyside, West Mercia, Dyfed Powys and South Wales police areas only, ss. 1, 2, 3(1) to (5) and (7), 4, 6, 7(3), 8, 10, 11(1), 12(3), 15 and specified provisions of sch. 5 relating thereto.

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