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Blackstone's Criminal Practice 2009

Updates

May 2008

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Blackstone's Criminal Practice 2009

May 2008

May 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 May update primarily covers developments occurring or reported in April 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

A3 General Defences

A3.37 Mistake of Fact and Self-defence

Although a mistaken belief may support a plea of self-defence in criminal proceedings, even where based on a stupid or unreasonable mistake, the position in civil proceedings is quite different. A defendant who has been acquitted in criminal proceedings may face civil proceedings to which he would have no effective defence. A defence based on non-existent facts that were honestly but unreasonably believed to exist must fail, even if the defendant (or his employee etc.) has already been tried for and acquitted of a criminal assault or homicide. As Lord Scott explained in Ashley v Chief Constable of Sussex Police [2008] UKHL 25, where the deceased had been shot in error by a police officer who was acquitted of murder and manslaughter:

[The officer] was entitled to be acquitted because the prosecution were unable to lead evidence probative of a rebuttal of his assertion that he had believed himself to be in imminent danger of a deadly attack and in that belief had shot James Ashley in self-defence. But the criteria for self-defence that constitute an answer to a criminal charge of assault will not necessarily suffice as an answer in a civil claim for tortious assault. Honest belief in the need for self-defence is not enough. In a civil case the belief must at least be reasonably held and, it may be, even that would not suffice to establish the defence. And in a civil case the onus of establishing the requisite criteria rests on the defendant. Accordingly, an acquittal on a criminal charge of assault based on an assertion by the defendant of the need for self-defence does not mean that the defendant did not unlawfully assault the victim. It does mean that the prosecution cannot prove, as they must prove if the defendant is to be convicted, that he did. Both for that reason and because there is a difference between the criteria for self-defence required in a criminal trial and the criteria for that defence required in a civil trial, an acquittal in a criminal trial does not demand a verdict for the defendant in a civil trial.

A3.39 Infancy

As far as children between the ages of 10 and 14 are concerned T [2008] EWCA Crim 815 confirms that the Crime and Disorder Act 1998, s. 34, abolished the entire concept of a doli incapax defence (and not merely the presumption of it) in respect of children who are over the age of 10.

Part B Offences

B3 Sexual Offences

B3.81 Child Sex Offences Committed by Children or Young Persons: Sentencing

The offence contrary to the Sexual Offences Act 2003, s. 13 is not a serious specified offence for the purposes of the dangerousness provisions of the Criminal Justice Act 2003, even where equivalent offences committed by an adult would be: B [2008] All ER (D) 62 (Apr).

B3.112 Familial Child Sex Offences

The Criminal Justice and Immigration Act 2008 includes provisions (sch. 15, paras. 3 and 4) which amend the Sexual Offences Act 2003, ss. 27(1)(b) and 29(1)(b) so as to add references to the Adoption Act 1976, s. 39. The amendments have effect from 8 July 2008.

B3.239 Sex with an Adult Relative: Penetration

The Criminal Justice and Immigration Act 2008 includes a provision (sch. 15, para. 5) which amends the Sexual Offences Act 2003, s. 64 so as to make provision for relationships arising by virtue of adoption. The amendment has effect from 8 July 2008.

B3.243 Sex with an Adult Relative: Consenting to Penetration

The Criminal Justice and Immigration Act 2008 includes a provision (sch. 15, para. 6) which amends the Sexual Offences Act 2003, s. 65 so as to make provision for relationships arising by virtue of adoption. The amendment has effect from 8 July 2008.

B3.274/278 Indecent Photographs of Children

The Criminal Justice and Immigration Act 2008 includes a provision (sch. 26, para. 24) which corrects a long-standing error in the Criminal Justice Act 1988, s. 160. The amendment has effect from 8 July 2008. The opening words of s. 160 (omitted from Blackstone's Criminal Practice 2008) will now read 'Subject to section 160A, it is an offence'.

Section 69 of the 2008 Act, also in force from 8 July 2008, amends the Protection of Children Act 1978. Section 1B(1)(b) of the 1978 Act is amended so as to add a reference to the Secret Intelligence Service. Section 7(4) (meaning of photograph) is amended by the insertion of s. 7(4A) which provides as follows:

(4A) References to a photograph also include . . .

(a) a tracing or other image, whether made by electronic or other means (of whatever nature). . .

(i) which is not itself a photograph or pseudo-photograph, but
(ii) which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both); and

(b) data stored on a computer disc or by other electronic means which is capable of conversion into an image within paragraph (a);

and subsection (8) applies in relation to such an image as it applies in relation to a pseudo-photograph

Section 7(9)(b) (meaning of indecent pseudo-photograph) is also amended so that the reference to 'a pseudo-photograph' is replaced by a reference to 'an indecent pseudo-photograph'.

B4 Theft, Handling and Related Offences

B4.38 Intention Permanently to Deprive

Warner (1970) 55 Cr App Rep 93 and Lloyd [1985] QB 829 were amongst the cases considered by the Court of Appeal in Mitchell [2008] All ER (D) 109 (Apr), in which the court once again warned that the Theft Act 1968, s. 6(1), imposes only very limited qualifications on the basic principle that theft requires an intent to permanently deprive the owner of his property.

In this case, D violently seized P's car in order to escape from the police. He smashed the windows and dragged her out, and then made off in the car before abandoning it at the roadside and taking another vehicle. The court observed that he could properly have been charged with affray, assault, and criminal damage, as well as with taking a conveyance, but not with theft or robbery, because there was no evidence of any intent to deprive P of it permanently (in contrast to his treatment of another car, which he set fire to and destroyed).

With respect, robbery of the car may indeed have been the wrong charge in this case, but given the serious and frightening nature of the offence, a charge of robbery of the fuel consumed in his escape might not have been entirely excessive or inappropriate.

B11 Offences Affecting Public Order

B11.187 Using Words or Behaviour or Displaying Written Material Stirring Up Religious Hatred

The Criminal Justice and Immigration Act 2008 includes provisions amending the Public Order Act 1986, part 3A (hatred against person on religious grounds). Paragraphs 6(3) and 12 to 16 of sch. 16, and certain related repeals, are brought into force on Royal Assent (8 May 2008). These provisions amend the Public Order Act 1986, ss. 29B, 29H, 29I, 29K and 29L and insert a new s. 29JA (which covers the protection of freedom of expression in relation to sexual orientation).

B14 Offences Against the Administration of Justice

B14.85 Contempt: Misbehaviour in Court

In Baker [2008] EWCA Crim 334 the court upheld a one-year sentence for contempt of court imposed on a defendant who in order to manipulate the jury had wilfully interrupted the trial judge's summing up after having previously been warned following an earlier outburst. The sentence was to run consecutively to that imposed following his conviction for drug trafficking offences. The court observed that judges must protect the trial process from such abuses. The system of criminal justice would quickly break down if it was thought that no action would be taken for manipulative or determined conduct of that sort.

B19 Offences Involving Writing, Speech or Publication

B19.7 Blasphemy and Blasphemous Libel

The Criminal Justice and Immigration Act 2008, s. 79, which has effect from 8 July 2008, abolishes the common-law offences of blasphemy and blasphemous libel and makes consequential amendments.

B21 Dangerous Dogs

B21.8 Control of Guard Dogs

Before any liability can be imposed under the Guard Dogs Act 1975, it must be proved or admitted that the dog was being used to protect—(a) premises; or (b) property kept on the premises; or (c) a person guarding the premises or such property.' (s. 7). The fact that an aggressive Alsatian dog was kept on commercial premises may not of itself be sufficient proof of that if there is other evidence to suggest it was in fact a pet, even if it is admitted that it had developed a 'guard dog's instinct': Kelly v DPP [2008] EWHC 597 (Admin).

Part D Procedure

D1 Powers of Investigation

D1.99 Access to and Retention of Seized Property

Gough v Chief Constable of West Midlands Police [2004] EWCA Civ 206 was considered in Chief Constable of Wiltshire Constabulary v McDonagh [2008] EWHC 654 (QB). Plender J rejected the argument that requirement of necessity imposed by the Police and Criminal Evidence Act 1984, s. 22(1), was inapplicable to items seized and retained under s. 8(2) of that Act.

D6 Classification of Offences and Determining Mode of Trial

D6.41 Effect of the Criminal Justice Act 2003 on the Variation of Mode of Trial

The Criminal Justice and Immigration Act 2008, s. 53 and sch. 13, make a series of minor amendments to the Criminal Justice Act 203, sch. 3. These amendments, together with related repeals and a related minor amendment, came into force on Royal Assent (8 May 2008), although none of the provisions of sch. 3 so amended are themselves in force.

D12 Arraignment and Pleas

D12.53 Plea Bargaining: Judicial Indications of Sentence

Goodyear [2005] 1 WLR 2532 and Kulah [2007] EWCA Crim 1701 (see the September 2007 update) were considered in Seddon [2007] EWCA Crim 3022. Hughes LJ offered this summary of the current law at [12]:

If the dangerousness condition (that is to say the two stage test of significant risk of further specified offences and significant risk of serious harm to the public, defined as death or serious personal injury, physical or psychological) is met then a sentence of imprisonment for public protection or, as the case may be, an extended sentence is mandatory. The terms of section 225(3) and the equivalent terms of section 227(2) use, quite deliberately, the word 'must'.
Goodyear did not address the question which arises where there may have to be an indefinite or extended sentence under the dangerousness provisions of Chapter 5 of Part 12 of the Criminal Justice Act 2003. Goodyear was argued before those provisions came into force, albeit the judgment was delivered shortly after they had come into force. The point now under consideration was not argued at all and accordingly is not addressed in the judgments in Goodyear.
When the judge is asked for a Goodyear indication in the case of a specified offence, where in consequence a sentence of imprisonment for public protection or an extended sentence under Chapter 5 of the Criminal Justice Act 2003 will have to be considered, the relevant law is contained in Kulah, in particular at paragraph 30. The effect of that judgment is that judges should be cautious about giving a Goodyear indication where the question of whether the defendant meets the dangerousness test or not has yet to be determined. We readily understand that there are practical difficulties in doing so, especially since ordinarily reports upon the defendant are unlikely to be available at that stage, although that is a problem not confined to potential IPP or extended sentence cases.

After quoting from Kulah Hughes LJ continued:

If a Goodyear indication has been given by the same or, for that matter, by a different judge, having made on sufficient material a determination of whether the defendant is dangerous or not, then no doubt the sentencing judge will regard that question as having been resolved once and for all on the previous occasion.
But if, as is more likely to happen, the assessment of dangerousness falls to be dealt with at the second hearing, the judge at that hearing cannot shirk it. If the evidence should drive him to the conclusion that the dangerousness condition is met, the mandatory sentence, whether it be imprisonment for public protection or an extended sentence, must be passed notwithstanding any previous indication. The indication, in short, cannot relieve the judge of the statutory obligation to pass the indefinite or extended sentence if the statutory conditions for doing so are met. Indeed, if the judge were to neglect that statutory obligation, the Attorney General would in any indictable-only or otherwise prescribed offence have an unanswerable case for a reference and this court's powers on such a reference would require the passing of the necessary indefinite or extended sentence. Goodyear itself makes crystal clear at paragraph 71 that the Attorney General's right to refer a case and this court's power to act on it are unaffected by any indication given. For the record, several such cases have occurred - see for example Attorney General's Reference No 48 of 2006 (Farrow) [2006] EWCA Crim. 2396, [2007] 1 Cr. App. R. (S) 90, a decision of the Vice President of this Court. Attorney General's Reference No 112 of 2006 (Glover) [2007] 2 Cr. App. R. (S) 39, to which we have been referred helpfully, is simply another example.
We have also been referred to McDonald [2007] EWCA Crim 1117. In that case this court quashed a sentence of imprisonment for public protection on the basis that an indication had previously been given that the sentence would be a determinate one. However, that case was heard before Kulah. Moreover, it is quite clear that this point was neither argued nor addressed, nor was the attention of the court drawn to the mandatory nature of a sentence of imprisonment for public protection or an extended sentence if the statutory conditions for passing it are met. It may well be that the court on that occasion was in any event not satisfied that the finding of dangerousness there was justified. Whether that is so or not, it is clear that that case cannot justify the proposition that a Goodyear indication, even if given without the proper Kulah qualification, nevertheless prevents the sentencing judge from being bound by the statutory obligation to pass a sentence of imprisonment for public protection or extended sentence if the statutory conditions for doing so are met. We mention that case because at present it is noted in the current edition of Archbold at paragraph 5-308A as if it were authority for such a proposition.

D14 Trial on Indictment: General Matters

D14.113 Video-recorded Evidence-in-chief

Apart from a pilot exercise at two Crown Court centres, the introduction of pre-recorded video testimony for adult complainants in sex cases was implemented only in respect of investigations commencing on or after 1 September 2007, and then only in respect of trials on indictment. In R [2008] EWCA Crim 678 video-recorded evidence of an adult rape complainant was admitted by mistake at a trial in July 2004. On appeal, it was held that this administrative irregularity was not such as to affect the admissibility of the evidence (given that s. 27 was itself 'in force') nor did it prejudice the fairness of the trial.

The Youth Justice and Criminal Evidence Act 1999, s. 18(2), does not give the Secretary of State the power to implement legislation by specifying whether a particular court may use special measures or by withdrawing the applicability of such provisions at a particular court. It was intended only to ensure the courts have the requisite information before considering whether to make a special measures direction.

D31 Extradition

D31.12 Domestic Proceedings

The Divisional Court in R (Ahsan) v DPP [2008] EWHC 666 (Admin) considered a document entitled 'Guidance for handling criminal cases with concurrent jurisdiction between the United Kingdom and the United States of America' which was signed on 18 January 2007 by Her Majesty's Attorney General and the Attorney General of the United States of America (and also, for its application to Scotland, by the Lord Advocate).

The court held that this document is applicable only to cases which give rise to concurrent investigations after the date when it came into force. It does not require the prosecuting authorities of the UK and the USA immediately to reconsider cases which were by then already well beyond the early stages. The guidance is not retrospective in the sense of requiring past cases to be re-opened or otherwise affecting what has happened in the past.

Furthermore, the court held that the guidance applies only where a prosecutor in the UK is seized of a case as prosecutor. As Richards LJ explained:

'The guidance is concerned with cases that are the subject of separate investigations in the United Kingdom and the United States, in relation to which early contact between the authorities of the two countries would be beneficial. The provisions about consultation from the outset of investigations and about the sharing of information are all directed to situations where a case is being developed in each country. They relate to prosecutors who are involved in the handling of such a case. The mere fact of receipt of an extradition request does not engage them.'

Part E Sentencing

E4 Mandatory Life Sentences

E4.2 Murder: Schedule 21 Principles

The standard of proof to be applied when deciding whether to increase the normal 15 years starting point for a life sentence under sch. 21 is the criminal standard. A judge must be sure that the relevant aggravating features were present before so doing. Evidence suggesting, for example, that a murder may well have been sexually motivated is not enough: see Davis [2008] All ER (D) 284 (Apr).

E21 Confiscation Orders

E21.2 Human Rights Act 1998

Benjafield [2002] UKHL 2 was considered; and Geerings v Netherlands [2008] ECHR 30810/03 and Phillips v UK 11 BHRC 280 were applied in Briggs-Price [2008] EWCA Crim 146. But the court subsequently (at [2008] EWCA Crim 992) certified this question as raising a point of law of general public importance:

In determining the value of a defendant's proceeds of drug trafficking under s. 4 of the Drug Trafficking Act 1994, is it compatible with Art. 6(2) of the European Convention on Human Rights to take into account drug trafficking that the judge has found proved to the criminal standard on the evidence given at the defendant's trial, in circumstances where:

(a) such conduct was not itself the subject of a charge against the defendant and was not a necessary basis for the jury's verdict convicting him on the charge he did face at trial;

(b) the court has not made the assumptions contained in s. 4(3) in relation to the defendant's known property and expenditure; and

(c) there is no finding or allegation that the defendant has hidden assets.'

Part F EVIDENCE

F1 General Principles of Evidence

F1.13 Relevance in Drugs Cases

Ilomuanya [2005] EWCA Crim 58 was applied in Anderson [2008] EWCA Crim 837.

F7 Cross-examination and Re-examination

F7.2 Cross-examination by an Accused Person

The Criminal Justice and Immigration Act 2008 includes provisions amending the Youth Justice and Criminal Evidence Act 1999, s. 35 (protection of child complainants and other child witnesses from cross-examination by an accused in respect of specified offences). Paragraphs 35, 36, 38 and 39 of sch. 26 to the Act, which are in force from Royal Assent (8 May 2008), extend the protection to cover proceedings where the offence in question is one under the Sexual Offences Act 1956, ss. 33 to 36 or under certain enactments which were superseded by the Sexual Offences Act 2003.

F7.16 Protection for Complainants in Proceedings for Sexual Offences

The Criminal Justice and Immigration Act 2008 includes provisions amending the Youth Justice and Criminal Evidence Act 1999, s. 62 (meaning of sexual offence and other references to offences). Paragraphs 35 to 39 of sch. 26 to the Act, which are in force from Royal Assent (8 May 2008), extend the defintions in s. 62 (and thus extend the protection) to cover proceedings under certain enactments which were superseded by the Sexual Offences Act 2003.

F12 Evidence of Bad Character of Accused

F12.20 Criminal Justice Act 2003: Admissibility under s. 101(1)(d)

In McKenzie [2008] EWCA Crim 758, the Court of Appeal considered the use of 'propensity' evidence that was not proved or underpinned by previous convictions. Clearly, evidence of bad character need not always be supported by convictions, even where what is alleged is criminal behaviour. In some cases, such evidence may even take the form of alleged incidents in respect of which the person in question was acquitted (cf. Z [2000] 2 AC 483, which remains good law) but where there are no convictions the use of such evidence may be problematic, and applications to adduce such evidence must be treated with caution.

In McKenzie itself, M was charged with causing the death of a motorcyclist by dangerous driving, namely by making a sudden right turn across his path without warning or indication. There were two independent witnesses who supported the prosecution case, which was further supported by forensic examination of the scene, but two further witnesses were called to prove M's poor driving on other occasions, in respect of which he had not been charged or convicted. One of these was his former driving instructor, part of whose evidence concerned M's driving as a learner several years before. M's former girlfriend, S, testified that he had often driven badly and too fast when they were together. The picture they painted was of an aggressive and reckless driver. The principal question for the Court of Appeal was whether this evidence had been properly admitted under s. 101(1)(d).

Having considered Hanson [2005] EWCA Crim 824, [2005] 1 WLR 937, the court noted that there were various problems that may arise in using such evidence:

In the first place, where there has been a conviction, it follows that the defendant's guilt must have been established either by his own admission or by evidence which satisfied the court to the requisite standard after a criminal investigation and trial. Section 103(2) enables evidence of the conviction to be given as evidence of guilt and thus of propensity to commit offences of such a kind (subject to the other provisions of the Act). In short, the conviction operates as launch pad for establishing propensity. Without such a launch pad, proof of the previous alleged misconduct requires the trial of a collateral or satellite issue as part of the trial of the defendant for the offence with which he is charged. Trials of collateral issues have the dangers not only of adding to the length and cost of the trial, but of complicating the issues which the jury has to decide and taking the focus away from the most important issue or issues.
There is a further potential catch. In Hanson the court observed that there was no minimum number of events necessary to demonstrate a propensity to commit offences of the kind with which a person is charged, but that the fewer the number of previous convictions the weaker is likely to be the evidence of propensity. A single previous conviction is unlikely to show propensity unless it shows a tendency to unusual behaviour or where the particular circumstances demonstrate probative force in relation to the offence charged. The same comments apply to allegations of past misconduct, but here a dilemma arises. If the allegations of previous misconduct are few in number, they may well fail to show propensity even if they are true, but the greater the plethora of collateral allegations, the greater the risk of the trial losing its proper focus.
It has also to be borne in mind that if the allegations of prior misconduct have not given rise to any previous investigation, the evidence is liable to be stale and incomplete. The defendant may also be prejudiced in trying to meet it, for lapse of time and inability to pinpoint details (e.g. of time and place) may result in such allegations being hard to repel and the jury may be left thinking that there is no smoke without fire.
For all these reasons applications of the kind made by the prosecution in the present case need to be approached with considerable caution. If a judge decides to admit such evidence, he must also consider how to deal with it in his summing up in a way which is fair and does not give undue prominence to the bad character evidence.

On that basis, the court concluded that the very old evidence relating to driving lessons had been wrongly admitted, but held, with reservations that the more recent evidence (including that of S) was admissible and did not obviously require exclusion under s. 101(3). The court did not however commend the use of that evidence. 'On the contrary', said Toulson LJ, 'there is much to be said for trial judges doing all in their power to ensure that cases are tightly focused on the essential issues.' He was also critical of the trial judge for devoting a large part of the summing up to the issue of bad character, given that it was 'at most background material which the jury could take into account when assessing the credibility of the direct evidence about the appellant's driving on the occasion of the fatal accident'.

M's conviction was neverthless upheld.

F12.42 Attack on another Person's Character

The 'tit-for-tat' principle was applied in its modern form in Lewis [2007] EWCA Crim 3030, where D was accused of a sexual offence by a boy of 14, and in a police interview alleged that the only sexual misconduct had been committed by the boy. The prosecution sought to adduce evidence of D's previous conviction for gross indecency 20 year before. The judge did not allow this to be adduced under the Criminal Justice Act 2003, s. 101(1)(d), but did allow it under s. 101(1)(g), stating that that it was only fair that the jury should be informed of the defendant's previous conviction under s. 101(1)(g) since he had made an allegation against H.

On appeal, that ruling was upheld. Where the jury have to assess the credibility of two conflicting witnesses, it would often not be right or fair, said the court, that a defendant could blacken the name of the prosecution witness whilst presenting himself as having an unsullied character, at least by implication.

With respect, D was not strictly speaking seeking to 'blacken the name' of his accuser, in the sense of digging up evidence of bad character. He was merely disputing the boy's version of what actually happened, but like its predecessor, s. 101(1)(g) makes no distinction in that respect.

F16 Exceptions to the Rule Against Hearsay

F16.3 CJA 2003, ss. 116 and 117

F16.4 Unavailable Witnesses

In Bailey [2008] EWCA Crim 817 B was charged with the murder of P. The prosecution (with the support of one of B's co-defendants) were permitted to adduce evidence against B from an absent witness, H, in the form of a video-recorded interview. This was admitted under the Criminal Justice Act 2003, s. 116, on the basis that it satisfied the conditions set by s. 116(2)(c) (B having fled to Jamaica after the interview). Given that H's absence abroad had been driven by fear, s. 116(2)(e) might also have been relied upon; but in the event the judge relied only on s. 116(2)(c), and this had the effect of obviating any need for the prosecution to satisfy s. 116(4).

The judge and the Court of Appeal did of course consider the Police and Criminal Evidence Act 1984, s. 78 and the ECHR, Article 6, and were satisfied that the evidence did not have such a prejudicial effect that it had to be excluded under s. 78. Section 78 has no application to defence evidence, but the court observed (somewhat surprisingly) that:

'If the application to admit the statement is made on behalf of a co-defendant the court has a similar power to exclude the document under s. 117(6) and (7).'

The court may indeed have such a power where statements are admissible only under s. 117 (business and other documents) but, with respect, neither of those provisions have any application to a statement adduced under s. 116, even if that statement might also have been admissible under s. 117.

No reference is made in the judgment to the CJA 2003, s. 121, or to the PACE 1984, s. 76, although the statement in question clearly included multiple hearsay: H asserted in his video interview that he had told B, over the telephone, that 'everyone knew he had hit P with a hammer' and that B had replied,

'Well, yeah, I did hammer him like . . . he deserved [it] . . . he should not have tried beating me up and not expect that I am not going to do nothing'.

Apart from being a confession, this was an 'earlier hearsay statement' that was 'relied on as evidence of a matter stated in it' and s. 121 was accordingly engaged. But even if s. 121 had been considered, the indications are that it would have made no difference to the outcome: the court would no doubt have been satisfied that the interests of justice warranted its admission in accordance with s. 121(1)(c).

F16.20 Hearsay Admissible in the Interests of Justice

Prosecution Appeal (No 2 of 2008); Y [2008] EWCA Crim 10 (previously noted in the February update) was considered in Ibrahim [2008] EWCA Crim 880. Sir Igor Judge P said:

'R v Y establishes that although a confession can be admitted as evidence [by a co-accused] under the common law rule expressly preserved by section 118 of the Act in which case it will be evidence only against its maker, it can also be admitted under section 114(1)(d), in which case it may become evidence not only against the maker of the confession, but against the other defendants as well. As Hughes LJ observed in paragraph 42 of his judgment in R v Y,

'It is perfectly clear that the sub-paragraphs of s. 114(1) are alternatives that is to say that hearsay is admissible if it falls within any one of them. That is apparent from the use of the word 'or' linking the final two sub-paragraphs, which means, grammatically, that the last and each of the foregoing conditions is alternative to the others. . .' '

F17 Confessions

F17.5 Principles of Admissibiity

Damaging or inconsistent statements (whether or not amounting to confessions) obtained from terrorist suspects in the course of 'urgent' or 'emergency' interviews may be admissible at any future trial, even though their principal purpose or justification is to obtain information that may protect life and /or prevent serious damage to property. In Ibrahim [2008] EWCA Crim 880 the court said:

'The admission of the safety interviews or their fruits, in evidence at a subsequent trial is subject to the ordinary principles governing a fair trial, and the over-arching provisions in section 78 of . . . PACE. Much would turn on the nature of the warning or caution, if any, given by the police to the suspect. Thus, for example, if the suspect were to be assured in terms that any information provided by him would not be used against him, that would provide a powerful argument against the admission of incriminating evidence obtained in consequence. Much, too, may turn on whether the interviews produce evidence directly relevant to the charge which led to the suspect's original detention, or whether the first connection that the prosecution may establish against him with any offence arises directly from his full co-operation with them during the course of the safety interview. As ever, these will be fact specific decisions, to be made in the overall circumstances of each individual case. What however is clear is that the legislative structure does not preclude the use of the evidence obtained in safety interviews and, given the existing safeguards available to a defendant and the obligation on the trial judge to make the judgment necessary to enable him to exercise his discretion under section 78 of PACE, it would be wholly inappropriate for this court to impose the kind of self-denying ordinance which the submission based on public policy grounds would require.'

In this case (arising from the failed London bombings of July 2005), each defendant had been warned and had appreciated that the answers given in the safety interviews might be used in evidence against them. They had been under no illusions and had not purported to incriminate themselves at all. On the contrary, they had chosen to lie. That was an important consideration. In all the circumstances, and examining the judge's decision in respect of each defendant, there was nothing to support the conclusion that the judge's decision to admit the interviews was in any way flawed.

F17.19 Confession Tendered by Co-Accused

In Ibrahim [2008] EWCA Crim 880 (see F16.4 above) evidence of a confession made to a prison officer by one of the defendants (Osman) after the close of the prosecution case was adduced by a co-defendant (Asiedu) whose case was assisted by it.

The question which then arose concerned the prejudicial effect of that confession on some of the other defendants (including Ibrahim) whose defences were also undermined by it. Section 76A of the Police and Criminal Evidence Act 1984 does not directly address this question, but the court assumed that s. 76A does little more than regularise the previous position concerning such use of confessions at common law, and that a statement admitted as a confession (rather than under the Criminal Justice Act 2003, s. 114(1)(d)) still cannot be considered as evidence against any defendant other than the one who made it.

The court then applied Pereira [2001] EWCA Crim 1020, according to which Ibrahim had no locus standi to dispute the reliability of Osman's confession, for the very reason that it was not evidence against him in the first place. Any threat of prejudice was assumed to be corrected by the trial judge's direction warning the jury not to treat the confession as evidence against any other defendants. The judge's direction was assumed to resolve that problem. As Judge P explained (at [142):]

'This reasoning [from Pereira] clearly applies to the present case. In reality it represents no more than the virtual day to day practice in joint trials in the Crown Court where one defendant has made a confession implicating one or more of the co-defendants. Normally this evidence is adduced against the defendant making the statement by the Crown, as part of the incriminating evidence to establish that defendant's guilt. He may, of course, cross-examine and introduce evidence, as appropriate, to undermine either the jury's confidence in the veracity and accuracy of the witness giving evidence of the confession, or he may cross-examine and introduce evidence to demonstrate its unreliability. Sometimes, however, the evidence may be introduced, not by the Crown, but by one of the co-accused in order to assist his defence. Whether or not the evidence of the confession is relied on by the Crown, it may be admissible at the behest of the co-accused (R v Myers [1998] AC 124). Section 76A(2) introduced a number of pre-conditions to the introduction by one co-accused of the evidence of another co-accused's confession. Osman would have been permitted to challenge the admissibility of the confession on, for example, grounds of oppression by the prison officers or its unreliability. That did not arise for consideration here because Osman made no such application, nor did he seek to contradict or explain the language attributed to him. His confession was admissible on Asiedu's behalf. It was and remained irrelevant to the cases of the other applicants. In summary, section 76(A) did not create a new basis for enabling a co-accused against whom a confession is inadmissible as a matter of law to challenge its admissibility. Rather its purpose was to ensure that the defendant whose confession was being put before the jury should be provided with the similar protection against unfairness, whether that confession was introduced by the prosecution or by one of his co-defendants.'

F18 Evidence of Identification

F18.21 Supporting Evidence

A trial judge should positively direct the jury that where a witness picks out from an identity parade or video parade etc someone whom he has already claimed to have recognised, this adds nothing to his evidence. Nor can it be said that an identification is supported by limited facial mapping evidence which merely fails to eliminate the defendant as the offender: M [2008] All ER (D) 271 (Apr)

NEW legislation

Criminal Justice and Immigration Act 2008

The Act received Royal Assent on 8 May 2008. The Act makes 'further provision about criminal justice (including provision about the police) and dealing with offenders and defaulters; to make further provision about the management of offenders; to amend the criminal law; to make further provision for combatting crime and disorder; to make provision about the mutual recognition of financial penalties; to amend the Repatriation of Prisoners Act 1984; to make provision for a new immigration status in certain cases involving criminality; to make provision about the automatic deportation of criminals under the UK Borders Act 2007; to amend section 127 of the Criminal Justice and Public Order Act 1994 and to confer power to suspend the operation of that section; and for connected purposes'.

The majority of the provisions of the Act are to be brought into force by order and are not yet in force. In addition to the standard provisions, the following provisions are in force from the date of Royal Assent:

s. 53 and sch. 13, which amends the Criminal Justice Act 203, sch. 3 (although none of the provisions of sch. 3 so amended are themselves in force), together with related repeals and a related minor amendment;
s. 77 (power for Secretary of State to alter the penalty for unlawfully obtaining etc. personal data);
s. 128 (financial assistance under the Police Act 1996);
ss. 138(1) to (4) and 139 (indistrial action by prison officers);
paras. 6(3) and 12 to 16 of sch. 16 and the related repeals (which amend the Public Order Act 1986, ss. 29B, 29H, 29I, 29K and 29L and insert a new s. 29JA (which covers the protection of freedom of expression in relation to sexual orientation);
paras. 35 to 39 of sch. 26 (which amend the Youth Justice and Criminal Evidence Act 1999, ss. 35 and 62 so as to extend the protection provided to cover superseded enactments and offences and offences under specified provisions of the Sexual Offences Act 1956).

By s. 153(2), the following provisions are brought into force two months after Royal Assent (i.e. on 8 July 2008):

s. 62 (repeal of requirement to undertake annual review of the Criminal Justice (Terrorism and Conspiracy) Act 1998
s. 69 (indecent photographs of children: England and Wales) and sch. 26, para. 24 (amending a long-standing error in the Criminal Justice Act 1988, s. 160);
s. 70 and sch. 26, para. 25 (equivalent provision for Northern Ireland to (b) above);
s. 79 and related repeals (abolition of common-law offences of blasphemy and blasphemous libel);
paras. 2 to 7 of sch. 15 (which amend the Sexual Offences Act 2003, ss. 27, 29, 64 and 65 to take account of adoption and amend the Adoption Act 1976, s. 47(1) to include a reference to ss. 64 and 65 of the 2003 Act).

The Ministry of Justice has also announced its intention to bring s. 26 (release of certain long-term prisoners under the Criminal Justice Act 1991) into force in June and ss. 42 and 43 (power to dismiss certain appeals following references by the Criminal Cases Review Commission) into force 'by mid-July'.

It is also proposed that commencement provisions will shortly be enacted to bring the following provisions into effect in mid-July:

s. 10: clarification of threshold for imposing a community sentence
s. 11: restriction on imposing community sentences
s. 12: pre-sentence reports for young offenders
ss. 13 to 18 and 25 and sch. 5: reform of the public protection sentencing system
s. 20(1), (4), and (5): consecutive terms of imprisonment
s. 24: home detention curfews
s. 27: application of s. 35(1) of the Criminal Justice Act 1991 to prisoners liable to removal from the UK
s. 28: fine defaulters and contemnors
ss. 29 to 32: recall of prisoners including the introduction of fixed term recalls for non-dangerous offenders
s. 142 and sch. 24: notification requirements under the sex offenders register

Football Spectators (2008 European Championship Control Period) Order 2008 (SI 2008 No. 1165)

This Order describes the control period under the Football Spectators Act 1989 for the UEFA EURO 2008 European Championship finals tournament in Austria and Switzerland. The control period begins on 28 May 2008, being ten days before the first match in the tournament, and ends when the last match in the tournament is finished or cancelled. The last match is due to be played on 29 June 2008. During a control period the powers contained in ss. 19 (requirements for those subject to banning orders to report to a police station and surrender passports) and 21A and 21B (summary powers to detain and refer to a court with a view to making a banning order) of the 1989 Act are exercisable.

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