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Blackstone's Criminal Practice 2009

Updates

November 2007

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Blackstone's Criminal Practice 2009

November 2007

November Update 2007

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 November update primarily covers developments occurring or reported in October 2007.

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

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A1 Actus Reus

A1.28 Acts of Third Parties

Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 was considered by the House of Lords in Kennedy [2007] UKHL 38. Their lordships confirmed that the controversial interpretation of causation adopted in that case was of narrow rather than general application, and dependent on its specific context of pollution control. It was not applicable in a case of causing a noxious thing to be administered to or taken by another person contrary to the Offences Against the Person Act 1861, s. 23, where the free and informed act of a drug user in choosing to inject himself with heroin provided by the appellant was fatal to any suggestion that the appellant administered that drug or caused it to be taken.

Finlay [2003] EWCA Crim 3868 was accordingly overruled and Kennedy (No. 2) [2005] 1 WLR 2159 reversed.

A1.30 Novus Actus Interveniens: Acts of the Victim

The Court of Appeal's controversial rulings in Rogers [2003] EWCA Crim 945 and Finlay [2003] EWCA Crim 3868 were overruled, and its equally controversial ruling in Kennedy (No. 2) [2005] 1 WLR 2159, [2005] EWCA Crim 685 was reversed by the House of Lords in Kennedy [2007] UKHL 38.

The House of Lords has at last reasserted the principle (correctly stated in Dias [2002] 2 Cr App R 96, [2001] EWCA Crim 2986) that a fully informed and responsible adult who chooses to inject himself with a dangerous drug such as heroin is alone responsible for the potentially fatal consequences of that decision. Even if D prepared the fatal syringe of heroin for injection by V, D cannot be said to have caused V's death.

In the opinion of the Appellate Committee:

19 . . . The appellant supplied the heroin and prepared the syringe. But the deceased had a choice whether to inject himself or not. He chose to do so, knowing what he was doing. It was his act.

As for Rogers, in which D had applied a tourniquet to V's arm as V self-injected, their lordships did not accept that, on those facts, D could properly have been said to have 'jointly administered' the injection:

20. . . . There is, clearly, a difficult borderline between contributory acts which may properly be regarded as administering a noxious thing and acts which may not. But the crucial question is not whether the defendant facilitated or contributed to administration of the noxious thing, but whether he went further and administered it. What matters, in a case such as R v Rogers and the present, is whether the injection itself was the result of a voluntary and informed decision by the person injecting himself. In R v Rogers, as in the present case, it was. That case was, therefore, wrongly decided. . . .

24. It is possible to imagine factual scenarios in which two people could properly be regarded as acting together to administer an injection. But nothing of the kind was the case here. As in R v Dalby and R v Dias the appellant supplied the drug to the deceased, who then had a choice, knowing the facts, whether to inject himself or not. The heroin was, as the certified question correctly recognises, self-administered, not jointly administered. The appellant did not administer the drug. Nor, for reasons already given, did the appellant cause the drug to be administered to or taken by the deceased.

A4 Strict Liability

A4.1 Strict Liability Generally

A 'human rights' challenge to the legitimacy of imposing strict liability in respect of offences involving prohibited weapons under the Firearms Act 1968, s. 5, was dismissed in Deyami [2007] EWCA Crim 2060. The decision is firmly in accordance with established law, but the judgment does include a useful discussion of authorities on strict liability.

A6 Inchoate Offences

A6.1 Incitement

The Serious Crime Act 2007, part 2, will (when brought into force) abrogate (by s. 59) the common-law offence of incitement and substitute new offences of Intentionally encouraging or assisting an offence (s. 44); encouraging or assisting an offence believing it will be committed (s. 45); and encouraging or assisting offences believing one or more will be committed (s. 46). These provisions are supplemented by ss. 46 to 49. Section 50 creates a defence of 'acting reasonably' and s. 51 preserves the Tyrell principle under which a person for whose protection an offence has been created cannot be guilty of encouraging or assisting another to commit it against him. Sections 52 to 67 deal with jurisdiction (ambit), procedure, interpretation and sentencing.

No date for commencement has yet been fixed.

PART B OFFENCES

B1 Homicide and Related Offences

B1.115 Solicitation of Murder: Sentencing

Saleem and others [2007] All ER (D) 462 (Oct) involved appeals against sentences imposed for solicitation of murder and incitement to racial hatred in the course of a demonstration in London against the publication in Europe of cartoons that the accused considered offensive to Islam. Sentences of six years' for solicitation of murder were quashed and substituted by sentences of four years' imprisonment. It was not a sophisticated offence. Insofar as the crude chanting and placard messages used by the appellants had solicited murder, it was not likely to have persuaded those who witnessed the demonstration in central London or who saw television broadcasts of it to resort to killing, although one could not be sure of the effect that it might have had on those already inclined to terrorist activity. In contrast, their behaviour was highly offensive and had carried a serious risk of provoking public violence.

Sentences of four and three years' imprisonment imposed in relation to stirring up racial hatred were quashed and sentences of 30 months and two years' imprisonment substituted.

B3 Sexual Offences

B3.12 Consent

Although only a sentencing appeal in which the absence of effective consent was not disputed, Piper [2007] EWCA 2151 (Crim) provides an interesting illustration of how deception as to the defendant's true motive or purpose may invalidate consent. In circumstances vaguely analogous to Tabassum [2000] 2 Cr App R 328 (and perhaps inspired by a humorous popular music promotional video) D (aged 63) invited young woman who were "willing to flaunt it" to attend fake interviews for non-existent modelling work and strut around in front of him in their underwear. This in itself could not have amounted to sexual assault, even though he was secretly video-recording them, but D did also insist on measuring them for bikinis and "was more careless with his hands than one might have expected him to be if he were doing it with any sense of appropriateness". He pleaded guilty to sexual assault.

By his plea, said Eady J, D "acknowledged that the women would not have consented to allow themselves to be measured or take their clothes off if they had appreciated that it was a charade". A sentence of 12 months' imprisonment was upheld.

B3.41 Rape of a Child: Sentencing

The Court of Appeal in A-G's Refs (Nos 74 and 83 of 2007) (2007) The Times, 16 November 2007, [2007] All ER (D) 167 (Oct) has considered the extent to which it may be appropriate to mitigate sentences for child rape in cases where the child in question appeared to be older than 13 and ostensibly consented. The court reiterated its earlier ruling in Corran [2005] 2 Cr App R (S) 253, [2005] EWCA Crim 192 that a mistake as to age may in such cases amount to mitigation. Paragraphs six to nine of the judgment in Corran remain valuable, general guidance. Nevertheless, the older the offender, the less relevant a mistake as to age, even if reasonably held, would be.

Given that the guideline sentence for the less serious offence under the SOA 2003, s. 9, indicates a starting point of four years, original sentences of two years imposed on adult men for child rape were held to be unduly lenient. Sentences of six years would have been appropriate after trial, but in light of their guilty pleas sentences of four years were substituted.

B3.208 Controlling Prostitution for Gain

Massey [2007] EWCA Crim 2664 provides yet more authority for the principle that a person may 'control' a prostitute without necessarily exercising any force, compulsion or coercion. The prostitute in question may be 'controlled' whilst acting under her own free will.

B3.280 Outraging Public Decency

Following its ruling in Hamilton [2007] EWCA Crim 2062 (as noted in the September update), the Court of Appeal has certified the following question for possible consideration by the House of Lords:

Is a person capable of outraging public decency at common law if he commits an act of lewd, obscene or disgusting character in a public place, but the said act, though capable of being seen or heard by more than one person, is neither seen nor heard by anyone at the time of the commission?

B6 Falsification, Forgery and Counterfeiting

B6.47 Offences relating to Identity Documents etc

In cases brought under the Identity Cards Act 2006, s. 25, sentencers must have regard to the substantial difference between the maximum penalties that may be imposed for offences under subs. (1) on the one hand and those that may be imposed for offences under subss. (5) on the other.

It does not follow, however, that sentences for offences under s. 25(1) must invariably be set at a higher level than anything imposed under s. 25(5). Even simple possession will usually justify an immediate custodial sentence, despite a plea of guilty. Proof of a 'requisite intention' under s. 25(1) is likely to make the offence more serious, but it might not always do so. Moreover, even where such intent is not an essential element of the offence charged, proof of any purpose for which D possessed a false identity document must, in principle, remain material for sentencing purposes: Zenasni [2007] EWCA Crim 2165.

B6.88 False Application or Use of Trade Marks: Sentence

Woolridge [2005] EWCA Crim 1086, [2006] 1 Cr App R (S) 72 was applied in Hatton [2007] EWCA Crim 1860, where a sentence of 18 months' imprisonment was upheld in respect of an offender who was caught operating a substantial business involving the illicit copying and piracy of CDs, DVDs and computer games.

PART C ROAD TRAFFIC OFFENCES

C6 Summary Traffic Offences

C6.10 Careless and Inconsiderate Driving: Sentence

In Curtis [2007] EWCA Crim 2034, a HGV driver pleaded guilty to careless driving on an indictment alleging dangerous driving. He had attempted to overtake another HGV on a single carriageway road, causing oncoming traffic to brake, swerve off the road and collide with each other. The judge stated that the case was one of the very worst cases of its kind. The offender's licence was endorsed with nine penalty points and he was fined £200. He already had three points on his licence, so this order meant he was disqualified from driving for six months under the totting up process.

Upholding this sentence, the Court of Appeal noted that a guilty plea did not entitle a defendant to any reduction in penalty points.

One is left with the impression that the offender was in reality sentenced on the basis that his plea of guilty to careless driving did not properly reflect his culpability. If so, the prosecution were at fault for accepting such a plea when evidence of dangerous driving was so clear and strong.

A comparable sentencing difficulty is likely to arise once the new offence of causing death by careless driving is brought into force. We may see some drivers who have pleaded guilty to the new offence sentenced more severely than some who are convicted of causing death by dangerous driving, which remains a much more serious offence.

PART D PROCEDURE

D1 Powers of Investigation

D1.1 General

The Finance Act 2007 (Sections 82 to 84 and Schedule 23) (Commencement) Order 2007 (SI 2007 No. 3166) inter alia brings into force on 8 November 2007 s. 82 (criminal investigations: powers of Revenue and Customs) of the Act.

The Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (SI 2007 No. 3175) revokes and replaces the Police and Criminal Evidence Act 1984 (Applications to Customs and Excise) Order 1985 (SI 1985 No. 1800). The principal difference from the 1985 Order (as amended) is that the new provision in the Finance Act 2007, s. 82 is taken into account.

D3 Courts, Judges and Parties

D3.30 Actual or Apparent Bias

Porter v Magill [2002] 2 AC 357, [2001] UKHL 67 was applied in Akers [2007] EWCA Crim 2066, where the complaint was that D's solicitors, whom she had specifically asked to represent her on a charge of murder, may have been biased against her because D's alleged victim had been one of their clients, albeit that the solicitor who dealt with her case had not himself had any dealings with the deceased. Dismissing her appeal, the court saw nothing to suggest that a fair-minded and informed observer would find any real possibility that she had been unfairly disadvantaged.

D3.73 Legal Representation: The Accused in the Crown Court

In Ulcay [2007] EWCA Crim 2379 a question arose as to whether by virtue of the Bar Council Rules, para. 701(b)(ii), or Law Society Rules, r. 2.01(b), counsel or solicitors appointed at short notice following the sudden withdrawal of a defendant's previous defence team could properly refuse to act unless given reasonable time in which to prepare.

The court opined that, under the cab rank principle, counsel must act even when appointed at the last minute. Nor was there any reason to distinguish between the professional position of the barrister and solicitor in that respect. Both owed a duty to the court, both should comply with it, and both had to 'soldier on', whatever the difficulties. It was not a good reason for ceasing to act for a client that a solicitor disagreed with the decision of the court, even if he believed that the order had caused insuperable difficulties for him, or his client, in the preparation and conduct of the defence.

D7 Bail

D7.71 Failure to Comply with Bail

In Scott [2007] All ER (D) 191 (Oct) the Court of Appeal ruled that a defendant who is required to surrender to custody at a given time will be in breach of his bail conditions if through his own fault he is just half an hour late in so doing. In the Bail Act 1976, s. 6, 'surrender to custody' must mean surrendering 'at the appointed time and place', not 'at or about' the appointed time. It does not admit, by any permissible process of statutory construction, an additional gloss by which some unidentified further margin is allowed. The mere fact that a defendant is only slightly late cannot therefore constitute a defence in law.

It might not always be reasonable to charge a defendant for being only marginally late, but even a delay of several minutes may cause inconvenience and waste court time. If a culture of lateness were tolerated, the effects would be cumulative and bad for the administration of justice. If the message were sent to a defendant that to be half an hour late for his court appearance did not matter, that would be the entirely wrong message to send to him and others.

D12 Arraignment and Pleas

D12.9 Unfitness to Plead: Trial of the Facts

In Chal [2007] EWCA Crim 2647, the Court of Appeal held that a trial of the facts under the Criminal Procedure (Insanity) Act 1964, s. 4A, is governed by the same rules of criminal evidence as other criminal proceedings, notwithstanding that such proceedings cannot result in a finding of guilt or the imposition of punishment. It was accordingly possible for hearsay evidence (the statement of a witness who could not now be traced) to be admitted at a trial of the facts in accordance with the Criminal Justice Act 2003, s. 116.

D13 Juries

D13.24 Police Officers and Others as Jurors

The Court of Appeal's ruling in Abdroikov [2005] 1 WLR 3538, [2005] EWCA Crim 1986 was in part reversed by the House of Lords in Abdroikof [2007] UKHL 37, [2007] All ER (D) 226 (Oct). In two of the three conjoined appeals, the Lords reached a different conclusion to the Court of Appeal. An appeal was allowed where the foreman of the jury (who had fully declared his position at the very start) was a lawyer employed by the local CPS. As Lord Bingham explained:

Justice is not seen to be done if one discharging the very important neutral role of juror is a full-time, salaried, long-serving employee of the prosecutor

An appeal was also allowed in the second of the three cases, where there was a crucial dispute on the evidence between the appellant and a police sergeant, and one of the jurors was a police officer who shared the same local service background as the sergeant. In this context:

the instinct (however unconscious) of a police officer on the jury to prefer the evidence of a brother officer to that of a drug-addicted defendant would be judged by the fair-minded and informed observer to be a real and possible source of unfairness, beyond the reach of standard judicial warnings and directions.

Only in the first of the three cases, which unlike the others did not turn on a contest between the evidence of the police and that of the appellant, was the presence of a police officer on the jury considered harmless, and even then Lord Bingham reached that conclusion with some unease.

Agreeing with Lord Bingham's conclusions, Baroness Hale added (at [46]):

There is no attack upon the legislation itself. Such an attack could only be mounted through the Human Rights Act 1998. It is not suggested that allowing police officers or solicitors employed by the Crown Prosecution Service to serve on juries is in itself incompatible with the right of an accused person, under Article 6(1) of the European Convention on Human Rights, to a fair trial before an independent and impartial tribunal. It is accepted that there are situations in which these newly qualified jurors will meet the tests of impartiality set out in Porter v Magill [2001] UKHL 67, [2002] 2 AC 357, para 103 and Lawal v Northern Spirit Ltd [2003] UKHL 35, [2003] ICR 856, para 14. Equally, it is accepted that the fact that there are such situations does not mean that they will always do so. The fact that Parliament has said that they are eligible to serve does not mean that Parliament intended that they should do so in any case to which they were summoned. All the indications are that Parliament appreciated that there were some cases in which they should not serve. There is no indication that Parliament intended to abrogate the common law and Convention rules upon what constitutes a fair trial.

PART E SENTENCING

E1 Sentencing: General Provisions

E1.7 Reduction in Sentence for Assistance by Offender

P; Blackburn [2007] EWCA Crim 2290 provides important guidance on the operation of the new SOCPA 2005 provisions relating to reduction of sentence to reflect assistance given to the authorities by an offender.

See Serious Organised Crime and Police Act 2005, ss. 71 to 75 and in particular ss. 73 and 74.

Giving judgment in respect of these conjoined appeals (the first to be heard under the new statutory regime), Judge P noted that the long-standing practice, now formalised by SOCPA, of rewarding offenders who co-operate by providing evidence against others may be distasteful to some, but is of great value in the fight against crime, and in particular against crime bosses who might otherwise be untouchable. He then provided general guidance, which we reproduce here with only minor omissions:

The essential feature of the new statutory framework is that the offender must publicly admit the full extent of his own criminality and agree to participate in a formalised process. . . . The formalities ensure that the decision to enter into the agreement with a criminal is specifically and separately considered by an identified prosecutor and should avoid later questions to which any kind of "private" arrangements can be subject.

Section 73 addresses sentencing decisions following assistance provided by the defendant. The structure in effect confirms well understood principles. . . .Provided they admit their own criminality in full, the process is not confined to offenders who provide assistance in relation to crimes in which they were participants, or accessories, or with which they were otherwise linked. At the end of this process the sentence actually imposed may be appealed to this court in the usual way.

Section 74 is concerned with the new process by which a "review" of the sentence passed in the Crown Court is reviewed in a judicial process on a reference back to the court by a specified prosecutor. The responsibility for considering whether any reduction in sentence should follow a post-sentence agreement within SOCPA is vested in the Crown Court. This reverses the former practice in relation to post-sentence assistance which was formerly left to the Home Office and the Parole Board . . .and creates a statutory scheme which expressly entitles the Court to take account of relevant events after conviction and sentence. Section 74(2) identifies three post-sentence situations in which the sentence being served by the defendant is susceptible to review. . . . In each situation specified by s. 74(2) the defendant may be re-sentenced in the Crown Court, and where possible, this decision should be made by the judge who passed the original sentence. At the conclusion of the review, his decision may then be reconsidered in this Court.

Where the review arises from the defendant's failure or refusal to provide assistance in accordance with the written agreement, the sentencing judge will already have in mind the sentence which would have been passed "but for the assistance given or offered". This sentence should be readily ascertained from the sentencing remarks where the judge, in compliance with section 73(3)(b), has identified, as he normally should, the sentence which would have been imposed but for the assistance given or offered. We doubt whether, save exceptionally, it would be right for the sentence indicated at that stage to be subject to any reduction. But equally, as section 73(5) provides, it should not be increased by way of punishment for a defendant who has backed away from the agreement. . . .

When a review is under consideration after sentence, the specified prosecutor will no doubt be astute to the risk that a professional criminal may be seeking to manipulate the system for his own purposes. One question which will normally require to be addressed is why the offer to give assistance has been delayed; and another, whether the delay may have diminished its value. Again, however, unlike the current arrangements by which discounts for a guilty plea should normally be reflective of the time when it was tendered, for the purposes of a review, any discount should continue to reflect the extent and nature of the assistance given or offered. Unless the delay has diminished the value of the assistance, the defendant should not be penalised by a lesser reduction, but if it has, only to a proportionate extent.

The review process is directed towards a sentence which has already been imposed. There are no transitional provisions. It may take place "at any time" after the legislation came into force, whether the original sentence was imposed before or after the implementation of SOCPA. In particular, nothing in the legislative structure suggests that sentences imposed before that date fall outside the ambit of section 74, and indeed in our judgment SOCPA provides a comprehensive framework of general application for reviews of sentences, whenever imposed, and whenever the crime or crimes in question were committed. . . .

The jurisdiction to conduct a review of sentence on the basis of post-sentence assistance is vested in the Crown Court. Its decision on the review is subject to appeal to this court. Therefore the review itself is not an appeal against sentence, whether imposed in the Crown Court or this Court. It is a fresh process which takes place in new circumstances. Accordingly the process of review is not inhibited by the fact that this court has already heard and decided an appeal against the original sentence, whether the sentence is varied on appeal or not. . . .

The legislation does not abolish a well understood feature of the sentencing process. There will be occasions when a defendant has provided assistance to the police which does not fall within the new arrangements, and in particular the written agreement. He is not thereby deprived of whatever consequent benefit he should receive. The existing "text" system, verified in the usual way, (as to which see R v X [1999] 2 Cr App R 125: R v R [2002] EWCA Crim 267) may still be used, where appropriate, either before sentence is imposed in the Crown Court, or indeed at the hearing of an appeal against sentence. In summary, pragmatism still obtains. The investigative process is not to be deprived of the assistance derived from those who are, for whatever reason, unable or unwilling to enter into the formalised process envisaged in SOCPA, but they must take the consequence that any discount of sentence may be correspondingly reduced, simply because the value of assistance provided in this form is likely to be less, and is in any event less readily susceptible to a safeguarding review under s.74(2) than it would if provided under the formal arrangements now available under s. 73.

No new powers in relation to publicity arise in relation to sentences imposed in the context of a written agreement under s. 73. The publicity provisions in s. 75 are directed to reviews under s. 74. . . .

In the review process section 73(4) and (7) enable the court, first, not to disclose, save to the prosecutor and the defendant, that a sentence has been discounted, and second, allow the court to disapply section 174 of the Criminal Justice Act 2003, which requires the court to explain the reasons for its sentences. Reality must be faced. Professional criminals appreciate the likely range of sentence if they are convicted, and more important, they will quickly discover the purpose of any review process. A post-sentence reduction following an s.74 review will convey, at the very least, that something very unusual has happened, and criminals are perfectly well able to ask themselves why a reduction has been ordered, and then form their own conclusions. That said, actual knowledge will turn suspicion into confirmed fact. By section 75 the court is empowered to exclude the media and its representatives from the review. The power should be used with great caution, particularly where the review arises under s. 74(2) following failure to fulfil an agreement to provide assistance. In any event where practicable alternatives are available, they should if possible, be adopted. For example, it may be possible to anonymise the proceedings. It may also be possible to admit authorised representatives of the media subject to an order prohibiting publication of the whole or any specific aspect of the proceedings without the approval of the court. Alternatively, if the media has been excluded from any part of the hearing, the court may be able to provide information about the outcome of the review, together with a brief summary of the reasons for the decision, sufficient, even if brief, to enable the public to understand it, without disclosing any relevant identities. To the fullest extent it can, it should. In any event a full transcript of the entire hearing of the proceedings should be prepared immediately after its conclusion, and retained in appropriate conditions of secrecy by the specified prosecutor, and kept available for further directions by the court in relation to publicity if and when the public interest so requires, at least until further order by the court, and in any event until the end of the sentence.

SOCPA does not include any direct provision suggesting the level of discount appropriate to be provided to the defendant who enters into and performs the SOCPA agreement. The general principles are well established . . .

The first principle is obvious. No hard and fast rules can be laid down for what, as in so many other aspects of the sentencing decision, is a fact specific decision.

The first factor in any sentencing decision is the criminality of the defendant, weight being given to such mitigating and aggregating features as there may be. Thereafter, the quality and quantity of the material provided by the defendant in the investigation and subsequent prosecution of crime falls to be considered. Addressing this issue, particular value should be attached to those cases where the defendant provides evidence in the form of a witness statement or is prepared to give evidence at any subsequent trial, and does so, with added force where the information either produces convictions for the most serious offences, including terrorism and murder, or prevents them, or which leads to disruption to or indeed the break up of major criminal gangs. Considerations like these then have to be put in the context of the nature and extent of the personal risks to and potential consequences faced by the defendant and the members of his family. In most cases the greater the nature of the criminality revealed by the defendant, the greater the consequent risks. The vast majority of the earlier authorities were decided before the arrangements for calculating the discounts for a guilty plea were formalised, as they now have been by statute (s.152 of the Powers of Criminal Courts (Sentencing) Act 2000 and s. 144 and s. 174(2)(d) of the Criminal Justice Act 2003) and the definitive guidelines, Reduction for Sentence Guilty Plea, issued by the Sentencing Guidelines Council, and in particular the statement of purpose in paragraphs 2.1 - 2.6. When it applies, the discount for the guilty plea is separate from and additional to the appropriate reduction for assistance provided by the defendant (R v Wood [1997] 1 Cr App R(S) 347). Accordingly, the discount for the assistance provided by the defendant should be assessed first, against all other relevant considerations, and the notional sentence so achieved should be further discounted for the guilty plea. In the particular context of the SOCPA arrangements, the circumstances in which the guilty plea indication was given, and whether it was made at the first available opportunity, may require close attention. Finally we emphasise that in this type of sentencing decision a mathematical approach is liable to produce an inappropriate answer, and that the totality principle is fundamental. In this Court, on appeal, focus will be the sentence, which should reflect all the relevant circumstances, rather than its mathematical computation.

The SOCPA procedure requires the defendant to reveal the whole of his previous criminal activities. This will almost inevitably mean that he will admit, and plead guilty to offences which would never otherwise have been attributed to him, and may indeed have been unknown to the police. In order for the process to work as intended, sentencing for offences which fall into this category should usually be approached with these realities in mind and, so far as section 73 agreements are concerned, should normally lead to the imposition of concurrent sentences. In the review process in relation to a defendant who is already serving his sentence, and who enters into an appropriate agreement to provide information, in which he discloses his previous criminal activities, he will come before the court, as P did, to be sentenced for the new crimes he has disclosed, as well as for a review of the original sentence. When the original sentence is reduced, it has already been running, while the sentence for any new offence will run from the date it was imposed. As we emphasised in the previous paragraph, in this context too, the totality principle is critical.

We were asked to consider the possibility of a discount in an exceptional case which, in effect, was that the defendant would not serve any sentence at all. We cannot envisage any circumstances in which a defendant who has committed and for these purposes admitted serious crimes can or should escape punishment altogether. The process under sections 73 and 74 does not provide immunity from punishment, and, subject to appropriate discounts, an effective sentence remains a basic characteristic of the process. Issues of immunity are addressed in section 71. What the defendant has earned by participating in the written agreement system is an appropriate reward for the assistance provided to the administration of justice, and to encourage others to do the same, the reward takes the form of a discount from the sentence which would otherwise be appropriate. It is only in the most exceptional case that the appropriate level of reduction would exceed three quarters of the total sentence which would otherwise be passed, and the normal level will continue, as before, to be a reduction of somewhere between one half and two thirds of that sentence.

E6 Prescribed Custodial Sentences

E6.6 Minimum Custodial Sentences for Firearms Offences

In Bowler [2007] EWCA Crim 2068, the Court of Appeal considered whether exceptional circumstances existed in which the imposition of a mandatory minimum term of five years' imprisonment might be considered a disproportionate and arbitrary response to the danger presented by the appellant's unlawful possession of prohibited weapons (self-loading pistols) together with more ammunition than his firearms licence authorised him to possess.

Clearly something more than personal mitigation was required, but in this case there were unusual features, including his claim (made as part of his written guilty plea) that the guns had been dumped on him and that he had locked them away with a view to handing them in to the police in the event of a future firearms amnesty. A sentence of two years' imprisonment (including an allowance for his guilty plea) was substituted.

E18 Compensation Orders

E18.1 Power to Make Compensation Order

The High Court has no jurisdiction to hear an application for judicial review of a decision of a judge in the Crown Court not to make a compensation order in favour of a victim. This lack of jurisdiction (which follows from the Supreme Court Act 1981, s. 29(3)) does not violate the victim's human rights.

Confiscation orders form part of a defendant's sentence and may be the subject of an appeal to the Court of Appeal. It is for the prosecution to protect the interests of the victim but if the prosecution does not ask for a compensation order in favour of the victim, the latter's only recourse is to take action against the defendant in the civil courts: R (Faithfull) v Crown Court at Ipswich [2007] All ER (D) 403 (Oct).

The court in Faithfull certified that the following question was of general public importance for possible consideration by the House of Lords:

Where after trial on indictment the Crown Court makes a confiscation order but fails by reason of an error of law to make a compensation order for the benefit of the victim, does s. 29(3) of the Supreme Court Act 1981 preclude any claim by him for judicial review?.

E22 Recommendation for Deportation

E22.1 Power to Recommend for Deportation

The UK Borders Act 2007, s. 32, will when brought into force make major changes to the law governing the making of deportation orders in respect of foreign criminals.

Section 32, when brought into force, will ordinarily require the automatic deportation of foreign criminals who have been sentenced to imprisonment for a period of 12 months or more, or who have been sentenced to any term of imprisonment for an offence specified by the Secretary of State under the Nationality, Immigration and Asylum Act 2002, s. 72(4)(a). For the purpose of the Immigration Act 1971 s. 3(5)(a), the deportation of a foreign criminal to whom either of those tests apply is deemed conducive to the public good (s. 32(4)). The Secretary of State must make a deportation order in respect of such an offender (s. 32(5)) and cannot ordinarily revoke it.

This apparently draconian provision is however subject to s. 33, which creates five exceptions to it, notably (1) where removal of the foreign criminal in pursuance of the deportation order would breach a person's Convention rights, or the United Kingdom's obligations under the 1951 Geneva Convention on refugees; (2) where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction; and (3) where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under European Community treaties. This suggest that the new legislation will make no great difference to cases such as that of Learco Chindamo, whose potential deportation to Italy on release from prison was blocked on the basis that it contravened his rights under the European Citizenship Directive 2004, by which an EU national shall not be deported from another EU country in which he has been resident for at least 10 years except on "imperative grounds of public security".

PART F EVIDENCE

F9 Public Policy and Privilege

F9.22 Privilege against Self-incrimination

In Khan [2007] EWCA Crim 2331, D pleaded guilty to conspiracy in a case involving the alleged funding of terrorist activity. In his plea he accepted the truth of the prosecution's allegations made against him and took no issue with the prosecution on any issue of fact relevant to sentencing. His co-defendant, S, pleaded not guilty, and D gave evidence in support of his case, claiming that S was not implicated in the conspiracy, but under both examination-in-chief and cross-examination he attempted to assert a privilege against self-incrimination relating to possible proceedings against him in the USA.

Where his claim to privilege concerned matters going beyond those to which he had already pleaded guilty, the trial judge allowed it (even though it had previously been held that the privilege is not available in respect of possible incrimination under foreign law: see Re Atherton [1912] 2 KB 251; Re Westinghouse Electric Corporation Contract [1978] AC 547 per Lord Diplock at 636; Brannigan v Davison [1997] AC 238); but in respect of other matters that were plainly already covered by his plea of guilty he was warned that refusal to answer would involve a contempt of court. When he persisted in his claim, he was held to be in contempt and summarily sentenced to a further 12 months' imprisonment. The judge explained:

Having watched you give evidence, I have no doubt that you chose to answer questions on some issues that I note in passing are undoubtedly covered by the possible American criminal proceedings, whilst refusing to answer questions on others for wholly opportunistic and cynical reasons. You spoke about the areas where you felt you could most assist [S] and you remained silent when you considered your evidence would be less helpful to him.

The Court of Appeal noted that there was now some doubt as to whether privilege can properly be denied in respect of possible self-incrimination under foreign law. Moses LJ said:

[The trial judge] . . . did not rely upon the principle that the privilege is not available in respect of foreign proceedings, which, in the instant case, is a prosecution in the United States. It is small wonder that he did not do so. He had no need to rely upon the principle in the light of his conclusion that the reasons advanced for refusing to answer were not genuine. We wish to make clear that we shall follow the deft footwork of the judge. Despite what has hitherto been believed to be clear authority for the principle that privilege is not available in respect of foreign criminal proceedings, the issue may need to be revisited in the light of Article 6 of the European Convention on Human Rights and in the context of extradition proceedings. That is not to indicate that there is any substance in reliance upon Article 6 but merely to avoid giving a decision on the question where it is unnecessary to do so. This judgment is not to be regarded as any authority one way or the other in relation to the availability of the privilege in respect of foreign proceedings where there is a risk of extradition.

As to the matters already covered by the guilty plea, the Court of Appeal largely agreed with the trial judge. Moses LJ explained:

It must be emphasised that the privilege is designed to provide protection in relation to questions which might incriminate. If the danger of incrimination has already arisen and is independent of any questions which a person is required to answer, it is not possible to see why that person should be entitled to any protection at all. If his position is made no worse by answering a question, then there can be no basis for him to invoke the privilege.

This does not mean that a witness who has made an informal admission prior to the trial (e.g. to police officers) is barred from asserting privilege if questioned on the same matter in court. In such a case, an incriminating answer given in sworn testimony may greatly add to any damage already done by the informal admission. As Waller LJ noted in Den Norske Bank ASA v Antonatos [1999] QB 271, such an answer may make a potentially retractable admission impossible to retract.

Although in Khan D's appeal was dismissed, the Court of Appeal nevertheless added this note of caution:

It is dangerous to assess the strength of the claim to privilege on the basis of the motive of the person seeking to invoke it. There will be many cases where it will be "convenient" for a defendant to rely upon the privilege. Often his motives will be mixed. But even if the motives are mixed that is no basis for refusing the protection against self-incrimination. The court should not refuse protection merely because it suspects the good faith of the person seeking to deploy the privilege. After all, the principle applies to one who wishes to avoid conviction as much as to the innocent who wishes to avoid the inconvenience of a prosecution. The point was best expressed by Kirby P in Accident Insurance Mutual Holdings Limited v McFadden [1993] 31 NSWLR 412 cited with approval in Den Norske Bank at 287:-

"What is in issue, ultimately, is not the subjective fears of the witness claiming the privilege but the objective tendency of the question to expose that witness to the risk of criminal prosecution . . . one witness may have multiple motives and even mala fides. But if the question is such in fact as to expose him or her to the risk of future prosecution, it is the duty of the judicial officer to uphold the privilege'."

F17 Confessions

F17.12 Exclusion for Unreliability

In Hudson [2007] EWCA Crim 2083, D appealed against his convictions for the murder of his sister-in-law, V, and related offences, including one count (count 4 on his indictment) of conspiring with other members of his family to pervert the course of justice by falsely assuming sole responsibility for that killing in a confession made to his aunt and her husband, in which he claimed to have been provoked into killing her in a single moment of madness. The prosecution proved that V had in fact died as a result of a long series of brutal and sadistic assaults in which several members of the family were implicated. It followed that in almost all its details, save perhaps for those relating to the subsequent disposal of the body, D's confession was false. The prosecution nevertheless argued that there was some vestige or 'substratum' of truth within the confession, on the basis of which a jury might be permitted to convict him of the murder.

D had offered himself as a scapegoat for the rest of his family. In so doing, it seems likely that he was giving in to family pressure, and in particular to pressure exerted by D's violent, domineering and manipulative parents, who took him to his aunt and her husband so that he could make the confession. At the very least, he acted with the encouragement and connivance of his parents, who were themselves found guilty of V's murder and of the count 4 conspiracy. The ability of D's parents to secure 'confessions' within the family was demonstrated by the discovery of a videotape in which V was herself forced to confess that she was a liar, prostitute and thief who had tried to kill her own children. D's mother could be heard on the recording, prompting V on certain issues.

Hughes J's ruling at the trial was that, although D had evidently been taken to his aunt's house 'with the clear intention that he should make the confession', there was no evidence of what anyone had said to him, 'except such as can be implied from his apparent willingness to shoulder the blame on his own'. He accordingly ruled the confession to be admissible.

This ruling was endorsed by the Court of Appeal. With respect, however, it is difficult to understand how anyone could conclude, 'beyond reasonable doubt' (as s. 76(2)(b) requires) that nothing was said or done that might have induced an unreliable confession from D. The best we can say is that we do not know what exactly was said or done. If nothing of that kind was said or done, where then was the evidence of conspiracy?

There is at any rate a paradox here. A confession that is demonstrably true in every detail may have to be excluded under s. 76(2)(b) because something was said or done (not necessarily oppressively) that might, on another day, have persuaded D to make a false or unreliable confession; and yet in Hudson the Court of Appeal was content to uphold the admissibility of a confession that was not just unreliable but manifestly false in almost every important detail. Perhaps there was a vestige of truth in the confession. Indeed, it is hard to see how D could not have been in some way implicated in the killing. But that does not make his confession admissible.

F17.38 Confessions by Mentally Handicapped Persons

MacKenzie (1992) 96 Cr App R 98 was considered in Hudson [2007] EWCA Crim 2083. The Court of Appeal in that case permitted the use of D's confession to secure his conviction even though that confession was demonstrably false in almost every detail, and contained only a possible 'substratum of truth'. It seems doubtful, however, that D suffered any significant degree of mental handicap, and in that respect MacKenzie could be distinguished.

APPENDICES

Appendix 8 Sentencing Guidelines Council Guidelines

Part 8 Sexual Offences Act 2003, General Principles

Where an offender committed a serious sexual offence as an adolescent but was not charged or convicted until many years later, the proper approach for the sentencing judge is to identify the sentence which would have been passed if he had been convicted and sentenced at the time. That sentence provides a useful starting point in determining the proper sentence to be imposed. See Hollis and another [2007] EWCA Crim 1850.

NEW LEGISLATION

Serious Crime Act 2007

This Act received the Royal Assent on 30 October 2007. When brought into force, part 1 of the Act will enable the making of 'Serious Crime Prevention Orders'. These new civil orders are intended to protect the public by preventing, restricting or disrupting involvement in serious crime. Orders will be made by the High Court (on application), or by the Crown Court upon conviction, and breach of such an order will be a criminal offence. Provision is made for appeals and for variation or discharge of orders.

Part 2 of the Act deals with encouraging or assisting crime. It will in due course abolish the common-law offence of incitement and in its place create new offences of intentionally encouraging or assisting crime and encouraging or assisting crime believing that an offence, or one or more offences, will be committed. There will be a defence to such charges where encouragement or assistance is considered to be reasonable in the circumstances and there will continue to be exemption from liability where the offence encouraged or assisted was created in order to protect a category of people and the person doing the encouragement or assistance falls into that category.

Part 3 of the Act contains further measures intended to prevent or disrupt serious and other crime. Chapter 1 makes provision for the prevention of fraud. Chapter 2 amends the Proceeds of Crime Act 2002 and supporting legislation. Chapter 3 will extend certain investigatory powers of Revenue and Customs officers to former Inland Revenue matters and will also extend existing police powers to stop and search for dangerous instruments and offensive weapons without reasonable suspicion.

Part 4 deals with miscellaneous and general provisions, including the making of orders under the Act.

UK Borders Act 2007

This Act (not yet in force) also received the Royal Assent on 30 October 2007. It deals primarily with immigration and asylum issues, but also creates (in s. 22) a new criminal offence of assaulting an immigration officer and extends powers under chapter 3 of part 5 of the Proceeds of Crime Act 2002 (recovery of cash) so that they can be exercised by immigration officers. Provision is made for the forfeiture and disposal of detained property and there are amendments to the ambit of certain offences under the Immigration Act 1971 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.

For the purpose of the Immigration Act 1971 s. 3(5)(a), the deportation of a foreign criminal to whom either of those tests apply is deemed conducive to the public good (s. 32(4)). The Secretary of State must make a deportation order in respect of such an offender (s. 32(5)) and cannot ordinarily revoke it.

This suggest that the new legislation will make no great difference to cases such as that of Learco Chindamo, whose potential deportation to Italy on release from prison was blocked on the basis that it contravened his rights under the European Citizenship Directive 2004, by which an EU national shall not be deported from another EU country in which he has been resident for at least 10 years except on "imperative grounds of public security".

Legal Services Act 2007

This Act received the Royal Assent on 30 October 2007. Its principal provisions are not yet in force. Although not directly concerned with criminal law or practice, the Act will reform the way in which legal services in England and Wales are regulated and is intended to "put the consumer interest at the heart of the regulatory framework".

Criminal Defence Service (General) (No. 2) (Amendment No. 2) Regulations 2007 (SI 2007 No. 2936)

These Regulations make the following changes:

update references from "solicitor" to "litigator", introduce a definition of "representative" and amend the definition of "advocate" (regs. 2, 6 and 8 to 13);
provide that where a magistrates' court sends a defendant for trial at the Crown Court under s. 51 of the Crime and Disorder Act 1998, the proceedings in the magistrates' court are preliminary to the proceedings in the Crown Court, so that no representation order is required for the proceedings in the magistrates' court (reg. 3);
provide for applications for representation orders for appeals to the Crown Court, where a representation order has been made in respect of the proceedings in the magistrates' court, and for applications for representation orders for re-trials (reg. 4);
provide for applications for representation orders in the High Court (reg. 5);
permit representation by a QC or by more than one advocate in exceptional extradition cases in magistrates' courts and update a reference to the legislation on extradition (reg. 6);
provide expressly that a representation order for proceedings in the Crown Court, including orders which extend to that Court from a magistrates' court such as committals for sentence, covers representation by a junior advocate (reg. 7).

Criminal Defence Service (Financial Eligibility) Amendment No. 2) Regulations 2007 (SI 2007 No. 2937)

These Regulations amend the principal Regulations of 2006 (SI 2006 No. 2492) so as to provide that all individuals who are under 18 are to be treated as financially eligible for a representation order not just those in full-time education. They also confer on the authority which reviews decisions on financial eligibility an additional power, to quash the decision, and enable the individual, where the authority exercises this power, to re-apply for a representation order.

Offender Management Act 2007 (Commencement No. 1 and Transitional Provisions) Order 2007 (SI 2007 No. 3001)

This Order brings provisions of the Act into force on 1 November 2007 and 1 May 2008.

On 1 November 2007, the following provisions are brought into force:

s. 16 (power of search in contracted out prisons and secure training centres);
s. 17 (power of detention in contracted out prisons and secure training centres);
s. 18 (powers of authorised persons to perform custodial duties and search prisoners);
s. 19 (powers of director of a contracted out prison);
s. 20 (amendment of the Criminal Justice Act 1991, s. 87);
s. 25 (removal of requirement to appoint a medical officer etc);
s. 26 (independent monitoring boards);
s. 27 (amendment of the Prison Act 1952, s. 8A);
s. 32 (functions of Youth Justice Board);
s. 33 (detention and training orders: early release);
s. 34 (accommodation in which period of detention and training to be served);
s. 35 (escort arrangements);
s. 36 (orders and regulations);
s. 37 (financial provisions);
s. 38 (power to make consequential and transitional provision etc);
s. 40 (extent);
sch. 3, part 2 (prisons), part 3 (DTOs: accommodation) and part 4 (escort arrangements);
sch. 4, part 3 (provision relating to part 3);
related repeals in sch. 5.

On 1 May 2008, s. 31 (accreditation of programmes for purposes of programme requirements) comes into force, together with a related repeal.

Serious Organised Crime and Police Act 2005 (Commencement No. 10) Order 2007 (SI 2007 No. 3064)

This Order brings into force s. 163(2) of the Act on 12 November 2007 insofar as it relates to s. 113B(10(a), (b), (c) and (d) of the Police Act 1997. The effect is to bring into force, in England and Wales, provisions inserted by that section into the 1997 Act which make the Royal Navy Regulating Branch, the Royal Marines Police, the Royal Military Police and the Royal Air Force Police police forces for the purpose of s. 113B. Police forces under that section may be prescribed or determined as relevant police forces for the purpose of obtaining information to be disclosed in an enhanced criminal record certificate under part V of the 1997 Act.

Police and Justice Act 2006 (Commencement No. 5) Order 2007 (SI 2007 No. 3073)

This Order brings into force on 19 November 2007, in Wales only, s. 22 of and Sch. 9 to the Act and related repeals. Section 22 simply introduces Sch. 9, which contains amendments to the Crime and Disorder Act 1998 in relation to crime and disorder strategies and other matters relating to the reduction of crime and disorder.

Immigration, Asylum and Nationality Act 2006 (Commencement No. 7) Order 2007 (SI 2007 No. 3138)

This Order brings provisions of the Act into force on 5 November 2007 and 31 December 2007.

The provisions brought into force on 5 November are as follows:

S. 15 (penalty for employment of adult subject to immigration control) for the purposes of making an order under s. 15(2), (3) and (7);
s. 16 (objection to penalty for employment of adult subject to immigration control) for the purposes of making an order under s. 16(3) and (5);
ss. 20 (orders) and 25 (interpretation);
s. 31 (provision of information to immigration officers) for the purposes of making an order under the Immigration Act 1971, sch. 2, paras. 27(2) and 27B;
s. 32 (passenger and crew information: police powers) for the purposes of making an order under s. 32(5)(a);
s. 36 (duty to share information) for the purposes of making an order under subsection (4);
s. 37 (information sharing: code of practice) for the purposes of laying a draft code before Parliament and making an order under s. 37(2);
s. 38 (disclosure of information for security purposes) for the purposes of making an order under s. 38(4); and
(i) s. 50(4) and (5) (amendment to nationality and immigration procedure).

The provisions brought into force on 31 December are as follows:

ss. 34 (offence: failure to provide information), 35 (power of Revenue and Customs to obtain information) and 39 (disclosure to law enforcement agencies);
ss. 31, 32, 36, 37 and 38 to the extent to which they are not already in force; and
(c) in sch. 3 (repeals) the entry relating to the Immigration Act 1971, s. 27 (offences by persons connected with ships or aircraft or with ports).

Finance Act 2007 (Sections 82 to 84 and Schedule 23) (Commencement) Order 2007 (SI 2007 No. 3166)

This Order inter alia brings into force, on 8 November 2007, ss. 82 (criminal investigations: powers of Revenue and Customs), 83 (Northern Ireland investigations); and 84 (sections 82 and 83: supplementary) of the Act, other than s. 84(4) (which applies only to Scotland and is brought into force on 1 December).

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs) Order 2007 (SI 2007 No. 3175)

This Order revokes and replaces the Police and Criminal Evidence Act 1984 (Applications to Customs and Excise) Order 1985 (SI 1985 No. 1800). The principal difference from the 1985 Order (as amended) is that the new provision in the Finance Act 2007, s. 82 is taken into account.

Police Reform Act 2002 (Standard Powers and Duties of Community Support Officers) Order 2007 (SI 2007 No. 3202)

This Order applies the provisions of part 1 of sch. 4 to the Police Reform Act 2002 which it lists to every person who is designated as a community support officer under s. 38 of that Act. The powers and duties contained within these provisions are known as the standard powers and duties of a community support officer.

Police and Justice Act 2006 (Commencement No. 6) Order 2007 (SI 2007 No. 3203)

This Order brings into force on 1 and 31 December 2007, to the extent not already in force, certain provisions of the Act. On 1 December 2007, the following provisions are brought into force:

7 (standard powers and duties of community support officers);
9 (exercise of police powers by civilians) insofar as it relates to sch. 5 (exercise of police powers by civilians), paras. 1 to 6, apart from para. 5(11);
52 (amendments and repeals) insofar as it relates to the repeal relating to sch. 4 to the Police Reform Act 2002.

On 31 December 2007, s. 5 (which introduces sch. 3) and sch. 3 (power to merge police pension schemes) are brought into force.

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