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Blackstone's Criminal Practice 2009

Updates

October 2007

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Blackstone's Criminal Practice 2009

October 2007

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

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

PART A GENERAL PRINCIPLES OF CRIMINAL LAW

A3 General Defences

A3.7 Automatism

As to the defence of automatism, note C [2007] EWCA Crim 1862 (considered in this update at D15.53).

PART B OFFENCES

B1 Homicide and Related Offences

B1.41 Sentencing Guidelines: Involuntary Manslaughter

In Preddie [2007] EWCA Crim 1961, the Court of Appeal upheld sentences of eight years' detention imposed on two young offenders (who had been aged just 12 and 13 at the time of the offence, seven years previously). They were gang members and had killed the 10-year-old victim (Damilola Taylor) by stabbing him in the leg and severing an artery in what was at the very least a "brutal piece of bullying street violence" for which they had never displayed the slightest remorse.

B1.43 Manslaughter in Course of Commission of Another Offence

In A-G's Ref (Nos 38, 39 and 40 of 2007); Campbell [2007] EWCA Crim 1692, the Court of Appeal held that a sentence of three and a half years' detention imposed on a 20-year-old offender for manslaughter during the course of a three-man robbery in the elderly victim's home was unduly lenient, despite the offender's lack of previous convictions. Although this was a case of 'single punch' manslaughter, the circumstances in which it had been committed took it out of the usual sentencing range for such offences. The court held that the appropriate starting point for an offender in those circumstances, and with no previous convictions after a trial, should be in the region of eight to nine years; but having regard to offender's age, and to double jeopardy, a sentence of five years' detention to be served concurrently with a similar sentence for robbery was deemed appropriate.

B4 Theft, Handling and Related Offences

B4.58 Burglary: Sentencing Guidelines

Clearly, not all judges are happy with the guidelines issued in McInerney [2003] EWCA Crim 3003. In Stock [2007] EWCA Crim 1596, D pleaded guilty to one count of burglary of a dwelling. He had previous convictions for offences of dishonesty, criminal damage, possessing drugs and public order, but had not previously been convicted of burglary. A pre-sentence report recommended a community order or a suspended sentence coupled with a supervision requirement and a substantial period of unpaid work; but the trial judge observed (no doubt correctly) that victims of such burglaries expected the perpetrators to be imprisoned. He then imposed a sentence of 18 months' immediate imprisonment.

The Court of Appeal predictably quashed this sentence on the basis that it failed to give proper weight to the appropriate sentencing guidelines. D, who had already served four months of the sentence, was instead made subject to supervision for a period of 18 months.

B23 Immigration Offences

B23.4 Sentencing

Kolawole [2004] EWCA Crim 3047 was applied in Suleyman [2007] EWCA Crim 2206, in which the Nigerian defendant fraudulently obtained a British passport and then used that to defraud banks and credit card companies using the assumed identity. The court quashed sentences of 30 months' imprisonment that had been imposed for forgery and obtaining property by deception, and replaced them by sentences of 21 months. Silber J said:

Although the charges in this case were brought under different statutory provisions, namely section 15(1) of the Theft Act 1968, and section 1 of the Forgery and Counterfeiting Act 1981, we agree with the submission of [counsel] for the appellant that the similar parameters and approaches to sentencing should apply to the appellant. That would mean that the appropriate sentence where there has been a contested case would be in the region of 18 months to 27 months. In our view this case falls well within the middle of that particular bracket with no particular aggravating or mitigating circumstances. In those circumstances we consider that the appropriate sentence that should have been imposed was one of 21 months' imprisonment concurrent on each count.

There is no reference in the report to any recommendation for deportation, although that may be because there was no appeal on that issue. The case would certainly appear to be one that merited such an order. See also Crossdale [2006] EWCA Crim 2541, but contrast Isah [2007] EWCA Crim 1975.

PART C ROAD TRAFFIC OFFENCES

C3 Offences Relating to Driving Triable on Indictment

C3.14 Causing Death by Dangerous Driving: Defences

As to the defence of automatism, note C [2007] EWCA Crim 1862 (considered in this update at D15.53).

PART D PROCEDURE

D2 The Decision to Prosecute and Diversion

D2.2 The Decision to Charge

The Criminal Justice Act 2003 (Commencement No. 17) Order 2007 (SI 2007 No. 2874) brings into force on 1 October 2007 sch. 2, para 3 of the Act insofar as it inserts s. 37B(8) into the Police and Criminal Evidence Act 1984. Subsection (8) of 37B (consultation with the DPP) provides that, where a person is to be charged in accordance with that section, he is to be charged when he is in police detention (after returning to police detention to answer bail or otherwise) or in accordance with the Criminal Justice Act 2003, s. 29 (see D5.2 of the main work).

D3 Courts, Judges and Parties

D3.43 CPS Involvement in the Charging Process

D15 Trial on Indictment: The Prosecution Case

D15.53 Submission of No Case: The Test to be Applied

In C [2007] EWCA Crim 1862, a case involving an alleged offence of causing death dangerous driving (RTA 1988, s. 1), the Court of Appeal held that evidence of D's bizarre and erratic driving leading to a fatal accident sufficed to discharge the prosecution's evidential burden, even though the defence was one of automatism due to diabetic hypoglycaemic attack, and the prosecution had adduced no evidence to counter D's claim that he was unaware of what had happened and had no advance warning of the attack.

This ruling was clearly correct, because it is well established that the evidential burden in respect of an automatism defence rests on D, not the prosecution. It follows that, unless and until D adduces evidence of total loss of control, the question whether he had any advance warning of the attack simply does not arise.

D15.56 Submission of No Case: Interpretation of the Second Limb in Shippey

Turner J's famous (or notorious) "plums and duff" dictum in Shippey [1988] Crim LR 767 was considered once again in Silcock and others [2007] EWCA Crim 2176. The victim in this case (P) had intervened in a quarrel between Stanfield and his girlfriend Forrester. He injured Forrester and was then beaten by Stansfield, who knocked him to the ground. In a later incident shortly afterwards P was then allegedly attacked by Stansfield, Silcock and Johnson, knocked to the ground and kicked in the head and body. He died as a result of a single blow to the head which damaged his vertebral artery, causing a brain haemorrhage.

Silcott, Stansfield and Johnson were all charged with murder, on the basis of this second incident, but made a submission of no case on the basis that there was evidence to suggest that the fatal injury might have been inflicted in the first incident, in which case P was already dead when his body was kicked and punched in the second incident. The nature of the fatal injury was such that he would have died within seconds of it being inflicted. This eliminated the possibility that P was alive but already fatally injured at the start of the second incident.

To discharge their evidential burden the prosecution needed credible evidence that was capable of proving P was alive at the start of the second incident, and they had some in the form of the evidence of a passer-by, D, who saw the second incident begin and testified that nobody was lying on the ground at that time. In other words, P must have been standing when the appellants attacked him. Other witnesses seemed far less sure, but if D was a credible witness (and it seems that he was) that did not matter as far as the submission of no case was concerned, and the Court of Appeal was satisfied that the trial judge had been right to reject the submission. Hooper LJ said:

32. It was submitted that the judge had wrongly applied Galbraith and had failed to apply Shippey [1988] Crim LR 767. As to Shippey, it has been made clear on more than one occasion that Shippey establishes no principle of law: see Pryer and others [2004] EWCA Crim 1163.

Pryer was another case in which Hooper LJ gave the judgment of the court as to the circumstances in which a plea of no case should be accepted. He said:

28. It has been the experience of at least two members of this Court that Shippey is often cited by counsel at the close of the prosecution's case. What counsel often do, and what in our view counsel have done in this case, is to convert Shippey from what it actually is, namely a decision on the facts, into a decision on the law. Mr Moses and Miss Stapleton seek to find in Shippey, as many counsel have done before them, some principle of the law called 'the plums and duff principle'.

28. What is a trial judge being asked to do when a submission of no case is made either at the close of the prosecution case, or, as sometimes happens, after all the evidence in the case has been given? He has a task to perform which is stated simply and clearly in Galbraith:

"Could a reasonable jury properly directed properly be sure of the defendant's guilt on the charge which he faces."

29. Although the test is a very simple one, it is often difficult to answer the question. Help may sometimes be found in the case of Shippey in resolving that question, provided it is remembered that Shippey is no more than another case on the facts. Galbraith gives significant assistance to judges when being asked to resolve that question when the reliability of witnesses is in issue.

With respect, there is surely a reason for the frequent use of Shippey in this way. There is in other words a principle involved here, and it is one that can be understood without regard to the particular facts of Shippey itself. It is little more than a gloss on Galbraith itself, but if so it may still be a useful gloss. As Keene LJ said in Broadhead [2006] EWCA Crim 1705:

Turner J's celebrated words in [Shippey] embody a valid and important point, and one which is relevant to the present appeal. The judge's task in considering such a submission at the end of the prosecution's case is to assess the prosecution's evidence as a whole. He has to take into account the weaknesses of the evidence as well as such strengths as there are. He needs to look at the evidence at that stage in the trial in the round.

What one must beware of is a misuse of the principle (If we may call it that). A good witness's testimony will not usually be nullified merely because certain other witnesses are poor or incredible; and a jury might sometimes have reason to believe one part of a witness's testimony without necessarily believing another part. In Silcock, the evidence of witness D was clear and was not invalidated by the confused or uncertain testimony of other witnesses. But in other cases, the poor quality of a biased witness's account may be accentuated by the fact that it conflicts with the testimony of other, impartial, witnesses, and this may mean that no reasonable jury could ever rely on it: see for example Shire [2001] EWCA Crim 2800.

D25 Appeal to the Court of Appeal

D25.23 Conduct of the Trial Judge

In Cordingley [2007] EWCA Crim 2174, the Court of Appeal allowed D's appeal against conviction on the basis of evidence concerning what Laws LJ described as "rudeness and discourtesy of which the [trial] judge should be ashamed". Laws LJ explained:

15. The safety of a conviction does not merely depend upon the strength of the evidence that the jury hears. It depends also on the observance of due process. In this case it seems to us inescapable that the effect of the judge's conduct must have been to inhibit the defendant in the course of his defence. He clearly felt that the judge was prejudiced against him, as [counsel's] recollection of his client's own words demonstrate. It may well be that what the judge had said in his presence (although in the absence of the jury) affected him so as to have adverse consequences for his credibility before the jury. But whether or not that is so, it is to be remembered that every defendant, and this is no more than elementary, is entitled to be tried fairly " that is courteously and with due regard for the presumption of innocence. This appellant was not tried fairly. There was a failure of due process by reason of the judge's conduct. For that reason the appeal against conviction is allowed.

D26 Procedure on Appeal to the Court of Appeal

See Amendment No 16 to the Consolidated Criminal Practice Direction (Forms for use in appeals to the Court of Appeal (Criminal Division). This sets out the forms to be substituted for those in Annex D and three new forms to be added to that annex. The substitute forms are revised to be used in conjunction with the new rules about appeals to the Court of Appeal (Criminal Division), contained in parts 65 to 70 of the Criminal Procedure Rules 2005, as introduced by the Criminal Procedure (Amendment No. 2) Rules 2007, rr. 27 to 32 and schs. 1 to 6 (as noted in the September 2007 update to appendix 1 of this work)
See appendix 7 below.

PART E SENTENCING

E5 Custodial Sentences for Dangerous Offenders

E5.1 Application of the Scheme

The Sentencing Guidelines Council has published an addendum to the Compendium of Court of Appeal Guidelines. This relates to the dangerous offender provisions and brings together key judgments, setting them in the context of the statutory provisions; the document also contains two flow charts to help in ensuring that the proper stages are followed in the decision making process. It can be accessed at here.

E5.5 Imprisonment for public protection

Where, as in A-G's Ref (No 54 of 2007); Gower [2007] EWCA Crim 1655, [2007] All ER (D) 145 (Sep), an offender is convicted of one or more serious offences within the meaning of the Criminal Justice Act 2003, s. 225(1) and the judge concludes that the offender is likely to pose a significant risk of causing serious harm to members of the public in the commission of further offences, the judge does not have the option of imposing an extended sentence (which would accordingly be unlawful) but must impose a sentence that is in accordance with s. 225(3).

E5.7 Extended Sentence

If a offender is found to be dangerous, and is sentenced for one specified offence to an extended sentence under the Criminal Justice Act 2003, s. 227, then rather than impose no separate penalty in respect of another specified offence for which he has also been convicted, the appropriate sentence is a concurrent extended sentence: Sumner [2007] All ER (D) 132 (Sep).

E10 Community Sentences

E10.6 Unpaid Work Requirement

There may be some occasions when it would be appropriate to require an offender to undertake the maximum number of unpaid hours that may be imposed, but it is good practice to keep some hours in reserve so that the court has the sanction of imposing further hours in the event of a breach of the order: see Fergie [2007] EWCA Crim 1883, [2007] All ER (D) 139 (Sep).

E21 Confiscation Orders

E21.16 Making of Confiscation Order

The Criminal Justice Act 2003 (Commencement No. 17) Order 2007 (SI 2007 No. 2874) brings into force, on 1 October 2007, inter alia sch. 36, para. 15 which amends the Proceeds of Crime Act 2002, s. 85. The effect of the amendment is to extend the definition of when proceedings commence to cover the case where a public prosecutor issues a written charge and requisition in respect of the offence.

E24 Mentally Disordered Offenders

E24.4 Power to Make Restriction Orders

The Mental Health Act 2007 (Commencement No. 3) Order 2007 (SI 2007 No. 2798) brings into force s. 40 of the Act, which includes an amendment to the Mental Health Act 1983, s. 41. Section 41(1)(a) of the 1983 Act is amended so that the words ', either without limit of time or during such period as may be specified in the order' are omitted.

APPENDICES

Appendix 7 The Consolidated Practice Direction

See Amendment No 16 to the Consolidated Criminal Practice Direction (Forms for use in appeals to the Court of Appeal (Criminal Division).

This Practice Direction amends Annex D of the Consolidated Criminal Practice Direction handed down by the Lord Chief Justice on 8 July 2002, as subsequently amended.

It sets out the forms to be substituted for those in Annex D and three new forms to be added to that annex. The substitute forms are revised to be used in conjunction with the new rules about appeals to the Court of Appeal (Criminal Division), contained in Parts 65 to 70 of the Criminal Procedure Rules 2005, as introduced by rules 27 to 32 and Schedules 1 to 6 of the Criminal Procedure (Amendment No. 2) Rules 2007 (as noted in the September 2007 update to appendix 1 of this work).

As the rules have been comprehensively revised and simplified to correspond with the modern practice of the court, the forms to be used in conjunction with the new rules have also been comprehensively revised to correspond with the new rules. A new lettering system has been added to the forms to make them more identifiable, for example, all notices and grounds of appeal are referred to with the prefix NG, dependent upon the type of notice of application or appeal being lodged: form NG(Prep), NG(Pros), NG, and NG(159). Likewise, the respondent's notices required for each type of application or appeal are now identified as: RN(Prep), RN(Pros), RN, and RN(159). The format of the appeal forms has also been standardized where possible, including the addition of the identifying letters to the top right hand corner. The form of notice and grounds of appeal or application for permission to appeal against conviction or sentence (Form NG) has been revised to highlight the detailed grounds and information now required under the rules when initiating appeal proceedings to the Court of Appeal (Criminal Division).

This Practice Direction took effect on 1 October 2007 when the Criminal Procedure (Amendment No. 2) Rules 2007 came into force. The new forms must be used where the new appeal rules apply to an appeal, application or reference to the court under Parts 65 to 70. Rule 3 of the Criminal Procedure (Amendment No. 2) Rules 2007 adds a paragraph to rule 2.1 of the Criminal Procedure Rules 2005 providing that the new appeal rules apply only where an appeal, application or reference to the court under Parts 65 to 70 is made on or after 1 October 2007.

NEW LEGISLATION

Mental Health Act 2007 (Commencement No. 3) Order 2007 (SI 2007 No. 2798)

This Order brings into force various sections of the Act on 1 October 2007, 1 December 2007 and 1 January 2008. Of interest to criminal practitioners is the implementation of the amendments made by s 40 of the Act (restriction orders) to inter alia the Mental Health Act 1983, ss. 41 and 42, and the increase in penalty effected by s. 42 of the Act (from two years to five years) in respect of the offence under the Mental Health Act 1983, s. 127 (ill-treatment and wilful neglect of patients).

Criminal Justice Act 2003 (Commencement No. 17) Order 2007 (SI 2007 No. 2874)

This Order brings the following provisions of the Act into force on 1 October 2007:

sch. 2, para 3 insofar as it inserts a new s. 37B(8) into the Police and Criminal Evidence Act 1984;
sch. 36, paras. 6, 10 and 15, which make complimentary amendments in relation to, respectively, the Criminal Law Act 1977, s. 39, the Prosecution of Offences Act 1985, s. 15 and the Proceeds of Crime Act 2002, s. 85.

of the main work).

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