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Blackstone's Criminal Practice 2009

Updates

Part A

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Blackstone's Criminal Practice 2009

Part A

Updates to Part A: General Principles of Criminal Law

A1 Actus Reus

A1.28 Causation: Acts of Third Parties

Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 may no longer be considered to lay down principles of general application (following Lord Bingham's comments in Kennedy (No. 2) [2007] UKHL 38), but it remains good law in the specific context of liability for pollution offences under provisions such as the Water Resources Act 1981, s. 85(1), and it was applied in that context in L [2008] EWCA Crim 1970, where Hughes LJ said:

Here the charge was causing, rather than knowingly permitting [pollution of a watercourse]. Liability for this offence is, if not absolute, extremely strict, notwithstanding its juxtaposition in the statute with the neighboring offence of knowingly permitting. On the authority of the decision of the House of Lords in Environment Agency v Empress Car Co (Abertillery) Ltd, and of other authorities there reviewed, it may be committed by maintaining a tank containing a polluting substance which escapes into a watercourse even if the immediate occasion of the escape is the unforeseeable act of a third party, providing that that intervening act can be described as a normal fact of life as distinct from an extraordinary and abnormal event. Even an intervening interference by a trespasser may lead to the criminal responsibility of the tank owner. The decision in that case was that in such circumstances maintaining the tank causes the pollution.

In Empress the defendant company could be said to have contributed to the pollution of a watercourse by their complete disregard for elementary safety precautions, which left their premises defenceless against vandalism of the kind that seems to have occurred, but that accusation cannot really be made against the defendants in L, whose only contribution to the 'crime' was that they were responsible for storing central heating oil on their club's premises. The escape of the oil was the fault of independent contractors working on their site, but liability was strict.

For other aspects of this case, see A5.17 below.

A3 General Defences

A3.28 Necessity

The Court of Appeal appears to have been willing to recognise the potential availability of a necessity defence in S and L [2009] EWCA Crim 85, where the charge was one of deploying unlicensed guards, contrary to the Private Security Industry Act 2001. The defence in this case wished to argue that it had been necessary for the defendants to deploy unlicensed guards because they were faced by an imminent threat of terrorist attack and had no opportunity to secure the requisite licences in time to meet that threat, but the judge had ruled against this defence at a preparatory hearing. The judge clearly doubted whether this defence could possibly succeed on the facts, and it seems that the defence had not at that stage identified any evidence that would have sufficed to put the defence in issue, but the Court of Appeal's view was that the judge's ruling was premature and that it was dangerous to rule out such a defence at the pre-trial stage:

The judge allowed his own factual conclusions to be the basis for concluding it could not be done before the jury. That seems to us to be dangerous. We are all aware of cases where, at first, cross-examination seems a quixotic task, but in which witnesses reveal more than might have been foreseen. What the judge in effect was saying to the defence is: "You are not allowed to cross-examine on issues on which I have already reached a factual conclusion". That seems to us a very dangerous basis for making a preliminary ruling, shutting out such a defence from being advanced . . .

The difficulty with the ruling the judge gave is that he could not be satisfied on the material before him that that was all the material the defence was going to deploy, and it has now emerged that there is further material that the defendants seek to deploy. Quite what it adds up to, absent any particulars, is difficult to discern, but of one thing we are quite clear: that there is a danger in ruling out a defence for all time without any possibility of knowing that that is all the defence intend to adduce.

A5 Parties to Crime

A5.1 Liability of Principals and Accessories Generally

Calhaem [1985] QB 808 and Bryce [2004] 2 Cr App R 592 were considered by the Court of Appeal in Luffman [2008] EWCA Crim 1379, in which the appellants paid C to murder L's husband, S, and provided C with a sawn-off shotgun and cartridges with which to commit the offence. C killed S using the weapon provided and was duly convicted of his murder. The jury at C's trial predictably rejected his story that he 'never intended to carry out the killing', but was forced to do so in self-defence, when S resisted C's attempt to rob him.

C then became the principal prosecution witness against the appellants, but persisted in his story that he had never intended to commit the murder he had been hired to commit. That part of his story was not challenged by the appellants in cross-examination. Instead, they seized upon it to support their own defences, and contended:

they had not 'counselled' the offence because C had never formed the intention to murder the deceased in accordance with their wishes;
there was no causal connection between their solicitation of C and the offence which had in fact been committed;
C had acted outside the scope of his authority and had attempted to commit robbery without their knowledge or authorisation; and
the circumstances of the killing had been outside their contemplation.

A key argument underlying the first two contentions was that secondary liability for counselling or procuring an offence requires a causal link to be established between the acts of the alleged secondary parties and the commission of the offence in question. But as the Court of Appeal rightly noted, the authorities suggest that a causal link is necessary only where the prosecution rely on 'procuring'. On a charge of 'counselling' (or indeed of aiding or abetting), it is no defence to argue that the principal offender would have committed the offence without any help or encouragement. Even if a causal link was needed, there was ample evidence to suggest that such a link did exist. The jury at C's trial had rejected his plea of self-defence and he had killed S with the gun and ammunition provided by the appellants. The Court also rejected the contention that C's actions (and in particular his attempt to rob S) took him outside the scope of any authority given by the appellants. Even if C killed S because his plan to rob S went wrong, his actions 'were not so fundamentally different from those foreseen by the appellants as to sever any causal connection between the appellants' act and the commission of the offence.'

A5.14 Withdrawal

O'Flaherty [2004] 2 Cr App R 315 was applied in Mitchell [2008] EWCA Crim 2552 in upholding a conviction for murder. The Court of Appeal took the view that there was ample evidence on which to find that the appellant had played the leading role in starting the serious violence and by her continued presence had clearly not withdrawn from it. Although there was a short lull in the violence whilst some of those involved went for weapons, whether there was one enterprise or two was not the central issue and was in any event addressed by considering the scope of the enterprise she had joined and deciding whether that enterprise had come to an end by the time of the fatal acts.

The Court also made some pointed observations about the complexity of the current law on joint venture and the lengths to which it requires trial judges to go in summing up. Thomas LJ said:

The Law Commission has in its reports on Homicide (2006) and Participating in Crime (2007) set out proposals for reform of the law; this is currently being considered by Ministers. Pending any change which it is to be hoped would set out clear and simple principles easy for a jury to apply, we venture to suggest that consideration should be given to giving directions in much simpler form and that the higher courts should approve a simpler approach. The concept of joint enterprise is in the ultimate analysis based on a concept that should in most cases be susceptible to explanation to a jury in short order without a judge being justifiably concerned that, unless the law is explained in detail the higher courts will overturn the verdict.

A5.14a Withdrawal

O'Flaherty [2004] 2 Cr App R 315 and Mitchell [2008] EWCA Crim 2552 (noted in the November update and in Updating Supplement 1) were considered in Campbell [2009] EWCA Crim 50. C and H were part of a group of men who were recorded on CCTV assaulting and kicking V. V got up and staggered across the road, where he was further assaulted by Y, who also attempted to rob him. V died four days later. C, H and Y were all charged with his murder.

Two expert witnesses (the pathologist who carried out V's post-mortem and a consultant neuropathologist, who carried out a microscopic examination of V's brain) each concluded that the cause of death was an accumulation of injuries sustained during the two assaults. C and Y were convicted of murder. H was convicted of manslaughter and the verdicts were upheld on appeal, where Scott Baker LJ said:

30. There was little, if any, difference between the experts as to the cause of death. The judge made it perfectly clear . . . that it was a matter for the jury whether they accepted the opinion evidence of the experts.

31. It was an important plank in the appeals of Campbell and Henry that the deceased's death was not caused by any assault on their part but by the separate and subsequent assault by Yateman on the other side of the road for which they were not responsible. In our judgment the jury was fully entitled from the evidence they had heard to conclude that the actions of Campbell and Henry in the earlier incident were a significant cause of death and that causation was therefore established.

32. There was evidence of causation at the end of the prosecution case and the judge summed up the issue of causation appropriately to the jury.

33. . . . We were referred to Rafferty [2007] EWCA Crim 1846 which was a case where death was caused by new and intervening event in a chain of events. It was submitted by the appellants that on a similar basis the Yateman attempted robbery was such an event. We cannot accept that this case fell into the Rafferty category. The act or acts of Yateman, if they alone caused the death were not of such a fundamentally different nature from what had gone before that they amounted to a new and intervening act in the chain of events.

A5.17 Corporate Liability (and Unincorporated Associations)

In L [2008] EWCA Crim 1970, the court considered the potential liability of members of an unincorporated association for offences involving the activities of that association (in this case the pollution of a watercourse by heating oil escaping from the premises of a golf club).

Although unincorporated associations are not regarded for most purposes as having legal personality, there are many important exceptions to that principle, as Hughes LJ notes in L at [15]. A number of offence-creating statutes expressly provide for the prosecution and liability of such entities (see for example the Corporate Manslaughter and Corporate Homicide Act 2007, s. 1(2) and the Health Act 2006, ss. 76 and 77). Moreover, under the Interpretation Act 1978, where an enactment passed after 1889 purports to impose criminal liability on 'persons' this may include unincorporated associations. See L at [17] and [27] see also W Stevenson & Sons (a partnership) [2008] EWCA Crim 273.

In some cases, it is specifically provided that any prosecution should be brought against the association or firm, and not against individual members, but in other cases there is no such restriction. In L, the prosecution had been brought against two of the club's 900 members (namely its Chairman and Treasurer). The trial judge ruled that this was wrong because they were not personally at fault and that the club should itself have been charged. The prosecution conceded that this would indeed have been a more appropriate way in which to proceed, but the Court of Appeal took a different view. It was true that the defendants were not personally at fault. It was also true that no officer of a corporation could have incurred liability unless personally at fault, but in this case liability arose merely because they were members. Hughes LJ explained:

33. In this the judge went further than he was entitled to go. It is one thing to say that Parliament ought to have included a further provision in the statute, but it is quite another to re-write the Act as if it had. The Interpretation Act contains no justification for such an insertion. Nor do we think that it is correct to say that there is no reason why the criminal liability of officers (or members) of an unincorporated association should exist on a basis different to that of the officers of a corporation. Although many statutes make it possible to prosecute an unincorporated association, and although we have held that this is perfectly possible under section 85 Water Resources Act, it does not follow that such an association is for all purposes the same as a company or other corporation. It is not. A corporation has, for all legal purposes, independent legal personality. It is also regulated, often heavily. It must have a registered address and registered directors and secretary. An unincorporated association may indeed look very like a corporation in some cases, and it may have standing and de facto independence, but equally it may not. A prosecution which could only be brought against an informal grouping of building workers, or sportsmen, or campaigners would be likely to be wholly ineffective. It is a necessary consequence of the different nature of an unincorporated association that all its members remain jointly and severally liable for its actions done within their authority. In the present case, the 900-odd members of the club were indeed all maintainers of the tank and, on the law as explained in Empress Car Co all guilty of the strict liability offence of causing the leakage.

34. This is not vicarious liability for the offence of the club, as was suggested in argument before the judge. Vicarious liability, when it exists, arises out of the employment by the defendant of another person to act for him. There is no sense in which the chairman, treasurer, or any other member of this club employed the club to do anything for them. The criminal liability of the members of the club, including the chairman and the treasurer, is primary liability, not vicarious liability. It arises because, as Empress Car Co holds, each person jointly maintains the tank and has thus caused the leak.

35. It follows that the correct position under section 85 of the Water Resources Act 1991 is that a prosecution for the strict liability offence of causing polluting matter to enter controlled waters may be brought, on the facts of this case, against either the club in its own name, or against individual members. It is for the Crown in any individual case to determine the defendant(s) whom it seeks to prosecute. The court would interfere only in the very limited case of oppression involving abuse of process. No doubt relevant considerations will include the extent of the association's stability and assets and the nature of the act or omission said to constitute an offence. We have heard no argument on whether in exceptional circumstances it could be permissible for the Crown to seek to proceed against both the club and individuals, but there are no such exceptional circumstances here.

Despite that ruling, the court concluded that it would not be in the interests of justice for a fresh trial to take place, and directed the acquittal of the defendants.

A5.17a Corporate Liability: Liability of Individual Officers

P [2007] EWCA Crim 1937 was considered by the House of Lords in Chargot Ltd [2008] UKHL 73, which like P involved a case under the Health and Safety Act 1974, s. 37. Lord Hope (with whom the other Lords agreed) said:

No fixed rule can be laid down as to what the prosecution must identify and prove in order to establish that the officer's state of mind was such as to amount to consent, connivance or neglect. In some cases, as where the officer's place of activity was remote from the work place or what was done there was not under his immediate direction and control, this may require the leading of quite detailed evidence of which fair notice may have to be given. In others, where the officer was in day to day contact with what was done there, very little more may be needed... the question, in the end of the day, will always be whether the officer in question should have been put on inquiry so as to have taken steps to determine whether or not the appropriate safety procedures were in place. I would too. The fact that the penalties that may be imposed for a breach of [s. 37] have been increased does not require any alteration in this test.

A6 Inchoate Offences

A6.1 Incitement

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brings inter alia ss. 46 to 67 of the Act into force on 1 October 2008, including the repeal of the offence of incitement.

A6.9 Encouraging or Assisting Crime: Serious Crime Act 2007

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brings inter alia ss. 46 to 67 of the Act into force on 1 October 2008, together with schs. 3 (listed offences) and 4 (extra-territoriality).

A6.12 Intentionally Encouraging or Assisting an Offence

A6.20 Encouraging or Assisting an Offence Believing it will be Committed

A6.27 Encouraging or Assisting Offences Believing One or More will be Committed

A6.33 Encouraging or Assisting Another Person to Commit an Inchoate Offence

A6.34 Jurisdiction and Procedure

A6.39 Conspiracy to Defraud/Price-fixing Cartels

Norris v Government of the United States of America [2008] UKHL 1103, [2008] 2 All ER 1103 was applied in GG plc [2008] UKHL 17, judgment in which has only recently been released. The case involved allegations of price-fixing by pharmaceutical companies, at the expense of the Department of Health, but it was held that this could not of itself give rise to liability for conspiracy to defraud. The Appellate Committee ruled that:

It is readily apparent from the terms of the indictment and the summaries in the Prosecution Case Statement... that the thrust of the case, as so charged, is that of price fixing. It goes on the incorrect assumption that price fixing, when carried out in circumstances of secretive and deceptive behaviour, is dishonest in itself and is a sufficient basis for conspiracy to defraud. It does not isolate and charge any specific aggravating elements which would elevate price fixing into an indictable conspiracy to defraud. For that reason we must regard the indictment as defective as it stands.

The Court of Appeal in GG plc [2008] EWCA Crim 3061 subsequently upheld a ruling of Pitchford J, refusing the prosecution leave to amend the indictments.

A6.43 Conspiracy

Meyrick (1929) 21 Cr App R 94 and Griffiths [1966] 1 QB 589 were considered in Davenport [2009] All ER (D) 30 (Mar), in which the defendants were charged with a long-running conspiracy to make and sell counterfeit rock festival wristbands dating back to 2005, but the evidence only implicated them in a much more limited conspiracy at a single venue in 2007. The trial judge was held to have acted correctly in upholding a submission of no case to answer. There was no evidence to suggest that the defendants were guilty of the conspiracy of which they were accused, and in the circumstances it would not be fair to allow the prosecution to amend the indictment at half time.

A6.54 Conspiracy to Defraud and Related Offences

Whittle [2008] EWCA Crim 2560 is the first reported case involving offences under the Enterprise Act 2002, s.188, by which it is an offence for an individual dishonestly to agree with one or more persons to make or implement, or to cause to be made or implemented, arrangements between two or more undertakings that are anti-competitive within the UK. By s. 190, the maximum penalty is imprisonment for five years or a fine or both.

The sentences imposed in this case were influenced by special circumstances and are not be treated as guidelines, but on a more general level the court noted the following factors as likely to be relevant to any sentence passed for such an offence:

the gravity and nature of the offence;
the duration of the offence;
the degree of culpability of the defendant in implementing the cartel agreement;
the degree of culpability of the defendant in enforcing the cartel agreement;
whether the defendant's conduct was contrary to guidelines laid down in a company compliance manual;
mitigating factors: e.g. any co-operation the defendant may have provided in respect of the enquiry; whether or not the defendant was compelled to participate in the cartel under duress; whether the offence was a first offence; and any personal circumstances of the defendant which the courts may regard as a factor suggesting leniency.

A7 Human Rights

In A v United Kingdom (App. No. 3455/05) (2009) The Times, 20 February 2009, the European Court of Human Rights ruled (as did the House of Lords in A v Secretary of State [2005] UKHL 71) that the preventative detention originally imposed in the 'Belmarsh case' on terrorist suspects who could not be charged in the UK or deported to their own countries violated their rights under the ECHR, Article 5, although the court accepted that the UK authorities had acted in good faith. The court ruled (at [171]):

It is . . . clear . . . that the applicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to national security. The Court does not accept the Government's argument that Article 5.1 permits a balance to be struck between the individual's right to liberty and the State's interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court's jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.

A7.67 Trial within a Reasonable Period

There is an inevitable risk that delays will arise where an alleged offender is initially arrested or charged in England and Wales and then prosecuted in Scotland or Northern Ireland (or vice versa). But this multiplicity of UK jurisdictions cannot be used as an excuse if the alleged offender is thereby deprived of his Convention right to a fair and public hearing within a reasonable time of the initial arrest, etc. As Lord Rodger explained in Burns v Her Majesty's Advocate [2008] UKPC 63:

The United Kingdom, rather than Scotland or England, is the party to the European Convention. In terms of article 1, the United Kingdom has undertaken to secure to everyone within its jurisdiction, inter alia, the rights defined in article 6. Of course, the United Kingdom is free to make what internal constitutional arrangements it pleases, but, whatever arrangements it adopts, it remains bound to fulfil that obligation. Suppose a case where someone is 'charged' in Scotland for article 6(1) purposes and his trial in Scotland is then delayed for a period which is unreasonable. The United Kingdom will be in breach of article 6(1). Suppose, instead, that he is 'charged' in Scotland and his trial in England on substantially the same matter is then delayed for the same period. The same result must follow. In other words, the way that the United Kingdom has chosen to distribute its criminal jurisdiction cannot impair or defeat an accused's right to be tried on a criminal charge within a reasonable time. In a case like the present, therefore, when applying article 6(1), it is appropriate to look at the sum total of the actions of the competent English and Scottish authorities.

A7.71 The Burden of Proof and the Presumption of Innocence

In Grayson v UK (2008) The Times, 2 October 2008, the European Court of Human Rights rejected the contention of each applicant that, in confiscation proceedings brought under the Drug Trafficking Act 1994, the fact that the legal burden of proof was on the defendant to show that he/she did not have 'realisable assets' equivalent to the 'benefit figure', was in breach of Article 6 of the ECHR and Article 1 of Protocol No. 1. See further E19.3.

A7.74 Hearsay Evidence

The European Court of Human Rights has delivered an important ruling in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110 that considerably restricts the extent to which hearsay evidence from dead or absent witnesses may be relied upon by the prosecution in criminal trials, without being found to infringe the defendant's right to a fair trial under the ECHR, Article 6(1) and (3). See further the January update at F16.18.

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