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Blackstone's Criminal Practice 2009

Updates

September 2007

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Blackstone's Criminal Practice 2009

September 2007

September 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 September update primarily covers developments occurring or reported in August 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

A3 General Defences

A3.19 Insanity

Windle [1952] 2 QB 826 was followed, and the discussion of it in Blackstone's Criminal Practice approved, in Johnson [2007] EWCA Crim 1978. The basis of the application made on D's behalf in this case was that on a proper reading of the M'Naghten Rules he was entitled to a verdict of insanity if the jury concluded that, even though he knew that what he did was wrong as a matter of law, nonetheless, he did not consider that what he did was morally wrong, because on the basis of his mental condition he felt that there was a moral justification for doing what he did.

That submission would have required the Court of Appeal to reject Windle and follow instead the ruling of the High Court of Australia in Stapleton (1952) 86 CLR 358. The Court of Appeal declined to to this. The law as stated in Windle was unequivocal and had not, so far as their lordships were aware, been doubted in the Court of Appeal. Counsel was however invited to draft a possible question or questions for the court to certify, so that the House of Lords might determine whether it wants to revisit the M'Naghten Rules on that issue.

A3.39 Infancy

It may be appropriate to note in this context an observation by by Hughes LJ at the conclusion of his judgment in DPP v R [2007] EWHC 1842 (Admin), in which a mentally handicapped boy of 13 was acquitted of a relatively minor sexual assault against a similarly handicapped girl of the same age:

. . . where very young, or very handicapped, children are concerned there may often be better ways of dealing with inappropriate behaviour than the full panoply of a criminal trial. Even where the complaint is of sexual misbehaviour it ought not to be thought that it is invariably in the public interest for it to be investigated by means of a criminal trial, rather than by inter-disciplinary action and co-operation between those who are experienced in dealing with children of this age and handicap.

A5 Parties to Offences

A5.17 Corporate Liability

In P [2007] All ER (D) 173 (Jul) the Court of Appeal considered the possible liability of a director for 'neglect' (as opposed to 'consent or connivance) in connection with an offence under the Health and Safety at Work etc Act 1974, allegedly committed by his company. It was held that, in considering whether there had been neglect on the part of a director or other officer, it was necessary to ascertain whether he had failed to take some steps which fell within the scope of the functions of the office which he had held. Where 'wilful neglect' is not required, it is not necessary to determine whether a defendant 'turned a blind eye'. That would equate the test of neglect with that to be applied where the allegation was connivance. The question was whether, in the absence of actual knowledge, the director or officer should have been put on enquiry. That would depend on the evidence in every case.

PART B OFFENCES

B2 Non-fatal Offences against the Person

B2.53 Wounding or Causing Grievous Bodily Harm with Intent: Alternative Verdicts

In Banton [2007] EWCA Crim 1847, D was alleged to have deliberately smashed a bottle in V's face after V had stepped on her toes while dancing. D claimed that she had merely thrown a bottle in V's direction after V and her friends had attacked her, but had not meant to cause any injury. Clearly the jury did not believe her. D was convicted on a single count of wounding with intent to do GBH, contrary to the Offences against the Person Act 1861, s. 18. The jury was not directed as to any alternative verdict, although a verdict of malicious wounding under s. 20 was certainly available to them as a matter of law. In the trial judge's words, prosecuting counsel 'nailed his colours to the s. 18 mast' - if D hit V in the face as alleged, she must, said counsel, have intended to cause serious injury. The prosecution would have no truck with alternative theories as to the bottle being recklessly thrown in V's direction.

On that basis, the Court of Appeal concluded that this was one of the exceptional cases posited in Coutts [2006] UKHL 39, in which directing the jury as to the alternative charge would have infringed D's right to a fair trial. The prosecution was right not to seek to add an alternative s. 20 count to the indictment and the judge was right not to order it.

This may well have been correct if the only possible factual basis of a s. 20 verdict was the 'recklessly thrown bottle' scenario expressly rejected by the prosecution, but (with respect) some jurors might surely have wondered whether D really intended to cause such serious injuries, even if she did she strike V with the bottle in precisely the manner alleged by the prosecution. Not everyone struck with a bottle suffers serious injury. In what sense would D's right to a fair trial have been infringed if the judge had invited the jury to consider the possibility that she did indeed hit V deliberately, as the prosecution alleged, but only with the intention of causing some lesser kind of injury, or perhaps without considering the consequences at all? Counsel may have been reluctant to leave the jury with this 'soft option' to fall back on, but according to Coutts that would not have been a valid reason for the judge to leave the jury without guidance on that issue.

B3 Sexual Offences

B3.79 Child Sex Offences Committed by Children or Young Persons

It may be appropriate to note in this context an observation by by Hughes LJ at the conclusion of his judgment in DPP v R [2007] EWHC 1842 (Admin), albeit that the case in question involved allegedly non-consensual behaviour:

. . . where very young, or very handicapped, children are concerned there may often be better ways of dealing with inappropriate behaviour than the full panoply of a criminal trial. Even where the complaint is of sexual misbehaviour it ought not to be thought that it is invariably in the public interest for it to be investigated by means of a criminal trial, rather than by inter disciplinary action and co operation between those who are experienced in dealing with children of this age and handicap.

B3.284 Outraging Public Decency: Elements

In Hamilton [2007] EWCA Crim 2062, D used a camera hidden in a rucksack, to secretly film a number of 'upskirt' videos of women and girls, usually while standing behind them at supermarket checkouts. Only one of his 'subjects' was ever identified: she was a girl aged 14 at the time, and this led to charges under the Child Protection Act 1978, s. 1. He stopped making the videos in 2001, so no question arose of a prosecution under the Sexual Offences Act 2003, s. 67, but it must in any case be doubtful whether any of them could be said to be 'doing a private act' (as defined in s 68) at the relevant time.

In respect of the adult subjects, the Crown therefore relied on the common-law offence of outraging public decency, arguing that the requisite elements of that offence were all present: D's conduct was committed in public; it was of such a lewd, obscene and disgusting character as to outrage public decency; and it was at least capable of being seen by those present at the time, had they been more vigilant. The fact that no one actually realised what he was doing did not matter. D however argued that it was necessary for the act to be witnessed by at least one person; and that at least one other person must have been present and capable of witnessing it (relying on Mayling [1963] 2 QB 717). As no one realised what he was doing, no offence was committed.

Having considered Mayling, Knuller Ltd v DPP [1972] 2 All ER 898 and other authorities dating back to Sedley's case (1675) Strange 168, the Court of Appeal concluded that it was necessary to have regard to the purpose of the 'two person' rule. This was concerned only with the necessity for there to be a public element in the sense of more than one person being present and capable of being affected by the offending conduct. In the present case, although no one saw what D was doing, there were indeed others present, and by their verdict the jury must have concluded that D's conduct was capable of being seen by them. His conviction was upheld.

B6 Falsification, Forgery and Counterfeiting

B6.95 False Trade Descriptions: Procedure and Enforcement

For the purposes of the Trade Descriptions Act 1968, s. 19(1), the 'prosecutor' is the local authority, and not the individual officer of the authority who institutes the proceedings on the authority's behalf. Time begins to run against the authority as soon as it can be imputed by its officers or employees with knowledge of the alleged offence, whereas the individual who instigates the prosecution on its behalf almost certainly learns about the offence at a much later stage: R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin).

B6.98 False Trade Descriptions: Elements

In R (Donnachie) v Cardiff Magistrates' Court [2007] EWHC 1846 (Admin) at [25], the Divisional Court distinguished between offences under the Trade Descriptions Act 1968, ss. 1(1)(a) and 1(1)(b) in the context of the sale of a taxi with a falsified odometer, and of the time-limits on prosecutions imposed by s. 19 of the Act (see B6.95 above):

Section 1(1)(a) and 1(1)(b) create two separate absolute liability offences under the Trade Descriptions Act 1968. The use of the word 'applies' in 1(1)(a) and 'supplies' in 1(1)(b) marks the difference between the two offences. A false trade description can be applied to goods even before they are sold. This section is clearly designed to make it an offence to turn back the odometer and to supply or offer to supply a vehicle with an altered odometer. It may well be that in some cases it is only on sale or offer for sale that the altered reading is discovered but this does not affect the fact that to alter an odometer in itself is to apply a false trade description to a car, namely that it has been driven a lesser number of miles than it has in fact been driven.

B7 Company, Investment and Insolvency Offences

B7.1 Offences under the Companies Act 1985: General

The Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194), as amended by the Companies Act (Commencement No. 4 and Commencement No. 3 (Amendment)) Order 2007 (SI 2007 No. 2607), brings various provisions of the Act into force on 1 October 2007, 1 November 2007, 15 December 2007 and 1 October 2008. The provision of particular interest to criminal practitioners which is brought into force is s. 993 (fraudulent trading), which is in force from 1 October 2007, but a wide range of other offence provisions, and offence-creating provisions which support them, have been brought into force as follows:

ss. 29 and 30 (resolutions and agreements affecting a company's constitution);
ss. 116 to 119 (inspection of register of members);
ss. 145 to 153 (exercise of members' rights);
s. 154 (companies required to have directors);
s. 160 (appointment of directors of public company to be voted on individually);
s. 161 (validity of acts of directors);
ss. 168 and 169 (removal of directors);
ss. 170 to 174 and 178 to 181 (general duties of directors);
ss. 188 to 226 (transactions with directors requiring approval of members);
ss. 227 to 230 (directors' service contracts);
s. 231 (contract with sole member who is also a director);
ss. 232 to 239 (directors' liabilities);
ss. 248 to 259 (supplementary provisions);
ss. 260 to 269 (derivative claims and proceedings by members);
ss. 281 to 287 (general provisions about resolutions);
ss. 288 to 300 (written resolutions);
ss. 301 to 307, 310 to 326, 327(1), (2)(a) and (b) and (3), 328, 329, 330(1) to (5), (6)(a) and (b) and (7), 331, 332, 334 and 335 (resolutions at meetings);
ss. 336 to 340 (public companies: additional requirements for AGMs);
ss. 341 to 354 (additional requirements for quoted companies);
ss. 355 to 359 (records of resolutions and meetings);
ss. 360 and 361 (supplementary provisions);
s. 417 (contents of directors' report: business review);
ss. 485 to 488 (appointment of auditors of private companies);
s. 993 (fraudulent trading);
ss. 994 to 999 (protection of members against unfair prejudice);
ss. 1035 to 1039 and 1124 and sch. 3 (company investigations: amendments);
ss. 1121 to 1123 and 1125 to 1133 (general supplementary provisions relating to offences), as they apply to offences under part 14 or 15 of the 1985 Act.

It should also be noted that ss. 362 to 379 (control of political donations and expenditure) are brought into force and these provisions include certain allied offences; they are in force from 1 October 2007 except in relation to independent candidates (in respect of whom they come into force on 1 October 2008). Further provisions are brought into force in part (i.e. so far as necessary for the implementation of the provisions listed).

B7.5 Prohibited Transactions involving Loans etc. to Directors and Connected Persons

The Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194) brings inter alia ss. 197 to 214 of that Act into force, on 1 October 2007 (not October 2008 as originally announced), and the relevant repeals of the Companies Act 2005.

B7.11 Fraudulent Trading

The Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194) brings into force inter alia s. 993 of that Act, on 1 October 2007, and the relevant repeals of the Companies Act 2005.

B11 Offences Affecting Public Order

B11.137 Demonstrations without Authorisation in Designated Areas

Litigation arising from the potential application of the Serious Organised Crime and Police Act 2005, ss. 132 to 138 to Brian Haw's permanent one-man demonstration in Parliament Square against the government's policy on Iraq rumbles on. In DPP v Haw [2007] EWHC 1931 (Admin) (the third such case to be reported) the prosecution appealed against Haw's acquittal on charges of breaking conditions imposed on his demonstration by the police. The Divisional Court confirmed that certain statutory powers given to the Metropolitan Police Commissioner by the SOCPA 2005, s. 134 could properly be exercised by a subordinate on his behalf, but this was of no immediate assistance to the prosecution because the court also agreed with the district judge's conclusion that there was no case to answer because the conditions in question were unworkable and unlawful. More carefully drafted conditions may now be imposed. The court warned Haw that he 'would be well advised to co-operate with the police' in respect of them.

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

The Racial and Religious Hatred Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 2490) brings the Act into force, on 1 October 2007, thus bringing the Public Order Act 1986, s. 29B into effect (except insofar as it inserts a new s. 29B(3)).

The Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations 2007 (SI 2007 No. 2497) include provision for the application of the 2006 Act to information society services and particularly to Internet Service Providers and the like. They ensure that offences under part 3A of the Public Order Act 1986 (which are created by the 2006 Act) apply on a country of origin basis and create exceptions from liability in respect of the offences for intermediary providers of information society services where their role is limited to that of a mere conduit or they merely provide caching or hosting services.

B11.193 Publishing or Distributing Written Material Stirring Up Religious Hatred

B11.197 Public Performance of Play Stirring Up Religious Hatred

B11.202 Distributing, Showing or Playing a Recording Stirring Up Religious Hatred

B11.207 Broadcasting or Including Programme in Programme Service Stirring Up Religious Hatred

B11.212 Possession of Inflammatory Material

The Racial and Religious Hatred Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 2490) brings the Act into force, on 1 October 2007, thus bringing the Public Order Act 1986, ss. 29G and 29H into effect. See also B11.187.

B12 Offences relating to Weapons

B12.2 Firearms Act 1968: Table of Punishment

The Violent Crime Reduction Act 2006 (Commencement No. 4) Order 2007 (SI 2007 No. 2518) brings into force, on 1 October 2007, s. 41 of the Act (increase of maximum sentence for possessing an imitation firearm) and related provisions. The effect is to make an offence under the Firearms Act 1968, s. 19 in relation to an imitation firearm triable either way and to increase the maximum penalty on conviction on indictment to 12 months or a fine or both.

B12.17 Not Conforming to Specifications for Imitation Firearms

The Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 (SI 2007 No. 2606) make provision in connection with the realistic imitation firearms provisions of the Violent Crime Reduction Act 2006 (ss. 36 to 38 and sch. 2, paras. 4 to 6).

Regulation 3 provides for defences to the offences of the manufacture, import and sale of realistic imitation firearms. These defences will operate where a person who is charged with such an offence can show that his conduct was for the purpose only of making the imitation firearm in question available for one or more of the purposes specified in reg. 3(2). Regulation 4 makes provision dealing with the burden of proof for these defences.

Regulation 5 describes persons who organise and hold historical re-enactments for the purpose of the defence to offences under s. 36 and sch. 2, para. 4 as set out in s. 37(2)(e) and sch. 2, para. 5(2)(e).

Regulations 6 and 7 make provision in connection with the definition of 'realistic imitation firearm'. They specify the sizes and colours and nature of materials which are to be regarded as unrealistic for a real firearm (e.g. the use of bright orange or transparent material will render the product unrealistic).

B12.84 Carrying Loaded Firearm in Public Place

B12.130 Offensive Weapons: Reasonable Excuse

In Archbold [2007] EWCA Crim 2137, D was in bed when C started to throw stones at his house and car, in breach of an ASBO. D called the police and then armed himself with a knife for protection before going out to confront C and await arrival of the police. C attacked him with a crowbar, upon which D stabbed and injured C with the knife. He was acquitted of unlawful wounding, to which he pleaded self-defence, but convicted of having an offensive weapon in public on the basis of the judge's direction that D could have had no lawful authority or reasonable excuse for carrying the knife even if had only intended to use it defensively.

Reasonable apprehension of imminent attack may be a lawful excuse for carrying a weapon (Evans v Hughes [1972] 3 All ER 412) but on appeal the Crown sought to support the judge's ruling by arguing that D had not faced such a threat because he could have locked himself indoors to await the police. In other words, D brought about the risk by going out to meet C (cf. Malnik v DPP [1989] Crim LR 451). This argument seems to have met with some sympathy in the Court of Appeal; but the court ultimately took the view that the judge had usurped the jury's role by withdrawing the issue from their consideration. It ought to have been left to the jury, and D's conviction was unsafe.

With respect, a citizen is surely entitled to confront any person attacking his property, without thereby being held responsible for 'creating' a dangerous situation. There is something very unattractive in the argument that a person who sees his car or other property attacked by vandals who may well become dangerous when confronted must either cower inside his house to await the police (who may or may not come in time) or go out unarmed. In such a case, the jury must of course decide whether D went out looking for trouble or whether he meant only to defend himself if attacked. In the latter case, it is submitted that he may indeed have a reasonable excuse for arming himself, and a jury should be directed accordingly.

PART C ROAD TRAFFIC OFFENCES

C2 Evidence and Procedure

C2.12 Alternative Verdicts

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 33 of the Act.

C2.15 Duty to Provide Information

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 29 of the Act. Section 29 increases the number of penalty points applicable for the offence under the Road Traffic Act 1988, s. 172 from 3 to 6.

C3 Offences relating to Driving Triable on Indictment

C3.17 Causing Death by Dangerous Driving: Sentencing

In A-G's Ref (No. 56 of 2007), Legrys [2007] EWCA Crim 1605, the Court of Appeal considered the issue of sentencing in a case of causing death by dangerous driving involving something close to the lowest level of culpability, with several mitigating circumstances and no aggravating ones. It was a case involving a misjudged overtaking manoeuvre, where D attempted to overtake a long vehicle and was unable to avoid a fatal collision with an oncoming motorcycle. It was an uncharacteristic error by a man of 59 with an excellent driving record. Character witnesses described D as a quiet, careful, gentle and kind person, and that was reflected in the manner in which he drove. The trial judge imposed a 12-month sentence, suspended on condition that D undertook 200 hours unpaid work. He referred to prison overcrowding as one of the reasons for suspending the sentence.

It was argued that the sentence was undely lenient, but the Court of Appeal disagreed, even though they did not consider prison overcrowding to be a good reason for suspending it. Hooper LJ said:

There is nothing in the circumstances of the accident or in the history of the offender's driving to suggest that the offender himself realised that what he was doing was dangerous and could put the lives of others at risk. His error was to underestimate how long it would take to overtake the vehicles in front of him. In a more powerful car he would no doubt have succeeded. We are, for our part, not prepared to say that the offender was reckless in the sense of realising the risk of what he was doing.

. . .When the offender realised that he could not complete the manoeuvre safely, it was too late to return to his own side. The fact that the tractor and trailer were unlit may well have prevented [the motorcyclist] from taking any avoiding manoeuvre.

The court concluded that despite this a custodial sentence was still required and that a 12-month sentence would ordinarily have been appproriate, but:

Nonetheless we cannot describe the sentence as unduly lenient. Even if it were, we would not have altered the sentence given all the circumstances including the fact that the offender has all but completed his 200 hours unpaid work.

This case, and A-G's Ref (No. 74 of 2005), Modhvadia [2005] EWCA Crim 3120 (in which a suspended sentence similarly survived a challenge from the A-G), are in all probability ones that would have been charged as causing death by careless driving, had the Road Traffic Act 1988, s. 2B, inserted by the Road Safety Act 2006, been in force at the time.

Unfortunately, it seems that judges will still be required to impose custodial sentences in all but the most marginal of s. 2B cases (where a community order may be acceptable) but Legrys and Modhvadia indicate that some sentences may properly be suspended, even where the more serious offence is proved.

C3.19 Causing Death by Careless Driving when under the Influence of Drink or Drugs

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 31 of the Act.

C3.47 Wanton or Furious Driving: Punishment

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 28 of the Act.

C5 Drink-driving Offences

C5.6 Evidential Specimens

In Breckon v DPP [2007] EWHC 2013 (Admin), the appellant challenged his conviction for a drink driving offence on the basis that the Lion Intoximeter EC/IR machine from which the incriminating reading was obtained was not an approved device. The machine in question used a manual change-over valve, and not an automatic change-over valve as referred to both in a guide to the relevant Type Approval Order and in an agreement between Lion Laboritories and the Home Office.

If upheld, this challenge would have had the potential to cause a major upset, because it appears that all such machines now use manual valves. Kemsley v DPP [2004] EWHC 278 (Admin) indicates that if a device is not the same as that which has been approved, the results of its use cannot be admissible even where it was substantially like an approved device, and even if its performance is the same as that of an approved device.

The court avoided such an awkward conclusion by holding that the key document was the Schedule to the Approval Order dated 25 February 1998, which made no reference to change-over valves. The EC/IR Intoximeter used the gas delivery system and software specified in the Schedule, and on that basis it was an approved device. Nelson J said:

There is no reference, express or implied, in this schedule to either the Agreement with the manufacturer or to the Guide, and I see no reason why those documents should be incorporated within the Approval or why the Approval should be read as being subject to them. The definition of the device, in my judgment, stands by itself in the Schedule to the Approval and does not admit of further identification or specification.

C5.29 Admissibility of Specimens

The Road Traffic Offenders Act 1988, s. 15(2), refers only to evidential specimens (or specimens taken for analysis) under the Road Traffic Act 1988, s. 7, and not to roadside samples taken under s. 6 or s 6A of that Act for the purpose of establishing whether there are grounds to make an arrest (Breckon v DPP [2007] EWHC 2013 (Admin), following Smith v DPP [2007] EWHC 100 (Admin).

C6 Summary Traffic Offences

C6.5 Careless and Inconsiderate Driving

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 30 (to a limited extent) of the Act.

C6.9 Careless and Inconsiderate Driving: Punishment

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 23 of the Act.

C6.28 Using Vehicle in Dangerous Condition: Punishment

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 25 of the Act.

C7 Sentencing Generally

C7.9 Disqualification for Certain Offences

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 25 of the Act. Section 25(2) amends the Road Traffic Offenders Act 1988, s. 34 so as to add a new s. 34(4B), which provides for an obligatory disqualification of six months for an offence under the Road Traffic Act 1988, s. 40A (using vehicle in a dangerous condition etc.) if committed within three years of a previous conviction for that offence.

C7.17 Endorsement

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia s. 14 of the Act. Section 14 amends the Road Traffic Offenders Act 1988, s. 45(7) so as to add a reference to an offence under the Road Traffic Act 1988, s. 7A(6) (failing to allow a specimen to be subjected to a laboratory test) to the list of offences in respect of which endorsement endures for 11 years.

C9 Schedules to the Road Traffic Offenders Act 1988

C9.2 Road Traffic Offenders Act 1988, sch. 2

The Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472) brings into force, on 24 September 2007, inter alia ss. 23, 24, 25, 27, 28 and 29 of the Act, which amend the Road Traffic Offenders Act 1988, sch. 2. Section 23 increases the maximum fine under the Road Traffic Act 1988, s. 3 (careless and inconsiderate driving) from level 4 to level 5. Section 24 increases the maximum fine under the Road Traffic Act 1988, s. 15(4) (driving in contravention of seat belt requirements for children in rear seats) from level 1 to level 2. Section 25 provides that the offence under the Road Traffic Act 1988, s. 40A (using vehicle in a dangerous condition etc.) will carry obligatory disqualification if committed within three years of a previous conviction for that offence. Section 27 increases the maximum fine under the Road Traffic Act 1988, s. 163 (failing to stop when required to do so) from level 3 to level 5 where the offence is committed by a driver (for cyclists the level remains at level 3). Section 28 adds the offence under the Offences against the Person Act 1861, s. 35 (furious driving) to sch. 2, part II, with the effect that the offence is subject to discretionary disqualification and obligatory endorsement (carrying 3 to 9 points). Section 29 increases the number of penalty points applicable for the offence under the Road Traffic Act 1988, s. 172 (duty to give identity of driver) from 3 to 6.

PART D PROCEDURE

D1 Police Powers

D1.55 Interrogation of Suspects: Cautions and Special Warnings

The obligation to caution and the scope of the Police and Criminal Evidence Act 1984, s. 67(9) were considered by the Court of Appeal in Devani [2007] EWCA Crim 1926. D, a young solicitor, was observed by prison operational support officers during a visit to a client who was on remand for attempted murder. CCTV images appeared to show the client passing her two envelopes. She was challenged over this, and questions were put to her first by the officers, and later by a more senior prison officer in the presence of an experienced partner from her firm, who happened to be visiting another client at the time, but she was still not cautioned. It transpired that one of the letters was addressed to the client's co-defendant and contained plans to fabricate evidence. She was charged with an attempt to pervert the course of justice.

The trial judge rejected an application to exclude the evidence of the three prison officers pursuant to the Police and Criminal Evidence Act 1984, s. 78 for alleged breaches of Code C, para. 10.1. Dismissing her appeal against conviction, the Court of Appeal ruled that the prison officer did, but the support officers did not, fall within s. 67(9) so as to be directly subject to the PACE Codes. When the support officers first challenged her, it was in any case too soon in the process of observing, and drawing possible conclusions, for an obligation caution to have arisen. They did not at that stage have sufficient grounds to suspect an offence so as to trigger the obligation to caution before questioning.

As for the subsequent failure to caution, the trial judge held that D had not been prejudiced by this, given the status and the experience of D herself and, in particular, the presence by her side of her principal, an extremely experienced legal practitioner.

Contrast Miller [2007] All ER (D) 146 (Jul).

D1.71 Drug Testing for Class A Drugs: The Arrest and Charge Conditions

The Criminal Justice and Court Services Act 2000 (Amendment) Order 2007 (SI 2007 No. 2171) corrects omissions in the consequential amendments made by the Fraud Act 2006 to the Criminal Justice and Courts Services Act 2000, sch. 6 (trigger offences for the purposes of drug testing under the PACE 1984, s. 63B).

D1.103 Interception of Communications and Surveillance of Premises

The Regulation of Investigatory Powers Act 2000 (Commencement No. 4) Order 2007 (SI 2007 No. 2196) brings part 3 of the Act (ss. 49 to 56 and sch. 2) into force on 1 October 2007. Part 3 concerns the investigation of electronic data protected by encryption. The Order also brings into force those parts of part 4 which concern the scrutiny of the powers in part 3 and the issue of relevant codes of practice.

D1.104 Interception of Communications

Covert recordings of telephone conversations and prison visits involving a remand prisoner were held to be admissible in Kelly [2007] EWCA Crim 1715. It would seem that the interceptions were made within the prison, with the consent of the governor, and did not involve any interference with a public telecommunications system.

The surveillance operation was found to have been lawfully conducted in accordance with the Code of Practice on Covert Surveillance. The Court of Apeal rejected arguments that the prison governer had not been fully informed of the purpose of the surveillance and interceptions, or that its use at D's trial would be unfair.

D11 The Indictment

D11.58 Charges Founded on the Same Facts

There is no inconsistency or contradiction in an indictment that charges a defendant (1) with inflicting grievous bodily harm, contrary to the Offences Against the Person Act 1861, s. 20 and (2) possession of a firearm with an intent to endanger life, contrary to the Firearms Act 1968, s. 16. It was argued in J [2007] All ER (D) 70 (Aug) that such counts were inconsistent, on the basis that if D intends to endanger life he must also intend to cause GBH, which is not alleged in a count laid under s. 20. Surprisingly, this argument succeeded at first instance, where the judge ordered withdrawal of the second count; but the Court of Appeal had no difficulty in seeing through it. One can intend to endanger life without intending to kill or cause injury. Recklessness or maliciousness (the mens rea for s. 20) will suffice. The court allowed a prosecution appeal brought under the Criminal Justice Act 2003, s. 58.

D12 Arraignment and Pleas

D12.53 Judicial Indications of Sentence

Goodyear [2005] 3 All ER 117 was considered in Kulah [2007] EWCA Crim 1701 in the context of sentencing dangerous offenders. Lloyd Jones J, giving the judgment of the court in Kulah, said:

22. We understand that difficulties are encountered in dealing with Goodyear indications in cases where the defendant is charged with one or more offences which are specified offences within Schedule 15 to the Criminal Justice Act 2003 and we hope it may be helpful if we were to offer some observations.

23. We consider that it is not necessarily inappropriate to seek or to give a Goodyear indication merely because a defendant is charged with a specified offence. However, there may be dangers in undertaking this course and it is necessary to warn of them. If an indication is improperly given, a sentencing judge may find himself bound by the "dangerous offender" provisions to impose a sentence which is qualitatively different from the indication he has given. In the alternative, he may consider himself bound by his prior indication to impose a sentence which does not accord with mandatory statutory provisions.

24. The so-called "dangerous offender" provisions in Part 12, Chapter 5, Criminal Justice Act, 2003 are mandatory (Reynolds [2007] EWCA Crim. 538 at paragraph 5). Thus, if an adult defendant falls to be sentenced for a specified offence committed on or after 4th April, 2005, and he is assessed as presenting a significant risk to members of the public of serious harm occasioned by the commission by him of further specified offences, the sentencing judge's discretion is circumscribed. If the offence is "serious" (i.e. carries a maximum penalty of 10 years' imprisonment or more) an indeterminate sentence must be imposed. If it is not "serious" an extended sentence must be imposed.

25. Goodyear was argued before the "dangerous offender" provisions came into effect, although judgment was handed down shortly after they came into effect. The impact of these provisions was not before the Court for consideration. Nevertheless, the guidance set out in Goodyear holds good. Of particular significance in this regard is paragraph 65(d) of the judgment:

"[A]ny indication which may be given relates only to the matters about which an indication is sought. Thus, certain steps, like confiscation proceedings, follow automatically, and the judge cannot dispense with them, nor, by giving an indication of sentence, create an expectation that they will be dispensed with."

26. It is axiomatic that a Goodyear indication will be sought before plea. At that time, it will often be the case that the sentencing judge will not be in possession of the information necessary to enable him or her to make the assessment of risk required by each of subsections 225(1)(b), 226(1)(b), 227(1)(b) and 228(1)(b). In this regard we understand that it is now the usual practice of the Probation Service not to produce a pre-sentence report until after the defendant has pleaded guilty or has been convicted.

27. There will, of course, be very clear cases where the assessment that the offender is dangerous is manifest even at that stage, perhaps based only on the antecedent history and the nature of the offending before the court. It may not be difficult, for example, to categorise as "dangerous" a professional armed robber who has a lifetime of convictions for that offence and who habitually carries loaded firearms in the course of his criminal occupation or a serial rapist with a long history of deviant and dangerous criminal sexual behaviour.

28. However, the great majority of cases will not be clear-cut. Pre-sentence and other appropriate reports will not be available. In such cases, it remains a matter for the judge to decide whether it is appropriate to give an indication. Such a situation was foreseen in Goodyear itself (at paragraph 58). "There will be occasions when experience will remind him that in some cases the psychiatric or other reports may provide valuable insight into the level of risk posed by the defendant, and if so, he may justifiably feel disinclined to give an indication at the stage when it is sought."

As Goodyear (paragraphs 56-59) makes clear, the judge is under no obligation to give an indication and he has an unfettered discretion in this regard.

29. There are particular difficulties in giving an indication in respect of a young offender (under 18 at the date of his plea of guilty or his conviction) because there is the additional option, which is not available when dealing with an adult, of imposing an extended sentence in respect of a serious specified offence.

30. If the Judge decides to give an indication where an assessment of future risk remains to be made he should make the following matters clear.

The offence (or one or more of them) is a specified offence listed in Schedule 15, Criminal Justice Act, 2003, bringing into operation the "dangerous offender" provisions contained in Part 12, Chapter 5 of that Act.

The information and materials necessary to undertake the assessment of future risk which is required by those provisions are not available and that that assessment remains to be conducted.

If the defendant is later assessed as "dangerous", the sentences mandated by the provisions - an indeterminate or extended sentence - will be imposed.

If the defendant is not later assessed as "dangerous", the indication relates in the ordinary way to the maximum determinate sentence which will be imposed.

If the offender is later assessed as "dangerous", the indication can only relate to the notional determinate term which will be used in the calculation of the minimum specified period the offender would have to serve before he may apply to the Parole Board to direct his release; or, in a case where an extended sentence is the only lawful option, it will relate to the appropriate custodial term within the extended sentence (that is, the indication does not encompass the length of any extension period during which the offender will be on licence following his release). It must be remembered that where an extended sentence is imposed on any offender, the appropriate custodial term cannot be less than 12 months (subsections 227(3)(b); 228(3)(b)).

If an indeterminate sentence is mandated by the provisions, the actual amount of time the offender will spend in custody is not within the control of the sentencing judge, only its minimum.

Nevertheless, it seems to us that judges may, understandably, feel a reluctance to give a Goodyear indication in circumstances where they do not yet know how dangerous the defendant really is.

31. Finally in this regard, we would point out that Goodyear (paragraph 70) already imposes an obligation on the prosecution to draw the attention of the judge to any minimum or mandatory sentencing requirements. That obligation includes a duty to inform the judge that the offence charged is a specified offence and of the requirement to undertake the risk assessment required by each of the relevant subsections.

D12.87 Change of Plea: From Guilty to Not Guilty

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they add a new r. 39.3 which specifies the procedure to be adopted on an application to change a plea of guilty on a trial on indictment.

D14 Trial on Indictment: General Matters and Pre-trial Procedure

D14.63 Appeals from Preparatory Hearings

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they replace the rules in the former part 65 with new rules set out in part 66 (appeal to the Court of Appeal against ruling in preparatory hearing).

D20 Summary Trial: The Course of the Trial

D21.7 Change of Plea

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they add a new r. 37.6 which specifies the procedure to be adopted on an application to change a plea of guilty on summary trial.

D26 Procedure on Appeal to the Court of Appeal

D26.1 The Rules and the Guide

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they add a new part 65 (appeal to the Court of Appeal: general rules) and replace the provisions formerly found in parts 67 and 68 with new provisions set out in parts 68 and 69.

D27 Reference to the Court of Appeal following Trial on Indictment

D27.1 Reference by Criminal Cases Review Commission: Change of Law Cases

In Cottrell [2007] EWCA Crim 2016, the Court of Appeal disapproved of the statement in R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2006] EWHC 3064 (Admin), [2007] 1 Cr App R 395 that, in its exercise of the powers given to it by the Criminal Appeal Act 1995, s. 9, the CCRC is 'under no obligation to have regard to, still less to implement, any practice of the Court of Appeal in relation to extension of time and granting of leave to appeal'.

Giving the judgment of the court in Cottrell, Sir Igor Judge P said that 'it would be disturbing, and productive of public disquiet, if the Commission were to adopt an approach to change of law cases which conflicted with the approach of the court'. Indeed, it was 'not open to the Commission lawfully to apply a policy' based on the Divisional Court's conclusion in that case.

In cases where the courts have changed their interpretation of the law (e.g., where their initial interpretation of a statute has been reconsidered) this does not ordinarily afford a proper ground for allowing an extension of time in which to appeal against conviction. As stated in Ramzan [2006] EWCA Crim 1974, [2007] 1 Cr App R 150, the practice in such cases is to grant leave to appeal out of time only where substantial injustice would otherwise be caused. Where however the CCRC refers a case to the court, leave to appeal out of time is not required. If the CCRC were to ignore the usual practice of the court and refer cases that the court would not otherwise have been prepared to consider, the practice of the court would be undermined and inconsistencies would inevitably arise.

D27.3 Reference for Review of Sentence

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) amend the principal Rules of 2005 (SI 2005 No. 384). Inter alia they replace part 70 (reference to the Court of Appeal of point of law or unduly lenient sentence) with new, very similar rules.

PART E SENTENCING

E22 Recommendation for Deportation

E22.1 Power to Recommend for Deportation

Failure to give written notice in accordance with the Immigration Act 1971, s. 6(2) does not necessarily render a recommendation for deportation invalid: Abdi [2007] EWCA Crim 1913. Having considered Nazari [1980 1 WLR 1366 and Soneji [2005] UKHL 49, Toulson LJ said:

29. The language of s 6(2) might suggest that its purpose is to avoid the risk of a person being recommended by a court for deportation who is not eligible to be deported because he is a British Citizen. But the appellant is not a British citizen. It is difficult to see why Parliament should have intended that a recommendation for deportation of a non-British citizen should be automatically invalidated by a failure to serve a notice which would on the facts have been irrelevant to the offender.

30. The purpose of s 6(2) may, however, be the wider purpose suggested in Nazari of putting the defendant on notice of the possibility of the making of a recommendation for deportation, so as to give him time to prepare to address the possibility on the merits. Even on that basis, in this case the appellant and his counsel were aware of the risk of such a recommendation and Mr Banks was able to make his submissions to the recorder on it. He also recognised that it is a particularly unappealing point in terms of any substantial merit in circumstances where the appellant's case was conducted on the basis that the appropriate notice had been served and the judge was led to believe that it had been served.

31. If it were to happen that a court made a recommendation for deportation against a person who was a British citizen, and therefore ineligible to be deported, there would be a number of other safeguards within the statutory scheme. First, the recommendation is just that - a recommendation and not an order. It would be open to the offender or his representatives to draw the position to the attention of the Secretary of State. Secondly, there could be an appeal against the recommendation to this court. Thirdly, if a deportation order were made, there could be an appeal to the Asylum and Immigration Tribunal. Fourthly, as a matter of practicality, the process for carrying out a deportation requires Home Office officials to obtain personal details regarding the deportee's citizenship in order to prepare the necessary travel documentation.

32. Recommendations for deportation are not always opposed by defendants. Sometimes a defendant will recognise that a deportation recommendation is inevitable, or may even welcome it, and may wish the sentencing process including the recommendation for deportation to be completed as quickly as possible. According to Mr Banks' argument, if in such a case the defendant had not received the prescribed notice, the court would have no power to make an unopposed recommendation for deportation, but would be compelled to adjourn the matter to everyone's cost and inconvenience.

33. Bearing these considerations in mind, we do not believe that the court should impute to Parliament an intention that non-compliance with s 6(2) should necessarily render a recommendation for deportation invalid. Unless that were the proper construction of the Act, the ground of appeal based on lack of notice must in this case fail.

In Chirimimanga [2007] EWCA Crim 1684, the appellants, who were overstayers or failed asylum seekers, pleaded guilty (inter alia) to offences concerning the use of falsified passports (genuine Nigerian or Zimbabwean passports falsified with 'indefinite leave to remain' stamps) in order to obtain employment at a nursing home. One also pleaded guilty to possessing an identity document that related to another, contrary to the Identity Cards Act 2006, s. 25(5). Having imposed sentences of imprisonment, the trial judge recommended that all three be deported on the basis that their offending made it undesirable for them to be allowed to remain.

On appeal, it was argued that the deportation orders were unjustified, having regard to the previous good character of the appellants, the modest level of criminality involved and the fact that they had not entered the country illegally. Furthermore, the judge had failed to give detailed reasons for making his recommendation.

Having considered a wide rang of authorities, including Benabbas [2005] EWCA Crim 2113, Wang [2005] EWCA 293, and Carmona [2006] EWCA Crim 508, the Court of Appeal upheld the deportation orders. The appellants were not merely overstayers but had engaged in forgery and deception. The public interest in preventing the fraudulent use of passports to gain entry or support residence was of considerable importance and deserved protection.

It would have been better if the judge had spelled out in somewhat more detail why, having regard to the appellants' offences, their continued presence in the UK was to its detriment. But failure to do this is not necessarily fatal to a deportation order (see also Bavistock (1993) 14 Cr App R(S) 471; Asinugo [2007] EWCA Crim 114).

PART F EVIDENCE

F6 Examination-in-chief

F6.27 General Rule against Impeaching Credit of Own Witness

Ross [2007] EWCA Crim 1457 demonstrates that evidence of a witness's previous convictions may in some cases be relevant and admissible for purposes other than impeaching credit. D was prosecuted for money laundering offences allegedly connected to drug trafficking, and C, one of D's alleged accomplices in the drug trafficking, was called as a prosecution witness. C was alleged to have accompanied D on drug trafficking trips abroad, and to have sold him a car that also represented criminal property. C had previous convictions for drug-related offences, inlcuding one for possession with intent to supply. Before the trial, the prosecution applied to admit those convictions in evidence. D protested that this would involve discrediting their own witness. Even where a witness is declared hostile, he cannot be discredited in this way by the party calling him.

When the application was made, however, it did not appear to the judge that the prosecution would be doing any such thing. The judge expected C to confirm that the trips made with D were connected with drug trafficking, and in that context his convictions would have tended to 'fit' his testimony, rather than discredit it. In the event, C claimed that the trips were made for quite different purposes, and this gave a wholly different complexion to the evidence of his convictions. There was, accordingly, an irregularity in this aspect of the trial; but despite it the Court of Appeal was satisfied that D's conviction was safe.

F11 Admissibility of Previous Verdicts

F11.12 Relevance and Admissibility of Acquittals

Z [2000] 2 AC 483 was considered in L [2007] All ER (D) 81 (Jul), in which at a trial for rape at which the defence was consent, evidence was admitted as to a single previous incident in which D had been acquitted of a similar offence in respect of a girl of similar age to the present complainant. The defence on that earlier occasion had been that no intercourse had occurred. Testimony of the former complainant was put before the jury on the basis that it was capable of proving a propensity to commit sexual offences against young girls.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.4 Bad Character: Reprehensible Behaviour

Possession of violent images and rap lyrics referring to intended violence on D's birthday (the day on which he was accused of committing a violent assault) were held to be admissible evidence of bad character in Saleem [2007] EWCA Crim 1923.

An issue arose as to the adequacy of the trial judge's directions to the jury concerning the uses they might make of this evidence. The court was critical of the judge in that respect; but in Campbell [2007] EWCA Crim 1472 (considered in the July update) Lord Phillips CJ questioned the need to allow appeals against conviction on the basis of a failure to direct a jury as to matters that might in any case be left to the jury's common sense. This was noted and applied in Saleem, where the court concluded that:

The real issue for the jury to decide . . . was the reason for [D's] presence in the park in the vicinity of the attack at that time of night. It seems to us that a jury considering the evidence of the rap lyrics and the violent images with logic and common sense could only have concluded that the evidence was relevant to that issue, as it went to disproving an innocent explanation

Although the judge should have given the jury much more help than he did, we do not consider that his failure to do so rendered the conviction unsafe, as the jury would have appreciated the relevance of the evidence.

F12.14 Bad Character: Evidence Once Admitted is Relevant for All Purposes

Technically, the prosecution rely on 'evidence of bad character' if they use circumstantial evidence to show that D was involved in a series of similar offences, even if that evidence is not used for the purpose of suggesting that he has any criminal propensities or to be untruthful. The prosecution ought therefore to make an application under the Criminal Justice Act 2003, s. 101 before adducing such evidence and the judge ought to rule on that issue. But in Wallace [2007] EWCA Crim 1760 the Court of Appeal (having gained some assistance from the judgment of the Lord Phillips CJ in Campbell [2007] EWCA Crim 1472) ruled that as a matter of common sense this did not really matter:

33. We very much doubt whether the draftsman of the bad character provisions in the 2003 Act had in mind cases such as the present where the issue for the jury is the inference to be drawn from circumstantial evidence . . .

43. This was not a case in which the judge was required to give any bad character direction to the jury. He properly directed the jury about the relevance of the evidence as circumstantial evidence and the fact that it was or may have been bad character evidence that should technically have required admittance through s.101 gateway was neither here nor there.

44. It would of course always be possible in a case such as the present where evidence falls technically within the definition of bad character, albeit its admission is received for some quite different purpose, for the parties to agree to its admission under s.101(1)(a). That in our view would be the simplest course. It did not happen in this case. But if, as appears to us to be the position, the evidence in question did fall within the wide definition of "bad character" there should strictly speaking have been an application to admit it under s.101(1)(d). Had there been such an application it would inevitably have been successful. No "bad character" direction to the jury would have been necessary. Indeed no reference to "bad character" in the commonly understood sense of the words would have been necessary at all. The case should, and no doubt would, have been summed up just as it was, as a case that depended on circumstantial evidence.

45. We are completely satisfied the appellant's conviction is safe. . .

F12.31 Multiple Charges and Accusations: Risk of Collusion between Witnesses

Where two or more complainants (or complainants and supporting witnesses) make similar accusations against a defendant, an issue may arise as to whether the similarity is derived from collusion between them or perhaps from the fact that one is making a 'copycat' allegation inspired by what the other has said. A third possibility, especially if they have discussed the events (albeit innocently) together, is that there may be 'innocent contamination', i.e. they may be consciously or unconsciously influenced in their evidence through hearing of complaints made by others. Such risks may be negligible where (as in Chopra [2006] EWCA Crim 2133) the complainants have had little if any opportunity to meet or communicate, although even then they may have been told about other incidents. The risk will be much greater where they are friends, siblings (as in H(A) [1995] AC 596) or attend the same school.

Lamb [2007] EWCA Crim 1766 is an example of strikingly similar allegations made by girls who attended the same school. The complaint in each case was that D, a schoolteacher, behaved sexually towards them (in breach of trust) at a leavers' ball. AB made a complaint concerning the 2004 leavers' ball and CD made a similar complaint concerning the 2005 ball. Although the complainants did at one point discuss their experiences (and one persuade the other to make a supporting complaint) there was no real suggestion of deliberate conspiracy or collusion. The defence did however submit that there was a risk of 'innocent contamination', and the central argument on appeal was that the trial judge failed properly to direct the jury as to that issue. Instead, he dealt at length with collusion, which was not appropriate on the facts. In the judgment of the Court of Appeal:

not only was the necessary point not made, but the wrong point was emphasised. The jury would have been likely to think that, having rejected collusion, as they were invited to do, they were entitled to give the cross-admissible evidence full weight on each count. Whereas they should have been warned that they must take the possibilities of conscious or unconscious influence into account when assessing the weight of the complainants' evidence

On that basis, D's convictions were quashed. There is no discussion of Campbell [2007] EWCA Crim 1472 but clearly the court's view was that the jury's verdict could not be considered safe in the absence of proper judicial guidance on the contamination issue.

F16 Exceptions to the Rule Against Hearsay

F16.17 Discretionary Exclusion of Statements

Sellick [2005] 1 WLR 3257, Al-Khawaja [2005] EWCA 2597; Xhabri [2005] EWCA Crim 3135, KM [2003] EWCA Crim 357 and Grant v The Queen [2006] UKPC 2 were applied in Cole [2007] EWCA Crim 1924. The Court of Appeal rejected arguments that D's right to a fair trial under the ECHR, Article 6 is necessarily infringed where the prosecution are permitted to rely on hearsay statements from dead, frightened or otherwise absent witnesses, even where such evidence is absolutely critical to the prosecution case. Lord Phillips CJ referred to Luca v Italy (2003) 36 EHHR 807 and continued:

14. Is hearsay evidence of a witness who cannot be cross-examined precluded when it is the sole, or the decisive, evidence against a defendant? The wording of the Strasbourg Court in the passage from Luca that we have cited above might suggest so. But Mr Bryan accepted that there was a line of domestic authority that establishes, so far as this court is concerned, that this is not the case . . .

20. Once one moves away, as both the Strasbourg and our domestic jurisprudence clearly have, from the proposition that there is an absolute rule that evidence of a statement cannot be adduced in evidence unless the defendant has an opportunity to examine the maker, it seems to us that there can be only one governing criterion. Is the admission of the evidence compatible with a fair trial? It is that question alone with which Article 6 is concerned.

21. There are many reasons why it may be impossible to call a witness. Where the defendant is himself responsible for that fact, he is in no position to complain that he has been denied a fair trial if a statement from that witness is admitted. Where the witness is dead, or cannot be called for some other reason, the question of whether the admission of a statement from that witness will impair the fairness of the trial will be depend on the facts of the particular case. Factors that will be likely to be of concern to the court are identified in section 114(2) of the Act.

To similar effect is Kelly [2007] EWCA Crim 1715.

F17 Hearsay: Confessions

F17.1 Definition

As to the use of a (vacated) guilty plea as a confession, see also Johnson [2007] EWCA Crim 1651 (considered below at F17.19).

F17.19 Confession Tendered by a Co-accused

Johnson [2007] EWCA Crim 1651 appears to be the first reported case in which the Police and Criminal Evidence Act 1984, s. 76A has not merely been considered but actually found to be applicable on the facts. In this case D had at one stage tendered a guilty plea to a drug importation charge under the Customs & Excise Management Act 1978, s. 170(2)(b). The basis of this plea was stated in writing to be that "his role was only that of a delivery man. He was asked to pick up and deliver a package which he agreed to. He knew what he was doing was wrong. However, he did not know the gravity and seriousness of what he was getting involved in".

D was subsequently allowed to vacate this plea, but his co-defendant (who was running a cut-throat defence) then applied for the basis of D's plea to be admitted in evidence under s. 76A, and it was held that the judge had no discretion to refuse this. Pill LJ said (at [22]):

We understand the frustration of a defendant who is permitted to vacate a guilty plea but not then permitted to enjoy the fruits of vacation by way of a trial unencumbered by the earlier plea. On the evidence, however, the issue at this trial was essentially between the two defendants and the decision in Myers [1998] AC 124 and s. 76A . . . are designed to ensure a fair trial in that situation.

F17.50 Confession Implicating a Co-accused

In Persad v State of Trinidad and Tobago [2007] UKPC 51, the Privy Council re-examined the common-law rule (also implicit in the Police and Criminal Evidence Act 1984, s. 76(1)) by which a confession or other pre-trial statement made by one defendant cannot ordinarily be admissible against a co-defendant. The Privy Council also considered the controversial ruling of the House of Lords in Hayter [2004] UKHL 6, which established an important exception to that rule, in cases where D1's guilt is an essential pre-condition of D2's guilt and D1's confession enables that the pre-condition to be established.

P, W and K together robbed M and V, and two of them also assaulted V in her home. One of them raped her vaginally and the other forcibly buggered her. W was convicted on the rape on the basis of his own confession, but P was convicted of the buggery on the basis (1) of K's denial in the course of his confession to robbery that he committed only that offence and did not go into V's home; and (2) on the basis of W's confession that he raped V vaginally, but did not bugger her. Neither W nor K confirmed these statements in testimony.

As Lord Brown said in giving the opinion of Privy Council, this was a very different case from Hayter and the exception developed in that case did not cover the facts of this one. In particular, K's self-serving denial of any involvement in the attack on V bore no resemblance to the facts of Hayter and was not admissible evidence against P for any purpose.

W's confession to the rape did however bear some resemblance to the evidence in Hayter. P's conviction for buggery did not strictly depend on proof that W committed the rape; but it might logically have been deduced from it, had P and W been the only two involved. The Privy Council unfortunately declined to express any opinion as to whether such a deduction would be permitted. This point, said Lord Brown, could 'safely be left for another day'.

Because Persad was not a case concerning English law, the PACE 1984 itself was not directly in issue, and nor, more significantly, was the CJA 2003, s. 114(1)(d), which according to the Court of Appeal in Mclean [2007] EWCA Crim 219 creates a further (albeit discretionary) exception to the rule. Understandably, the Privy Council did not deal with s. 114 or speculate as to whether it would, if applicable, have altered the outcome.

One other matter is worth noting. W, in confessing to rape, specifically named K (not P) as the one who buggered V. If, said Lord Brown, an out of court admission is used against a co-defendant, the jury must also be directed to have regard to any parts of that statement that could be understood to help that co-defendant. That clearly is right, but one might, with respect, go further. Arguably, a voluntary confession by one defendant can always be invoked at common law by a co-defendant who is assisted or exculpated by any passage in it, even if the confession has not previously been used at all. This right can be inferred from Myers [1998] AC 124, although Myers was decided under the PACE 1984, s. 76. It was certainly recognised long before the enactment of s. 76A.

F19 Inferences from Silence and Non-production of Evidence

F19.4 Out-of-Court Silence under the 1994 Act: Failure to Reveal Facts Later Relied Upon in Court

T v DPP [2007] EWHC 1793 (Admin) emphasises once again that a 'no comment' interview is not in itself enough to trigger the drawing of an inference under Criminal Justice and Public Order Act 1994, s. 34. It is essential to identify some fact that D failed to mention when interviewed but he could reasonably have been expected to mention and which he then relies upon in court. If a given fact was properly dealt with in a prepared statement, prior to the no comment interview, it cannot be the basis of a s. 34 inference.

Hughes LJ added that, where a solicitor advises a young person, and is also to conduct the defence, he must consider whether he might become a witness of fact. Whether an issue under s. 34 might arise cannot always be foreseen until the defence case is made. A solicitor must consider whether such an issue is likely to arise and whether, if it does, he is likely to become a witness of fact. He cannot rely on the pre-trial review form to make this decision.

F19.12 Out-of-Court Silence under the 1994 Act: Waiver of Privilege

Bowden [1999] 1 WLR 823 and Loizou [2006] EWCA Crim 1719 were considered in Hall-Chung [2007] All ER (D) 429 (Jul). D was charged with armed robbery and gave a no comment interview when first questioned by police officers. D's solicitor indicated that he had advised him to make no comment because inadequate disclosure had been made and that he had insufficient information to enable him to advise him. This was subsequently seized upon by the prosecution as a waiver of privilege, so that D could be cross-examined as to whether there were other reasons for the advice being given, such as his lack of any real defence.

Dismissing D's appeal against his conviction, the court held that it did not matter whether the prosecution or defence had first adduced evidence of the waiver of legal professional privilege. Where a solicitor stated in the presence of his client that the client would not be answering questions in interview, and gave reasons or grounds for why he had given that advice, privilege was waived by the defendant through the mouth of his agent acting in the scope of his authority.

On the other hand, judges must exercise independent judgment in each such case as to whether it is fair to permit the prosecution to exploit any such waiver of privilege. Judges should not assume that the prosecution are entitled to take advantage of such waivers in every case.

APPENDICES

Appendix 1 Criminal Procedure Rules 2005 (SI 2005 No. 384)

The Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317) add new provisions to the CrimPR, with effect from 1 October 2007 and make certain additional minor amendments. The new rules are as follows:

r. 37.6 (application to change a plea of guilty in summary proceedings);
r. 39.3 (application to change a plea of guilty in a trial on indictment);
part 65 (appeal to the Court of Appeal: general rules);
part 66 (appeal to the Court of Appeal against ruling at preparatory hearing);
part 67 (appeal to the Court of Appeal against ruling adverse to prosecution);
part 68 (appeal to the Court of Appeal about conviction or sentence);
part 69 (appeal to the Court of Appeal regarding reporting or public access restriction);
part 70 (reference to the Court of Appeal of point of law or unduly lenient sentencing).

In addition, the following amendments are made:

r. 2.2 (definitions) is amended to provide definitions of 'business day', 'live link' and 'public interest ruling';
part 63 (appeal to the Crown Court against conviction or sentence) is amended to extend the ambit of those rules to an appeal by a prosecutor under s. 14A(5A) of the Football Spectators Act 1989 (failure to make a football banning order) and to provide that the Crown Court may, in certain circumstances, enter on an appeal with the judge sitting with a single justice when hearing an appeal from a magistrates' court;
part 74 (appeal to the House of Lords) is amended in consequence of differences between the new parts 67 and 70 and the provisions which they replace.

NEW LEGISLATION

Mental Health Act 2007

This Act, which for the most part is not yet in force, includes amendments to the Mental Health Act 1983. These will affect inter alia the conditions for the making of hospital orders and, by virtue of the change in the meaning ascribed to the term 'mental disorder', aspects of unfitness to plead and the courts' powers to deal with mentally disordered offenders.

Tribunals, Courts and Enforcement Act 2007

This Act, which for the most part is not yet in force, includes provisions which affect qualifications for judicial appointments, new provisions on enforcement which also affect fine enforcement and a series of new offences relating to debt relief orders (a new form of personal insolvency) which mirror the various bankruptcy offences.

Offender Management Act 2007

This Act, which for the most part is not yet in force, makes provision concerning the probation service, prisons and the management of offenders.

Criminal Justice and Court Services Act 2000 (Amendment) Order 2007 (SI 2007 No. 2171)

This Order corrects omissions in the consequential amendments made by the Fraud Act 2006 to the Criminal Justice and Courts Services Act 2000, sch. 6 (trigger offences for the purposes of drug testing under the PACE 1984, s. 63B).

Companies Act 2006 (Commencement No. 3, Consequential Amendments, Transitional Provisions and Savings) Order 2007 (SI 2007 No. 2194)

This Order brings various provisions of the Act into force on 1 October 2007, 1 November 2007, 15 December 2007 and 1 October 2008. The provision of particular interest to criminal practitioners which is brought into force is s. 993 (fraudulent trading), which is in force from 1 October 2007, but a wide range of other offence provisions, and offence-creating provisions which support them, have been brought into force as follows:

ss. 29 and 30 (resolutions and agreements affecting a company's constitution);
ss. 116 to 119 (inspection of register of members);
ss. 145 to 153 (exercise of members' rights);
s. 154 (companies required to have directors);
s. 160 (appointment of directors of public company to be voted on individually);
s. 161 (validity of acts of directors);
ss. 168 and 169 (removal of directors);
ss. 170 to 174 and 178 to 181 (general duties of directors);
ss. 188 to 226 (transactions with directors requiring approval of members);
ss. 227 to 230 (directors' service contracts);
s. 231 (contract with sole member who is also a director);
ss. 232 to 239 (directors' liabilities);
ss. 247 to 259 (supplementary provisions);
ss. 260 to 269 (derivative claims and proceedings by members);
ss. 281 to 287 (general provisions about resolutions);
ss. 288 to 300 (written resolutions);
ss. 301 to 307, 310 to 326, 327(1), (2)(a) and (b) and (3), 328, 329, 330(1) to (5), (6)(a) and (b) and (7), 331, 332, 334 and 335 (resolutions at meetings);
ss. 336 to 340 (public companies: additional requirements for AGMs);
ss. 341 to 354 (additional requirements for quoted companies);
ss. 355 to 359 (records of resolutions and meetings);
ss. 360 and 361 (supplementary provisions);
s. 417 (contents of directors' report: business review);
ss. 485 to 488 (appointment of auditors of private companies);
s. 993 (fraudulent trading);
ss. 994 to 999 (protection of members against unfair prejudice);
ss. 1035 to 1039 and 1124 and sch. 3 (company investigations: amendments);
ss. 1121 to 1123 and 1125 to 1133 (general supplementary provisions relating to offences), as they apply to offences under part 14 or 15 of the 1985 Act.

Regulation of Investigatory Powers Act 2000 (Commencement No. 4) Order 2007 (SI 2007 No. 2196)

This Order brings part 3 of the Act (ss. 49 to 56 and sch. 2) into force on 1 October 2007. Part 3 concerns the investigation of electronic data protected by encryption. The Order also brings into force those parts of part 4 which concern the scrutiny of the powers in part 3 and the issue of relevant codes of practice.

Regulation of Investigatory Powers (Acquisition and Control of Communications Data: Code of Practice) Order 2007 (SI 2007 No. 2197)

This Order provides that the Code of Practice in question is to come into force on 1 October 2007.

Regulation of Investigatory Powers (Investigation of Protected Electronic Information: Code of Practice) Order 2007 (SI 2007 No. 2200)

This Order provides that the Code of Practice in question is to come into force on 1 October 2007.

Criminal Procedure (Amendment No. 2) Rules 2007 (SI 2007 No. 2317)

These Rules add new provisions to the CrimPR, with effect from 1 October 2007 and make certain additional minor amendments. The new rules are as follows:

r. 37.6 (application to change a plea of guilty in summary proceedings);
r. 39.3 (application to change a plea of guilty in a trial on indictment);
part 65 (appeal to the Court of Appeal: general rules);
part 66 (appeal to the Court of Appeal against ruling at preparatory hearing);
part 67 (appeal to the Court of Appeal against ruling adverse to prosecution);
part 68 (appeal to the Court of Appeal about conviction or sentence);
part 69 (appeal to the Court of Appeal regarding reporting or public access restriction);
part 70 (reference to the Court of Appeal of point of law or unduly lenient sentencing).

In addition, the following amendments are made:

r. 2.2 (definitions) is amended to provide definitions of 'business day', 'live link' and 'public interest ruling';
part 63 (appeal to the Crown Court against conviction or sentence) is amended to extend the ambit of those rules to an appeal by a prosecutor under s. 14A(5A) of the Football Spectators Act 1989 (failure to make a football banning order) and to provide that the Crown Court may, in certain circumstances, enter on an appeal with the judge sitting with a single justice when hearing an appeal from a magistrates' court;
part 74 (appeal to the House of Lords) is amended in consequence of differences between the new parts 67 and 70 and the provisions which they replace.

Road Safety Act 2006 (Commencement No. 2) Order 2007 (SI 2007 No. 2472)

This Order brings the following provisions of the Act into force on 24 September 2007: ss. 14, 23 to 25, 27 to 33 (but s. 30 is in force only insofar as the RTA 1988, s. 3ZA has effect for the purposes of ss. 3 and 3A of that Act), 41, 43 and (for certain limited purposes) 59 and sch. 7, paras. 5 and 13.

Racial and Religious Hatred Act 2006 (Commencement No. 1) Order 2007 (SI 2007 No. 2490)

This Order brings the Act into force, on 1 October 2007, except insofar as it inserts new ss. 29B(3) and certain provisions of application only in Scotland.

Electronic Commerce Directive (Racial and Religious Hatred Act 2006) Regulations 2007 (SI 2007 No. 2497)

These Regulations include provision for the application of the 2006 Act to information society services and particularly to Internet Service Providers and the like. They ensure that offences under part 3A of the Public Order Act 1986 (which are created by the 2006 Act) apply on a country of origin basis and create exceptions from liability in respect of the offences for intermediary providers of information society services where their role is limited to that of a mere conduit or they merely provide caching or hosting services.

Violent Crime Reduction Act 2006 (Commencement No. 4) Order 2007 (SI 2007 No. 2518)

This Order brings into force, on 1 October 2007, s. 41 of the Act (increase of maximum sentence for possessing an imitation firearm) and related provisions.

Firearms (Amendment) Rules 2007 (SI 2007 No. 2605)

These Rules amend both the principal Rules of 1998 (SI 1998 No. 1941) and sch. 4 to the Firearms Act 1968 (particulars to be entered by firearms dealer in register of transactions). Both sets of amendments relate to the extended controls on the sale of air weapons by virtue of the Violent Crime Reduction Act 2006, ss. 31 and 32.

Violent Crime Reduction Act 2006 (Realistic Imitation Firearms) Regulations 2007 (SI 2007 No. 2606)

These Regulations make provision in connection with the realistic imitation firearms provisions of the Violent Crime Reduction Act 2006 (ss. 36 to 38 and sch. 2, paras. 4 to 6).

Companies Act 2006 (Commencement No. 4 and Commencement No. 3 (Amendment)) Order 2007 (SI 2007 No. 2607)

This Order brings into force provisions concerning the making of regulations, including regulations about fees. It also has the effect of amending the Commencement No. 3 Order, especially in relation the obligation to send copies of resolutions to the registrar of companies, so as to avoid gaps which otherwise would have arisen from premature repeals.

Youth Courts (Constitution of Committees and Right to Preside) (Amendment) Rules 2007 (SI 2007 No. 2622)

The Rules make a minor amendment to the principal Rules (SI 2007 No. 1611) in relation to the election of a chairman or deputy chairman.

Courts Act 2003 (Commencement No. 13) Order 2007 (SI 2007 No. 2706)

This Order brings s. 50(2) and (3) into force on 5 September 2007. These provisions repeal provisions of the Children and Young Persons Act 1933 concerning the composition of youth courts. Those provisions are now superseded by the the Youth Courts (Constitution of Committees and Right to Preside) Rules 2007 (SI 2007 No. 1611), which came into force on 13 July 2007.

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