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Blackstone's Criminal Practice 2009

Updates 2009

April 2009

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Blackstone's Criminal Practice 2009

April 2009

April Update 2009

Updates to Blackstone's Criminal Practice 2009 are produced by Michael Hirst, Professor of Criminal Justice, Leicester De Montfort Law School, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

The April update primarily considers developments reported in March 2009 and includes contributions from other Blackstone's Criminal Practice authors.

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

Part A General Principles of Criminal Law

A6 Inchoate Offences

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.

Part B Offences

B1 Homicide and Related Offences

B1.19 Diminished Responsibility: Relevance of Intoxication

Dietschmann [2003] 1 AC 1209 and Wood [2008] EWCA Crim 1305 were considered in Stewart [2009] EWCA Crim 593, where the trial judge had directed the jury in accordance with Tandy, shortly before the House of Lords in Dietschmann reconsidered the approach to adopt in such cases. The Court of Appeal quashed D's conviction for murder and ordered a retrial. Lord Judge CJ referred to the International Classification of Diseases (ICT) and the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria and said:

This order enables us to address [counsel's] suggestion that further guidance should be offered about the directions to the jury. Whether or not brain damage is discernible, alcohol dependency syndrome is a disease (ICD10) or disorder of the mind (DSM - IV - TR). It is not excluded from the operation of section 2 of the Homicide Act 1957. If the defence of diminished responsibility is to operate according to its statutory structure, the law must take account of advances in medical knowledge. Nevertheless, when the issue arises, it must be addressed in the context of a further principle, that the voluntary consumption of alcohol, and the defendant's voluntary intoxication, does not provide a defence to murder, although it may, in an extreme case, bear on the question of the defendant's intent (R v Sheehan and Moore [1974] 60 CAR 208. These principles have to be reconciled.

Alcoholism varies greatly in its nature and extent. As with other conditions, it involves different levels of severity. A heavy drinker does not necessarily suffer from alcohol dependency syndrome and someone suffering from it may very well have lengthy periods when he is either sober or when his mental responsibility is not significantly impaired by alcohol. Thus, for example, in the present case, the appellant's condition did not preclude sensible, intelligent discussions both with a doctor and his probation officer not long before he killed the deceased. One of the criteria for ICD10 purposes includes the 'difficulty', not, we emphasise, the impossibility of controlling the use of alcohol, and DCM-IV-TR acknowledges that unsuccessful efforts to cut down or control alcohol abuse may be an indication of the presence of the disorder, and in other words, would allow for temporary improvements without undermining the overall diagnosis of alcohol dependency syndrome. In short, even if the diagnosis is agreed and correct, not every alcoholic is suffering from such abnormality of mind that his mental responsibility for his actions at the time of the killing is or must be treated as if it were substantially impaired. Thus, although the condition is a disease encompassed by section 2 of the 1957 Act, the defence is not established simply on the basis of a diagnosis of alcohol dependency syndrome.

With these considerations in mind we have re-examined paragraph 41 of the judgment in Wood, and in particular the sentence which reads '. . . the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily'. Taken with the references to 'voluntary' drinking later in this paragraph, we accept that the clause, '. . . and ignore the effect of any alcohol consumed voluntarily' may appear to require the jury to 'separate out' (to use Mr Richardson's words [in criminal Law Week]) each and every drink consumed by the defendant and decide whether it was taken voluntary or involuntarily. As he argues, that would be unrealistic, when, at some levels of severity what may appear to be 'voluntary' drinking may be inseparable from the defendant's underlying syndrome.

The effect of Wood was to align the principles which apply when the defendant's alcohol dependency syndrome has not (yet) caused discernible brain damage to those where it has. The consumption of vast amounts of alcohol may therefore reduce murder to manslaughter, first, when the effect of the intoxication is so extreme that the prosecution has failed to prove the necessary intent to kill or cause grievous bodily harm (R v Sheehan and Moore) and second, assuming that the necessary intent is proved notwithstanding the consumption of alcohol, on the basis of diminished responsibility, provided the defendant proves that he was suffering from such abnormality of mind induced by the disease or illness of alcohol dependency syndrome that his mental responsibility for his actions in doing the killing was substantially impaired.

We offer these suggestions to trial judges structuring a summing up for the purposes of the defence of diminished responsibility based on alcohol dependency syndrome. At an early stage the judge may wish to reflect on the ordinary principles relating to voluntary intoxication. He should then outline the ingredients of the defence, effectively paraphrasing section 2 of the 1957 Act in the familiar way.

The jury should be directed to decide, first, whether the defendant was indeed suffering from an abnormality of mind at the time of the killing. For this purpose R v Byrne [1960] 2 QB 396 continues to be of assistance. The judge is likely to direct the jury that it does not necessarily follow from the fact that the defendant suffers from alcohol dependency syndrome that he has established the necessary abnormality of mind. This depends on the jury's findings about the nature and extent of the syndrome and whether, looking at the matter broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink.

If the defendant proves the necessary abnormality of mind, the second question, is whether this was caused by disease or illness. In this class of case, the answer to this second question will normally follow from whatever answer is appropriate to the first question.

Finally, and assuming that the particular defendant's alcohol dependency syndrome did indeed constitute an abnormality of mind due to disease or illness, which was present at the time of the killing, directions about whether the defendant's mental responsibility for what he did was substantially impaired should be addressed in conventional terms. The jury should be assisted with the concept of substantial impairment, and may properly be invited to reflect on the difference between a failure by the defendant to resist his impulses to behave as he actually did, and an inability consequent on it to resist them.

In answering their questions, the jury should be directed to consider all the evidence, including the opinions of the medical experts. The issues likely to arise in this kind of case and on which they should be invited to form their own judgment will include (a) the extent and seriousness of the defendant's dependency, if any, on alcohol (b) the extent to which his ability to control his drinking, or to choose whether to drink or not, was reduced, (c) whether he was capable of abstinence from alcohol, and if so, (d) for how long, and (e) whether he was choosing for some particular reason, such as a birthday celebration, to decide to get drunk, or to drink even more than usual. Without seeking to be prescriptive about considerations relevant to an individual case, the defendant's pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself, and notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day to day matters at the relevant time, may all bear on the jury's decision whether diminished responsibility is established in the context of this individual defendant's alcohol dependency syndrome.

We acknowledge that this decision will rarely be easy. Indeed it is fair to say that diminished responsibility has always raised complex and difficult issues for the jury, not least because the defence usually involves conflicting medical evidence addressing legal, not medical concepts, for a jury of lay persons to decide. The jury is often called upon to confront problems relating to the operation of the mind with which they will be unfamiliar. Nevertheless the resolution of these problems continues to be the responsibility of the jury, and when addressing their responsibility they are inevitably required to make the necessary judgments not just on the basis of expert medical opinion but also by using their collective common sense and insight into the practical realities which underpin the individual case.

B1.55 Gross Negligence

In Evans [2009] EWCA Crim 650 a five-judge Court of Appeal has provided some clarification as to the circumstances in which a duty of care may arise, and has also clarified the roles of the judge and jury in determining whether such a duty of care has arisen.

The appellant, E, and her mother, T, were convicted of the manslaughter of E's half-sister (and T's daughter), C, who had injected herself with what proved to be an overdose of heroin. All three women had been heroin users, and the appellant had procured the heroin in question from a local dealer, A. When C became ill, showing signs of having overdosed, E and T stayed with her but decided against calling for help for fear that so doing would get them all into trouble. C died during the night. In respect of E, the judge's direction to the jury was that:

. . .the only matter which in law is capable of giving rise to a duty of care owed by [E] to [C] would be if [E] did, on this occasion, as the prosecution allege, act as an intermediary, giving the drugs to [C] herself having first obtained them from [A]. If the prosecution have made you sure that [E] did on this occasion act as an intermediary, giving the drugs to [C] herself, having first obtained them from [A], that is a matter which in law is capable of giving rise to a duty of care. It is for you to decide whether the prosecution has made you sure that such a duty of care has arisen on the facts found by you.

E's conviction was upheld. Lord Judge CJ explained:

20. The question in this appeal is not whether the appellant may be guilty of manslaughter for having been concerned in the supply of the heroin which caused the deceased's death. It is whether, notwithstanding that their relationship lacked the features of familial duty or responsibility which marked her mother's relationship with the deceased, she was under a duty to take reasonable steps for the safety of the deceased once she appreciated that the heroin she procured for her was having a potentially fatal impact on her health.

21. When omission or failure to act are in issue two aspects of manslaughter are engaged. Both are governed by decisions of the House of Lords. The first is manslaughter arising from the defendant's gross negligence (Adomako [1995] 1 AC 171). The second arises when the defendant has created a dangerous situation and when, notwithstanding his appreciation of the consequent risks, he fails to take any reasonable preventative steps (Miller [1983] 2 AC 161) . . .

Having considered a number of other authorities, including Wacker [2003] 1 Cr App R 329, and Khan [1998] Crim LR 830, Lord Judge continued:

31 . . . The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with Adomako and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise.

Without her involvement in the supply of heroin, the jury was directed that there was no duty on the appellant to act even after she became aware of the serious adverse effect of the drug taking on C. If on the other hand she was so involved, that fact, taken with the other undisputed facts would, and on our analysis of the relevant principles did give rise to a duty on the appellant to act. In law the judge's directions about the ingredients of gross negligence manslaughter, as applied to this case, were correct.

Lord Judge then turned to the respective roles of judge and jury, an issue on which the previous authorities were in some disarray.

42. In Willoughby the court directly addressed what was said to be a 'conflict' between the authorities on the question whether the judge or jury should decide whether such a duty existed. It was held, after examining the words used by Lord Mackay in Adomako that this issue, as well as the issues of breach of duty and assessment of criminality, were matters for the jury.

43. We are troubled by this conclusion. It depends on the view that this was indeed the effect of Lord Mackay's observations in Adomako. We are unable to agree that this interpretation is correct. It was suggested in Willoughby that Lord Mackay's use of the words 'the jury must go on' carried the clear implication that the existence or otherwise of a duty of care would usually be a matter for the jury. However it is plain that Lord Mackay was anxious to avoid over elaboration, and we find it difficult to agree that his use of colloquial language ('the jury must go on') was intended to bear the weight laid upon it by Willoughby. Our view is reinforced by Lord Mackay's later observation that 'the task of trial judges in setting out for the jury the issues of fact and the relevant law in cases of this class is a difficult and demanding one'.

44. In our view if Lord Mackay had been intending to depart from what we have described as first principles he would have said so and explained why. Moreover, although we agree that before a conviction can be returned the jury must indeed be sure that the defendant owed the necessary duty of care, this begs the question whether the conclusions of the jury should follow on the basis of their findings of fact or whether the jury is required or indeed entitled to make a decision of law. Notwithstanding the terms of the judgment, in his valuable commentary on Willoughby at [2005] Crim LR 390 at 392, Professor Ormerod suggests that 'the present decision does not relegate the duty question to one of fact. It remains a question of law, and the jury are to be directed on what the law is - i.e. whether a duty exists if they find certain facts to be established'. His reasoning is persuasive, and consistent with principle.

45. In some cases, such as those arising from a doctor/patient relationship where the existence of the duty is not in dispute, the judge may well direct the jury that a duty of care exists. Such a direction would be proper. But if, for example, the doctor were on holiday at the material time, and the deceased asked a casual question over a drink, it may very well be that the question whether a doctor/patient relationship existed, and accordingly whether a duty of care arose, would be in dispute. In any cases where the issue is in dispute, and therefore in more complex cases, and assuming that the judge has found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if facts a + b and/or c or d are established, then in law a duty will arise, but if facts x or y or z were present, the duty would be negatived. In this sense, of course, the jury is deciding whether the duty situation has been established. In our judgment this is the way in which Willoughby should be understood and, understood in this way, no potential problems arising from Article 6 and Article 7 of the ECHR are engaged.

The court concluded that the jury in this case should not have been left to decide whether the appellant owed a duty of care, but that in the circumstances this did not cast any doubt on the safety of her conviction.

B5 Fraud Deception and Blackmail

B5.6 Sentencing Guidelines for Fraud Offences Generally

In Darwin [2009] EWCA Crim 860, where a husband and wife were convicted of a number of deception and money laundering offences arising from the husband's faked death by drowning, the trial judge was held to have been justified in imposing prison sentences in excess of six years, although such sentences were higher than would be usual in respect of frauds of comparable size. He had been right to take account of the involvement of the rescue services and of the fact that the couple's sons had been treated as pawns in the fraudulent enterprise, and had been, directly and unequivocally, victims of the scheme. The sentences imposed had been severe, but their culpability had been very high, the fraud had been drawn out, and the crime had had a gross impact on their sons.

B10 Terrorism, Piracy and Hijacking

B10.76 Collection of Information: Elements

The elements of the offence under the TA 2000, s. 58 were examined by the House of Lords in G [2009] UKHL 13. The cases considered were prosecution appeals against the application of the ratio of K [2008] 2 WLR 1026 by the Court of Appeal. The report of the Appellate Committee was delivered by Lord Rodger. He recognised that the aim of s. 58 was to catch information which would typically be of use to terrorists, as opposed to ordinary members of the public, and thus confirmed the dictum in K, delivered by the then Lord Chief Justice, Lord Phillips (who also presided over the committee as the Senior Law Lord), that to fall within s. 58 the information collected or possessed by the accused must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act of terrorism. Because that is its nature, s. 58(3) requires someone who collects, records or possesses the information to show that he had a reasonable excuse for doing so. It is not necessary that the information should be useful only to a person involved in an act of terrorism. For instance, information on where to obtain explosives is capable of falling within s. 58(1), even though an ordinary criminal planning a bank robbery might also find it useful. The Committee also confirmed the dictum in K that the role of extrinsic evidence is limited. It can be used to explain to the jury the significance of something in the document, such as a chemical formula, which may be used in connection with the planning of an explosion. It can also be used to explain the true nature of the information in a document which, by design, is apparently innocuous but whose real nature and contents are concealed by the use of some sort of code. But, since the document must contain information which is, of its very nature, likely to be useful to a potential terrorist, evidence cannot be led with the aim of showing that a document, such as a timetable, containing everyday information, should be treated as falling within s. 58(1).

The Committee went on to provide further analysis and definition of the elements of the offence, which may be summarised as follows. First, the Crown must prove that the accused had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism. Second, the Crown must prove that he knew that he had the record. Third, the Crown must prove that he knew the kind of information which it contained, although it does not have to prove that he knew everything that was in the document or record. The Crown must establish all three elements beyond reasonable doubt and, if it does so, then it has proved its case. The accused therefore falls to be convicted unless he establishes a defence of reasonable excuse under s. 58(3).

B10.77 Collection of Information: Specific Defence

In G [2009] UKHL 13 (see B10.76 above) the House of Lords overturned the definition of reasonable excuse for the purposes of s. 58(3) set out by the Court of Appeal in K [2008] 2 WLR 1026. Lord Rodger stated:

73 . . . The language of ss. 57(2) and 58(3) is completely different and it is neither appropriate nor possible to interpret the two provisions as if they said substantially the same thing. Had Parliament intended to provide substantially the same defence to both sections, nothing would have been easier than to use the same language.

74. The defence in s. 57(2) is crafted to suit the offence created by s. 57(1). The offence arises only because of the reasonable suspicion that the defendant possesses the article for a purpose connected with the commission etc of an act of terrorism. That is why the accused is given a defence which relates to the actual purpose for which he possesses the article. So it would indeed be a defence to a s. 57(1) charge for a defendant to show, for instance, that his actual purpose for having an explosive was to blow open a bank vault. He would get out of the s. 57(1) charge but would have constructed a cast-iron case against himself under s. 4(1) of the Explosive Substances Act 1883, which carries a maximum penalty of 14 years imprisonment.

75. By contrast, as we have already explained, the offence under s. 58(1) does not depend on the defendant having a terrorist purpose. It depends, rather, on the nature of the information which the accused collects, records or possesses. The defendant cannot change the nature of the information, but is not to be convicted if he shows that he had a reasonable excuse for collecting, recording or possessing it.

76. A defence in terms of reasonable excuse is to be found in a whole range of provisions under the 2000 Act. And it is, of course, a familiar feature of many other offences, such as possession of an offensive weapon under s. 1(1) of the Prevention of Crime Act 1953 and s. 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, and failure to provide a specimen of blood or urine under s. 7(6) of the Road Traffic 1988. The Court of Appeal's decision in R v K . . . singles out this particular use of the defence in s. 58(3) and imposes on it a construction which is utterly different from the construction which has been put on the equivalent defence in other statutes.

Lord Rodger continued that the real issue under s. 58 is not whether the accused had a terrorist purpose. Whether he had such a purpose is neutral. Instead the accused has to show that he had an objectively reasonable excuse for possessing the document or record which Parliament has made it prima facie a crime to possess because of its potential utility to terrorists. Possessing such a document or record for the purposes of carrying out a bank robbery is a purpose which is not connected with terrorism, but it is not a reasonable excuse.

B11 Offences Affecting Public Order

B11.183 Drunk and Disorderly

The offence of being drunk and disorderly was considered in Carroll v DPP [2009] EWHC 554 (Admin), in which Sweeney J said:

8. This is one of the most basic offences in the criminal calendar. It requires proof of three elements, namely that (1) the defendant was drunk; (2) he was in a public place; and (3) he was guilty of disorderly behaviour. Only the first and third elements call for further comment in this case.

9. As to the first element in Neale v E (a minor) (1983) 80 Crim App R 20, this court … decided that the word 'drunk' should be given its ordinary and natural meaning. In the end, therefore, whether a defendant was drunk is a simple question of fact in each case. On familiar principles it is the voluntary consumption of alcohol which is the requisite mens rea, such as it is, of this most basic offence. If that voluntary consumption results in the defendant becoming drunk then the first element of the offence is proved.

10. As to the third element, there is no requirement or mens rea at all. What is required is proof that objectively viewed the defendant was guilty of disorderly behaviour. Specific drunken intent and recklessness are nothing to the point. The words 'disorderly behaviour' are again to be given their ordinary and natural meaning. In the end, therefore, it is a simple question of fact in each case: whether the defendant is guilty of disorderly behaviour.

Part C Road Traffic Offences

C2 Evidence and Procedure

C2.15 Duty to Provide Information

In Duff v CPS [2009] EWHC 675 (Admin), D, having been the driver, had previously responded to a request sent to his wife in accordance with the RTA 1988, s. 172 in her capacity as the registered keeper of the vehicle in question. The Divisional Court held that D's response to that notice did not provide him with a defence to a subsequent failure to respond to a different s. 172 request sent directly to him in his capacity as the driver.

C5 Drink-Driving Offences

C5.26 Evidence as to Specimens

Where a blood specimen has been taken for analysis and notice is served on behalf of the defendant requiring the analyst to attend the trial, this does not necessarily preclude reliance on hearsay evidence under the CJA 2003, s. 116 where (for example) the analyst has gone abroad and his attendance cannot reasonably be secured. The RTOA 1988, s. 16, is merely permissive as a means of adducing evidence of analysis of a specimen and is not the only method of doing so: Brett v DPP [2009] EWHC 440 (Admin).

As to possible objections based on human rights arguments, the fact that a defendant in such a case will have been given an identical sample which he could have analysed means that the prejudice potentially suffered where the prosecution rely on hearsay evidence is greatly reduced, if not extinguished.

C6 Summary Traffic Offences

C6.34 Driving Otherwise than in Accordance with a Licence

For the purposes of considering whether a person holds a valid driving licence satisfying the RTA 1988, it is consistent with Directive 91/439/EEC on driving licences that a person may simultaneously hold two valid driving licences, one of which is a Community licence and the other a driving licence issued by another Member State, where both licences had been obtained before the accession to the EU of the latter State (Criminal proceedings concerning Schwarz (Case C-321/07) [2009] All ER (D) 227 (Feb)). In particular, there is no requirement under the Directive to treat the licence earlier in date as automatically being lost or the second licence as a nullity. However, Schwarz also demonstrates that it would be permissible in Great Britain to refuse to recognise a driving licence issued by another Member State before that State acceded to the EU and before the issuing of a GB driving licence, where the GB licence had been withdrawn on the grounds of its holder's unfitness to drive, i.e. the domestic determination on fitness to drive prevails over any continuing permission afforded to the person arising from the licence issued in the other Member State.

Similarly, applying the principles in Criminal proceedings concerning Weber [2009] RTR 57, the Directive does not preclude the refusal to recognise a driving licence issued by another Member State to a person whose right to drive in Great Britain has been withdrawn, even if that withdrawal occurs after the issue of the other driving licence, provided the other licence was obtained during a period when the GB licence was suspended and both the suspension and withdrawal of the GB licence were based on grounds existing at the date of issue of the other licence.

Part D Procedure

D3 Courts, Judges and Parties

D3.54 Abuse of Process: The Power to Stay Proceedings

In Seddon [2009] EWCA Crim 483, D had been extradited from Spain on a charge of blackmail, after jumping bail in England. He was then prosecuted in England for an offence under the Bail Act, s. 6, which had not been mentioned in the European Arrest Warrant and could not be described as a 'lesser included offence'. The Court of Appeal ruled that this prosecution was unlawful. See D31.2 below.

D3.58 Abuse of Process: Delay

In some circumstances excessive delay and the consequent disappearance of evidence must inevitably be fatal to the fairness of any trial. An illustration is provided by Joynson [2008] EWCA Crim 3049, in which there was an astonishing 35-year gap between the date of the alleged sexual offences against children and the prosecution. Potentially vital documentary evidence had disappeared and the memories of witnesses must inevitably have been degraded. No warning from the trial judge could possibly compensate for this and the appellant's convictions were quashed on the basis that the trial ought not to have proceeded in the first place.

D7 Bail

D7.83 The Offence of Absconding

D8 Assets Recovery

D8.4 Civil Recovery Orders

Evidence that was (or would have been) excluded in a criminal trial may nevertheless remain admissible in civil recovery proceedings, although the civil court does have some discretion to exclude it. In Serious Organised Crime Agency v Olden [2009] EWHC 610 (QB), Holroyde J said:

I do not accept [counsel's] submission that exclusion of the evidence from the civil proceedings must follow inevitably from a finding in the criminal courts that it was unlawfully obtained. In my view, the decision whether to exercise the court's power in civil proceedings to exclude evidence which would otherwise be admissible must depend upon an assessment of the circumstances of those proceedings. The court must balance competing considerations: on the one hand, the public interest in the court considering all relevant evidence; and on the other hand, the need to avoid a disproportionate interference with the rights of an individual. I cannot accept [counsel's] submission that it is all one whether the unlawfulness consisted (at one extreme) of a simple error leading to an unwitting breach of a statutory requirement, or consisted (at the other extreme) of a deliberate, flagrant and outrageous assault upon a suspect. Nor can I accept his further submission that it is irrelevant whether the unlawfully-obtained evidence provided the only possible foundation for the case, or whether the evidence might equally well have been obtained by lawful means.

D8.13 Compensation

In exercising its power under the Magistrates' Court Act 1980, s. 64(1), to make 'such order as to costs . . . as it thinks just and reasonable' a magistrates' court is entitled, when dismissing forfeiture proceedings, to take into account its view that the application was one that had been reasonably made. This may mean that the court then dismisses the defendant's application for costs: see R (Perinpanathan) v City of Westminster Magistrates' Court [2009] EWHC 762 (Admin). A recent and contrasting ruling in R (Orton) v Truro Magistrates' Court [2009] EWHC 168 (Admin) was doubted in Perinpanathan and dismissed as 'of no real authority'.

D8.28 Restraint Orders

A restraint order may be made not only under the Proceeds of Crime Act 2002, ss. 40 to 42, but also under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005 No. 3181) in accordance with s. 444 of the Act. The House of Lords has ruled in King v Director of Serious Fraud Office [2009] UKHL 17 that a restraint order under the 2005 Order can properly be made or exercised in response to an external request only in respect of property situated within England and Wales.

The object of a restraint order is to preserve relevant property that may be needed to satisfy an order for the recovery of specified property or a specified sum of money - see the definitions in section 447 . . . Jurisdiction to make an external restraint order only arises where the external request 'concerns relevant property in England or Wales' . . .

. . . Furthermore, no machinery is provided for exercise of those powers outside England and Wales. In this respect there is a significant distinction between POCA, which deals with domestic orders, and the Order, which deals with external orders. Section 74 of POCA provides that if the prosecutor believes that there is realisable property situated in a country outside the United Kingdom he can ask the Secretary of State to forward a request for assistance in restraining dealing with the property or in realising the property. Had it been intended that external restraint orders or external orders should take effect outside the jurisdiction the Order would surely have made provision similar to that in section 74 of the Act.

D12 Arraignment and Pleas

D12.52 Plea Bargaining

The A-G has issued new Guidelines about discussions between the prosecution and defence on pleas in cases of serious and complex fraud. The new Guidelines have effect from 5 May 2009 and are available via http://www.attorneygeneral.gov.uk/sub_publications_guidelines.htm

D16 Trial on Indictment: the Defence Case

D16.9 Order of Defence Evidence

In Sutton [2008] EWCA Crim 3129,, D faced charges of theft (shoplifting) but claimed to have acted absent-mindedly whilst depressed and suffering from sleep deprivation. He called an expert witness (Dr Wood) in support of this defence, but there was some difficulty as to the expert's availability and rather than adjourn the trial the judge insisted on the expert giving evidence before D himself. The judge then commented critically on the fact that much of Dr Wood's evidence involved describing what D had told him about the various background matters which underpinned his opinion.

The Court of Appeal considered that the trial had been rendered unfair. Hooper LJ said:

16. In our view, requiring the expert to give evidence first deprived the appellant of a fair trial. It must have been extremely difficult for the jury to follow the evidence of the psychiatrist. [Counsel] rightly points out that they knew something about the case from the opening. But they were having to listen to evidence describing the expert's view as to the defendant's mental state without having had the benefit of seeing the defendant, hearing his account, not only of the day but of the important background to that day.

17. Without suggesting that defence witnesses can never be called out of order, in our view this was not the right approach to adopt in this case. What the jury needed to hear was, first, what the prosecution witnesses were saying about the events in question on the day, secondly what the defendant was saying about the day and his personal history and thirdly the evidence given by the expert. If the right order had been followed, [counsel] would have been able to invite Dr Wood to comment on the evidence that had been given particularly by the defendant and ask him to draw conclusions from it.

18. For these reasons alone we would allow the appeal.

D19 Trial on Indictment: Sentencing Procedure

D19.44 Duty to Make Sentence Conform to Facts Consistent with Verdict: Secondary Offending

Lawrence (1981) 3 Cr App R (S) 49 was considered in Khan [2009] EWCA Crim 389,, in which the appellant had been convicted of doing an act tending to pervert the course of justice (by attempting to bribe a probation officer to give him a positive report) but was sentenced on the basis that he had also subsequently threatened that officer. Evidence of the telephone conversation and threats was admissible as evidence in rebuttal of his defence that the offer of a bribe was nothing more than a joke. The issue on appeal concerned the extent to which a judge could take into account in sentence matters of evidence which tended to aggravate the offence charged but which had not been charged as a separate offence or admitted by the offender.

The Court of Appeal held that the judge was entitled to take the threats into account. Hedley J said:

12. Nothing in this judgment is intended to cast doubt upon the general proposition that no-one should be sentenced for criminal conduct in respect of which he has neither accepted it nor been convicted. Moreover nothing in this judgment is intended to give comfort to the view that such conduct is capable of being established in a Newton hearing. Nevertheless where the conduct is relevant to a criminal charge being considered by a jury and where such conduct has been the subject of specific scrutiny in a trial then unless reliance on that conduct is inconsistent with a verdict, a judge should be able to take that conduct into account on sentence provided he is satisfied that it has been established to his satisfaction to the criminal standard. Clearly treating someone as having an intention to supply drugs is inconsistent with a conviction for simple possession or treating someone as intending to cause really serious bodily harm is inconsistent with a verdict for inflicting the same.

13. The court recognises that there may be areas of uncertainty. For example where a person is convicted of sexual activity in circumstance where they are in a position of trust, the consent of the victim is irrelevant. However, the absence of consent would be a seriously aggravating feature so far as sentence is concerned. We can see that that decision taken by the sentencing judge alone might well be thought to contravene the general principle. However, consent would not have been an issue specifically addressed in the trial. Here, however, the relevant aggravating feature was not only addressed but was a specific issue having regard to the nature of the defence. It is that fact which in our view permits the judge to have taken account of it here.

D28 Challenging Decisions of Magistrates' Courts and of the Crown Court in its Appellate Capacity

D28.14 Appeal to Divisional Court by Way of Case Stated

In Brett v DPP [2009] EWHC 440 (Admin) (see C5.26) Leveson LJ noted that the appellant could have appealed to the Crown Court instead of to the Divisional Court and warned:

If the purpose of appealing by way of case stated is to improve the prospect of the case not being tried at all (which [counsel] asserts is the effect of her experience), the sooner that those advising defendants are disabused of the merit of such an approach the better. The default position in almost every case should be to remit any prosecution that remains viable back to the originating court for re-trial before a differently constituted bench. Once those advising defendants have understood this approach, it would be incumbent upon them to ensure that their clients were very aware of that risk so that, even if successful, they did not assume or even believe that the case would come to an end. If, in relation to magistrates' court cases, the result is greater use of the appeal by way of re-hearing in the Crown Court rather than appeal to this court by way of case stated, for my part, I would consider that outcome desirable.

D30 Public Funding and Costs

D30.13 Jurisdiction to Make a Defendant's Costs Order

A recent and contrasting ruling in R (Orton) v Truro Magistrates' Court [2009] EWHC 168 (Admin) was doubted in Perinpanathan and dismissed as 'of no real authority'.

D30.20 Amount of Order for Prosecution Costs

It was held in Balshaw [2009] EWCA Crim 470 that under the Prosecution of Offences Act 1985, s. 18(1), an order to pay prosecution costs might properly include an order to pay for the cost of an accountancy report commissioned by the police when investigating the accused's business affairs. The costs incurred by the police were costs relevant not only to the investigation but also to the presentation of the case at trial. Accordingly, the judge was correct to conclude that the order was just and reasonable.

D31 Extradition

D31.2 Part 1 of the Act

The speciality rule (under which a person extradited from State A to State B for one offence cannot ordinarily be prosecuted in State B for a different or additional offence allegedly committed prior to his extradition) was considered in Seddon [2009] EWCA Crim 483. D had been extradited from Spain on a charge of blackmail, after jumping bail in England. He was then prosecuted in England for an offence under the Bail Act, s. 6, which had not been mentioned in the European Arrest Warrant and could not be described as a 'lesser included offence'.

The Court of Appeal ruled that this was unlawful:

Exercising our duty to construe section 146(3)(b) so far as possible consistently with the international obligations which this country has undertaken through the Framework Decision, it is quite clear to us that the section did not extend to permit Mr Seddon to be dealt with in Manchester for the Bail Act offence which was wholly extraneous to and additional to the extradition offence of blackmail and to which there was the merest passing reference in the warrant. All of that follows, as it seems to us, from the essentially reciprocal nature of extradition to which we have already referred.

The court added:

. . . including in the EAW a request for surrender in relation to the Bail Act offence is the course which should be taken wherever there is a realistic possibility that the court should have open to it upon surrender process not only for the substantive offence but also for the bail offence. We draw attention to the existence of the alternative procedure referred to in s. 146(3)(c) of the [Extradition Act 2003]. It remains open to any appropriate judge to seek specific consent from the requested State to proceedings for any specific offence and even after surrender. Section 149(1) makes clear that any judge of the Crown Court is included within the definition of 'appropriate judge'. It follows that any judge of the Crown Court can initiate a request to the requested State for specific consent to process for an additional Bail Act or for that matter any other offence. If he or she were to do so, he should do so ordinarily through counsel for the Crown who will, via the prosecuting authority, transmit the request through the Serious and Organised Crime Agency. That however is not, as it seems to us, by any means the preferred route because it will inevitably lead to undesirable delay. Much the best course is to include the reference to the Bail Act offence specifically as one of the extradition offences for which surrender is sought and so to say plainly from the beginning in the European Arrest Warrant.

Part E Sentencing

E2 Custodial Sentences

E2.8 Crediting of Periods of Remand in Custody

The problems that may arise when calculating time served on remand in accordance with the CJA 2003, s. 240, were examined once again in Johnson [2009] EWCA Crim 468, where the court noted that despite extensive reporting the guidance previously offered in Gordon [2007] 1 WLR 2117 has not always been adopted, and that when such failure leads to sentencing errors, very significant costs may be incurred. The court concluded:

8. As a result of further changes introduced by s. 22 of the Criminal Justice and Immigration Act 2008, time spent on curfew, if the curfew is for more than a certain number of hours, will count as time on remand for half the time of the curfew. It is apparent that obtaining this information will add to the complexity of these calculations for the trial court and no doubt, if the calculation is not made correctly when the matter is before the trial court, will add significantly to the complexity of trying to resolve the matters in this Court.

9. We appreciate that every effort has been made to try and reduce errors in making the correct calculation at the time of the sentence, but experience has shown that there are greater practical difficulties in eliminating errors than seems to have been appreciated when the legislation was enacted and brought into force. It may seem straightforward to ascertain the number of days, but experience shows that it is frequently not so. Defendants often offend more than once and may be on remand in relation to one set of proceedings but not another. Others, like Johnson in this case, move in and out of remand. In the case of yet more, the position is confused by absconding and its consequences. The addition of a curfew calculation will plainly add to the danger of administrative uncertainty as to how many days are to be counted. As these cases show, any error may often not be picked up until well after the elapse of even the 56 days now allowed under section 155 of the Powers of Criminal Courts (Sentencing) Act. As we have endeavoured to set out, needless expenditure is incurred for no apparent gain. There are two solutions to the problem:

i) Reconsideration ought to be given by Parliament to s. 240 of the Criminal Justice Act 2003. We understand clearly the need for transparency, but perhaps this would be more reliably achieved by a default provision to the effect that the time spent on remand was to count unless the judge otherwise ordered. It seems that the practice of requiring the judge to specify the number of days, bearing in mind the mistakes that can be made and the increased likelihood of mistakes, is adding a wholly unnecessary and disproportionate expenditure of funds at the present time.

ii) Pending reconsideration of the provisions of s.240, we would hope that each judge when imposing a custodial sentence would use the formula suggested by Sir Igor Judge (as he then was) in Gordon along the following lines:
The defendant will receive full credit for the full period of time spent in custody on remand and half the time spent under curfew if the curfew qualified under the provisions of s.240. On the information before me the total period is . . . days but if this period is mistaken, this Court will order an amendment of the record for the correct period to be recorded.' We hope that, if this formulation is used in every sentence, then the unnecessary costs that are incurred in this Court will be avoided if it transpires that mistakes have been made.

E2.11 Concurrent and Consecutive Custodial Sentences

In R (Noone) v Governor of HMP Drake Hall [2008] EWCA Civ 1097 the Court of Appeal, Civil Division, reversed the decision of the Administrative Court. The issue was the correct calculation of a prisoner's earliest release date (i.e. for calculation of eligibility for home detention curfew) and licence period when sentenced to consecutive sentences. In a detailed judgment given by Scott Baker LJ, the following conclusions relevant to sentencing emerged:

(a) when a judge passes consecutive sentences it is inevitable that one sentence follows the other, and that the first sentence handed down should normally be regarded as the 'lead sentence';

(b) either expressly or by implication, the judge should identify which sentence should be served first; if the judge says no more than that one sentence should follow another it will be necessary to construe in a common-sense way what direction (under the PCC(S)A 2000, s. 154) the judge was making;

(iii) the second sentence starts at the point at which release from the first sentence would otherwise occur as of right (i.e. the conditional release date of that sentence);

(iv) the prisoner is to be treated as eligible for home detention curfew and/or licence in accordance with the statutory provisions applicable to the second, or last, sentence - these will be those of the CJA 1991 where that sentence is less than 12 months, and those of the CJA 2003 where that sentence is one of 12 months or more.

E7 Detention and Custody of Offenders under 21

E7.16 Breach of Order

In H v Doncaster Youth Court [2009] EWHC 3463 (Admin) the Divisional Court considered the PCC(S)A 2000, s. 104, and its meaning in the context of ordering the offender in consequence of breach to be detained in youth detention accommodation for the 'remainder of the term of the detention and training order'. The appellant submitted that the court must identify the date on which the original order expires, and must not impose any term of detention that would extend beyond that date (in this case a maximum of 23 days). The respondent submitted that the court should stop the clock at the date of the failure to comply, calculate the number of days from that date until the end of the term and then to treat that number of days (counted from the date of the order to return the offender to detention) as the relevant maximum even though that would lead to the term of detention expiring after the expiry of the term of the original order (in this case a maximum of 49 days). The Divisional Court held that the appellant's submission was correct. The natural meaning of s. 104 was that the court dealing with the breach might make an order that the offender be detained for the term of the order which remained to run at the date of that order.

E9 Community Sentences: Offenders Aged under 18

E9.1 Introduction

The Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) (Amendment) Order 2009 (SI 2009 No. 616) further amends the Order of 2005 (SI 2005 No. 950) so as to further postpone the implementation of the CJA 2003, ss. 177, 179 and 180 and sch. 8 and 9 to 4 April 2010.

E15 Fines

E15.7 Enforcement of Fines

In R (Louis) v Ealing Magistrates' Court [2009] EWHC 521 (Admin), where the claimant sought judicial review of a decision committing him to prison for non-payment of a fine, Scott Baker observed (obiter):

The magistrates say that it is standard accounting practice, (and this may very well be the position in other magistrates' courts up and down the country), that where there are payments made in respect of fines, costs and compensation, the magistrates' court treats the payments first as attributable to compensation; secondly to costs and only thirdly to fines. I can see the force of doing so from the viewpoint of where the money goes after it has reached the magistrates' court, but it seems to me that when the payment is being made by a defendant it is important for him that if there is a fine with a period of imprisonment in default the money is attributed in the first instance to the fine. But we have not heard argument on these issues. Nor have we heard any argument on what the position is where part of the fine has been paid and the original imprisonment in default is in excess of the maximum allowed. Further, we have not been addressed about the period to be served where part of the fine has been paid and only a proportion of the original fine remains outstanding. We have no jurisdiction to deal with issues of that kind. They are not before us today and I express no opinion upon them.

E19 Confiscation Orders

E19.16 Joint Enterprise and Individual Benefit

In Mitchell [2009] EWCA Crim 214,, M pleaded guilty to being knowingly concerned in the fraudulent evasion of duty payable on the importation of tobacco contrary to the Customs and Excise Management Act 1979, s. 170(2). In confiscation proceedings (under the PCA 2002), the prosecution did not assert that M had a criminal lifestyle but it did allege (a) that he obtained the tobacco within the meaning of the PCA 2002, s. 76(4) and (b) that he obtained a pecuniary advantage within the meaning of s. 76(5) by evading payment of the excise duty payable on the tobacco. The Recorder made a confiscation order in the sum of £100 after accepting M's contention that his only benefit from the offence was in that sum, which had been paid to him in cash for helping to load the tobacco. In dismissing the Crown's appeal, the court proceeded on the basis that M was not an importer or co-importer. The question arose whether M, as a loader, was personally liable for payment of the excise duty (and see Chambers [2008] EWCA Crim 2467). The answer to that question turned on the proper construction of the Tobacco Products Regulations 2001 (SI 2001 No. 1712), which implement EC Council Directive 92/12/EEC (0J L76, 23/3/1992). The Court observed (at [20]) that 'chargeability arises in the case of imported tobacco upon importation; and the excise duty point, subject to immaterial exceptions, is that point in time, i.e. the moment of importation'. The Court did not reach a formal decision regarding the precise definition of the phrase 'any person who caused the tobacco products to reach an excise duty point' as it appears in reg. 13(3)(e) but, 'it appears to us that it is directed at that person or body who had real and immediate responsibility for causing the product to reach that point, which will typically and ordinarily be the consignor' (at [32]). It is respectfully submitted that the decision leaves a number of loose-ends. First, is an 'importer' the person who owns the goods (jointly or solely) or the person who 'brings about' the importation of the goods? The weight of authority - at least in connection with prohibited goods - is, arguably, the latter. Secondly, when does an 'evasion' begin'? In Mitchell, the Court said that chargeability on tobacco arises upon importation (at [20]) but it added (at [26]) that 'the point at which an evasion occurs will not be until the importer ought to declare'. When ought the importer to declare: is it at the 'excise duty point' or later?

Part F Evidence

F2 The Discretion to Exclude Evidence

F2.11 Evidence Obtained by Torture

In Gäfgen v Germany (2009) 48 EHRR 253, it was held that, although incriminating real evidence recovered as a direct result of acts of violence, at least in the case of torture in breach of the ECHR, Article 3, should never be relied on as proof of guilt, irrespective of its probative value, evidence secured as an indirect result of statements made ('fruits of the poisoned tree') and obtained by reason of inhuman treatment in breach of Article 3 may be admissible, notwithstanding a strong presumption that the use of such derivative evidence renders the trial unfair, where the evidence is only accessory in securing a conviction and defence rights are not compromised as a result of its admission.

F4 Competence and Compellability of Witnesses

F4.18 Children and Persons of Unsound Mind

McPherson [2005] EWCA Crim 3606 and Powell [2006] 1 Cr App R 468 were applied in Malicki [2009] EWCA Crim 365,, in which the court concluded per curiam:

What has happened in this case underlines the importance of what was said in Powell and the crucial need for all concerned to pay full attention to it. We have concentrated on the effect that the delay had on the ability of the appellant to defend himself. But it is of equal concern that the young complainant had to wait so long before the matter came to trial, then had to come to court and be cross-examined, only for the conviction to be quashed because of the delay. As was said in Powell, cases involving such young complainants must be fast-tracked. The proper administration of justice requires it. It is the responsibility of all concerned - prosecution and defence - to bring the need for expedition to the attention of the court (and we refer both to the magistrates' court and to the Crown Court because expedition is needed at all stages of the procedure), and it is the responsibility of the court to ensure that such expedition is provided.

F7 Cross-examination

F7.16 Protection of Complainants in Proceedings for Sexual Offences

Garaxo [2005] All ER (D) 363 (Apr) was considered in Murray [2009] EWCA Crim 618,, in which the complainant's allegation against the defendant was similar in certain respects to an allegation that she had made against another man in 2001 but which had not been pursued beyond an initial report to the police. In each case the complainant alleged that the man in question attacked her on her own bed after telling her that she 'wanted it' or would 'like it'. The trial judge ruled that there was no 'proper evidential basis' to suggest that the allegation made in 2001 was false and so the defence were not permitted to raise it at trial. The conviction was quashed. Dyson LJ said:

23. The difficulty lies in what constitutes a proper evidential basis. In our judgment, it is less than a strong factual foundation for concluding that the previous complaint was false. But there must be some material from which it could properly be concluded that the complaint was false. In Garaxo at paragraph 14 this court considered that there was a proper evidential basis if there was material such that, depending on the answers given by the complainant in cross-examination, the jury could have been satisfied that the previous complaint was untrue, or there was material which was capable of founding an inference that the complaint was untrue.

24. In applying this test we do not think that judges will be assisted by an examination of the facts of other cases . . . The exercise which a judge is called on to perform is fact sensitive. At one extreme will be cases where a previous complaint was obviously untrue, for example where the complainant admits that it was untrue and the withdrawal is manifestly reliable. It would be absurd if that evidence could not be adduced by the defendant or the subject of cross-examination on the grounds that it is about previous sexual behaviour. The other extreme is the case where the defendant suggests in cross-examination that a previous allegation by the complainant of a sexual offence against a third party is untrue where there is overwhelming evidence that it is true. Most cases are likely to fall between these two extremes. It will be a matter for the judge to decide on which side of the line any particular case falls. It is not an exercise of discretion. Rather it is a matter for the judge to evaluate on the basis of all the relevant material. But, as is common ground in this case, the relevant question is whether that material is capable of leading to a conclusion that the previous complaint was false.

25 . . .

26. It is a striking feature of this case that the judge did not ask himself whether, on the material before him, depending on the answers given by the complainant, the jury could have been satisfied that the previous complaint was false. That is what was entailed by the question whether there was a proper evidential basis for the assertion that the complaint was false. If the judge had focused on the question whether on the material before them the jury could have been satisfied that the complaint was false, he should have concluded that the jury could have been so satisfied. As Sweeney J said in the course of argument, there were a number of features relating to the previous complaint which could have led a jury to this conclusion. First, there was the interval of four months between the date of the alleged rape and the date when the complainant reported it to the police. Secondly, there were aspects of the complaint which were puzzling and which caused the investigating police to be sceptical: some of them merit separate mention, but, for example, the police thought it was strange that, according to her account, the complainant had not seen the alleged attacker since the date of the alleged offence although they were members of the same circle of friends. It is also to be noted that on page 2 of the Crime Investigation Plan the police listed a series of questions that they would have wished to ask the complainant about her account in order to test it. Thirdly, there is the fact that the complainant did not follow through with her complaint and would not allow the police to pursue an investigation into what was, if her account was true, a very serious offence. Fourthly, the complainant was willing to give the police only sufficient information to enable her to achieve her goal of being re-housed. Her desire to be re-housed, which was her motive for reporting the matter to the police, raised questions as to her true reasons for making that report.

27. When asked why these facts, when taken together, could not have formed the basis of a conclusion that the complaint was untrue, [counsel] was unable to give an answer. In our judgment, there is no answer. The judge dismissed these facts as, in effect, being of no consequence, but he did so without the benefit of knowing what answers the complainant would give if cross-examined about them. He was in no position to do so. In our view, therefore, the judge was wrong to hold that the proposed cross-examination was about the complainant's previous sexual behaviour rather than about a previous complaint. He should have concluded that section 41 did not apply in the circumstances of this case. . .

Further reasons for doubting the truth of the previous complaint must, with respect, include any similarities between it and the instant complaint, even though the similarities may not be particularly striking or unusual. Where a complainant can be shown to have made broadly similar allegations against different men on different occasions one is surely bound (initially at least) to have concerns about this. There may in the end be good reasons to explain such a thing (e.g., the complainant's inherent vulnerability or her dangerous life style) but it is hard to see how such matters can properly be dismissed as being of no relevance or concern to the jury.

F7.16 Protection of Complainants in Proceedings for Sexual Offences

Difficult cases continue to be thrown up by the YJCEA 1999, s. 41. In Harris [2009] EWCA Crim 434, the complainant (C) alleged that she had been violently raped at knifepoint by D, whom she had met and invited back to her flat when both had been drinking heavily. There was significant evidence to support C's complaint, including evidence of D's violent (but not sexual) propensities that were admitted under the CJA 2003, s. 101(1)(d); but he claimed that he and C had initially engaged in consensual sexual activity and that she had then attacked him with the knife. Because of s. 41, the jury was not allowed to hear evidence of C's medical records which included references to her '. . . life choices involving behaviours which potentially puts her at risk of abuse from others, i.e. casual sex with illegal taxi drivers, excessive alcohol intake, etc., and also . . . a wish to punish herself.'

In other words, character evidence that provided some limited support for the prosecution case was admitted against D, but sexual history / character evidence relating to C that might otherwise have provided comparable support for the defence case was excluded. The Court of Appeal do not seem to have been entirely comfortable over this but declined to interfere. Thomas LJ said:

In this case we consider that the judge adopted a view on similarity which was open to him within that margin of judgement open to a decision maker. We consider that he was entitled to conclude that what was set out in [C's medical records] was not sufficiently similar to what was alleged by the appellant to have happened on the night in issue. He was also entitled to conclude that cross-examination on the basis of what was set out in the two letters would have brought into play matters in relation to her general sexual behaviour and not the similarity of the two occasions. We therefore consider that the ruling was one that cannot be successfully challenged in this court.

F8 Documentary Evidence and Real Evidence

F8.38 Views

Parry v Boyle (1987) 83 Cr App R 310 was considered in M v DPP [2009] EWHC 752 (Admin), a criminal damage case, in which it was held that magistrate had not taken part in a reconstruction merely by parking his car, on arrival at the scene of a view, in a parking place that had been occupied by the alleged victim's car at the time of the alleged offence. The purpose of the view was to establish how much a witness (Collins) could have seen of the offence from his balcony. Leveson LJ said:

What is critical before any court embarks upon any view is that there is absolute clarity about precisely what is to happen on such a view, about who is to stand in what position, about what (if any) objects should be placed in a specific position and about who will do what. None of this should happen at the scene of a view, which should be conducted without discussion for the very reasons identified in this case, namely that otherwise not all involved can participate. If a misunderstanding arose as to what the purpose of this visit to the site was to be that is indeed unfortunate. From the nature of the case it is clear that the justices viewed it merely as an attempt to see the line of sight from Mr Collins' balcony to the scene of this damaged car in the light of the allegation that the wall blocked Mr Collins' view. That is precisely what they undertook, and I reject the criticisms advanced by [counsel] in relation to it.

F9 Public Policy and Privilege

F9.29 Legal Professional Privilege

In Re C (application for judicial review) [2009] UKHL 15, the applicants (from Northern Ireland) questioned whether the police or security services could lawfully engage in covert surveillance of consultations between suspected offenders and their legal or medical advisors.

The House of Lords held that RIPA 2000 permits covert surveillance of communications between persons in custody and their legal or medical advisers, notwithstanding that such communications otherwise enjoy legal professional privilege and despite the existence of a statutory right to consult a solicitor privately, but such surveillance is lawful only when carried out in accordance with the Act and its associated Code of Practice and only where it does not violate Convention rights. Lord Carswell said:

99. The appellants submitted that it was not the intention of Parliament that the general surveillance provisions of RIPA should override the specific provisions in the earlier enactments which conferred statutory rights upon persons detained to be interviewed by lawyers in such a manner as to be able to speak in confidence. Section 58 of PACE and its Northern Ireland equivalent provide that a person held in custody in a police station is entitled 'to consult a solicitor privately at any time.' Paragraph 7 of Schedule 8 to the Terrorism Act 2000 similarly provides that a person detained may consult with a solicitor 'privately' as soon as practicable. In both cases the exercise of the right may be deferred in certain circumstances, but subject to that it is not restricted. . . .

100. . . . In its natural and ordinary sense [RIPA] is capable of applying to privileged consultations and there is nothing in its wording which would operate to exclude them. . . . It seems to me unlikely that the possibility of RIPA applying to privileged consultations could have passed unnoticed. On the contrary, it is an obvious application of the Act, yet no provision was put in to exclude them.

101. Secondly, I do not consider that it is at all a clear case for the application of the maxim generalia specialibus non derogant. When the earlier provisions relied on by the appellants were enacted, there was no equivalent of RIPA relating to powers of surveillance. Those provisions were simply designed to ensure that the various categories of detained persons could have professional consultations in private, there being no question that covert surveillance might be carried out. They were not special exceptions to be preserved when a general rule was passed into law.

102. Thirdly, there is the need to incorporate exceptions to the inviolability of privileged consultations. One such is the Cox & Railton exception: if it were not possible to exercise covert surveillance of legal consultations where it is suspected on sufficiently strong grounds that the privilege was being abused, the law would confer an unjustified immunity on dishonest lawyers. There may be other situations where it would be lawful to monitor privileged consultations, for example, if it is necessary to obtain information of an impending terrorist attack or to prevent the threatened killing of a child. The limits of such possible exceptions have not been defined and I shall not attempt to do so, but they could not exist if the rule against surveillance of privileged consultations were absolute.

103. Fourthly, the Code makes detailed provision for obtaining authorisation for monitoring consultations covered by legal professional privilege. It was laid before and approved by Parliament, but no point appears to have been taken that RIPA did not cover such consultations. It would be surprising at least that no objection was made to the inclusion of those provisions in the Code if it was thought that Parliament had not intended that the consultations be covered by RIPA.

. . .

105. I conclude accordingly that Parliament intended that the covert surveillance provisions of RIPA should extend to the type of lawyer/client and doctor/patient consultations which are ordinarily protected by legal professional privilege.

This does not mean that such surveillance will ordinarily be lawful. The Appellate Committee was highly critical of the Secretary of State's failure to make an order under RIPA s. 47(1)(b) characterising surveillance of consultations between detainees and their legal advisers as intrusive surveillance, with the safeguards that go with that level of surveillance. (By RIPA s. 32, an authorisation for intrusive surveillance may be granted only if the Secretary of State or the senior authorising officer believes that it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime or in the interests of the economic well being of the United Kingdom.) If this were done, said Lord Carswell, it would make consideration of directed surveillance of such consultations superfluous.

F19 Inferences from Silence etc

F19.22 Accused with Physical or Mental Limitations

R (DPP) Kavanagh [2005] EWHC 820 (Admin) was approved in Tabbakh [2009] EWCA Crim 464, in which it was held that a defendant might be subject to possible adverse inferences under the CJPOA 1994, s. 35 even where his physical or mental condition might to some extent affect his ability to give evidence. Many, if not most, such difficulties were matters to be taken into account by the magistrates or jury, in assessing the reliability of his evidence. Such conditions do not necessarily justify a comprehensive failure to give evidence.

NEW legislation

Prevention of Terrorism Act 2005 (Continuance in force of sections 1 to 9) Order 2009 (SI 2009 No. 554)

This Order continues in force the specified provisions of the 2005 Act for a further period of one year, commencing on 11 March 2009.

Prescribed Organisation (Name Change) Order 2009 (SI 2009 No. 578)

This Order provides that the name 'Jama'at ud Da'wa' be treated as an additional name for the proscribed organisation 'Lashkar e Tayyyaba' for the purposes of the Terrorism Act 2000, sch. 2.

Criminal Justice Act 2003 (Commencement No. 8 and Transitional and Saving Provisions) (Amendment) Order 2009 (SI 2009 No. 616)

This Order further amends the Order of 2005 (SI 2005 No. 950) so as to further postpone the implementation of the CJA 2003, ss. 177, 179 and 180 and sch. 8 and 9 to 4 April 2010.

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