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Companion Website
Blackstone's Criminal Practice 2009
August 2009
August 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 August update primarily considers developments reported in July 2009.
- 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
A6 Inchoate Offences
A6.62 Criminal Attempts: Sentencing
The Sentencing Guidelines Council has issued a final guideline in relation to sentencing for offences of attempted murder. This applies to defendants who are sentenced for attempted murder on or after 27 July 2009. The guidelines can be accessed at www.sentencing-guidelines.gov.uk
Part B Offences
B1 Homicide and Related Offences
B1.15 Diminished Responsibility
Even where, on a charge of murder, there is uncontradicted medical evidence of a significant mental abnormality affecting the accused, the general rule is that the charge of murder should be left to the jury. Save where the prosecution concede the issue, only in very exceptional cases should a charge of murder be withdrawn form the jury on the basis of diminished responsibility. The trial judge would have to be satisfied that on the evidence (including the expert medical evidence), no reasonable jury could fail to conclude that the accused had established the essential elements of the defence on a balance of probabilities. See Khan [2009] EWCA Crim 1569.
B1.118 Complicity in Suicide: Procedure
The Court of Appeal's ruling in the Purdy case (noted in the March update) has been reversed by the House of Lords in R (Purdy) v DPP [2009] UKHL 45. It was held that the DPP should indeed be required to promulgate an offence-specific policy identifying the facts and circumstances which he would taken into account in deciding in a case such as that which the claimant's case exemplified, whether or not to consent to a prosecution under the Suicide Act 1961, s. 2(1). Such guidance is needed because there is already an obvious gulf between what s. 2(1) says and the way that it is being applied in practice in compassionate cases of this kind.
Having considered the ruling of the European Court of Human Rights in Pretty v United Kingdom (Application 2346/02)[2002] 2 FCR 97, the Appellate Committee noted that it conflicted with the Committee's earlier ruling in R (Pretty) v DPP [2002] 1 AC 800 on a on a narrow but important point, namely, whether the guarantee in Article 8 could apply to the manner in which a person wished to die. In light of that, the Committee decided not to follow its own decision on that issue, and to recognise that the right to respect for private life in Article 8(1) was engaged in the instant case.
B1.122 Complicity in Suicide: Elements
In R (Purdy) v DPP [2009] UKHL 45 (see B1.118) the claimant's immediate concern was whether her husband would be likely to face prosecution under the Suicide Act 1961 if he were to assist her, in England, to travel to Switzerland, where she would then be helped to commit suicide at a clinic operating in accordance with Swiss law.
As at all previous stages of the case, the parties and courts concerned assumed that an offence under the Suicide Act 1961, s. 2(1), would indeed be committed within the jurisdiction in such circumstances but, at some point after the Committee had finished hearing oral argument, it became aware of the possibility that this might not be so (a possibility first suggested here in the November 2008 update).
Statutory offences of procuring, causing or assisting that are intended to apply in respect of things that are procured etc. to happen abroad will ordinarily include words such as, 'anywhere in the world' or 'in any place outside the United Kingdom'; but s. 2(1) includes no such words and does not appear to have been intended to apply to suicides committed abroad. The obvious inference is that Parliament did not intend to criminalise involvement in suicides committed abroad. Having belatedly considered this possibility, and received written submissions on it from the parties and the Attorney-General, the Appellate Committee concluded that the issue was too difficult to be resolved without full argument.
Some obiter views were expressed. Lord Hope was minded to conclude that s. 2(1) clearly does apply to such cases. Lord Phillips noted that the Suicide Act 'plainly' does not apply to suicides abroad, and this led him to the bizarre conclusion that complicity on the part of a British citizen in a suicide committed abroad must still be murder, as it was before the Act was passed. With respect, this conclusion was based on a simple misreading of s. 3(3), which merely provides that the Act governs English law, and not that of Scotland or Northern Ireland. Thanks to s. 1 of the Act, the English law of murder no longer applies to suicide or complicity in suicide either in England or abroad.
B3 Sexual Offences
B3.136 Sexual Activity with a Person with a Mental Disorder Impeding Choice: Elements
In C [2009] UKHL 42, the House of Lords has reversed the judgment of the Court of Appeal in C [2008] EWCA Crim 1155 and restored the respondent's conviction in that case.
The questions certified for the consideration of the Appellate Committee were summarised by the parties as follows:
Whether the decision of the Court of Appeal has unduly limited the scope of section 30(1) of the Sexual Offences Act beyond that which Parliament intended. Specifically:
- in holding that a lack of capacity to choose cannot be person or situation specific;
- in holding that an irrational fear that prevents the exercise of choice cannot be equated with a lack of capacity to choose; [and]
- in holding that to fall within section 30(2)(b) a complainant must be physically unable to communicate by reason of his mental disorder?
The Committee answered 'yes' to each of these questions. Baroness Hale, with whom the rest of the Committed concurred, suggested that the Court of Appeal may have been unduly influenced by judgments relating to capacity at common law, whereas the Sexual Offences Act 2003, s. 30, had in fact put the matter beyond doubt:
A person is unable to refuse if he lacks the capacity to choose whether to agree to the touching "whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason" (s. 30(2)(a)). Provided that the inability to refuse is "because of or for a reason related to a mental disorder" (s. 30(1)(c)), and the other ingredients of the offence are made out, the perpetrator is guilty. The words "for any other reason" are clearly capable of encompassing a wide range of circumstances in which a person's mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it. These could include the kind of compulsion which drives a person with anorexia to refuse food, the delusions which drive a person with schizophrenia to believe that she must do something, or the phobia (or irrational fear) which drives a person to refuse a life-saving injection . . . or a blood transfusion . . .
The 2003 Act also makes it clear that the question is whether the complainant has the capacity to choose whether to agree to "the touching", that is, the specific act of sexual touching of which the defendant is accused. . . The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself. . . The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant.
As to inability to communicate of the purposes of s. 30(2)(b),
There are, of course, some physical disorders of the brain which lead to disorders of the mind. But it is quite clear that in the 2003 Act Parliament had in mind an inability to communicate which was the result of or associated with a disorder of the mind. There is no warrant at all for limiting it to a physical inability to communicate.
One of the more puzzling features of this case was the prosecution's decision to substitute the s. 30 charge for the original charge of rape. Baroness Hale suggested a possible reason:
The view may have been taken that the offence under section 30 is somewhat easier to prove. The prosecution has only to prove the inability to refuse rather than that the complainant actually did not consent.
But if we focus only on the issue of consent and ability to refuse, the boot appears to be on the other foot: it must be easier to prove that a complainant did not in fact consent than to prove that she was incapable of consenting, which is what 'inability to refuse' would necessarily involve. A person cannot consent unless she has the freedom and capacity to do so. It follows that if she was unable to refuse then she could not have given valid consent on that occasion; whereas it is perfectly possible for a jury to find that although she was capable of consenting she did not in fact do so.
In mens rea terms, however the s. 30 offence may sometimes be easier to prove. As Baroness Hale explained:
The mens rea for rape is that the defendant does not reasonably believe that the complainant consents (s. 1(1)(c)). This puts a greater burden of restraint upon people who know or ought to know that a person's mental disorder is likely to affect her ability to choose. This may explain why the decision was made to charge the s. 30 offence in this case.
Baroness Hale also considered that an alternative count for a s. 34 offence might usefully have been added to the indictment: see her opinion in C at [32].
Part C Road Traffic Offences
C3 Offences Relating to Driving Triable on Indictment
C3.10 Tests for Dangerous Driving
Milton v DPP [2007] 4 All ER 1026 was overruled in Bannister [2009] EWCA Crim 1571, in which the Court of Appeal held that the special skill (or lack of skill) of a driver is an irrelevant circumstance when considering whether a given piece of driving was dangerous within the meaning of the RTA 1988, s. 2A.
As in Milton, this case concerned allegedly dangerous driving by a highly trained Grade 1 advanced police driver. As in Milton, it was argued that the driver's experience and training were relevant factors that should be taken into account in deciding whether his driving was or was not dangerous, in accordance with the guidance given in s. 2A(3). That submission succeeded in Milton, but was rejected in Bannister, where Thomas LJ said:
If the special skill of the driver is taken into account in assessing whether the driving is dangerous, then it must follow inevitably that the standard being applied is that of the driver with special skills and not that of the competent and careful driver, because the standard of the competent and careful driver is being modified. . .
The decisions of this court on taking into account matters such as knowledge of circumstances such as drunkenness or susceptibility to hypoglycaemic attacks are based on a different premise. Such matters do not go to the standard of the competent and careful driver, but are facts relating to the condition of the driver which are as relevant as the driver's knowledge of the unroadworthiness of a car or the conditions of the weather or the road. Those facts can be taken into account without in any way departing from the test of the competent and careful driver- an objective test to be applied by the jury or other decision maker. In contradistinction to that, taking into account the special skill of a driver would be to substitute the test of the ordinary competent and careful driver set out in the statute and in effect to re-write the test Parliament clearly laid down.
. . . It therefore follows that the special skill (or indeed lack of skill) of a driver is an irrelevant circumstance when considering whether the driving is dangerous.
Can this really be correct? Driving which is gravely incompetent and endangers other road users must of course be dangerous within the meaning of s. 2A, even if the driver concerned is highly trained. Bannister may indeed be an example of such driving. But it makes no sense to ignore the skill, training and experience (or inexperience) of a driver when determining whether his driving is (even objectively) dangerous. A police pursuit driver following a stolen vehicle at high speed may for example be driving safely (given his skill and experience) even though the driver of the stolen vehicle is considered to be driving dangerously on account of his speed.
The test set by s. 2A is objective, but that does not require the courts (or the hypothetical competent and careful driver in s. 2A(1)(b)) to be blind to the particular circumstances of the case. Bannister is in that respect an unfortunate and misguided ruling.
C5 Drink-Driving Offences
C5.31 Excluding Improperly Obtained Specimens
The decision in Fox [1986] AC 281, that a lawful arrest is not an essential prerequisite for lawfully requiring a specimen under the RTA 1988, was followed in DPP v Wilson [2009] EWHC 1988 (Admin). The courts will exclude evidential specimens where the procedure followed when taking them was even slightly irregular, but if that procedure was properly followed it does not then matter (as far as admissibility is concerned) that the defendant was not lawfully arrested, or indeed that he should never have been arrested at all.
A further setback was suffered by the 'loophole defence industry' in Steven [2009] EWCA Crim 1452, where the defendant was convicted of an offence under the RTA 1988, s. 3A(1)(c) (causing death by careless driving and failing without reasonable excuse to provide a specimen for analysis).
Following his involvement in a fatal road traffic accident, S was taken to hospital and a sample of his blood was taken for medical purposes. This was later acquired by the police, but S then declined to provide either breath or blood specimens for analysis pursuant to RTA 1988, s. 7.
At the trial, the prosecution needed to establish (1) that S was guilty of careless driving (causation not being in dispute) and (2) that he had failed without reasonable excuse to provide a specimen for analysis. Evidence was given of the blood sample taken before the police arrived. This showed him to be more than 2 ˝ times over the legal limit for alcohol and tended to support other evidence suggesting that S was guilty of careless driving and of wilful refusal to provide a specimen for analysis. Because it was not taken with his consent or divided in accordance with RTOA 1988, s. 15, the sample could not have been used to prove a 'driving offence connected with drink or drugs', such as that under s. 3A(1)(a), but as the Divisional Court rightly noted, the constraints imposed by s. 15 do not apply to 'refusal' offences such as that under RTA 1988, s. 3A(1)(c). Nor was there any unfairness in the procedure such as might justify the exclusion of evidence under the PACE 1984, s. 78. The conviction was not unsafe.
Part D Procedure
D1 Powers of Investigation
D1.1 Police Powers in the Investigation of Crime
The Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 (SI 2009 No. 1922) revokes the Police and Criminal Evidence Act 1984 (Application to the Armed Forces) Order 2006 (SI 2006 No. 2015) and makes broadly equivalent provision to replace it, taking account of the implementation of the Armed Forces Act 2006 on 31 October 2009.
D2 The Decision to Prosecute and Diversion
D2.39 Fixed Penalty Notices
Where a fixed penalty notice has been issued in respect of one offence, this does not make it improper for criminal proceedings to be instigated in respect of some other and more serious offence relating to the same incident, if evidence of that more serious offence subsequently comes to light: see Gore [2009] EWCA Crim 1424.
D11 The Indictment
D11.2 Requirement that an Indictment be Signed
Clarke [2008] 1 WLR 338 was considered in Leeks [2009] EWCA Crim 1612, in which the Court of Appeal quashed L's conviction and ordered a retrial on the basis that he had pleaded guilty to a count that had been improperly added to the original indictment without the requisite formal amendment. Although the circumstances were not identical to those in Clarke, the principle and approach had to be the same. L's guilty plea and subsequent conviction had all been founded on a nullity.
D24 Civil Behaviour Orders: ASBOs, Closure Orders, SCPOs and VOOs
D24.14 Breach of the ASBO
The burden of proof in relation to an alleged breach of an ASBO (contrary to the CDA 1998, s. 1(10)) was considered by the Court of Appeal in Charles [2009] EWCA Crim 1570.
Thomas LJ said:
It cannot have been intended by Parliament to place any burden of proof on the defendant under s. 1(10) which criminalises conduct that Parliament itself has not criminalised and has not prescribed the terms in which that can be done. Applying therefore the test in Edwards and in Hunt, we are of the clear view that the burden of proving reasonable excuse rests on the Crown where the defendant has raised the issue on the evidence before the court. The Act is perfectly workable on the basis that it imposes only an evidential burden on the defendant, but leaves the legal burden on the Crown.
D24.51 Violent Offender Orders
The Criminal Justice and Immigration Act 2008 (Violent Offender Orders) (Notification Requirements) Regulations 2009 (SI 2009 No. 2019) set out the notification requirements for a person who is subject to a violent offender order (or an interim violent offender order) under part 7 of the Criminal Justice and Immigration Act 2008 who wishes to travel outside the UK.
D26 Procedure on Appeal to the Court of Appeal
D26.20 Receipt of Evidence by the Court of Appeal
Erskine [2009] EWCA Crim 1425 provides a useful guide to circumstances in which the Court of Appeal exceptionally may allow a defence such as diminished responsibility to be advanced for the first time on appeal. See also Moyle [2008] EWCA Crim 3059.
(For other aspects of this case, concerning the citation of authorities in appeals to the Court of Appeal, see the July update.)
Part E Sentencing
E19 Confiscation Orders
E19.7 The Process
As previously noted in these updates, the law governing the imposition of confiscation orders may when strictly applied lead to the imposition of orders that operate as a double penalty by confiscating the supposed proceeds of failed crimes from which the offenders concerned never really profited in the first place. Where for example a cigarette smuggler's cartons are seized within minutes of him failing to declare them to HM Revenue and Customs, it is highly artificial (albeit legally correct) to describe the financial penalty that follows his conviction as a 'confiscation order'. There are in reality no proceeds to be confiscated. The order, if sought, becomes an additional punishment or fine in everything but name and risks creating a serious imbalance between the gravity of the offending and the total penalty imposed. Such cases are not truly analogous to those in which the proceeds have been spent or squandered by the defendant, but may be treated as such.
Then there is the issue of restitution to the victim. In Morgan [2008] EWCA Crim 1323, the court conceded that
it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make, and which would thus deter him from making it.
A similar stance was taken in Shabir [2008] EWCA Crim 1809.
In Nelson [2009] EWCA Crim 1573, the Court of Appeal commended the publication by the CPS of a document entitled, 'Guidance for Prosecutors on the Discretion to Instigate Confiscation Proceeds', the purpose of which is to achieve consistency of approach among prosecutors in England and Wales. The guidance follows Morgan and Shabir, and identifies a further scenario in which confiscation proceedings may amount to an abuse of process, namely where a defendant has obtained paid employment by a false representation to his employer. The defendant's wages may be his benefit (Carter [2006] EWCA Crim 416), but in some cases the link between the criminality and the receipt of payment from dishonestly obtained employment may be too remote, for example, where had the representation been corrected, the employment would have continued, or where after many years of otherwise lawful employment, a relatively minor previous conviction is discovered.
E19.8 Information, Evidence and Proof
A defendant who has pleaded guilty, without having contested the details of the prosecution's case either before the jury or by means of a Newton hearing, may still challenge the prosecution's evidence in confiscation proceedings: Knaggs [2009] EWCA Crim 1363.
Part F Evidence
F9 Public Policy and Privilege
F9.25 Privilege against Self-incrimination: Statutory Provisions Requiring Answers to Questions
Parties to ancillary relief proceedings conducted under the Family Proceedings Rules 1991 cannot invoke the privilege against self-incrimination in order to withhold information from the court. But, but in any subsequent criminal trial, use of admissions made under compulsion by the defendant in such proceedings would infringe his right to a fair trial under the ECHR, Article 6. Such evidence should therefore be excluded by using the PACE 1984, s. 78. See K [2009] EWCA Crim 1640.
Appendices
Appendix 8 Sentencing Guidelines Council Guidelines
The Sentencing Guidelines Council has issued a final guideline in relation to sentencing for offences of attempted murder. This applies to defendants who are sentenced for attempted murder on or after 27 July 2009. The guidelines can be accessed at: www.sentencing-guidelines.gov.uk
NEW Legislation
Political Parties and Elections Act 2009
This Act makes provision in connection with the Electoral Commission; political donations; loans and related transactions; and political expenditure. It also amends the law relating to elections and electoral registration.
Amendments to the Political Parties, Elections and Referendums Act 2000 include some relating to offences and defences under that Act (offences involving impermissible and non-resident donors and declarations as to the sources of party donations).
Violent Crime Reduction Act 2006 (Drinking Banning Orders) (Approved Courses) Regulations 2009 (SI 2009 No. 1839)
These Regulations make provision for the approval of course for the Purposes of s. 2 of the 2006 Act; completion of such a course can bring a drinking banning order to an end.
Financial Restrictions Proceedings (UN Terrorism Orders) Order 2009 (SI 2009 No. 1911)
This Order amends the Counter-Terrorism Act 2008, s. 64 so that the definition of 'UN terrorism orders' therein includes the Terrorism (United Nations Measures) Order 2009 (SI 2009 No. 1747) and omits the Terrorism (United Nations Measures) Order 2001 (SI 2001 No. 3365) and the Terrorism (United Nations Measures) Order 2006 (SI 2006 No. 2657).
Terrorism (United Nations Measures) Order (Consequential Amendments) Regulations 2009 (SI 2009 No. 1912)
These Regulations make amendments consequent on the coming into force of the Terrorism (United Nations Measures) Order 2009 and add references to that Order in three sets of regulations: the Money Laundering Regulations 2007 (SI 2007 No. 2157), the Transfer of Funds (Information on the Payer) Regulations 2007 (SI 2007 No. 3298) and the Payment Services Regulations 2009 (SI 2009 No. 209). In each case reference was made to offences under the Terrorism (United Nations Measures) Order 2006 (SI 2006 No. 2657) and these Regulations add references to the equivalent offences under the 2009 Order.
Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 (SI 2009 No. 1922)
This order revokes the Police and Criminal Evidence Act 1984 (Application to the Armed Forces) Order 2006 (SI 2006 No. 2015) and makes broadly equivalent provision to replace it, taking account of the implementation of the Armed Forces Act 2006 on 31 October 2009.
Criminal Justice and Immigration Act 2008 (Violent Offender Orders) (Notification Requirements) Regulations 2009 (SI 2009 No. 2019)
These Regulations set out the notification requirements for a person who is subject to a violent offender order (or an interim violent offender order) under part 7 of the Criminal Justice and Immigration Act 2008 who wishes to travel outside the UK.
Armed Forces Act 20006 (Consequential Amendments) Order 2009 (SI 2009 No. 2054)
This Order makes further consequential amendments with effect from 31 October 2009, the date on which the Armed Forces Act 2006 comes fully into force.
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