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Companion Website
Blackstone's Criminal Practice 2009
February 2009
February 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 February update primarily considers developments reported in January 2009.
- Part A: General Principles of Criminal Law
- Part B: Offences
- Part D: Procedure
- Part E: Sentencing
- Part F: Evidence
- New Legislation
Part A General Principles of Criminal Law
A7 Human Rights
A7.67 Trial within a Reasonable Period
There is an inevitable risk that delays will arise where an alleged offender is initially arrested or charged in England and Wales and then prosecuted in Scotland or Northern Ireland (or vice versa). But this multiplicity of UK jurisdictions cannot be used as an excuse if the alleged offender is thereby deprived of his Convention right to a fair and public hearing within a reasonable time of the initial arrest, etc. As Lord Rodger explained in Burns v Her Majesty's Advocate [2008] UKPC 63:
The United Kingdom, rather than Scotland or England, is the party to the European Convention. In terms of article 1, the United Kingdom has undertaken to secure to everyone within its jurisdiction, inter alia, the rights defined in article 6. Of course, the United Kingdom is free to make what internal constitutional arrangements it pleases, but, whatever arrangements it adopts, it remains bound to fulfil that obligation. Suppose a case where someone is 'charged' in Scotland for article 6(1) purposes and his trial in Scotland is then delayed for a period which is unreasonable. The United Kingdom will be in breach of article 6(1). Suppose, instead, that he is 'charged' in Scotland and his trial in England on substantially the same matter is then delayed for the same period. The same result must follow. In other words, the way that the United Kingdom has chosen to distribute its criminal jurisdiction cannot impair or defeat an accused's right to be tried on a criminal charge within a reasonable time. In a case like the present, therefore, when applying article 6(1), it is appropriate to look at the sum total of the actions of the competent English and Scottish authorities.
A7.74 Hearsay Evidence
The European Court of Human Rights has delivered an important ruling in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110 that considerably restricts the extent to which hearsay evidence from dead or absent witnesses may be relied upon by the prosecution in criminal trials, without being found to infringe the defendant's right to a fair trial under the ECHR, Article 6(1) and (3). See further the January update at F16.18.
Part B Offences
B1 Homicide and Related Offences
B1.63 Causing or Allowing the Death of a Child or Vulnerable Adult: Elements
The scope of the offence under the Domestic Violence, Crime and Victims Act 2004, s. 5(1), was examined by the Court of Appeal in Khan [2009] EWCA Crim 2. S, a young woman from Pakistan, was brought to England in order to marry K, who treated her with brutal violence on a number of occasions before murdering her by beating her to death. Four other adult members of the same household who were alleged to have had frequent contact with S were charged under s. 5 and convicted of allowing the death of a vulnerable adult. The prosecution case was that K had been beating S throughout the three weeks before her death and that it must have been apparent to each defendant that she was being subjected to serious violence. Three of them appealed against their convictions. One of the grounds of appeal was that the trial judge failed to direct the jury that it was necessary for membership of the household and frequency of contact to coincide with the facts or circumstances which would give rise to criminal liability, including the defendant's awareness of a significant risk of serious physical harm, and foresight of the circumstances in which the fatal beating occurred. The court rejected that argument. Lord Judge CJ said (at [30]):
In our judgment, the question whether contact between the defendant and the victim was frequent or not, is free-standing. Although 'member of the same household' is defined in section 5(6), there is no further definition of 'frequent contact'. The reason is clear. None is needed. Unless the contact was frequent, the prosecution would fail. Assuming, however, that it was indeed frequent, the defendant would nevertheless be entitled to be acquitted unless the criteria in section 5(1)(i)(d) and (iii) were also established. The submission by the appellants seeks to import into the words 'frequent contact' the criteria found in section 5(1)(d). They are irrelevant to the determination of the simple question of fact whether the individual appellant's contact with [S] was or was not frequent for the purposes of identifying him or her as a potential defendant.
This sufficed to dispose of the appeal on that particular issue, but Lord Judge added some more general comments (at [32] and [33]) as to the application of s. 5:
Section 5(1)(d)(i) and (iii) defines the subjective elements which must be established by the prosecution. It applies when the defendant was aware of the risk of serious physical harm and foresaw the occurrence of the unlawful act or course of conduct which resulted in death. It applies, however, when the defendant was unaware of the risk, but ought to have been aware of it, and when he did not foresee, but ought to have foreseen the occurrence of the act. The objective therefore is to bring within the ambit of the offence, not only those who are actually aware of the risk and foresaw the unlawful act, but those who chose to close their eyes to a risk of which they ought to have been aware, and which they ought to have foreseen.
These apparently broad routes to criminal liability are narrowed by the requirement that, even if the necessary level of awareness and foresight are established, the defendant cannot be convicted unless he or she failed to take the steps which could reasonably have been expected. In our judgment, this pre-condition requires close analysis of the defendant's personal position. We note the concern expressed by Jonathan Herring in Familial Homicide, Failure to Protect and Domestic Violence: Who's the Victim [2007] Crim LR 923 that abused women, for example, may be prosecuted for allowing their violent partners to kill their child. However, section 5(1)(d)(ii) makes clear that the protective steps which could have been expected of the defendant depend on what reasonably have been expected of him or her. In the present case, for example, if either of the female appellants had herself been subjected by [K], to serious violence of the kind which engulfed [S], the jury might have concluded that it would not have been reasonable to expect her to take any protective steps, or that any protective steps she might have taken, even if relatively minor, and although in the end unsuccessful to save the deceased, were reasonable in the circumstances. We are not attempting to lay down principles of law on what are questions exclusively of fact, but seeking merely to illustrate the ambit of this paragraph, and its potential importance to an individual defendant, and to put the submissions on behalf of these appellants into context.
There was a further ground of appeal, arising from the fact that the fatal attack on S occurred in the garage at night, when the appellants were asleep, and involved a degree of violence that was markedly more extreme than anything inflicted on her in the house itself during the previous three weeks. The circumstances, it is said, were utterly different and none of the individual appellants foresaw or ought to have foreseen such an attack. This argument was also rejected. Lord Judge said (at [39]):
The act or conduct resulting in death must occur in circumstances of the kind which were foreseen or ought to have been foreseen by the defendants. They need not be identical. The violence to which [S] was subjected on the night she was killed was of the same kind but it was violence of an even more extreme degree than the violence to which her husband had subjected her on earlier occasions. The place where the fatal attack took place was irrelevant. Although ultimately a jury question, the circumstances would probably have been the same kind, if not identical, if the fatal attack had occurred while the couple were on holiday, away from their home.
B4 Theft, Handling Stolen Goods and Related Offences
B4.58 Burglary: Sentencing Guidelines
In Saw [2009] EWCA Crim 1 the Court of Appeal re-examined the sentencing guidelines for domestic burglary issued almost exactly six years earlier in McInerney [2003] EWCA Crim 3003 and issued fresh guidance on the starting points for sentences in cases of domestic burglary by adults.
The guidance is issued 'pending definitive guidance on the subject of domestic burglary which may be issued by the Sentencing Guidelines Council'.
Note that the definitive guidance recently issued by the SGC deals only with non-domestic burglary.
B6 Falsification, Forgery and Counterfeiting
B6.94 False Application or Use of Trade Marks: Scope of Offences
In Kousar [2009] EWCA Crim 139, the appellant lived with her husband, a market trader. She was aware that he stored merchandise from his business at the matrimonial home, and acquiesced in it being there. Some of this merchandise was seized and found to be counterfeit, and she was convicted of an offence under the Trade Marks Act 1994, s. 92(1)(c), by which:
A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor . . .(c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).
On appeal, her conviction was quashed. There was in the Court of Appeal's view no evidence that she ever possessed or exercised control over the merchandise. At most, she allowed her husband to do that in the home, when she might perhaps have objected; but as David Clarke J explained:
Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough . . .
A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control.
Moreover:
The Crown had to prove that her possession of the goods was possession in the course of a business and it seems to us that, if they could not establish that she was involved in the business as a participant, whether paid or otherwise, in the business of dealing with these goods, then they could not establish that element of their case. Thus, even if, contrary to our view, her so-called ability or right to control the goods was sufficient to render her in possession of them, this still did not suffice to establish that further element of these offences. Our conclusion, therefore, is that this appellant in truth did not have a case to answer.
B10 Terrorism, Piracy and Hijacking
B10.3 Definition of Terrorism
The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 75 of the Act, which amends the definition of terrorism in the Terrorism Act 2000, s. 1(c) so as to include a racial cause amongst the objectives sought to be advanced.
B10.6 Membership of a Proscribed Organisation: Procedure and Jurisdiction
The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 29 of the Act, which amends the Terrorism Act 2006, s. 19(2) so as to require consent to prosecution from the A-G where an offence is committed outside the UK.
B10.39 Failure to Comply with a Duty of Disclosure: General Duty
The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 77 of the Act, which amends the Terrorism Act 2000, s. 19(1) so as to marginally widen the duty.
B10.86 Encouragement of Terrorism: Procedure
The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 29 of the Act, which amends the Terrorism Act 2000, s. 117(2A) so as to require consent to prosecution from the A-G where an offence is committed outside the UK.
B10.143 Use or Threat of Noxious Substances or Things to Cause Harm or Intimidate
The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 75 of the Act, which amends the definition of terrorism in the Anti-terrorism, Crime and Security Act 2001, s. 113(2) so as to include a racial cause amongst the objectives sought to be advanced.
B10.223 Informing a Solicitor
The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, on 16 February 2009, inter alia s. 82 of the Act, which includes an amendment of the Terrorism Act 2000, sch. 8, para. 9 affecting the circumstances in which a direction may be given under that paragraph (that a detained person may consult a solicitor only within the sight and hearing of an officer).
B20 Offences Relating to Dangerous Dogs, Hunting and Animal Welfare
B20.9 Offences Involving Hunting with Dogs
In DPP v Wright; R (Scott) v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin), the Divisional Court held:
. . .the term 'hunts' a wild mammal with a dog, as used in section 1 of the Hunting Act 2004, does not include the mere searching for an unidentified wild mammal for the purpose of stalking or flushing it. That said, the question whether a person 'hunts' a wild mammal with a dog is heavily fact specific, and we do not attempt to define by reference to particular hypothetical factual circumstances when hunting takes place for the purpose of the 2004 Act and when it does not.
B20.11 Offences Involving Hunting with Dogs: Exemptions and Defences
In DPP v Wright; R (Scott) v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin), the Court confirmed that the only burden of proof placed on the defence by the Hunting Act 2004, s. 1 and sch. 1 is evidential.
B21 Offences Relating to the Proceeds of Criminal Conduct
B21.1 Proceeds of Crime Act 2002, Part 7
As noted in Blackstone's Criminal Practice, the money laundering provisions of the Proceeds of Crime Act 2002 do not apply where the conduct allegedly constituting the offence began before 24 February 2003 and ended on or after that date. The old money laundering provisions previously contained in the Criminal Justice Act 1988, ss. 93A to 93C, and the Drug Trafficking Act 1994, ss. 49 to 51 continue to have effect in such circumstances.
In Khanani [2009] EWCA Crim 276 the sole issue pursued on appeal concerned the dates within which an alleged money laundering arrangement charged under the PCA 2002, s. 328, was alleged to have been committed. If the arrangement in question had begun prior to 24 February 2003 (although the indictment it seems referred instead to the 23 February) it could not have fallen within the ambit of the 2002 Act.
The appellant had established a Hawala banking arrangement with a businessman who carried out a money exchange business in Karachi. That arrangement pre-dated 24 February 2003, but the only evidence of illegal money laundering adduced by the prosecution concerned things done on or after that date and on that basis it was held that the 2002 Act was indeed applicable. As the court explained:
[The prosecution] had to show that there was an arrangement under which the transfer of criminal property was being facilitated by the defendant. Their case for showing that criminal property was being processed during the indictment period was based on the evidence to which we have referred, that is to say, that there was ledger evidence showing receipts of substantial sums of cash and there was surveillance evidence showing the unusual way in which some of those cash transfers were being made. That was the basis for the prosecution establishing the first ingredient, namely that criminal property was being processed.
During the period before the indictment there was no such evidence. None was available to the prosecution because when they conducted their search, the records which they found did not go back to any such earlier period. It may well be that the arrangement made between the appellant and his Pakistani principal ante-dated the indictment period, but it by no means follows that criminal property was being processed under it . . .
[Counsel for the appellant] submitted that in this case it was positively incumbent on the prosecution to prove that the appellant had not been guilty of criminal conduct prior to the indictment period. He accepted in his submissions that there was no evidence upon which the jury could have made a positive decision when the appellant first received criminal property. All that the prosecution evidence went to show was that he had received criminal property during the indictment period. He submitted that in such circumstances it was incumbent on the prosecution positively to prove that he had not received criminal property prior to that date. No authority was cited to support that proposition, which we consider to be wrong in principle and would place upon the prosecution a burden which would in practical terms be impossible to discharge.
That sufficed to dispose of the appeal, but the court might perhaps have gone further. Even if it was clear that some money laundering transactions had indeed occurred between the parties prior to commencement of the 2002 provisions, this would preclude prosecution under s. 328 only if it were impossible to treat the later transactions as anything other than part of one seamless ongoing arrangement. But the gist of the prosecution case was that numerous individual sums of varying amounts were being laundered from time to time. If the prosecution choose to ignore instances occurring before commencement and focus exclusively on those occurring only after commencement, there would surely be no question of contravening the principle against imposing retrospective criminal liability.
Part D Procedure
D3 Courts, Judges and Parties
D3.51 Discontinuance of Prosecutions Conducted by the DPP
In R (B) v DPP [2009] EWHC 106 (Admin), the court condemned a decision by the CPS to offer no evidence at a prosecution for wounding with intent to do GBH on the basis that the complainant (FB) suffered from a mental illness that might affect his recollection. Counsel had formed the view that a medical report prepared by Dr C precluded him from putting the complainant before the jury as a reliable witness in the absence of any other evidence to confirm his identification of the defendant (HR) as his attacker, even though there was no doubt that he had indeed been the victim of an attack in which part of his ear had been bitten off.
The court held that this decision was flawed in law, and amounted to a violation of ECHR, Article 3. Toulson LJ said:
In the present case, if the prosecutor had applied the merits based approach and asked himself whether he thought that it was more likely than not, or at least as likely as not, that FB's identification of HR as the ear biter was the result of an hallucination, I cannot see how merely on the strength of Dr C's report he could have answered that question in the affirmative. There was an opportunity to explore the matter further, because Dr C was due to be available to answer further questions, but the decision to offer no evidence forestalled that.
The reasoning process for concluding that FB could not be placed before the jury as a credible witness was irrational in the true sense of the term. It did not follow from Dr C's report that the jury could not properly be invited to regard FB as a true witness when he described the assault which he undoubtedly suffered. The conclusion that he could not be put forward as a credible witness, despite the apparent factual credibility of his account, suggests either a misreading of Dr C's report (as though it had said that FB was incapable of being regarded as a credible witness) or an unfounded stereotyping of FB as someone who was not to be regarded as credible on any matter because of his history of mental problems.
In this case FB suffered a serious assault. The decision to terminate the prosecution on the eve of the trial, on the ground that it was not thought that FB could be put before the jury as a credible witness, was to add insult to injury. It was a humiliation for him and understandably caused him to feel that he was being treated as a second class citizen. Looking at the proceedings as a whole, far from them serving the State's positive obligation to provide protection against serious assaults through the criminal justice system, the nature and manner of their abandonment increased the victim's sense of vulnerability and of being beyond the protection of the law. It was not reasonably defensible and I conclude that there was a violation of his rights under Article 3.
The court awarded FB compensation of £ 8,000. The decision not to prosecute could not be reversed because HR was acquitted when the Crown offered no evidence against him.
D9 Defence Disclosure
D9.23 Sanctions for Failure in Defence Disclosure
In Essa [2009] EWCA Crim 43, the court rejected the argument that the Criminal Procedure and Investigation Act 1996, s. 11(5), is incompatible with the defendant's right to a fair trial under ECHR, Article 6. Hughes LJ said:
Certain it is that the right to silence is part of the right to a fair trial, as it is certain, even more importantly but distinctly, that the right not to incriminate oneself is. Those two rights are different. However, for the same reasons as section 34 is compatible with the European Convention, so is section 11(5) which entitles comment by the Crown on the absence of a defence statement. Contrary to any submission otherwise, the use which can be made of section 11(5) is not without judicial control. True it is that the Crown does not now need to make a preliminary application to the judge for leave to cross-examine upon the topic. That does not prevent the judge from interfering and stopping the cross-examination if it is unfair, still less does it avoid the necessity for the judge to decide, if such cross-examination has been embarked upon, the terms in which he directs the jury. If the cross-examination was unfair it is open to the judge to tell the judge to disregard it. In those circumstances, there is no doubt that section 11(5) is perfectly compatible with the Convention.
The Court also commented on the fact that the appellant had apparently been advised by his solicitors and counsel not to submit a defence statement in accordance with the CPIA, s. 5(5). Hughes LJ said:
We are at a loss to understand how any lawyer can properly give that advice to any defendant in the face of section 5(5) of the Criminal Procedure and Investigation Act. Whatever may be the primary purposes of the statute, its requirement is that the accused give a defence statement to the court and the prosecutor. In the present case it could hardly have been simpler. It is not open to those who advise defendants to pick and choose which statutory rules applicable to the conduct of criminal proceedings they obey and which they do not.
. . . The only possible purpose of not saying it, which we are sure did not apply in this case, would be to enable the defendant to keep up his sleeve the possibility of advancing some different defence.
D13 Juries
D13.45 Discharge of Jurors or Entire Jury
The trial judge's power to decide when and if a juror (or entire jury) should be discharged was considered in S [2009] All ER (D) 75 (Jan).
D18 Trial on Indictment: Procedure Relating to Retirement of the Jury and Verdict
D18.11 Retirement of the Jury: Consequences of Improper Separation
Ketteridge [1915] 1 KB 467 and Goodson [1975] 1 WLR 549 were considered in S [2009] All ER (D) 75 (Jan). See D13.45.
D24 Civil Behaviour Orders: ASBOs, Closure Orders, SCPOs and VOOs
D24.8 Variation or Discharge of an ASBO
The Criminal Justice and Immigration Act 2008 (Commencement No. 6 and Transitional Provisions) Order 2009 (SI 2009 No. 140) brings into force on 1 February 2009, inter alia, s. 123 of the Act, which provides for the review of ASBOs made in respect of persons aged under 17.
D24.19 Individual Support Orders
The Criminal Justice and Immigration Act 2008 (Commencement No. 6 and Transitional Provisions) Order 2009 (SI 2009 No. 140) brings into force on 1 February 2009, inter alia, s. 124 of the Act, which amends the provisions relating to ISOs. The effect of those amendments is fully explained in the main work.
D31 Extradition
D31.11 Appeals
In Mucelli v Government of Albania [2009] UKHL 2 the House of Lords considered the time-limits imposed by the Extradition Act 2003 on persons facing extradition who seek to appeal against the order of the District Judge. It was held that such an appellant must not only file his appeal notice but serve it on the respondent within the specified period of 7 days (in part 1 cases) or 14 days (in cases governed by part 2 of the Act).
Part E Sentencing
E1 Sentencing: General Provisions
E1.13 Personal Mitigation
In A-G's Ref (No. 70 of 2008) [2009] EWCA Crim 100 the court considered whether the (advanced) age of the offender and/or the age of the offence could ever represent significant mitigation in the context of sexual offences against children. It was argued before the Court of Appeal that they could not. But the court disagreed. Lord Judge CJ said:
Inherent in this application is what we perceive to be the danger that the sentencing process should be approached as if it involves compartmentalisation. In many cases of serious sexual assault it is true that too much weight should not be given to the age of the offender or indeed the age of the offences, particularly if the offender has deliberately pressurised his victims into silence. But these matters do not cease to be factors which may form part of available mitigation. They are not always of 'comparatively little weight'. Nothing is always of little weight. Everything must depend on the individual circumstances of the specific case and the sentencing decision which the judge has to make in relation to the defendant who is standing before him in the dock. And in these applications our concern is with the eventual sentence, and whether it is properly to be described, in the round, as unduly lenient.
E19 Confiscation Orders
E19.15 Making of a Confiscation Order: Temporary Benefit
May [2008] 2 WLR 1131 and Jennings v DPP [2008] UKHL 29, [2008] 2 WLR 1148 were considered by the Court of Appeal in Alpress [2009] EWCA Crim 8.
Alpress answers a question which the House of Lords in May had tantalisingly left open at the end of its survey of the 'broad principles to be followed' by those called upon to exercise the jurisdiction to make confiscation orders. Their lordships had stated that:
Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. (emphasis added)
A five-judge court in Alpress held that money launderers who are mere couriers or custodians should not be treated differently in that respect after all. Toulson LJ said:
To take an everyday example away from the criminal context, if a shopper in a supermarket gives money to a till operator at the checkout, which the till operator puts in the till, nobody would ordinarily think of the till operator benefiting from that sum of money or of the money being under the till operator's power of disposition or control in the sense in which the judicial committee used that expression in May and Jennings. The money in specie would be the shop's money from the moment that the till operator took it from the customer. It may be that the till operator would have physical power to dispose of the money elsewhere; it may be that he or she could put it in their pocket undetected, but that is no different from the physical power of any bailee to use the property for a different purpose from that of the bailment. Moreover, one would not ordinarily regard the till operator's physical possession of the money as a benefit to the till operator, or as the possession of money which was theirs to control or dispose of, merely because if the operator were to misappropriate and spend it, an innocent recipient would obtain good title.
. . . It is difficult to see why the nature of a custodian's interest in money should be different merely because the custodian knows or suspects that it is tainted by crime. If a criminal asks D, for a reward, to deliver stolen property to a professional receiver and to collect an envelope containing the price which the receiver has agreed to pay, and D does so, we do not see why as a matter of general principle D should be regarded as having an interest in the money which he collects (any more than in the property which he delivers to the receiver) simply because he knows or suspects that the property was stolen, or simply because if D had instead spent the money in a shop the shop keeper would have obtained a good title to it. . . .
We conclude that if D's only role in relation to property connected with his criminal conduct, whether in the form of cash or otherwise, was to act as a courier on behalf of another, such property does not amount to property obtained by him within the meaning of POCA 2002 s. 80(1) or CJA 1988 s. 71(4) or to 'payment or other reward' within the meaning of DTA 1994 s. 2(3).
The court also restated some of the general principles previously identified in Sivaraman [2008] EWCA Crim 1736, notably in this passage:
In Sivaraman the court also addressed two misconceptions which subsequent cases suggest may still be common. One was that in assessing benefit in a conspiracy case each conspirator is to be taken as having jointly obtained the whole benefit obtained by 'the conspiracy'. A conspiracy is not a legal entity but an agreement or arrangement which people may join or leave at different times. In confiscation proceedings the court is concerned not with the aggregate benefit obtained by all parties to the conspiracy but with the benefit obtained, whether singly or jointly, by the individual conspirator before the court. The second misconception is a variant of the first. It is that anybody who has taken part in a conspiracy in more than a minor way is to be taken as having a joint share in all benefits obtained from the conspiracy. This is to confuse criminal liability and resulting benefit. The more heavily involved a defendant is in a conspiracy, the more severe the penalty which may be merited, but in confiscation proceedings the focus of the inquiry is on the benefit gained by the relevant defendant. In the nature of things there may well be a lack of reliable evidence about the exact benefit obtained by any particular conspirator, and in drawing common sense inferences the role of a particular conspirator may be relevant as a matter of fact, but that is a purely evidential matter.
E20 Recommendation for Deportation
E20.1 Power to Recommend for Deportation
In Grant v United Kingdom (App. No. 10606/07) [2009] All ER (D) 82 (Jan) the European Court of Human Rights examined the relationship between the Secretary of State's power to order deportation and the individual's right to private and family life under Article 8.
Part F Evidence
F3 Burden and Standard of Proof
F3.9 Implied Statutory Exceptions
Hunt [1987] AC 352 and the case law arising from the ECHR, Article 6 were considered in the context of the Hunting Act 2004 in DPP v Wright; R (Scott) v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin). See B20.7 above.
F7 Cross-examination
F7.16 Protection of Complainants in Proceedings for Sexual Offences: Section 41(5): Evidence or a Question Relating to Evidence Adduced by the Prosecution
F [2008] EWCA Crim 2859 illustrates the kind of evidence or questioning to which the YJCEA 1999, s. 41(5) may apply. The appellant had faced a 20-count indictment alleging rape and various sexual offences against his partner's two daughters. His defence was that the allegations were spiteful inventions from girls who resented the fact that he had supplanted their natural father. The jury failed to agree on most of the charges, including the rapes, but did convict him on four counts of indecent assault against one of the girls (LB), who in her testimony had mentioned visiting her doctor as a result of pregnancy scares, saying:
The second time I remember I actually went to my doctor's surgery at the . . . Group Practice as the second time the pregnancy test came back positive and they referred me to the clinic for a termination, but I did the test again after a few weeks and I wasn't pregnant. I was not sexually active with anyone else at the time . . .
The medical notes, however, referred to her mentioning sex with her boyfriend. The defence applied for leave to cross-examine LB as to this. The judge refused the application on the basis that s. 41 precluded it. Allowing the appeal and ordering a retrial of those four counts, Lord Judge CJ said (at [22] to [23]):
Without setting out all the matters of fact in detail, the consequences of the judge's decision can be readily explained. The evidence that LB had become pregnant or had a pregnancy scare will undoubtedly have confirmed beyond question that she had indeed had sexual intercourse with someone (or that someone had had sexual intercourse with her). If her assertion had been recorded when she visited the doctor that it was the appellant who had been responsible for her pregnancy, we suspect that that assertion would have been admissible. Yet when she asserted that somebody else was, on the basis of the judge's ruling it was not admissible. The reality, however, is that the basis of her statement and on her evidence there was no other candidate for her pregnancy. The prosecution case was therefore reinforced. On her account to her doctor, the position was plainly different. In the context of this case the difference mattered very greatly.
It is true that if this evidence had been admitted and [counsel] had proceeded to cross-examine within the appropriate limits permissible to counsel, LB may have come up with all sorts of answers about why the doctor's notes recorded her account of something going wrong with the contraceptive arrangements with her boyfriend. She may have said, for example, that she blamed her boyfriend because she was too frightened or ashamed or embarrassed to blame the man who was her mother's partner. As it is, however, we do not know what she would have said. In our judgment this evidence went to, but no further than to rebut the evidence adduced by the prosecution in the case against the appellant.
The case was further complicated by the fact that the appellant had not been convicted of any of the alleged rapes (to which this evidence might most obviously have been relevant) but had been convicted of the indecent assault counts which similarly depended on LB's credibility. As to this Lord Judge said:
In our judgment there is no doubt that the unwholesome sexual activities alleged by LB against the appellant, whether they amounted to indecent assault or eventually culminated in occasions of non-consensual sexual intercourse, were all utterly and totally entwined. Of itself that would not necessarily create any problems with the safety of the verdicts. But, having examined all of the evidence in this case in the light of its specific facts, we are left in this state of mind. We do not, and cannot, know (and because of all the circumstances we are troubled that we cannot know) the likely impact on the jury's deliberations if the full evidence relating to LB's pregnancy had been deployed and properly explored in evidence before them. It might have made no difference. But we are unable to exclude the realistic possibility that where, for example, the jury were unable to agree on the two rape counts, they may have acquitted the appellant. If they had acquitted of all the suggested occasions when sexual intercourse was alleged to have taken place, they would then have had to reflect on the impact of their findings about sexual intercourse on the complainant's credibility in relation to the indecent assaults which on her account were taking place at the same time that sexual intercourse took place. None of that means that the jury would have acquitted. However, we cannot be sure that in those circumstances they would have convicted of indecent assault. Our decision in this appeal is fact-specific. We have been left with doubts about the safety of the convictions of indecent assault returned by a jury which did not have all of the available admissible relevant material.
The Court of Appeal remains untroubled by the fact that a jury can find a complainant to be unconvincing in respect of one uncorroborated allegation but convincing in respect of another. They must think she might well be fabricating some of the allegations, and yet they still regard her as a credible and trustworthy witness in respect of others. It is a pity that juries cannot be invited to explain their reasoning in such cases, because on the face of it such reasoning is inconsistent and makes no sense.
F7.31 Previous Inconsistent Statements
Under the Criminal Justice Act 2003, s. 119, the previous inconsistent statements of a witness, once admitted or proved, are admissible as evidence in the case, and are no longer merely relevant to the credibility of the witness himself. It does not follow, however, that a jury must always be directed explicitly in such terms.In Billingham [2009] EWCA Crim 19, the apellants were re-tried for murder, after the original jury had failed to agree. Walden, their alleged accomplice, was a key prosecution witness. He had pleaded guilty to the murder at the original trial, but had previously (and repeatedly) denied that the appellants had been involved. He now testified that they had been involved with him in the offence. He accepted that he had given various previous accounts to police, solicitors, prison visitors and a psychiatrist in which he had failed to mention the involvement of the appellants, but said that he had lied in his earlier accounts so as to cover-up for them.
Another prosecution witness, Blanchard, had similarly failed to incriminate the appellants in her original statements, but now did so.
In summing up, the trial judge did not fully direct the jury as to the evidential status of the original statements under s. 119, but did remind them of those statements and warned them that:
. . . you have to make a judgement about the truthfulness and reliability of the evidence of the two witnesses upon whom the prosecution principally rely, Iain Walden and Theresa Blanchard. The defence contended that the evidence of each is not true. Furthermore, the defence suggested that the accounts which Iain Walden was giving to his solicitors in 2004 and February 2005 were much closer to the real truth than the account that is given to you in the witness box. You have to consider that suggestion. It is for you to decide in each case whether the accounts that Iain Walden has given, and the accounts that Theresa Blanchard has given, in the witness box is true and you act upon it only if after considering the whole of the evidence in the case you are sure in each case that it is true.
The Court of Appeal did not think that a full s. 119 direction would have been helpful in those circumstances. Stanley Burton LJ said:
For a jury to be directed . . . that a previous statement is just as much evidence as the witness's testimony in court is liable to confuse them: the jury may take the direction to mean that they are obliged to give the previous statement the same evidential weight as the testimony (and vice versa).
In order to convict the appellants, the jury had to be sure that the testimony of Walden and Blanchard was true. If they were, it followed that they rejected the truth of their previous inconsistent statements. The fact that, as a matter of the law of evidence, those previous statements were evidence became immaterial at that point.
The court concluded by noting a problem with the wording of the JSB specimen direction on previous inconsistent statements:
We . . . consider that the present JSB direction should be reconsidered. Where the previous statement is exculpatory of the defendant, it is sufficient for the jury to conclude that it may be true: the present direction requires the jury to be sure that even an exculpatory statement is true. It would be preferable for the direction to make this distinction. However, we consider that this had no effect on the adequacy of the summing up or the safety of the convictions, since it is clear that the jury concluded that they were sure that the incriminating testimony of Walden and Blanchard was true.
F12 Bad Character of Accused
F12.13 Evidence of Bad Character Adduced by Prosecution to Prove Guilt or Untruthfulness
As to the problems that may arise where hearsay evidence is adduced to prove the accused's bad character or previous offending, see Z [2009] EWCA Crim 20, which is examined at F16.18 below.
F16 Hearsay
F16.18 Hearsay, Loss of Right to Cross-examine and Fair Trial Provisions
In Z [2009] EWCA Crim 20, the trial judge permitted the prosecution to adduce evidence of the appellant's alleged bad character by means of hearsay allegations. The appellant was charged with raping and indecently assaulting the complainant when she was a child. The alleged offences were historic and were alleged to have been committed between 1985 and 1989. He denied the charges. In support of the complainant's evidence, the jury were told at second hand of offences allegedly committed by the appellant against two other women: D, who was unwilling to give evidence, and Z, the appellant's former wife, who was deceased. The prosecution contended that the evidence provided important explanatory evidence; went to propensity; and corrected a false impression given by the defendant, namely that he was a good family man. But even if it did potentially fit within one or more of the bad character gateways under the CJA 2003, s. 101, the evidence in question was hearsay and its admission had to be justified under s. 114 of the same Act. In the case of D, this was clearly problematic. As the Court of Appeal observed:
If she had given live evidence, there could have been no complaint as to its admission. Her evidence was clearly relevant to establish propensity and to correct the impression given by the appellant of a good family man. The problems that have arisen in this case arise more from the admission of the allegations . . . as hearsay evidence.
D's evidence was not admissible under s. 116. She was not incapable of testifying through fear, but had refused to give evidence because she wanted to put her [alleged] abuse at the hands of the appellant behind her, and did not want to relive her experiences. Her complaint (made to her doctor) had been credible, but was not underpinned by any conviction of the appellant.
That left only s. 114(1)(d), but this provision, said the court:
. . . must be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented.
Furthermore, the judge had made no express reference to the criteria laid down by s. 114(2), and that was seen as a serious irregularity. Stanley Burton LJ said (at [22] –[23]:
As this court explained in Taylor [2006] EWCA Crim 260, section 114(2) does not mean that the judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission.
When he gave his ruling permitting the admission of the hearsay evidence of the allegations of D and Mrs Z, [the trial judge] did not make it clear that he had taken into account the matters listed in section 114(2). His error, in our judgment, was to treat the prosecution's application as 'fairly conventional' and 'straightforward'. An application to adduce undisputed evidence of misconduct, such as admitted convictions for relevant crimes, would indeed be fairly conventional. An application to call as witnesses the victims of the defendant's misconduct as evidence of his bad character might be straightforward. But in our judgment an application to adduce in evidence hearsay evidence of disputed serious misconduct as bad character evidence was most certainly not conventional, and it should not have been treated as straightforward.
There was potentially less of a problem with the evidence of the allegations made by Mrs Z, who had since died. Her evidence would almost certainly have fitted within at least one of the s. 101 gateways and as hearsay it was admissible under s. 116(2)(a). The Court of Appeal was nevertheless unhappy with it. The Court unfortunately erred (at [27]) by suggesting that, "section 116(4), and in particular paragraph (b), fell to be considered . . ." With respect, s. 116(4) only applies to evidence under s. 116(2)(e). But the Court's other concern may have more validity:
If the judge was minded to admit the evidence under section 101, he had then to consider whether the jury would reasonably be able to be sure of its truth. When he gave his ruling, he did not state whether he considered that they would be able to do so. In any event, however, the judge in his summing up did not make it clear to the jury that this evidence could be taken into account only if they were sure of the truth of Mrs Z's allegation.
No reference was made to the ruling of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110, which is not surprising because that ruling was delivered only three days earlier. See the January update at F16.18. Al-Khawaja and Tahery each concerned problems caused by reliance on hearsay in place of the oral evidence of actual complainants, but many of the underlying issues were the same as those in Z. Hearsay evidence may be almost impossible for the defendant to discredit or disprove through cross-examination and a defendant faced with such evidence may struggle to secure a fair trial.
In Sadiq [2009] All ER (D) 93 (Jan) hearsay evidence admitted under s. 114(1)(d) took the form of statements made by a witness at a previous trial. The witness had suffered grievous injuries which left him unable to speak, and he had testified by point to letters on an alphabet board, but he had been able in this way to answer questions put to him in cross-examination by D's counsel. When the jury failed to reach a verdict, the witness refused to testify again, and it was on this basis that his original testimony was recycled using s. 114(1)(d). The case was decided just before Al-Khawaja and Tahery v United Kingdom, but it may perhaps be the kind of case in which reliance on hearsay remains permissible. D could not complain that he had been deprived of the chance to cross-examine the witness.
A third case to raise issues under s. 114(1)(d) was Khan [2009] EWCA Crim 86, in which the appellant was convicted of raping a prostitute. He had sought to call hearsay evidence in the form of a statement by another prostitute, Sudlow, who was available to give evidence but was unwilling to do so on behalf of the defendant, perhaps because she was a friend of the complainant. The trial judge had taken the view that it was not in the interest of justice for the statement to be read. Not only did it contain a number of manifest inaccuracies, but in addition the Crown had offered, in the usual way, to use the services of the local police to bring Sudlow to court and there was no suggestion that she had disappeared. Section 116 was thus inapplicable. The court held that the judge had been right to exclude the hearsay evidence. Bean J explained (at [15]):
We consider that a very important factor in assessing whether it was in the interests of justice to admit the statement as hearsay was the fact that Ms Sudlow was available to be called. That, coupled with the manifest inaccuracies in the statement, pointed clearly, in our judgment, to it being desirable in the interests of justice that the witness should be called. [Counsel] says that it is not right that the defence should be required to call a witness who might well prove hostile when there was a written statement made to the police within two days of the events in question. But it seems to us that had Ms Sudlow been brought to court and had she given oral evidence, one way or another the defence would have been able to get the contents of the statement before the jury. If she had given evidence broadly consistent with the statement but perhaps with some failure of recollection of detail, the statement would have been admissible under section 120 of the 2003 Act as a previous consistent statement. If she had turned hostile and the judge had granted an application under the Criminal Evidence Act 1865, section 3, for her to be treated as hostile, the statement could have been put to her in cross-examination by the defence. If, however, she had simply given coherent evidence in chief for the defence and then to a greater or lesser extent contradicted that and the contents of the statement in cross-examination, then the statement could perfectly properly have been put to her in re-examination if not earlier. Given that there were some inaccuracies in the statement, it was much more desirable that they should be explored in front of the jury, so that the jury could make their own assessment about the value of the statement, rather than that the jury should have been left in the unsatisfactory position of having a written statement, some of which was clearly inaccurate, and having to work out what to make of it. The judge was right to reject the application.
F18 Evidence of Identification
F18.10 Video Identification and Identification from CCTV Images
The guidance provided by the Court of Appeal in Smith [2008] EWCA Crim 1342 was noted and approved in Chaney [2009] EWCA Crim 21, in which the Court noted that following this judgment guidance has now been issued to police officers as to the procedure to be followed when the CCTV or other photographic evidence is submitted to officers in the hope that they may be able to identify a person shown in them.
The guidance is along the lines given by the Court in Smith. It assumes (as does Blackstone's Criminal Practice) that PACE Code D is not directly applicable in such cases, an assumption which the court in Chaney considered to be "well-founded and consistent with the judgment of this Court in Smith".
NEW legislation
Safeguarding Vulnerable Groups Act 2006 (Commencement No. 3) Order 2009 (SI 2009 No. 39)
This Order brings into force, on 20 January 2009, provisions of the Act relating to the maintenance of a children's barred list and an adults' barred list and the process by which a person may be included in, or removed from, either list. Among the provisions brought into force is sch. 3, para. 25, which requires a court which has convicted a person of an offence of a specified kind or made an order of a specified kind to inform the person before the court that he will be included in the children's barred list or the adult's barred list (as applicable). Inclusion on such a list is an automatic consequence of a relevant conviction or the making of a relevant order not an order of the court per se.
Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58)
This Order brings the following provisions of the Act into force on 16 February 2009:
Criminal Justice and Immigration Act 2008 (Commencement No. 6 and Transitional Provisions) Order 2009 (SI 2009 No. 140)
This Order brings the following provisions of the Act into force on 1 February 2009:
- s 48 (1)(a) (the giving of youth conditional cautions) and sch. 9, paras. 1, 3 and 4 but para 3 is in force only to the extent that it inserts ss. 66G and 66H of the Crime and Disorder Act 1998;
- s. 123 (review of anti-social behaviour orders etc.);
- s. 124 (individual support orders);
- sch. 27, paras. 33 and 34 (transitory, transitional and saving provisions).
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