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Blackstone's Criminal Practice 2009

Updates 2009

January 2009

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Blackstone's Criminal Practice 2009

January 2009

January 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 January update primarily considers developments reported in December 2008.

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

A5 Parties to Crime

A5.17 Corporate Liability: Liability of Individual Officers

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

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

A6 Inchoate Offences

A6.39 Conspiracy to Defraud/Price-fixing Cartels

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

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

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

Part B Offences

B4 Theft, Handling Stolen Goods and Related Offences

B4.5 Sentencing Guidelines: Offences of Theft Generally

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). Theft now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B7 Company, Investment and Insolvency Offences

B7.16 Offences under the Financial Services and Markets Act 2000

The Financial Services and Markets Act 2000, ss. 401 and 402 were considered (not in the context of an alleged offence under that Act, but in the context of an alleged offence of insider dealing contrary to the CJA 1993, s. 52) in R (Uberoi) v City Of Westminster Magistrates Court [2008] EWHC 3191 (Admin), in which it was held that s. 402 gives the FSA power to bring such prosecutions without first obtaining the consent of the Secretary of State or DPP in accordance with the CJA 1993, s. 61(2).

B8 Damage to Property

B8.37 Sentencing Guidelines (Basic Offence)

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Damage Act 1971, s. 1(1) attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B10 Terrorism

B10.207 Sentencing

In Jalil [2008] EWCA Crim 2910, the appellants had been convicted of involvement in a major terrorist conspiracy involving plans to load stretch limousines with propane gas cylinders and explosives and detonate them in the underground car parks beneath suitable buildings, plans to detonate a 'dirty' radioactive bomb and plans to hijack a petrol tanker for use to ram a building. The court repeated the observation previously made in Barot [2007] EWCA Crim 1119 - a case involving the principal architect of the proposed offences - concerning the authority of Martin [1999] 1 Cr App R (S) 477.

The bracket of sentences postulated in Martin should no longer be regarded as valid in the most serious kind of terrorist conspiracies in which murder was the primary object. Hughes LJ said:

The court [in Barot] returned, as it had done in Martin, to the relationship between sentences for such terrorist plots and the time actually served by the worst kind of murderers. It did so in the light of the enormous change made in sentencing for murder by the provisions of section 269 and Schedule 21 of the Criminal Justice Act 2003, which raise the time actually served for the worst kind of murders to 30 years or more. It upheld the life sentence, on the ground that Barot presented a threat to life and limb whose duration could not reliably be predicted. But it held that a minimum term of 40 years, as passed by the judge, should, save in quite exceptional circumstances, be reserved for the terrorist convicted after trial, of a serious attempt to commit mass murder by a viable method. Where the offence is of conspiracy, and the acts of the defendant fall short of imminent attempt, it held that the sentence should be lower.

Martin was much discussed in Barot. It was agreed on all sides that the level of sentencing in Martin could not govern sentences for terrorist conspiracies where murder was the primary object, but Martin was in any event not such a conspiracy. More importantly, for present purposes, the court accepted that terrorist offences are graver today than those of which this country had experience in previous times, reaching the level of public emergency threatening the life of the nation (see the observations of the House of Lords in A v SSHD [2005] 2 AC 68). It concluded that 'the guidelines suggested by the court in Martin require review.' That also followed, it is plain, from the relationship between sentences for terrorist conspiracies (of the Martin kind) and time actually served by the worst kind of murderers, now that the latter has been so much uplifted by Parliament.

B11 Offences Affecting Public Order

B11.66 Harassment, Alarm or Distress: Sentencing

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Public Order Act 1986 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B11.92 False Alarm of Fire

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Fire and Rescue Services Act 2004, s. 49 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B11.183 Drunk and Disorderly

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Justice Act 1967, s. 91 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B11.187 Found Drunk in Public

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Licensing Act 1872, s. 12 now attracts a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons aged under 16.

B11.188 Alcohol Consumption in Designated Public Places

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Justice and Police Act 2001, s. 12 now attracts a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons aged under 16.

B11.194 Sale of Alcohol to a Person who is Drunk

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). An offence under the Licensing Act 2003, s. 146(1) and (3), 149(3) and (4) or 151 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16. An offence under s. 149(1) or 150 attracts a penalty of £ 50 for persons aged 16 or over and £ 30 for persons under that age.

B11.196 Sale of Alcohol to a Person who is Drunk

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Licensing Act 2003, s. 141 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B12 Offences Relating to Weapons

B12.208 Fireworks Offences

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Explosives Act 1875, s. 80 and the offence under the Fireworks Act 2003, s. 11 now both attract a fixed penalty of £ 80 for persons aged 16 or over and £40 for persons aged under 16.

B13 Offences Affecting Enjoyment of Premises

B13.81 Trespassing on a Railway

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the British Transport Commission Act 1949, s. 55(1) now attracts a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons aged under 16.

B14 Offences Against the Administration of Justice

B14.68 Wasting Police Time

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Law Act 1967, s. 5(2) now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B18 Offences Involving Writing, Speech or Publication

B18.35 Improper Use of Public Electronic Communications Network

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Communications Act 2003, s. 127 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B19 Offences Related to Drugs

B19.2 Meaning of Controlled Drug

The Misuse of Drugs Act 1971 (Amendment) Order (SI 2008 No. 3130) reclassifies cannabis, cannabis resin, cannabinol and its derivatives from Class C drugs to Class B drugs with effect on 26 January 2009. In addition, any substance which is an ester or ether of cannabinol or of a cannabinol derivative is so reclassified.

B19.6 Meaning of 'Cannabis' and 'Cannabis Resin'

B19.109 Class C Drug Offences

As to the reclassification of cannabis and fixed penalties for possession of it, see B19.110.

B19.110 Class C Drug Offences

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Misuse of Drugs Act 1971, s. 5(2), so far as relating to cannabis and related substances, now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

Part C Road Traffic Offences

C2 Evidence and Procedure in Road Traffic Cases

C2.7 Admissibility of Records of Secretary of State

C7 Sentencing Generally

C7.2 Penalty Points

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings s. 4 of the Act (graduated fixed penalty points) into force on 31 March 2009.

C7.7 Fines and Imprisonment

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings s. 4 of the Act (graduated fixed penalty points) into force on 31 March 2009. The reference to s. 3 of the 2006 Act in the main work here should be a reference to s. 4.

C7.18 New System of Endorsement: Driving Record

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings ss. 8 (driving record) and 9 (unlicensed and foreign drivers) into force on 1 April 2009.

C7.24 Financial Penalty Deposits

The Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164) inter alia brings s. 11 of the Act (financial penalty deposits) into force on 31 March 2009. Section 12 and sch. 4 are among the other provisions brought into force by the Order.

Part D Procedure

D1 Powers of Investigation

D1.1 Police Powers in the Investigation of Crime

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (SI 2008 No. 3146) brings into operation on 1 January 2009 a revision of Code A (see D1.4). It also brings into operation the clarification in paras. 2.2 and 2.3 of Code A regarding reasonable suspicion not being based on single factors alone. Paragraphs 4.10A and 4.10B of PACE Code A are also amended to clarify the position on providing receipts for stops and searches. The revision of para. 4 (recording requirements including recording of encounters not governed by statutory powers), together with the consequential deletion of Annexes D and E, will mean that constables will no longer be required to record all encounters not governed by statutory powers. Constables will need to record only information on the ethnicity of a person who is the subject of such an encounter. A receipt will also be made available to the person. The amended Code A may be viewed here.

D1.4 Powers to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (SI 2008 No. 3146) brings into operation on 1 January 2009 a revision of para. 4 of Code A. It also brings into operation the clarification in paras. 2.2 and 2.3 of Code A regarding reasonable suspicion not being based on single factors alone. Paragraphs 4.10A and 4.10B of PACE Code A are also amended to clarify the position on providing receipts for stops and searches. The revision of para. 4 (recording requirements including recording of encounters not governed by statutory powers), together with the consequential deletion of Annexes D and E, will mean that constables will no longer be required to record all encounters not governed by statutory powers. Constables will need to record only information on the ethnicity of a person who is the subject of such an encounter. A receipt will also be made available to the person.

D2 The Decision to Prosecute and Diversion

D2.39 Fixed Penalty Notices

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837) and revokes the (Amendment) Order of 2005 (SI 2005 No. 581) (and the (Amendment) Order of 2008 (SI 2008 No. 3297), which never came into force). It provides a new list of offences (as sch. 1 to the 2002 Order) attracting a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16 and a further list of offences (as sch. 2 to the 2002 Order) attracting a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons under 16. The possession of cannabis etc. is added to the list of offences in sch. 1.

D2.43 Bail following Charge: Power to Impose Conditions

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to amend r. 19.1 (application to magistrates' court to vary conditions of bail) with effect from 6 April 2009. An applicant must serve notice, not less than 24 hours before the hearing, specifying the variation or conditions proposed and the reasons for the variation and give details of the address at which he would reside if the court imposed a condition of residence.

D3 Courts, Judges and Parties

D3.62 Power to Stay Proceedings: Sexual Offences and Delay

In K [2008] EWCA Crim 3177, the court repeated the point that decisions to stay or not stay prosecutions on grounds of delay are 'fact and witness sensitive':

Analysis on paper goes so far but cannot possibly make up for the inestimable advantage of experiencing how the witnesses explain themselves, the manner and extent to which they can be and are cross examined and the extent to which the defence can deploy arguments beyond a simple denial. This court will obviously intervene if there is no material upon which a trial judge can reach a conclusion which he or she expresses; or if the decision is one to which no reasonable tribunal properly directed could have reached. But these are extreme cases and must be seen as such.

D5 Preliminary Proceedings in Magistrates' Courts

D5.4 Laying an Information and Issuing a Summons

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute a new r. 7.4(1) with effect from 6 April 2009. The change is effectively a drafting change and there is no change of substance.

D5.25 Trial in Absence of the Accused

D6 Classification of Offences and Determining Mode of Trial

D6.4 Advance Information

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 21 with effect from 6 April 2009. The new part 21 applies from 6 April unless the court otherwise directs; if it does so direct, the old part 21 continues to apply (rr. 2.1(12) and 21.1). The new part 21, which is much simplified, applies to any offence that can be tried in a magistrates' court (including summary offences).

D6.7 Advance Information: Failure to Comply

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 21 with effect from 6 April 2009. The new part 21 applies from 6 April unless the court otherwise directs; if it does so direct, the old part 21 continues to apply (rr. 2.1(12) and 21.1). The new part 21, which is much simplified, includes no provision equivalent or similar to r. 21.6(1) of the old rules.

D7 Bail

D7.30 Conditions that May be Imposed by the Court

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to amend part 19. The amendments include the insertion of a new r. 19.25 which gives legislative effect to the well established court practice of requiring prosecutors (with the police) to investigate the suitability of an address proposed as a condition of residence when a defendant is released on bail. The prosecutor is placed under an obligation to assist the court and a defendant who may be released under such a condition is required to co-operate with the prosecutor in providing the court with such assistance. The amendments also include changes in the procedure for notices of applications where a party wants a magistrates' court to impose conditions of bail under the Bail Act 1976, s. 3(8).

D7.45 Applications to Vary the Conditions of Bail

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to amend r. 19.1 (application to magistrates' court to vary conditions of bail). An applicant must serve notice, not less than 24 hours before the hearing, specifying the variation or conditions proposed and the reasons for the variation and give details of the address at which he would reside if the court imposed a condition of residence.

D12 Arraignment and Pleas

D12.34 Retrial Provisions of the CJA 2003

The Court of Appeal's ruling in A [2008] EWCA Crim 2908 establishes that the 'new and compelling evidence' which is required by the CJA 2003, s. 78(1) in relation to the offence that is to be retried need not necessarily relate directly the incident giving rise to the alleged offence, but may take the form of bad character evidence admissible under the CJA 2003, s. 101. In A itself, the respondent was tried but acquitted in 2004 on two charges of indecent assault and one charge of rape. The complainant in each case was a girl, SN, aged 15.

After seeing an article about his acquittal in a local newspaper, the respondent's first wife contacted the police and told them that long before the trial the respondent had been arrested for indecent assaults on three children when working at a school. An extensive police investigation followed and in due course the respondent faced a further 17 counts involving several different complainants, and it was largely on that basis that it was sought to reopen the SN case in respect of the alleged rape. Her complaints, which may have seemed unconvincing when tried in isolation, could now be seen as forming part of a series of complaints. Indeed, they occurred approximately half way through the lengthy history of the respondent's alleged misconduct with children, as he moved around the country. Lord Judge CJ said:

[SN's] evidence at trial was set against that of a man who put himself forward as someone of good character, who had worked with hundreds or thousands of children, inviting the disingenuous inference that she stood alone in making complaints against him.

SN is no longer a single complainant alleging sexual abuse, but one of eight complainants whose evidence would be cross-admissible and relevant to the allegation of rape. She takes her chronological place in the middle of a series of independent groups of complainants from different locations spanning a period of some 14 years of the respondent's working life. We acknowledge that, apart from one complaint of buggery, SN makes the most serious complaint against him, and record that, whatever the respondent may have admitted in relation to at least some of the other complaints in his letters to the police, he has continued to deny this particular allegation. However the simple reality is that the second trial of this allegation will take place in a markedly different evidential context from the first. On the basis of the large amount of material we have briefly summarised in this judgment, a conviction is highly probable and the interests of justice will best be served by quashing the acquittal and ordering a re-trial.

D13 Juries

D13.15 Selection of a Jury

The Juries Act 1974, s. 18, was considered by the Court of Appeal in Jalil [2008] EWCA Crim 2910, in which it was held that a jury ballot could still lawfully be held where two out of 14 potential jurors had been stood by. Standing by only put those two potential jurors to the back of the list: it did not mean they were ineligible. Having noted that under s. 12(3) of the Act 'the time for a challenge for cause to be made is after the ballot' the court added:

That does not, of course, mean that the oft-followed and convenient procedure of inviting the judge, where all parties agree, to rule in anticipation upon a possible challenge for cause is wrong, or ought not to be followed. It is not always appropriate, but if the judge agrees to do so, and rules for the defendant's prospective challenge, no doubt the potential juror in question will be excused there and then and will not go into the ballot. Equally, if the judge is against the defence submission, subsequent argument in this court that the jury was in consequence not free of apparent bias is no doubt open to the defendant. In neither case is there any need to go through the rigmarole of renewed challenge and repeated ruling at the ballot stage. If objections are upheld, it is no doubt possible that the pool of jurors might be reduced to the point where a ballot is impossible. But that is not this case...

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

D14.118 Witness anonymity

The Court of Appeal in Mayers [2008] EWCA Crim 1418 has issued important guidance on the interpretation of the Criminal Evidence (Witness Anonymity) Act 2008, and in particular the statutory conditions (A - C) and considerations governing the admission of anonymous testimony.

Specific attention is given to the different considerations that apply where the witness in question is not an ordinary frightened witness but an undercover officer or member of the security services whose ability to maintain his cover or work on subsequent cases would be undermined by his identification.

The guidance given by the court is not easily summarised, but includes the following:

The [anonymity] order should not be made where the oral testimony of the witness, realistically analysed, is not potentially important or where the proposed anonymous evidence could be addressed by admissions or agreed facts or, subject to proper editing, capable of being read. It must in any event also be clear that notwithstanding, for example, the powers vested in the court in relation to contempt in an appropriate case, the witness will not testify. The test is stark. That the witness might prefer not to testify, or would be reluctant or unhappy at the prospect, is not enough. Condition C is expressly directed to oral testimony, and the evidence envisaged in its provisions is the evidence to be given by a witness who will be called - or at the stage when the application is made - is intended to give oral testimony. Section 12 of the Act identifies those to whom its arrangements may extend. A witness is defined as "any person called, or proposed to be called, to give evidence at the trial." It was suggested in argument that unless the risk to the safety of the witness was attributable to the actions of the defendant personally, condition A could not be established. We disagree. The problem arises if and when the safety of the witness is under threat: the threat may come from any source.

Condition A is not fulfilled unless the order is necessary for the protection of the safety of the witness or any other person, or to prevent serious damage to property or, alternatively, to prevent real harm to the public interest. In relation to human beings, the issue is unemblemished by adjectives. The question is safety, and this may encompass the risk of personal injury or death, or a reasonable fear of either. In relation to property however the risk must be serious, and any harm to the public interest must be real. In this context, different consideration may inform the decision of the court when deciding between different civilian witnesses, for example, children and adults, vulnerable and troubled witnesses, and police officers. It is of course possible to envisage situations which may simultaneously cause real or create the potential for real harm to the public interest, as required by condition A and serious danger to the interests of justice as reflected in condition C.

As to condition B (under which any measures adopted must be consistent with the defendant receiving a fair trial) it may be worth noting the strict approach of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110 to cases in which the admission of hearsay evidence by the prosecution makes it impossible for the defendant effectively to challenge his accusers. The court noted that the problems caused by witness anonymity may be similar and continued:

Whatever the reason for the defendant's inability to examine a witness, whether absence, anonymity or both, the starting point for the Court's assessment of whether there is a breach of Article 6(1) and (3)(d) is set out in Lucà v Italy (2003) 36 EHRR 807...:

If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6. The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6...

D20 Summary Trial: General and Preliminary Matters

D20.22 Advance Warning of the Prosecution Case

D21 Summary Trial: The Course of the Trial

D21.7 Change of Plea

D21.22 Opening Speech

D21.44 Defence Case and Speeches

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The sequence for representations and the introduction of evidence set out in r. 37.3 provides only for defence representations after the close of evidence. The prosecution may, following defence representations about the case, make representations 'about the relevant law' and the defence may respond.

D21.45 Evidence in Rebuttal

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The sequence for representations and the introduction of evidence set out in r. 37.3 provides for further evidence to be presented by 'a party' and includes a reference to rebuttal evidence by way of example (r. 37.3(3)(f)).

D21.56 Role of Clerk where Accused is Unrepresented

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The new part 37 refers to the role of the justices' legal adviser (a term newly defined in r. 2.2(1) to include a justices' clerk or his assistant). The duties to assist an unrepresented accused are preserved albeit in different language and spread across the rules in part 37.

D23 Trial of Juveniles

D23.13 Attendance of Parent or Guardian

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to replace parts 37 and 38 with a new part 37, having effect in both the adult and youth court from 6 April 2009. The procedure for a parent to act on a juvenile's behalf is not replicated in the new part 37.

D23.14 Advance Information

D23.15 Course of the Trial in the Youth Court

D23.56 Summary Trial Procedure for Juveniles tried in an Adult Magistrates' Court

D23.60 Procedure before Sentence in the Youth Court

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to replace parts 37 and 38 and most of part 44 with a new part 37, having effect in both the adult and youth court from 6 April 2009.

D26 Procedure on Appeal to the Court of Appeal

D26. 20 Receipt of Evidence by the Court of Appeal

In Moyle [2008] EWCA Crim 3059 evidence of the appellant's mental illness was admitted on appeal in support of a defence of diminished responsibility, even though no such defence had been advanced at the trial. Pill LJ referred to Neaven [2007] 2 All ER 891 and said:

There is now strong medical evidence, which we accept, that the appellant was, at the time..., suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts in doing the killing. All four doctors have expressly stated that the criteria in section 2 of the 1957 Act were satisfied. They also acknowledge that the appellant declined to cooperate with doctors at the time of trial...

As in Neaven, the appellant's decisions at the time of trial were affected by the illness itself; the sense of attack on his personal integrity leading to an unwillingness to disclose the extent of his health problems and the fear of being returned to hospital. There can be no suggestion that the appellant was holding back on a defence of diminished responsibility for tactical reasons connected with his trial.

D30 Public Funding and Costs

D30.2 Public Funding in Criminal Proceedings

Lord Chancellor v Rees [2008] EWHC 3168 (QB) examines "questions of very significant public importance" in relation to the manner in which Determining Officers should assess criminal lawyers' fees on an ex post facto assessment and in particular whether and, if so, to what extent it is appropriate for reference to be made to the general market in criminal lawyers' fees as a cross-check that the fee proposed is not out of kilter with market forces.

Part E Sentencing

E3 Mandatory Life Sentences

E3.5 Court of Appeal Guidance

Height [2008] EWCA Crim 2500 was applied in A-G's Ref (No. 24 of 2008); Sanchez [2008] EWCA Crim 2936, in which the trial judge wrongly declined to adopt the statutory 15-year starting point for the minimum term on the basis that the defendant's role in the murder had been a secondary one. In substituting a minimum term of 10 years, the Court of Appeal also issued a warning as to the duties of prosecuting counsel when involved in such cases:

There is now clear guidance to prosecutors as to the assistance to which a judge is entitled in a case. The judge made clear his intended course. Counsel for the Crown should have drawn to his attention the specific provisions of the 2003 Act. If counsel for the Crown had done this, the judge would have approached the matter, we have no doubt, in accordance with the statutory provisions and would not have imposed the specified term that he did.

A report was published on 4 November 2008 by HM Crown Prosecution Service Inspectorate in respect of the guidelines given by the Attorney General in 2007 in relation to the prosecution role in sentencing when a plea was accepted. It was pointed out that there was a low level of compliance with the guidance given. The obligation of counsel for the prosecution to assist the judge in relation to his powers on sentencing have been made clear for a longer period. This case illustrates a failure of compliance in the discharge of that duty.

The course of events in this case is also a poignant reminder of the absolute necessity of counsel for the Crown discharging their duty in this respect and the wholly unnecessary distress this has caused to the family of the victim.

E4 Custodial Sentences for Dangerous Offenders under the Criminal Justice Act 2003

E4.5 Imprisonment or Detention for Public Protection

As to the nature of the test that the Parole Board must apply when determining whether to recommend the release of a convicted prisoner to whom the Crime (Sentences) Act 1997, s. 28 and the CJA 2003, s. 225, apply see R (Bayliss) v Parole Board [2008] EWHC 3127 (Admin); [2008] All ER (D) 120 (Nov).

E8 Community Order under the Criminal Justice Act 2003

E8.19 Enforcement of Community Order

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR and inter alia replace part 44 with a new part 44 which deals with the breach, revocation and amendment of community orders and which has effect from 6 April 2009.

E9 Community Sentences: Offenders Aged under 18

E9.4 Enforcement of Certain Community Orders under the PCC(S)A 2000

Part F Evidence

F1 General Principles of Evidence

F1.2 Formal Admissions

F1.7 Relevance

Hasan [2008] EWCA Crim 2909 emphasises the principle that a defendant ought not to be prevented from adducing relevant and otherwise admissible evidence merely because it may cause difficulties for his co-defendants. In Hasan the appellant, who was alleged to have taken part in a gang-related murder, claimed that he was not a member of the gang in question (although he was at the scene) and in support of this contention he sought to adduce evidence to show that a series of phone calls had been made between gang members prior to the killing but these had not involved or included the appellant. His co-defendants objected to this and the trial judge excluded the evidence on the basis that its admission would "run the real risk of opening a Pandora's box to which there is no effective finite end." He did however permit counsel to establish from a police officer that there was no information disclosing any association between the appellant and the co-defendants, other than one who was a friend.

Quashing the appellant's conviction, the Court of Appeal ruled:

In our view [the excluded evidence] was clearly relevant. If the admission of the evidence ran the risk of opening a Pandora's box, then it did not thereby become inadmissible. If there was such a risk then the solution lay in the prosecution making an admission, e.g. an admission to the effect that the appellant was not a member of the North London Somalis. What could not happen was that the appellant was denied the right to call important evidence in his favour.

F3 Burden and Standard of Proof

F3.13 Incidence of the Legal Burden: the Human Rights Act 1998

Lambert [2002] 2 AC 545, Johnstone [2003] 1 WLR 1736, Sheldrake v DPP [2005] 1 AC 264 and Davies v Health and Safety Executive (2002) The Times, 27 December 2002 were considered by the House of Lords in Chargot Ltd [2008] UKHL 73, which like Davies involved prosecutions under the Health and Safety Act 1974. Under s. 40 of this Act, once the prosecution has proved that there was an a real risk of injury arising from conditions in the workplace, the burden is on the employers to prove that that they had done all that was reasonably practicable to protect against that risk. One of the questions that arose for decision was whether the imposition of this burden was compatible with the ECHR, Article 6. Lord Hope (with whom the other Lords agreed) said:

Section 40 imposes a reverse burden of proof on the employer. In Sheldrake v Director of Public Prosecutions Lord Bingham of Cornhill said that the justifiability of any infringement of the presumption of any innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case. In para 30 he drew attention to the difference between the subject matter in R v Lambert on the one hand, where it was held that the imposition of a legal burden on the defendant undermined the presumption of innocence, and R v Johnstone on the other, where it was held that there were compelling reasons why there should be a legal burden. In the former case, where section 28 of the Misuse of Drugs Act 1971 was in issue, a defendant might be entirely ignorant of what he was carrying. In the latter, offences under section 92 of the Trade Marks Act 1994 are committed by dealers, traders and market operators who could reasonably be expected to exercise some care about the provenance of goods in which they deal. It seems to me that the situation in which the reverse burden imposed by section 40 arises is analogous to that in R v Johnstone. Sections 2 and 3 impose duties on employers who may reasonably be expected to accept the general principles on which those sections are based and to have the means of fulfilling that responsibility.

F3.27 Regulatory Offences

F12 Bad Character of Accused

F12.14 Evidence Once Admitted is Relevant for All Purposes

Campbell [2007] 1 WLR 2798 was considered in Lafayette [2008] All ER (D) 213 (Dec). No full transcript of the court's judgment was available at the time of writing, but it appears that it has required a distinction to be made between taking previous convictions or bad conduct into account when evaluating a defendant's credibility, and using those convictions or bad conduct as evidence of a propensity to offend. Where evidence of a defendant's bad character is admitted under s. 101(1)(g) but is not admissible under s. 101(1)(d) to show propensity, said the court, a jury should be directed to treat such evidence as relevant only to the defendant's credibility and should be warned against treating it as evidence of any propensity to commit offences of the type with which he is now charged.

At first sight this appears to go against what was said in Highton [2005] 1 WLR 3472 as well as what was said in Campbell. Perhaps all will be explained once the full transcript is made available. The court may perhaps be saying only that where evidence would be logically incapable of establishing propensity then a warning to that effect might be needed.

F12.31 Risk of Collusion between Witnesses: CJA 2003, s. 107

The nature of the test established by the CJA 2003, s. 107, as previously examined in C [2006] EWCA Crim 1079, [2006] 1 WLR 2994 and Lamb [2007] EWCA Crim 1766, was considered once again in K [2008] EWCA Crim 3177, [2008] All ER (D) 223 (Dec). The actual decision in this case seems not to have turned on s. 107. It was not a case in which evidence of bad character was obviously contaminated. It was one in which a judicial direction was needed as to the dangers of innocent contamination, but the trial judge's directions in that respect had been adequate.

One point should perhaps be made about s. 107 that is not made in any of these cases, and is, with respect, badly obscured by certain passages from the judgment in C that are repeated in K, including this passage:

The effect of section 107 is to reduce the risk of a conviction based on over-reliance on evidence of previous misconduct and acknowledges the potential danger that, where the evidence is contaminated, the evidence of bad character may have a disproportionate impact on the evaluation of the case by the jury. In other words the dangers inherent in contamination may be obscured by the evidence of the defendant's bad character.

There may indeed be cases in which a court or jury would be tempted to convict D on the basis of his appalling bad character or criminal record, even though the only charge currently brought against him appears to be based on contaminated evidence (e.g., the complainant appears to have been coached by her mother). If the evidence of such contamination is clear, a trial judge might be justified in stopping such a case, but he cannot invoke s. 107 as the basis for such a ruling. The evidence that must be 'contaminated' before s. 107 can bite must (on any normal reading of s. 107 itself) be the evidence of bad character itself. This may include cases in which A's contaminated complaint against D is used to support B's contaminated complaint against D, and vice versa (see s. 112(2)) but not cases in which the only bad character evidence is itself unblemished.

F16 Exceptions to the Rule against Hearsay

F16.18 Loss of Right to Cross-examine and Fair Trial Provisions

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).

The Court of Appeal in Al-Khawaja [2006] 1 WLR 1078 had ruled that D's right to a fair trial was not infringed where two of his patients complained of indecent assaults committed on them in the course of hypnotherapy and the statement of one of them (referred to as 'ST') was admitted in evidence following her suicide. Two other women gave supporting evidence and there was no suggestion of collusion. Given that D was able to attack ST's statement on ground of inconsistency with other evidence and by employing expert evidence in relation to the altered mental state brought about by hypnosis, and given that the trial judge had warned the jury of the risks of acting on untested hearsay, the Court of Appeal had held that D's rights under Article 6 were not infringed; but according to the Court of Human Rights this was not enough to compensate for the difficulties the admission of this evidence created for the defence:

While it was certainly open to the defence to attempt to challenge the credibility of S.T., it is difficult to see on what basis they could have done so, particularly as her account corresponded in large part with that of the other complainant, with whom the trial judge found that there was no evidence of collusion. The absence of collusion may be a factor in domestic law in favour of admissibility but in the present case it cannot be regarded as a counterbalancing factor for the purposes of Article 6 § 1 read with Article 6 § 3(d). The absence of collusion does not alter the Court's conclusion that the content of the statement, once admitted, was evidence on count one that the applicant could not effectively challenge. As to the judge's warning to the jury, this was found by the Court of Appeal to be deficient. Even if it were not so, the Court is not persuaded that any more appropriate direction could effectively counterbalance the effect of an untested statement which was the only evidence against the applicant.

In Tahery's case, the hearsay evidence complained of as that of a witness (T) who was alive and whose identify was well known to the defendant. T had been adjudged too scared to give oral testimony, but the Strasbourg court ruled:

It is appropriate for domestic courts, when faced with the problem of absent or anonymous witnesses, to consider whether alternative measures could be employed which would be less restrictive of the rights of the defence than admitting witness statements as evidence. However, the fact that alternative measures are found to be inappropriate does not absolve domestic courts of their responsibility to ensure that there is no breach of Article 6(1) and (3)(d) when they then allow witness statements to be read. Indeed, the rejection of less restrictive measures implies a greater duty to ensure respect for the rights of the defence. As regards the ability of the applicant to contradict the statement by calling other witnesses, the very problem was that there was no witness, with the exception of T, who was apparently able or willing to say what he had seen. In these circumstances, the Court does not find that T's statement could have been effectively rebutted. The Court accepts that the applicant gave evidence himself denying the charge, though the decision to do so must have been affected by the admission of T's statement. The right of an accused to give evidence in his defence cannot be said to counterbalance the loss of opportunity to see and have examined and cross-examined the only prosecution eye-witness against him.

In the view of the court, the starting point in all such cases is that

Whatever the reason for the defendant's inability to examine a witness, whether absence, anonymity or both, the starting point for the Court's assessment of whether there is a breach of Article 6(1) and (3)(d) is set out in Lucà v Italy (2003) 36 EHRR 807...

If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6. The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6...

The court was however prepared to distinguish cases such as Sellick [2005] EWCA Crim 651 in which witnesses are absent because they have been intimidated by the defendant himself or by persons acting on his behalf.

F17 Admissions and Confessions

F17.49 Admissibility: Role of the Jury

Mushtaq [2005] 3 All ER 885 was considered by the Court of Appeal in Pham [2008] EWCA Crim 3182, in which the appellant complained that the jury had been directed to consider only whether his confession during a police interview was true, and not (as Mushtaq now requires) whether it had been obtained in circumstances that would make it inadmissible under the PACE 1984, s. 76(2).

The court noted that the judge ought to have followed Mushtaq, and that it was most regrettable that it had not been brought to his attention, but the court was satisfied that in the circumstances no injustice had been done to the appellant's case:

In truth, all that was necessary was for the judge to have directed the jury that if the appellant's account that his confessions were or may have been made, not because they were true but because of the oppression or conduct he described, then they were of no weight and could not be relied on. But no circumstances were being advanced whereby the confessions were made under oppression but were nevertheless true. In the real world there was no difference in this case between the confessions being made under oppression, on the one hand, and not being true on the other.

A confession may sometimes be false even though lawfully obtained, or it may sometimes be true even when made under oppression. The court in Pham perhaps meant to say that in the absence of independent corroboration, there was no way in this particular case in which the appellant's confession could be treated as reliable or trustworthy as long as there was any doubt as to whether it had been freely made. It may also have been hard to think of any explanation for him making a false confession unless he had been bullied or coerced into so doing.

One might be tempted to argue that if a confession is shown or admitted to be true, that makes it less likely that the police would have needed to resort to oppression, etc, in order to procure it. On that basis, judges might take account of evidence of truth or falsity when determining admissibility on the voir dire. But the Privy Council in Wong Kam-ming [1980] AC 247 refused to accept the logic of that argument.

F18 Identification Evidence

F18.34 Speculative Searches: Retention of DNA / Fingerprints

In S v The United Kingdom and Marper v United Kingdom (App. Nos. 30562/04 and 30566/04) [2008] All ER (D) 56 (Dec) the European Court of Human Rights has ruled against the practice of retaining and conducting speculative searches against DNA profiles and fingerprints from persons who have been arrested or charged but not convicted or cautioned. The national DNA database allegedly holds profiles on over 850,000 such persons. The court noted that although many member states use DNA or fingerprint databases in the fight against crime, the UK is:

The only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued.

In contrast to the view previously adopted by the House of Lords in R (S) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196, the Strasbourg court concluded that:

The protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere...

In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken - and retained - from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed . Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society.

This judgment does not require the immediate destruction of all samples or fingerprints that have been taken from persons no subsequently convicted, but clearly it does require some changes to current practices. The Government has stated that:

We are carefully considering the detail of the judgment in the S and Marper case and its implications. DNA is a prime example where benefits to the criminal justice system and the rights of the individual need to be carefully balanced. That is why our approach to the European Court's judgment will be subject to wide consultation this year in a White Paper on Forensics.

Appendices

Appendix 1 Criminal Procedure Rules 2005

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR with effect from 6 April 2009 inter alia as follows:

Part 19 is amended to give legislative effect to the well established court practice of requiring prosecutors (with the police) to investigate the suitability of an address proposed as a condition of residence when a defendant is released on bail. The prosecutor is placed under an obligation to assist the court and a defendant who may be released under such a condition is required to co-operate with the prosecutor in providing the court with such assistance. The requirement to give notice of an intention to apply for variation of bail conditions (which already applies in the Crown Court) is extended to magistrates' courts.

Part 21 is substituted - the new part 21 (initial details of prosecution case) revises and simplifies the rules about the early provision of details of the prosecution case.

A new part 37 (trial and sentence in a magistrates' court) is to apply in substitution for the existing part 37 (summary trial) and part 38 (trial of children and young persons). It consolidates, revises and simplifies the rules about procedure at trial in magistrates' courts, including youth courts.

Part 44 (breach, revocation and amendment of community and other orders in a magistrates' court) substitutes for the existing part 44 (sentencing children and young persons). The rules about trial and sentence procedure in magistrates' courts now are all contained in the new part 37 so the new part 44 rules deal only with the procedures relating to community and other orders to which some of the old part 38 and part 44 rules applied.

Appendix 2 Codes of Practice under the Police and Criminal Evidence Act 1984

NEW legislation

Misuse of Drugs Act 1971 (Amendment) Order (SI 2008 No. 3130)

This Order reclassifies cannabis, cannabis resin, cannabinol and its derivatives from Class C drugs to Class B drugs with effect from 26 January 2009. In addition, any substance which is an ester or ether of cannabinol or of a cannabinol derivative is so reclassified.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (SI 2008 No. 3146)

This Order brings into operation on 1 January 2009 a revision of para. 4 of Code A. It also brings into operation the clarification in paras. 2.2 and 2.3 of Code A regarding reasonable suspicion not being based on single factors alone. Paragraphs 4.10A and 4.10B of PACE Code A are also amended to clarify the position on providing receipts for stops and searches. The revision of para. 4 (recording requirements including recording of encounters not governed by statutory powers), together with the consequential deletion of Annexes D and E, will mean that constables will no longer be required to record all encounters not governed by statutory powers. Constables will need to record only information on the ethnicity of a person who is the subject of such an encounter. A receipt will also be made available to the person.

Road Safety Act 2006 (Commencement No. 5) Order 2008 (SI 2008 No. 3164)

This Order brings into force the following provisions of the Act:

on 5 January 2009, s. 3 (graduated fixed penalties), s. 11 (financial penalty deposits) and sch. 4 (prohibition on driving: immobilisation, removal and disposal of vehicles), s. 12 (prohibition on driving: immobilisation, removal and disposal of vehicles) and sch. 7, para. 1 (repeal of the Domestic Violence, Crime and Victims Act 2004, s. 16(2));
on 31 March 2009, s. 4 (graduated fixed penalty points), s. 5 and sch. 1 (giving of fixed penalty points by vehicle examiners), s. 6 (goods vehicle operator licensing), s. 7 (public passenger vehicle operator licensing) and sch. 7, para. 2 (repeals relating to fixed penalty notices by vehicle examiners);
on 1 April 2009, s. 8 (driving record), s. 9 (unlicensed and foreign drivers) and sch. 2 (endorsement: unlicensed and foreign drivers) and sch. 7, para. 3 (repeals relating to the endorsement of unlicensed and foreign drivers).

Rehabilitation of Offenders Act 1974 (Exceptions) (Amendment) (England and Wales) Order 2008 (SI 2008 No. 3259)

This Order amends the principal Order of 1975 (SI 1975 No. 1023). It amends certain definitions relating to day care and child minding, provides that any reference to a conviction shall include a reference to a caution and adds 'approved legal services body manager' to the list of positions which qualify for disclosure of spent convictions.

Criminal Justice and Immigration Act 2008 (Commencement No. 5) Order 2008 (SI 2008 No. 3260)

This Order brings into force the following provisions of the Act:

on 19 December 2008, s. 49 and sch. 10 (protection for spent cautions under Rehabilitation of Offenders Act 1974), s. 50 (criminal conviction certificates and criminal record certificates) and sch. 27, paras. 19 and 20 (consequential amendments of the 1974 Act);
on 1 January 2009, but in relation to English NHS premises only, s. 119(4) (offence of causing nuisance or disturbance on NHS premises), s. 120(5) and (6) (power to remove person causing nuisance or disturbance) and s. 121(1) to (3), (5) and (6) (guidance on the power to remove etc.).

Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269)

These Rules amend the CrimPR with effect from 6 April 2009 inter alia as follows:

Part 19 is amended to give legislative effect to the well established court practice of requiring prosecutors (with the police) to investigate the suitability of an address proposed as a condition of residence when a defendant is released on bail. The prosecutor is placed under an obligation to assist the court and a defendant who may be released under such a condition is required to co-operate with the prosecutor in providing the court with such assistance. The requirement to give notice of an intention to apply for variation of bail conditions (which already applies in the Crown Court) is extended to magistrates' courts.

Part 21 is substituted - the new part 21 (initial details of prosecution case) revises and simplifies the rules about the early provision of details of the prosecution case. The new part 21 applies from 6 April unless the court otherwise directs; if it does so direct, the old part 21 continues to apply (rr. 2.1(12) and 21.1).

A new part 37 (trial and sentence in a magistrates' court) is to apply in substitution for the existing part 37 (summary trial) and part 38 (trial of children and young persons). It consolidates, revises and simplifies the rules about procedure at trial in magistrates' courts, including youth courts.

Part 44 (breach, revocation and amendment of community and other orders in a magistrates' court) substitutes for the existing part 44 (sentencing children and young persons). The rules about trial and sentence procedure in magistrates' courts now are all contained in the new part 37 so the new part 44 rules deal only with the procedures relating to community and other orders to which some of the old part 38 and part 44 rules applied.

Counter-Terrorism Act 2008 (Commencement No. 1) Order 2008 (SI 2008 No. 3296)

This Order brings ss. 19 to 21 of and sch. 1 to the Act into force on 24 December 2008. These provisions deal with disclosure of information and the intelligence services.

Penalties for Disorderly Behaviour (Amount of Penalty) Amendment) Order 2009 (SI 2009 No. 83)

This Order amends the principal Order of 2002 (SI 2002 No. 1837) and revokes the (Amendment) Order of 2005 (SI 2005 No. 581) (and the (Amendment) Order of 2008 (SI 2008 No. 3297), which never came into force). It provides a new list of offences (as sch. 1 to the 2002 Order) attracting a fixed penalty of £80 for persons aged 16 or over and £40 for persons aged under 16 and a further list of offences (as sch. 2 to the 2002 Order) attracting a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons under 16.

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