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Blackstone's Criminal Practice 2009

July 2009

July 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 July update primarily considers developments reported in June 2009.

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• Part A: General Principles of Criminal Law
• Part B: Offences
• Part D: Procedure
• Part E: Sentencing
• Part F: Evidence
• Appendices
• New Legislation

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Part A General Principles of Criminal Law

A5 Parties to Offences

A5.5 Scope of the Joint Venture

Powell [1997] 3 WLR 959, Uddin [1999] QB 431 and Rahman [2008] UKHL 45 were considered in Yemoh [2009] EWCA Crim 930.

The deceased in this case (Kodjo) was attacked by a gang that included the appellants. One of them (TD) carried a short-bladed Stanley knife, but the fatal blow was almost certainly stuck by a different kind of knife with a longer and less fragile blade. A second appellant, BR, was alleged to have carried such a knife and was spattered with Kodjo's blood. He and TD were each convicted of murder. The other attackers were convicted of manslaughter.

One of the issues in this case concerned joint enterprise liability. If those other than the actual killer knew only of TD's Stanley knife, would the unforeseen use by BR of a longer blade amount to something 'fundamentally different' and thus beyond the scope of the joint enterprise? And since those convicted only of manslaughter could not have been found to have intended or foreseen the murderous use of a knife at all, could they still be parties to unlawful homicide?

The trial judge's direction was as follows:

In this case you have first to consider whether you can be sure who was the person who deliberately stabbed Kodjo, that is fatally stabbed Kodjo, and so caused his death. If you are satisfied so that you are sure that you can identify that person, then that person will be guilty of murder, provided you are sure that the other ingredients of murder, as I have directed you, are proved, namely that that person acted deliberately and unlawfully and intended at the time either to kill his victim or to cause him really serious bodily harm. But in addition, any other person who took part in the fatal attack ... upon Kodjo may also be guilty of murder but only if first he knew that the knifeman had a knife or other sharp implement and, secondly, he shared the knifeman's intention to kill or do really serious bodily harm, or realised that the knifeman might use the weapon with that intention and nevertheless took part. If, on the other hand, the prosecution proves against such a person that he participated in that attack and that when he did so, first he knew that the knifeman had a knife or other sharp implement and intended to use it to cause some injury or harm, but falling short of killing or causing really serious bodily harm, or he realised that that person might use the weapon to cause some injury, falling short of really serious harm, then such a person is guilty of manslaughter if the knifeman killed.

The Court of Appeal broadly approved of this, but noted that in one respect it was too favourable to the appellants: following Rahman it would suffice that a defendant realised that any one of the attackers, not necessarily the actual killer, might use a knife with such intent.

As to the kind of knife used to kill the deceased, the court said:

It is common knowledge that a Stanley knife can be used to stab albeit not very deeply and not very efficiently. But a Stanley knife can also be used to cause serious injury or death when used in a slashing motion. In our view the difference between the infliction of death or serious injury by means of a Stanley knife, on the one hand, and by means of a knife of the kind used in this case, on the other hand, is not of itself enough to enable the factual issue of "fundamental difference" to be left to the jury. If left to the jury, the issue could only properly be decided one way.

And as to liability for manslaughter:

If a defendant knowing that the stabber had a knife intends the stabber to cause some injury to the deceased or realises that he might cause some injury, then the fact that the stabber stabbed the deceased intending to kill him is not fundamentally different from what the defendant had intended or foreseen.

There may be cases where the fundamental difference arises from the manner of use, rather than from the lethality of the weapon (as where D1 uses a gun to shoot V through the head, when the agreement with D2 was only to 'kneecap' him) but no such issue seems to have arisen here.

Whether this case adds anything of substance to the law governing joint enterprise seems doubtful. The Court of Appeal in Erskine [2009] EWCA Crim 1425 (see appendix 7 below) has warned that counsel in criminal appeals should not cite authorities that merely illustrate established principles; but such cases may usefully clarify principles or explain how they apply in different kinds of circumstance (as here in relation to the use of different kinds of knife). It will not always be easy to know whether such cases can properly be cited to the Court of Appeal.

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Part B Offences

B7 Company, Investment and Insolvency Offences

B7.57 Disqualification from Company Management etc.

See Seager [2009] EWCA Crim 1303 at E19.7 below as to confiscation orders following conviction under the Company Directors Disqualification Act 1986, s. 13.

B9 Offences Affecting Security

B9.4 Acts Prejudicial to Safety or Interests of State: Sentencing Guidelines

Schulze (1986) 8 Cr App R (S) 463 and Prime (1983) 5 Cr App R (S) 127 were considered in James [2009] EWCA Crim 1261, in which the appellant, who held dual Iranian and British nationality, was sent to Afghanistan to serve as an interpreter with the British forces attached to the International Security Assistance Force (ISAF) and worked for the commanding officer. He had previously joined the Territorial Army and had signed the Official Secrets Act.

He became dissatisfied with his position and began e-mail contact with the Iranian Military Attaché in Afghanistan. The information he provided to the Iranians was not such as to directly put operations or lives at risk, but the security breach damaged relations with the Afghan government and undermined the role and position of the UK Armed Forces in ISAF. He was convicted of communicating information that was calculated to be or might be or was intended to be directly or indirectly useful to an enemy for a purpose prejudicial to the safety or interests of the state. A sentence of ten years' imprisonment was upheld on the basis that it properly reflected the deterrent element which necessarily had to govern every sentencing decision in cases of treachery.

B21 Offences Relating to the Proceeds of Criminal Conduct

B21.8 Offences of Concealment etc

In Fazal (2009) The Times, 26 June 2009, D allowed his bank account to be used by a friend to launder money. It was held that D thereby became guilty of converting criminal property (contrary to the Proceeds of Crime Act 2002, s. 327(1)(c)) whenever such monies were deposited in, retained in, or withdrawn from the account.

B22 Immigration Offences

B22.34 Trafficking People for Exploitation

The Borders, Citizenship and Immigration Act 2009, s. 54 (not yet in force), provides for the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, s. 4(4)(d) to be substituted with the following provision:

(d) a person uses or attempts to use him for any purpose within sub-paragraph (i), (ii) or (iii) of paragraph (c), having chosen him for that purpose on the grounds that-

1. he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and
2. a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.

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Part D Procedure

D1 Powers of Investigation

D1.1 Police Powers in the Investigation of Crime

The Borders, Citizenship and Immigration Act 2009, part 1 (in force from 21 July 2009), includes provision for the investigation and detention powers of designated customs officials and immigration officers and for the application of PACE Codes in investigations conducted and detention authorised by such officials and officers.

D2 The Decision to Prosecute and Diversion

D2.30 Conditional Cautions: Conditions that May be Imposed

The Criminal Justice and Immigration Act 2008 (Commencement No. 9) Order 2009 (SI 2009 No. 1678) brings into force the following provisions of the Act on 8 July 2009:

• sch 26, para 61 (variation of conditions attached to conditional cautions), which inserts s. 23B into the Criminal Justice Act 2003
• insofar as they relate to the amendments to the Criminal Justice Act 2003 made by s. 17 of the Police and Justice Act 2006, sch 26, paras. 60 and 62 and the repeals in sch. 28, part 4 relating to the Criminal Justice Act 2003, s. 23A(7) to (9).

The Police and Justice Act 2006 (Commencement No. 11) Order 2009 (SI 2009 No. 1679) brings the following provisions of the Act into force on 8 July 2009 in certain specified police areas:

• s.17(3) (specific types of conditions) insofar as it inserts s. 22(3A)(a) into the Criminal Justice Act 2003
• s.17(5) (making of statutory instruments).

The police areas specified are Cambridgeshire, Merseyside and Norfolk. The effect of the Order is to permit financial penalties to be attached to conditional cautions.

D3 Courts, Judges and Parties

D3.50 Government Departments

The Borders, Citizenship and Immigration Act 2009, s. 31(1) (in force from 21 July 2009) empowers the Attorney General to assign to the Director of Revenue and Customs Prosecutions the function of instituting (or assuming the conduct of) criminal proceedings in England and Wales related to criminal investigations by customs officials, immigration officers, officials of the Secretary of State, the Secretary of State, the Director of Border Revenue (appointed under s. 6 of the Act), and by the police.

D9 Disclosure

D9.9 Prosecution Disclosure

In RF [2009] EWCA Crim 678 the Court of Appeal noted the prosecution's general duty of disclosure, but added (at [36]-[39]):

However, it is self evident that where there may be material relevant in that sense overseas outside the European Union, the power of the Crown and the courts of England and Wales to obtain material is limited. Essentially, if informal requests for the material are declined, the powers are limited to what is set out in the Crime (International Co-operation) Act 2003 and in relevant international conventions, such as the Drugs Convention. There may be cases where a foreign entity will simply not make the material available, a foreign court will not compel production under a Letter of Request and steps under the relevant convention will not produce the documents. There may be other cases where the authorities of a foreign state, though willing to show material to officers acting on behalf of the United Kingdom, will not allow the material to be copied or otherwise made available and the courts of the foreign state will not order its provision.

There cannot, for these reasons, be any absolute obligation on the Crown to disclose relevant material held overseas outside the European Union by entities not subject to the jurisdiction of these courts; the position is quite different to the position where the information is held in the United Kingdom or by a person amenable to the jurisdiction of these courts. As Sir Igor Judge said in R v Khyam [2008] EWCA Crim 1612 at paragraph 37:

The prosecuting authorities in this jurisdiction simply cannot compel authorities in a foreign country to acknowledge, let alone comply with, our disclosure principles.

The obligation is one to take reasonable steps. Whether the Crown has complied with that obligation is for the courts to judge in each case on the provision of full information to the court. ...

. . .

It is, however, important that the position in such a case is clearly set out in writing so that the court and the defence know what the position is. The police and prosecuting authorities in the United Kingdom may not be able to complete the requisite lists, but it is their duty to record and explain the position and set out, insofar as they are permitted by the authorities of the foreign sovereign state, such information as they can and the steps they have taken. Where they are not permitted to disclose everything that they know, then that fact must be made clear on the documentation provided to the court so that the court can consider what to do.

D12 Arraignment and Pleas

D12.34 Retrial Provisions of the Criminal Justice Act 2003

The retrial provision of the Criminal Justice Act 2003 were considered in B and G [2009] EWCA Crim 1077, in which the Court of Appeal took a strict view of the circumstances in which new evidence might justify the retrial of an acquitted person. The new evidence in this case came from a convicted murderer, D, who had entered into an agreement with the police pursuant to the Serious Organised Crime and Police Act 2005, s. 74, and now offered to give evidence against his two former co-defendants, who had been acquitted.

Refusing an application for a retrial, the Court of Appeal held that it was not enough that the new evidence gave rise to a case for the acquitted defendants to answer. Only compelling new evidence of guilt, of the kind that could not realistically be disputed, would suffice.

The specific considerations set out in the CJA 2003, s. 79, were not exhaustive; it was necessary to step back and ask whether in all the circumstances it was in the interests of justice that there should be a retrial.

In this case, D was an untrustworthy witness, who appeared to be cynical and willing to manipulate the system in order to reduce his own sentence. If such evidence was truly compelling (e.g., because it revealed something wholly new which could be confirmed), it might still be in the interests of justice for the acquittal to be quashed. But this was not such a case. D was a fluent and circumstantial liar who said whatever suited him and was adept at tailoring it to the known facts. This made it difficult to know whether his evidence was truthful or not.

D13 Juries

D13.24 Police Officers and Employees of Prosecuting Authorities as Jurors

Abdroikov [2007] UKHL 37 and Khan [2008] 2 Cr App R 13 were considered in Yemoh [2009] EWCA Crim 930, in which the Court of Appeal rejected the argument that a trial in which there was evidence that the appellant had been abusive to the police in an interview became unfair owing to the presence of a serving police officer on the jury. The officer was not otherwise connected with the case or with any of the witnesses involved.

The court said:

111. ... The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.

112. As we have already said, it is submitted to us on behalf of Yemoh that the introduction of what was said by Yemoh at the time of being charged adds additional weight to the submission that the appellant did not have a fair trial because of the presence on the jury of a police officer. We can deal with this submission shortly. We agree with the judge that the introduction of evidence abusing the police should not lead to the discharge of a policeman from the jury. In this respect a policeman is in no different position than a black juror trying a case in which there is evidence of abuse of black people. We would not expect the black juror to be discharged on the grounds of apparent bias.

D13.66 Judge-only Trials on Indictment

The circumstances in which the defendant's right to trial by jury may be removed were considered by the Court of Appeal in T [2009] EWCA Crim 1035. The court held that, unless express statutory language indicates otherwise, 'the highest possible forensic standard of proof is required to be established' before the right to trial by jury is removed. That is the criminal standard. Nevertheless, where an application by the prosecution under the Criminal Justice Act 2003, s. 44 or s. 46 is granted:

[18] ... the end result is not an unfair trial, but a trial by judge alone, where the necessary procedural safeguards available in a trial by jury are and remain available to the defendant. It therefore does not follow from the hallowed principle of trial by jury that trial by judge alone, when ordered, would be unfair or improperly prejudicial to the defendant. The trial would take place before an independent tribunal, and as it seems to us, for the purposes of article 6 of the European Convention of Human Rights, it is irrelevant whether the tribunal is judge and jury or judge alone.

As to the possibility of providing the jury with protection:

[19] ... the judge must take account of the question whether the level of protection appropriate to protect the integrity of the jury might affect unfavourably the way in which the jury approached its task. If a misguided perception is created in the minds of the jury by the provision of high level protection this would plainly sound on the reasonableness of such a step.

One must also consider whether:

[19] ... in some cases at any rate, even the most intensive protective measures for individual jurors would be sufficient to prevent the improper exercise of pressure on them through members of their families who would not fall within the ambit of the protective measures.

Where a judge is required to discharge the jury, he should not ordinarily order a retrial, but continue without the jury:

[20] ... Given that one of the purposes of this legislation is to discourage jury tampering, and given also the huge inconvenience and expense for everyone involved in a re-trial, and simultaneously to reduce any possible advantage accruing to those who are responsible for jury tampering or for whose perceived benefit it has been arranged by others, and to ensure that trials should proceed to verdict rather than end abruptly in the discharge of the jury, save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial. The fact that he has been invited to consider material covered by PII principles, whether during the trial, or in the course of considering the application, should not normally lead to self-disqualification.

The evidence relied upon by the prosecution in support of an application to discharge the jury should ordinarily be disclosed to the fullest extent possible There will however be cases where evidence of the risk of jury tampering will be so sensitive that it can only be addressed under PII principles. If this were not allowed:

[26] ... the process could not apply where the actual or potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health or involve the disclosure of police operational evidence or methodology which, if disclosed, would be of considerable interest to the criminal world and damaging to the public interest. In such cases, faced with an order for disclosure, the Crown would be left with no alternative but to discontinue the prosecution. If so, the objective of the jury tampering would have succeeded.

Lastly, in cases which arise for decision under s. 44:

[32] ... To ensure consistency of approach and acknowledge the importance of any interference with the principle of jury trial, for the time being, arrangements should be made for the case to be referred to one of the Presiding Judges of the Circuit for a listing decision. The application will normally be heard and decided by the Presiding Judge. If the application is granted then, subject to any appeal, the Presiding Judge should identify a senior and experienced judge to conduct the trial.

D24 Civil Behaviour Orders: ASBOs, Closure Orders, SCPOs and VOOs

D24.50 Violent Offender Orders

The Criminal Justice and Immigration Act 2008 (Commencement No. 10) Order 2009 (SI 2009 No 1842) brings part 7 of the Act (violent offender orders) fully into force on 3 August 2009.

D26 Procedure on Appeal to the Court of Appeal

D26.15 Hearing of an Appeal: Practice in Usual Case

In Erskine [2009] EWCA Crim 1425 Lord Judge CJ regretted the practice of excessive citation of authority and, having considered the Consolidated Criminal Practice Direction, issued detailed instructions to counsel in criminal appeals as to the citation of authority. See appendix 7 below.

D29 Appeals to the House of Lords and the Role of the European Court of Justice and the European Court of Human Rights

D29.1 Appeal to the House of Lords

The Constitutional Reform Act 2005 (Commencement No. 11) Order 2009 (SI 2009 No. 1604) brings into force on 1 October 2009, inter alia, ss. 23 to 44 and 47 to 60 of the Act, which relate to the establishment of the Supreme Court. Associated minor and consequential amendments are also brought into force.

The Supreme Court Rules 2009 (SI 2009 No. 1603) govern the practice and procedure in the Supreme Court of the United Kingdom.

D30 Public Funding and Costs

D30.3 Grant of Right to Representation

The Criminal Defence Service (Provisional Representation Orders) Regulations 2009 (SI 2009 No. 1995) provide for the grant by the Legal Services Commission of a provisional right to publicly funded representation in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in cases of serious or complex fraud. They also provide for the circumstances in which such orders must be withdrawn.

D30.5 Applying for a Representation Order in the Crown Court, Court of Appeal or House of Lords

The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2009 (SI 2009 No. 1853) amend the principal Regulations of 2001 so as to provide for legal representation under provisional representation orders in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in such cases (reg. 4).

D30.6 Nature of Representation

The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2009 (SI 2009 No. 1853) amend the principal Regulations of 2001 so as to provide for legal representation under provisional representation orders in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in such cases. They also extend the provisions on change of representative and on cases involving more than one defendant to cover provisional representation orders and change references to 'junior counsel' in various places in the principal Regulations to references to 'junior advocates'.

D31 Extradition

D31.5 The Extradition Hearing

The Extradition Act 2003, s. 20, was examined by the Divisional Court in Atkinson v Supreme Court of Cyprus [2009] EWCA Crim 1579. The appellants had been acquitted at their trial for manslaughter in Cyprus, and returned to the UK, but were then found guilty in their absence on an appeal to the Supreme Court of Cyprus. An EAW was issued and following a hearing before a district judge, an extradition order was made under part 1 of the Extradition Act 2003.

The Divisional Court held that the Supreme Court proceedings were in effect a part of the trial. The appellants had known of those proceedings and had decided not to attend, albeit on legal advice. They had thus been deliberately absent for the purposes of s. 20(3), and could not in any event have played any active part in those proceedings. The extradition order was upheld.

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Part E Sentencing

E3 Mandatory Life Sentences

E3.1 Murder: Life Imprisonment

The CJA 2003, sch. 21 cannot be expected to identify all possible factors that might affect the appropriate minimum term in cases of murder. In Morley [2009] EWCA Crim 1302, the appellant had cut the deceased's throat as he lay in bed asleep, and then stabbed him many times. He removed sections of the deceased's breast and thigh and cooked them. A chewed piece of his flesh with the appellant's DNA on it was found in the kitchen bin.

The appellant was sentenced to life imprisonment with a specified minimum term of 30 years. Upholding this sentence, the Court of Appeal agreed that the partial dismemberment and cannibalism (although not expressly dealt with in sch. 21) were profoundly serious features which justified the case being brought into the 'particularly high level of seriousness' category.

E19 Confiscation Orders

E19.7 The Process: A Summary

It is not appropriate for a confiscation order to be imposed following conviction if the defendant is given an absolute or conditional discharge for that offence. This is because a confiscation order is a kind of penalty, whereas the principle on which a discharge is awarded is that it would be inappropriate for any punishment to be imposed. See Clarke [2009] EWCA Crim 1074. Hooper LJ said:

Given that a confiscation order can, at least in theory, be made before passing sentence, it would obviously be prudent in those very rare cases where an absolute or conditional discharge is a possibility, to decide upon sentence first.

E19.14 Determination of Benefit from Criminal Conduct

Neuberg [2008] 1 Cr App R (S) 481 was doubted by the Court of Appeal in Seager [2009] EWCA Crim 1303.

The Court of Appeal in Seager held that where a defendant has infringed the Company Directors Disqualification Act 1986, s. 13, by acting as a director or shadow director of a company when disqualified from so acting, he may be subject to a confiscation order (e.g., in respect of his fees or other remuneration received for so acting) but it will not ordinarily be correct to assess his benefit as being equal to the turnover of the company during the relevant period. The veil of incorporation should be lifted in such a way only where the facts warrant such a course, applying the general principles of company law relating to the corporate veil.

E20 Recommendation for Deportation

E20.1 Power to Recommend for Deportation

There may be cases in which the sentence imposed should be structured in such a way so as to ensure that the defendant avoided liability to deportation under the UK Borders Act 2007: see Hakimzadeh [2009] EWCA Crim 959.

E21 Exclusions and Disqualifications

E21.2 Drinking Banning Orders

The Violent Crime Reduction Act 2006 (Comencement No. 7) Order 2009 (SI 2009 No. 1840) brings ss. 1 to 5 of the Act into force on 31 August 2009 and, insofar as they relate to a drinking banning order under s. 3 or 4, ss. 9 to 14 of the Act are also brought into force on that date.

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Part F Evidence

F15 The Rule Against Hearsay: General Principles

F15.1 Definition of Hearsay Evidence

Leonard [2009] EWCA Crim 1251 provides further proof of the difficulty that the courts currently experience in distinguishing hearsay under the Criminal Justice Act 2003 from original evidence. The appellant was convicted of possessing a Class A drug with intent to supply, but the Court of Appeal held that the trial judge had wrongly admitted evidence of two text messages sent to L which were relied on by the prosecution as evidence of recent dealing. In one, the sender thanked L for 'the gear' which he proclaimed to be 'well sound'. He professed himself to be 'well wankered' as a result. In the other, the sender (again unknown) complained about the '£5 joey' for which he had apparently paid the appellant his last £10. He expressed disappointment that his trust in the appellant had been rewarded with such a 'dog cunt move'. The Court of Appeal considered that these messages each constituted hearsay, which had been wrongly received.

But why did the court consider them to be hearsay? Aikens LJ correctly observed that in order to determine whether a statement is hearsay:

It is necessary first to see whether it falls within the definition of a 'statement' as set out in [the CJA 2003] section 115. If it does not then, it seems to us, the statutory code does not apply. However, if it does, then the court has next to consider why it is sought to admit the statement evidence in the particular criminal proceedings concerned. Is it being admitted for the purpose of it being evidence of 'any matter stated in that statement'? Only if it is, does it come within the statutory code.

This should have pointed the court in the right direction, because clearly it was no concern of the court whether the texters were 'well wankered' or bitterly disappointed. The prosecution's purpose in adducing evidence of the statements in the texts was not to rely on their truth, but to invite the court to draw an inference from them, i.e. that the senders had been supplied with heroin by the appellant. At common law, it would have been said that the senders 'impliedly stated' this fact, and the hearsay rule would thus have been applicable, but under the CJA 2003, s. 115(3), an implied statement of this kind is not treated as hearsay at all. The senders were not trying to tell the appellant that he had in fact supplied them with heroin, because they assumed he was already well aware of that.

The Court in Leonard went astray in this passage (at [36]):

But in order that the jury might make that inference, the Crown first has to establish as facts the matters stated in the texts. The Crown's interpretations of those statements were that, in the first one, the sender of the text was happy with the drugs that had actually been supplied; and in the second he was not happy...'

The Crown did not (with respect) have to establish any such thing. What difference would it have made if the first texter was in fact slightly disappointed by his purchase, but hoping to ingratiate himself with the appellant, or if the second had received a good £10 worth, but was now confused, mistaken or simply trying it on? The answer is that it would not have made any difference. The inference that he has supplied them with drugs would have been invited just the same.

It follows that this was not properly categorized as hearsay evidence under the CJA 2003.

F18 Evidence of Identification

F18.34 Speculative Searches

Certain aspects of the decisions in S and Marper v UK (2009) 48 EHRR 1169 (noted in Supplement 2 to the main work) and A-G's Ref (No. 3 of 1999) [2001] 2 AC 91 were considered by the House of Lords in A-G's Ref (No. 3 of 1999): Application by the British Broadcasting Corporation to set aside or vary reporting restriction [2009] UKHL 34.

The issue before the Appellate Committee was only indirectly relevant to the use of speculative searches. The question was whether the BBC should be allowed to name the defendant in the 1999 case.

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Appendices

Appendix 7: The Consolidated Criminal Practice Direction

II.17 Skeleton arguments; and

II.19 Citation of judgments in court

In Erskine [2009] EWCA Crim 1425 Lord Judge CJ considered the Consolidated Criminal Practice Direction and issued the following instructions to counsel in criminal appeals:

[75] The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.

[76] It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it. Detailed rules are set out in paragraphs II.17 and II.19 of the Consolidated Criminal Practice Direction.

[77] Paragraph II.17 specifies the requirements for skeleton arguments and paragraph II.19 incorporates the detailed provisions relating to the citation of authority in the Court of Appeal (Civil Division). We propose to highlight the most significant features.

Conviction Appeals

[78] Advocates must expect to be required to justify the citation of each authority relied on or included in the bundle. The court is most unlikely to be prepared to look at an authority which does no more than illustrate or restate an established proposition.

[79] It is good practice for advocates on each side to agree a list of relevant authorities and prepare a joint bundle. If authorities are copied for the use of the court, they must (a) be copied from the principal law report in which the case appears, with headnote: and (b) have marked by sidelining the passage(s) relied on. Authorities should only be copied if they do in fact identify or represent a principle or the development of a principle.

Sentence

[80] Advocates must expect to be required to justify the citation of any authority. In particular where a definitive Sentencing Guidelines Council guideline is available there will rarely be any advantage in citing an authority reached before the issue of the guideline, and authorities after its issue which do not refer to it will rarely be of assistance. In any event, where the authority does no more than uphold a sentence imposed at the Crown Court, the advocate must be ready to explain how it can assist the court to decide that a sentence is manifestly excessive or wrong in principle.

[81] If authorities are reported in the Criminal Appeal (Sentencing) Reports, that reference should be given. If authorities are copied for the use of the court, they must (a) be copied from the principal law report in which the case appears, with headnote: and (b) have marked by sidelining the passage(s) relied on. Authorities should only be copied if they do in fact identify or represent a principle or the development of a principle.

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NEW Legislation

Parliamentary Standards Act 2009

Section 10 of this Act creates a new offence of providing false or misleading information for MPs' allowances claims. It provides:

1. A member of the House of Commons commits an offence if the member-
1. makes a claim under the MPs' allowances scheme, and
2. provides information for the purposes of the claim that the member knows to be false or misleading in a material respect.
2. A person guilty of an offence under subsection (1) is liable-
1. on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both;
2. on conviction on indictment, to imprisonment for a term not exceeding 12 months or to a fine or to both.
3. In the application of this section-
1. in England and Wales, in relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003, or
2. in Northern Ireland,
the reference in subsection (2)(a) to 12 months is to be read as a reference to 6 months.

This provision is not yet in force (see s. 14(3)).

Borders, Citizenship and Immigration Act 2009

This Act provides, in part 1 (in force from 21 July 2009), for customs functions to be exercisable by the Secretary of State, the Director of Border Revenue and officials designated by them and makes provision about the use and disclosure of customs information, the exercise of customs functions and functions relating to immigration, asylum or nationality. Part 2 makes provision about citizenship and other nationality matters. Part 3 includes provision as to restrictions on studies (s. 52- in force from 21 July 2009), the fingerprinting of foreign criminals liable to automatic deportation (s. 53- not yet in force). Part 4 makes miscellaneous and general provision.

Supreme Court Rules 2009 (SI 2009 No. 1603)

These Rules govern the practice and procedure in the Supreme Court of the United Kingdom.

Constitutional Reform Act 2005 (Commencement No. 11) Order 2009 (SI 2009 No. 1604)

This Order brings into force on 1 October 2009, inter alia, ss. 23 to 44 and 47 to 60 of the Act and associated minor and consequential amendments. The provisions mentioned relate to the establishment of the Supreme Court.

Criminal Justice and Immigration Act 2008 (Commencement No. 9) Order 2009 (SI 2009 No. 1678)

This Order brings into force the following provisions of the Act on 8 July 2009:

• sch 26, para 61 (variation of conditions attached to conditional cautions)
• insofar as they relate to the amendments to the Criminal Justice Act 2003 made by s. 17 of the Police and Justice Act 2006, sch 26, paras. 60 and 62 and the repeals in sch. 28, part 4 relating to the Criminal Justice Act 2003, s. 23A(7) to (9).

Police and Justice Act 2006 (Commencement No. 11) Order 2009 (SI 2009 No. 1679)

This Order brings the following provisions of the Act into force on 8 July 2009 in certain specified police areas:

• s.17(3) (specific types of conditions) insofar as it inserts s. 22(3A)(a) into the Criminal justice Act 2003
• s.17(5) (making of statutory instruments).

The police areas specified are Cambridgeshire, Merseyside and Norfolk. The effect of the Order is to permit financial penalties to be attached to conditional cautions.

Criminal Jurisdiction (Application to Offshore Renewable Energy Installations etc.) Order 2009 (SI 2009 No. 1739)

This Order divides Great Britain territorial waters (including tidal waters) and waters within the Renewable Energy Zone into English and Scottish parts for the purpose of applying English and Scottish criminal law respectively to activities taking place on, under or above renewable energy installations or waters within a safety zone situated in those offshore areas (art. 3). Article 4 extends the jurisdiction of the police to these activities.

Violent Crime Reduction Act 2006 (Comencement No. 7) Order 2009 (SI 2009 No. 1840)

This Order brings ss. 1 to 5 of the Act into force on 31 August 2009 and, insofar as they relate to a drinking banning order under s. 3 or 4, ss. 9 to 14 of the Act are also brought into force on that date.

Criminal Justice and Immigration Act 2008 (Commencement No. 10) Order 2009 (SI 2009 No 1842)

This Order brings part 7 of the Act (violent offender orders) fully into force on 3 August 2009.

Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2009 (SI 2009 No. 1853)

These Regulations amend the principal Regulations of 2001 so as to provide for legal representation under provisional representation orders in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in such cases (reg. 4). The provisions in the 2001 Regulations on a change of representative and on cases involving more than one defendant are extended to provisional representation orders (regs. 6 and 7). Regulation 5 changes references to 'junior counsel' in various places in the principal Regulations to references to 'junior advocates'.

Terrorism Act 2006 (Disapplication of Section 25) Order 2009 (SI 2009 No. 1883)

This Order provides that s. 25 of the Terrorism Act 2006 is disapplied for a period of one year with effect from 25 July 2009. The effect is that the maximum period of detention of terrorist suspects under sch. 8 to the Act remains at 28 days for another year.

Criminal Defence Service (Provisional Representation Orders) Regulations 2009 (SI 2009 No. 1995)

These Regulations provide for the grant by the Legal Services Commission of a provisional right to publicly funded representation in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in cases of serious or complex fraud. They also provide for the circumstances in which such orders must be withdrawn.

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