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Blackstone's Criminal Practice 2009

June 2009

June 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 June update primarily considers developments reported in May 2009.

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• 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

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Part A General Principles of Criminal Law

A3 General Defences

A3.14 Presumption of Sanity under M'Naghten Rules

R (O'Connor) v District of Avon Coroner [2009] EWHC 854 (Admin), [2009] All ER (D) 49 (May) examines the burden of proof in insanity cases, and addresses the problems that may arise where a coroner's court has to decide whether a killing by an allegedly insane person was unlawful. The court held that the burden of proof must be different in the coroner's court because there is no defendant on whom such a burden could be placed.

In a criminal trial, the heart of the direction is that it is for the Defendant to prove insanity on the evidence taken as a whole, not beyond reasonable doubt, but upon the balance of probabilities. At an inquest, the coroner would have to direct the jury along the lines that it is for them to decide whether they are sure that the killing was unlawful, except that the killing would not be unlawful if they concluded on the balance of probabilities on the evidence which the coroner had decided to adduce or had admitted that the person who perpetrated the killing was legally insane. If this formulation is somewhat contrived to make a point, the concept of applying a hybrid standard of proof, derived from a structure where a burden is on the Defendant, to circumstances where there is no Defendant is not satisfactory. The differences between a coroner's inquest and a criminal trial necessitate a different standard of proof.

It was accordingly held that in a coroner's court an issue of insanity, once properly raised, must be disproved to the criminal standard before a verdict of unlawful killing can properly be reached.

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Part B Offences

B3 Sexual Offences

B3.14 Rape: Sentencing Guidelines: Life Imprisonment

In P (P) [2009] All ER (D) 195 (May) the appellant appealed against life sentences (with a minimum term of 19½ years) imposed on him after he had pleaded guilty on the first day of his trial to the sexual abuse of his daughters over a period of 20 years. The charges to which he pleaded guilty included 20 specimen charges of rape. He had used violence to secure their submission and had fathered children by them. In the circumstances, life sentences were clearly appropriate, but the Court of Appeal considered that the minimum terms were too long having regard to the kind of sentences that are imposed for other offences. Minimum terms of 14½ years were substituted.

B6 Falsification, Forgery and Counterfeiting

B6.46 Using a False Instrument: Sentence

In Ovieriakhi [2009] EWCA Crim 452, [2009] All ER (D) 67 (May), it was held that the sentencing guidance given in Kolawole [2005] 2 Cr App R (S) 71 was appropriate in cases in which a false passport was to be used for the purpose of securing entry into the UK, but where (as in this case) a false passport was used by a lawful immigrant etc merely to obtain work or a bank account, its use did not enable the offender to obtain entry to the UK and might properly be treated less severely. A sentence of 12 months' imprisonment was quashed and substituted by a sentence of 6 months' imprisonment. See also Olasunkanmi [2009] EWCA Crim 15.

B10 Terrorism, Piracy and Hijacking

B10.207 Sentencing for Offences Committed in a Terrorist Context

The Counter-Terrorism Act 2008 (Commencement No. 3) Order 2009 (SI 2009 No. 1256) brings ss. 30 to 33 of the Act into force on 18 June 2009. These sections provide for it to be an aggravating factor where any offence is considered to have been committed in a terrorist context. The Order also brings into force on that date new powers of forfeiture contained in ss. 34 to 39 of the 2008 Act.

B14 Offences against the Administration of Justice

B14.94 Contempt: Disclosures Relating to Jury Deliberations

A-G v Associated Newspapers Ltd [1994] 1 All ER 556 and A-G v Scotcher [2005] 3 All ER 1 were considered in A-G v Seckerson [2009] EWHC 1023 (Admin), [2009] All ER (D) 106 (May).

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Part C Road Traffic Offences

C2 Evidence and Procedure in Road Traffic Cases

C2.10 Admissibility of Evidence from Prescribed Devices

The Road Traffic Offenders Act 1988, s. 20 and the Road Traffic Offenders (Prescribed Devices) (No. 2) Order (SI 1992 No. 2843) were considered in Robbie the Pict v DPP (2009) The Times 14 May 2009, in which it was held that a Gatsometer BV Type 36 traffic light camera was an approved device for recording the position of motor vehicles in relation to light signals.

C3 Offences Relating to Driving Triable on Indictment

C3.17 Causing Death by Dangerous Driving: Sentence

In Clarke [2009] EWCA Crim 921, [2009] All ER (D) 135 (May) the appellant, a diabetic, killed a pedestrian after losing control of his vehicle whilst suffering a hypoglycaemic attack and slipping into a state of hypoglycaemic unawareness. His conviction (against which he did not appeal) was evidently based on the jury's acceptance of the prosecution's expert evidence, according to which the appellant must at some point have become aware that he was suffering from hypoglycaemia and could have prevented the accident by stopping and eating or taking glucose tablets. Two expert witnesses for the defence had argued that the appellant was 'more likely than not unaware of the onset of the attack', in which case he could presumably have been able to rely on automatism as a defence. It was accepted on appeal that any such awareness might only have been momentary and that the appellant was meticulous in testing his blood sugar levels. Indeed, he had done so earlier that day.

His deteriorating medical condition was also such as to make any period of imprisonment particularly onerous. Despite this, the Court of Appeal felt unable to suspend his sentence, but a sentence of 12 months' imprisonment was substituted for the three-year sentence originally imposed.

As to the implications of hypoglycaemic attacks whilst driving, see also Davies v CPS Bradford [2009] All ER (D) 110 (May).

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Part D Procedure

D1 Powers of Investigation

D1.99 Access to and Retention of Seized Property

Where the police exercise their power to seize a suspect's property in connection with a criminal investigation, their power to retain that property ceases if the CPS decide not to prosecute the suspect. The police may not then continue to retain that material, nor may the allow any other person to retain it, even if that other person is bringing or contemplating a private prosecution and requires the properly in order to conduct a forensic examination of it. See Scopelight v Chief Constable of Northumbria [2009] EWHC 958 (QB).

D1.105 Surveillance and Covert Human Intelligence Sources

The Court of Appeal (Civil Division) has now reversed the Administrative Court and ruled that where the police take and retain photographs of persons such as demonstrators or activists, etc who are not committing or suspected of committing any offence, this may (depending on the circumstances) involve an infringement of the ECHR, Article 8. Much will depend on the facts of the case and whether the measures taken are proportionate to any legitimate aims that the police may be pursuing. See R (Wood) v Metropolitan Police Commissioner [2009] EWCA Civ 414, [2009] All ER (D) 208 (May).

D3 Courts, Judges and Parties

D3.45 Prosecutions by other Persons

The position of a private prosecutor was considered by Sharp J in Scopelight v Chief Constable of Northumbria [2009] EWHC 958 (QB). He noted in particular the limited rights possessed by such prosecutors in comparison with the police and CPS. He said (at [48]):

The right to bring a private prosecution does not carry with it the automatic right to override private property rights in the absence of an order of the court; nor does it carry with it the powers conferred by Parliament on the police. It does not confer a right of access to statements, photographs or reports in the hands of the police or the CPS to someone contemplating bringing a private prosecution, even though the request is a legitimate one, and without them, a prosecution would "wither on the vine" (see R v DPP ex p Hallas (1988) 87 Cr App R 340, per Lloyd LJ). A private individual or body does not a have a right under PACE to enter private premises and seize property for the purposes of conducting their own investigations or prosecutions. A private prosecutor has no right to require any defendant prosecuted by them to make disclosure (as it would be understood in civil proceedings) in the course of the prosecution. The interests of the private prosecutor are therefore subordinate in these respects to the fundamental private law property and privacy rights of the private citizen, and to the fundamental rights of a defendant in any private prosecution which is brought.

Moreover, where the police have seized a suspect's property in connection with a criminal investigation, their power to retain that property ceases if the CPS decide not to prosecute the suspect. The police may not then continue to retain that material, nor may they allow any other person to retain it, even if that other person is bringing or contemplating a private prosecution and requires the property in order to conduct a forensic examination of it.

D6 Classification of Offences and Determining Mode of Trial

D6.44 Adjustment of Charges to Dictate Mode of Trial

Canterbury and St Augustine Justices, ex parte Klisiak [1982] QB 398 and Sheffield Justices, ex parte DPP [1993] Crim LR 136 were considered by Davis J in DPP v Hammerton [2009] EWHC 921 (Admin), in which the CPS appealed against the decision of a magistrates' court, refusing to allow the last minute substitution of a charge of interfering with a vehicle (a summary-only charge) for one of attempted theft from that vehicle, in respect of which a committal hearing had been scheduled for that day. The justices also refused an adjournment to allow for the preparation of committal papers in respect of the original charge, which the CPS had assumed would not be needed.

The defendant's alleged accomplices had been tried for attempted theft the day before, in the youth court, and were subsequently found guilty.

The CPS stance was that it was open to them to review the case and substitute a lesser charge at any time. They also suggested that 'motor vehicle interference was the more appropriate charge in the circumstances'; but clearly their real object was to ensure that this relatively minor case did not end up being tried on indictment. The defendant was not only much older than his alleged accomplices, but was allegedly the ringleader; and yet the accomplices had all been tried for the more serious offence.

Davis J dismissed the appeal. The cases cited had been decided prior to the introduction of the CrimPR and the courts now had the overriding objective to consider. Moreover, the CPS appeared to be in breach of the Code for Crown Prosecutors, para. 7.3, by which:

Crown prosecutors should not change the charge simply because of the decision made by the court or the defendant about where the case will be heard.

Davis J concluded:

I should only add that the Crown Prosecution Service generally, or at least the West London Crown Prosecution Service, should consider long and hard whether or not it can carry on on an assumption that some of its representatives may have, namely that it can simply assume that at whatever stage of the proceedings before the magistrates it can, virtually as of right, substitute a lesser charge for a more serious charge. There should be no presumption to that effect. The magistrates have a discretion here: and the overriding objective must also be borne in mind.

Of course there are principles to be applied and of course in the vast majority of cases everyone concerned will be entirely content for a lesser charge to be substituted. But where a lesser charge is to be substituted, first, it must be proper and appropriate to the facts of the case; secondly the application should be made promptly and not left until the last minute, at all events without any proper explanation; and, thirdly, an eye should also be kept on considerations of the good administration of justice and the wider picture: as the facts of this case illustrate, by reason of the situation of any co-accused.

D7 Bail

D7.81 Breach of Bail Conditions: Nature of a s. 7 Enquiry

R (Vickers) v West London Magistrates' Court (2003) 167 JP 473 was considered by Hickinbottom J in R (Thomas) v Greenwich Magistrates' Court [2009] EWHC 1180 (Admin), [2009] All ER (D) 85 (May). In this case, evidence of the claimant's alleged breach of bail conditions took the form of a written statement from a police officer, who did not appear before the court. Hickinbottom J held that written hearsay material may properly be used in such cases, 'so long as the material is properly evaluated'.

The proper approach in his view remained that set out by Latham LJ in R (DPP) v Havering Magistrates' Court [2001] 1 WLR 805 at [42]:

What undoubtedly is necessary is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertion at the one end of the spectrum which is may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justice is to ensure that the defendant has a full and fair opportunity to comment on, and answer that material. If that material includes evidence from a witness, who gives oral testimony, clearly the defendant must be given an opportunity to cross-examine. Likewise, if he wishes to give oral evidence he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of crossexamination, and form an honest and rational opinion. If his opinion is that the defendant has broken a condition of his bail, he must then go on to consider whether or not, in view of that opinion, and in all the circumstances of the case, he should commit the defendant in custody or grant bail on the same or other conditions, applying the principles set out in section 3(6) and 4 of, and Schedule 1 Part I paragraph 2 (in Part II paragraph 2) to the Act.

D8 Assets Recovery

D8.28 Restraint Orders

In FSA v M [2009] EWCA Crim 997, [2009] All ER (D) 204 (May) the court held that a restraint order imposed on the appellant could not be varied so as to permit the payment out of 'reasonable living expenses' of a contribution to the Legal Services Commission for legal representation in proceedings for judicial review relating to offences in respect of which the restraint order was made.

The LSC required the appellant to pay the contributions as a condition to his grant of public funding for legal representation in his proceedings for judicial review of the decision to prosecute him for the offences in respect of which the restraint order was imposed, but this was held to be forbidden by the PCA 2002, s. 41(4). If the appellant used for that purpose monies allowed to him as reasonable living expenses, he would be in contempt of court, and the LSC could not lawfully receive it.

D25 Appeal to the Court of Appeal

D25.35 Statutory Basis of Appeal against Sentence

The Court of Appeal's power to hear an appeal against sentence is not, as a matter purely of jurisdiction, removed by the fact that there has been an earlier reference of the sentence by A-G under the CJA 1988, s. 36. See Hughes [2009] EWCA Crim 841. The Court in that case nevertheless issued the following warning at [20]:

It ought clearly to be understood that it by no means follows that the court will in fact entertain such an appeal. Any application for leave to appeal sentence requires leave and, in this case and no doubt any others like it, an extension of time. The right to appeal given by section 9 of the [CAA 1968] is subject to section 18, which requires an application to be lodged within the time stipulated- which is, by section 18(2), 28 days. An extension of time is by no means a formality. It will be granted only where there is good reason to give it, and, ordinarily, where the defendant will otherwise suffer significant injustice. In the very small number of instances in which there has been an earlier reference by the Attorney General, it will be a highly significant factor that it was then open to the defendant to mount any argument that he wished to the effect that his sentence was too long or otherwise wrong in principle. Leave is likely to be refused in any case in which what he now seeks to argue could and should have been argued then. Wholly unmeritorious applications which are no more than an attempt to ventilate second thoughts or to re-litigate decided issues are likely to be met by an order for loss of time under section 29 of the 1968 Act. In all but the wholly exceptional case the decision of this court upon a reference by the Attorney General is, as this court held in Rowan [2007] EWCA Crim 1624, as much an end of the sentencing process as is its decision upon an application by the defendant under section 9.

D30 Public Funding and Costs

D30.13 Defendant's Costs Orders

In Brewer v Secretary of State for Justice [2009] EWHC 987 (QB), [2009] All ER (D) 95 (May), Holroyde J held that a claimant who had been granted a defendant's cost order, pursuant to the Prosecution of Offences Act 1985, s. 16 was not precluded from claiming out of pocket expenses in the form of fees for professional services properly incurred by him in the proceedings, and which related to work which had actually and reasonably been done and /or to disbursements which had actually and reasonably been incurred. In this case, the expense in question related to payments to the claimant's American attorney and was not governed by the Criminal Defence Service (General No 2) Regulations 2001 (SI 2001 No. 1437), reg. 22 which is concerned only with claims by solicitors or advocates. The US attorney was not a solicitor or advocate in England and Wales, nor had she been instructed by one. Holroyde J offered this general guidance (at [49]):

It may be helpful to suggest some of the circumstances which may be thought relevant in a case which involves a claim by a successful defendant for reimbursement from central funds of expenses incurred by him in relation to legal professional services during a period when a representation order was in force. In my view, the determining officer will wish amongst other circumstances to consider-

1. The profession, and professional qualifications, of the person who provided the relevant services, and the capacity in which he was acting at the time when he provided them. Often that will be obvious, but in some cases it may require careful consideration on an item-by-item basis.
2. The exact nature and purpose of the professional services provided. By way of illustration: expert evidence as to foreign law is likely to be outside the competence of the solicitors and counsel instructed under the representation order; but preparation of schedules and summaries will generally be well within their competence, and indeed will often be work suitable for fee-earners of a lower grade.
3. The reasons why it is said to have been necessary and reasonable to engage that person to provide those services, and to do so at the time when the services were provided.
4. The reasons why it is said such services could not be provided by the legal team instructed under the representation order, bearing in mind that the representation order is intended to provide the level of legal advice and representation appropriate to the specific case.
5. The reasons why the claim did not, by either of the possible routes I have mentioned or in any other way, form part of the solicitors' claim for fees and disbursements under the representation order.
6. The basis on which, and the rate at which, the provider of the services charged the applicant.
7. The extent to which there is any duplication of, or overlap with, work also done by the lawyers instructed under the representation order.
8. What was said on the claimant's behalf when the application for the defendant's costs order was made in the criminal proceedings.
9. If the claimant's application for reimbursement of his expenses is not made at the same time as the claim made by his lawyers under the representation order, the reason why that is so.

It would be appropriate for an advocate applying for a defendant's costs order to indicate at least the heads of claim which will or may be made, and if possible to give a very rough indication of the expected quantum.

D31 Extradition

D31.5 Part 1 of the Act

In Symeou v Public Prosecutor's Office at the Court of Appeals, Patras, Greece [2009] EWHC 897 (Admin), [2009] All ER (D) 13 (May) the appellant sought to challenge an order for his extradition to Greece on the basis of alleged abuse of process by the Greek police (e.g., by using violence and intimidation to obtain statements from witnesses which nevertheless would be admissible at any trial in Greece. Dismissing his appeal, the Divisional Court held that it was precluded from considering misconduct or bad faith by the police of the requesting state in the investigation of the case or the preparation of evidence for trial. The judicial systems of countries in the European Union must be considered capable of providing the minimum safeguards for a fair trial, including provisions for the exclusion of evidence obtained by coercion, etc. The same process would be applied in reverse were English authorities to seek the extradition of a Greek citizen who contended that the English police had obtained evidence by violence or manipulation.  It would be for the English and not the Greek courts to resolve that issue.

D31.6 Part 2 of the Act

The important role of the Secretary of State in cases governed by the Extradition Act 2003, Part 2, was noted by the Divisional Court in Taylor v Governor of HMP Wandsworth [2009] EWHC 1020 (Admin), [2009] All ER (D) 133 (May). The court in this case declined to reopen the final determination of an appeal under the Civil Procedure Rules, r. 52.17 on the basis that the issues raised (eg concerning the applicant's poor health) were ones that could if necessary be taken into account by the Secretary of State. This would not be possible in a case governed by Part 1 of the Act (as to which see Ignaoua v Judicial Authority of the Courts of Milan [2008] All ER (D) 324 (Oct)).

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Part E Sentencing

E3 Mandatory Life Sentences

E3.1 Murder: Life Imprisonment

When determining the minimum term in a life sentence for the murder, a judge may be justified in taking account of background circumstances, which in Thomas [2009] EWCA Crim 904, [2009] All ER (D) 16 (May) showed the killing to be the final chapter in a long history of violence, cruelty and abuse of the victim by the defendant. Prolonged, abusive domestic violence which led to death always had to result in condign punishment, and in this case the defendant had not only been guilty of using prolonged violence on a vulnerable victim, but had photographed her afterwards whilst refusing to summon medical assistance. A minimum term of 17 ½ years was neither wrong in principle nor manifestly excessive, even though there had probably been no specific intent to kill.

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

E4.5 Imprisonment or Detention for Public Protection

Lang [2006] 1 WLR 2509 (and in particular the para [17] of the judgment in that case) was approved in Pedley [2009] EWCA Crim 840, [2009] All ER (D) 138 (May) where the Court of Appeal examined:

1. the proper construction of the 'significant risk' test created by s. 225 of the Criminal Justice Act 2003 for passing sentences of imprisonment for public protection (IPP) or other indeterminate sentences; and
2. the compatibility of sentences passed according to that test with the ECHR, Articles 3 and 5.

As to the first of those issues, the court reasserted the approach adopted in Lang. Hughes LJ said:

16. The question whether the risk of serious harm is, in any individual case, significant so as to justify an IPP sentence, is highly fact-sensitive. It must remain a decision for the careful assessment of the judge before whom the case comes. He will need to consider all the information he has about the defendant: see section 229 and Considine [2007] EWCA Crim 1166; [2008] 1 Cr App R (S) 41. The focus is, as explained in Johnson [2006] EWCA Crim 2486; [2007] 1 Cr App R (S) 112, not principally upon the facts of the instant case but upon future risk.

17. All the parties before us agreed that in addressing the question whether the risk of serious harm is significant the judge is entitled to balance the probability of harm against the nature of it if it occurs. The harm under consideration must of course be serious harm before the question even arises. But we agree that within the concept of significant risk there is built in a degree of flexibility which enables a judge to conclude that a somewhat lower probability of particularly grave harm may be significant and conversely that a somewhat greater probability of less grave harm may not be.

18. We do not, however, agree that it follows that there is any justification for attempting a re-definition of the plain English expression 'significant risk . . . of serious harm'. There is no occasion to re-write the statute. . . In Lang (at paragraph 17(i)) this court noted that the dictionary definition of 'significant' is 'noteworthy, of considerable amount or importance'. That was not to substitute a different expression for the statute, but was and remains a helpful indication of what kind of risk is in issue.

19. In particular, it is wholly unhelpful to attempt to re-define 'significant risk' in terms of numerical probability, whether as 'more probable than not' or by any other percentage of likelihood. We doubt very much that the probability of future harm is capable of numerical evaluation. No attempt should be made by sentencers to attach arithmetical values to the qualitative assessment which the statute requires of them.

As to the second issue, Hughes LJ said:

We are quite satisfied that a sentence of IPP imposed when the judge is satisfied that the defendant poses a significant risk of serious harm to the public is wholly compatible with both Article 3 and Article 5(1)(a) . . . the European Court of Human Rights has consistently held that a life sentence does not infringe either article if properly grounded in the risk to the public and certainly if it carries with it a regime under which the minimum term is directly linked to the instant offence and thereafter the prisoner will be released if no longer a danger: see for example Stafford v UK (2002) 35 EHRR 1121 and V v UK (1999) 30 EHRR 121. Indeed under the Convention, States have a duty to take measures to protect the public from violent crime. In Offen [2001] 1 WLR 253 this court held specifically that an indeterminate sentence complied with the Convention providing that it was grounded upon a significant risk of serious harm being caused by the defendant to the public. That is precisely the test adopted under section 225. . . Any sentence of IPP is closely controlled by law and can be imposed only in accordance with the statute. That each case must be determined upon its own facts, and an individual judgment made as to the presence or absence of significant risk of serious harm, does not mean that the sentence is too uncertain to comply with Article 5(1).

A problem that previously affected prisoners serving sentences of IPP and gave rise to issues under Article 5 was the failure of the Home Secretary to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. Measures have however been taken to rectify the situation, and in any event the only possible basis on which Article 5(1) can be breached in such case is after a very lengthy period without an effective review of the case. See R (James) (formerly Walker) v Secretary of State for Justice; [2009] UKHL 22,[2009] All ER (D) 43 (May).

E4.17 Sexual Offences Committed before 30 September 1998: Extended Licence Period

An order for an extended licence is preventative not punitive. Adding such an order to a sentence of imprisonment for an offence committed before 1 October 1991 is not to impose a heavier penalty than was available when the offence was committed and accordingly there is no violation of Article 7: see B [2009] EWCA Crim 906, [2009] All ER (D) 60 (May) at [30].

E19 Confiscation Orders

E19.22 Stage Three - Determination of the Recoverable Amount: Valuation of Benefit

The House of Lords in Islam [2009] UKHL 30 has reversed the Court of Appeal's ruling in Islam [2008] EWCA Crim 1740 and overruled Hussain [2006] EWCA Crim 621 in deciding that the illegal market value of controlled drugs should be taken into account when valuing the benefit obtained by a defendant from their illegal importation, pursuant to the Proceeds of Crime Act 2002, ss. 76(4) and (7), 79(2) and 80(2). This means that courts are no longer obliged to assume (quite unrealistically) that such drugs are valueless.

As Lord Hope pointed out, the 2002 Act 'does not say that the market in which the price of the property must be determined must always be a legitimate one'. Where there is a lawful market, the lawful market value should indeed be used, but where (as with illegally imported drugs) the only market is an illegal one, that market should not be ignored. A distinction must however be drawn between the valuation of the defendant's benefit on the one hand and the amount available to him for the purposes of satisfying a confiscation order, on the other. 'The court cannot expect him to resort to transactions that are illegal to find the money that he will need to satisfy the terms of the confiscation order'. In respect of the latter valuation, the House of Lords has confirmed existing law by valuing such drugs as worthless.

Lord Walker and Lord Neuberger dissented. In Lord Walker's view, Parliament had envisaged a single meaning for the term, 'market value' and must have intended that it would apply for all purposes of the Act.

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Part F Evidence

F6 Examination in Chief

F6.24 Statements in Rebuttal of Allegations of Recent Fabrication

In Athwal [2009] EWCA Crim 789, [2009] All ER (D) 61 (May) the court made this observation concerning the circumstances in which evidence of a witness's previous statements may be admitted to rebut suggestions of recent fabrication:

We do not consider that the common law label of recent fabrication is to be confined within a temporal straitjacket. This case, and others before it, demonstrate that 'recent' is an elastic description, the purpose of which is to assist in the identification of circumstances in which the traditional rule against self-corroboration, sometimes referred to as the rule against narrative, should not extend to the exclusion of a previous consistent statement where there is a rational and potentially cogent basis for its use as a tool for deciding where the truth lies. The mere fact that the witness has said substantially the same thing on a previous occasion will not generally be a sufficient basis to adduce the previous statement when the truthfulness of his evidence is put in issue. There must be something more - for example, the absence on the earlier occasion of a factor, say personal dislike, which is being advanced as a possible explanation for the falsity of his evidence in court. However, when circumstances have changed in such a way, it may not matter that they changed last week, last month or last year, provided that there is a qualitative difference in circumstances, but substantial similarity between the two accounts. There is no margin in the length of time. The touchstone is whether the evidence may fairly assist the jury in ascertaining where the truth lies. It is for the trial judge to preserve the balance of fairness and to ensure that unjustified excursions into self-corroboration are not permitted, whether the witness was called by the prosecution or the defence.

The court also examined the relationship between this rule and the hearsay rule. At common law such statements were admissible (if at all) only for the limited purpose of demonstrating that the witness's account could not have been invented at some later date. They were not, in other words, admissible as evidence of any matter stated therein, and juries had to be directed accordingly.

The CJA 2003, ss. 114 and 118, abolish all common-law exceptions to the hearsay rule, other than those expressly preserved by s. 118(1); but since statements admitted to rebut allegations of recent fabrication were not strictly speaking exceptions to the hearsay rule (not being evidence of any matter stated), the common-law principles permitting their admission have survived independently of the CJA 2003. But s. 120(2), which presupposes the survival of those principles, has changed the status of such statements once they have been put before the court. Such a statement is now 'admissible as evidence of any matter of which oral evidence by the witness would be admissible'. It has become, in other words, admissible hearsay within the meaning of s. 114(1)(a), and as such it is subject to various other rules that apply only to hearsay evidence, including s. 125 (by which a judge may be required to stop a case based on 'unconvincing' hearsay) and s. 126 (by which hearsay can be excluded wherever the case for excluding it 'substantially outweighs the case for admitting it'). Where a statement involves multiple hearsay, s. 121 (additional admissibility requirements) will also apply, and with it the notice requirements of the CrimPR, part 34.

According to the Court of Appeal:

This case demonstrates the extent to which Chapter 2 of Part II of the 2003 Act is now a comprehensive code on the admissibility of hearsay in criminal proceedings. The common law has been abolished except where it has been expressly preserved . . . and, in at least one situation, what in the past was not strictly hearsay now is. It seems to us that it would be helpful if the leading practitioners' textbooks were now to reflect this.

In one sense this is correct. But one must be careful here not to get the wrong end of the stick. The CJA 2003 has not (in this respect at least) stiffened or extended the ambit of the rule against hearsay. On the contrary, it has relaxed that rule, by making admissible as hearsay evidence that previously would have been inadmissible as hearsay but admissible only by way of exception to the rule against narrative.

F11 Admissibility of Previous Verdicts

F11.10 Purpose of Adducing Evidence

Kempster [1989] 1 WLR 1125 was considered in Girma [2009] EWCA Crim 912, [2009] All ER (D) 154 (May). As the Court of Appeal rightly pointed out in Girma, the PACE 1984, s. 74(1), does not make a prior conviction (in this case the conviction, on a guilty plea, of an alleged accomplice) admissible in evidence unless that conviction is relevant to some issue in the case; and even then it may sometimes fall to be excluded under s. 78 if admitting it would be unfairly prejudicial to the defendant. But the court in Girma erred, it is submitted, in holding that s. 74 'merely provides a mechanism for adducing such evidence', and has nothing to do with admissibility as such. Clearly, s. 74 does indeed deal with admissibility. It makes a conviction (if imposed by UK court) admissible as evidence of a further fact, namely the convicted person's guilt. Leaving guilty pleas on one side, it was at least arguable, prior to the enactment of s. 74, that the opinion of a criminal court or jury, as reflected in its verdict, was merely non-expert opinion and inadmissible for that purpose under what remained of the rule in Hollington v Hewthorn. In Kordasinski [2006] EWCA Crim 2984, [2007] 1 Cr App R 238 the Court of Appeal controversially held that even foreign convictions may now be admissible as evidence of bad character under the CJA 2003 but, even if that is so, they do not have the backing of the PACE 1984, s. 74(2) and (3), under which a conviction is not just evidence of guilt but raises a presumption of it. A defendant who wishes to argue that his or anyone else's previous conviction was wrong or undeserved must therefore prove it to be so on a balance of probabilities. But of course all this is subject to the question of relevance. Irrelevant evidence is always inadmissible.

F12 Bad Character of Accused

F12.20 Evidence of Bad Character Adduced by Prosecution to Prove Guilt or Untruthfulness

What should a judge do when faced with an application to admit bad character evidence which is disputed, and will if admitted seriously lengthen and complicate the trial, but which the Crown submits is, in the light of the position to be taken by the defence, vital to a fair consideration by the jury of a complainant's allegations?

This question was considered in O'Dowd [2009] EWCA Crim 905, [2009] All ER (D) 103 (May). The court's response was that in many cases the admission of such evidence may do more harm than good and judges should be particularly wary of bad character evidence that is not supported by evidence of a previous conviction.

For more detailed analysis of this case, see the comment and analysis section of the July Bulletin.

F13 Evidence of Accused's Good Character

F13.3 The Need for a Jury Direction

Moustakim [2008] EWCA Crim 3096, [2009] All ER (D) 176 (May) illustrates the importance that the Court of Appeal still attaches to the precise wording of a good character direction. In this case the judge was held to have erred by suggesting that the defendant was 'entitled to say' that she was as worthy of belief as anyone and that she could 'have it argued on her behalf' that she was 'perhaps less likely than a defendant of bad character to have committed this or any other criminal offence'. The direction, said the court, ought to have been worded as coming from the judge himself. Moreover, the judge's version of the first limb of the direction had not said that the defendant's good character 'supported her credibility', and was fatally deficient on that score as well.

With respect, it is unlikely that a jury would even have noticed the subtle differences between what the judge said and what the Court of Appeal insisted he ought to have said. If for example a juror was told that the judge had 'failed to explain that the defendant's good character supported her credibility' he would almost cetainly have replied, 'Oh yes he did, he told us that she was entitled to say she was as worthy of belief as anyone, and that this went to the question of whether or not we were to believe her account'. Is that not effectively the same thing?

A retrial was ordered.

F16 Exceptions to the Rule Against Hearsay

F16.1 Hearsay Exceptions

As to the relationship between the hearsay rule and its exceptions and the rule against narrative, see Athwal [2009] EWCA Crim 789, [2009] All ER (D) 61 (May) which is noted at F6.24, above.

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

The judgment of the European Court of Human Rights in Al-Khawaja and Tahery v UK (Application Nos 26766/05 and 22228/06), which was noted in a previous update, appeared to impose severe restrictions on the use of hearsay evidence by the prosecution. In particular, it suggested that where hearsay is the 'sole or decisive evidence' in the case (or is the sole or decisive evidence in respect of any specific count) its admission will ordinarily prejudice the defendant's right to a fair trial under the ECHR, Article 6, and will in particular infringe Article 6(3)(d), which gives a defendant the right 'to have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him'.

In Horncastle [2009] EWCA Crim 964, a five-judge Court of Appeal has nevertheless concluded that 'the balance struck by the [hearsay] code enacted in the CJA 2003 is a legitimate one and wholly consistent with the ECHR'. The European Court of Human Rights had erred in Al-Khawaja by adopting principles properly applicable to cases in which evidence is given by anonymous witnesses and applying them to cases involving witnesses who may be dead or otherwise unavailable to give original testimony in court.

The Court of Appeal did not consider the right protected by Article 6(3)(d) to be absolute:

The case law [of the ECtHR] . . . demonstrates that the right to confront a witness can in certain limited circumstances be restricted, provided that the trial is fair and the rights of the defence respected. . . A legitimate justification for the admission of the absent witness's statement must be established and appropriate counterbalancing measures must be taken to ensure that the defendant is not placed at an unfair disadvantage and his rights respected. The adequacy of such counterbalancing measures can only be judged by the criterion whether the proceedings as a whole are fair, for once it is accepted that the right under Article 6(3)(d) is not absolute, that is the only criterion against which it can be judged.

The court then provided (at [61]-[62]) convincing examples of scenarios in which hearsay evidence might be both decisive and completely reliable, before moving on to note that hearsay which is not the sole or decisive evidence may nevertheless carry exactly that risk. In other words, 'The importance of the evidence within the case is an entirely separate issue from its reliability'.

The CJA 2003, s. 125, provides a crucial safeguard against the danger of convictions being based on hearsay that once admitted has been shown to be 'unconvincing'. Where a trial judge considers that in light of its importance and unreliability the evidence in question will render any conviction unsafe he must direct an acquittal or order a retrial. The terms of ss. 114(2) and 116(4), supported if necessary by the PACE 1984, s. 78, should meanwhile ensure that manifestly dangerous and unreliable hearsay is not admitted in the first place. If these safeguards are properly applied, then in the Court of Appeal's view no conflict with Article 6(3) should ever arise.

It remains to be seen whether the House of Lords will endorse this rejection of Al-Khawaja, but for the time being at least the Court of Appeal's interpretation of Article 6(3) is the one that the courts must apply in hearsay cases.

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Appendices

Appendix 7: The Consolidated Criminal Practice Direction

Amendment No. 22 to the Consolidated Criminal Practice Direction (Criminal Proceedings: Victim Personal Statements; Pleas of Guilty in the Crown Court; Forms) [2009] All ER (D) 136 (May).

This Practice Direction, given in accordance with s 74 of the Courts Act 2003, has three main parts. Primarily, the amendments set out the different bases upon which a defendant may plead guilty. Secondly, minor changes are made to para III.28 of the Consolidated Criminal Practice Direction regarding the Victim Personal Statement scheme. Thirdly, it contains various forms for use with the CrimPR and when appealing to and from the Court of Appeal (Criminal Division).

Victim Personal Statements: Schedule 1 to the Practice Direction makes minor changes to para III.28 of the Consolidated Criminal Practice Direction, which governs Victim Personal Statements. These changes state that in some circumstances it may be appropriate for families of a victim to make a Victim Personal Statement, for example, when the victim has died as a result of the relevant criminal conduct. This practice is well established and this amendment ensures the Consolidated Criminal Practice Direction reflects the practice of the criminal courts. Changes pursuant to para III.28.2 of the Consolidated Criminal Practice Direction emphasise that it is not normally appropriate for a Victim Personal Statement to be made or updated following the disposal of a case, but that there may be rare occasions, for example, between sentence and appeal, when an update to the Victim Personal Statement may be necessary, such as when the victim was injured and the final prognosis was not available at the date of sentence.

Pleas of Guilty in the Crown Court: The most substantive change introduced by the practice direction is to set out the bases on which a defendant may put forward a plea of guilty, which will be contained in an amended para IV.45 of the Consolidated Criminal Practice Direction. The amendments bring into the Consolidated Criminal Practice Direction references to the practice of advance indications of sentence contained in Goodyear and clarify but do not alter the Newton hearing procedure where a defendant in the Crown Court seeks to plead guilty on a different basis to that advanced by the prosecution. The amendment will also govern cases where the prosecution and defence seek to follow the Attorney General's Guidelines on Plea Discussion in Cases of Serious or Complex Fraud, which came into force on 5 May 2009.

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NEW Legislation

Counter-Terrorism Act 2008 (Commencement No. 3) Order 2009 (SI 2009 No. 1256)

This Order brings into force on 18 June 2009 the following provisions of the Act:

• s. 28 (jurisdiction to try offences committed in the UK)
• ss. 30 to 33 (sentencing), together with sch. 2 (offences where terrorist connection to be considered)
• ss. 34 to 39 (forfeiture) together with sch. 3 (forfeiture: consequential amendments)
• associated repeals in sch. 9, part 3.

Counter-Terrorism Act 2008 (Commencement No. 4) Order 2009 (SI 2009 No. 1493)

This Order brings into force on 1 October 2009 the following provisions of the Act:

• ss. 40 to 61 (notification requirements)
• sch. 4 (notification orders)
• sch. 5 (foreign travel restriction orders)
• sch. 6 (notification requirements: application to service offences).

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