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Blackstone's Criminal Practice 2009

March 2009

March Update 2009

Updates to Blackstone's Criminal Practice 2009 are produced by Michael Hirst, Professor of Criminal Justice, Leicester De Montfort Law School, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

The February update primarily considers developments reported in February 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
• New Legislation

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Part A General Principles of Criminal Law

A3 General Defences

A3.28 Necessity

The Court of Appeal appears to have been willing to recognise the potential availability of a necessity defence in S and L [2009] EWCA Crim 85, where the charge was one of deploying unlicensed guards, contrary to the Private Security Industry Act 2001. The defence in this case wished to argue that it had been necessary for the defendants to deploy unlicensed guards because they were faced by an imminent threat of terrorist attack and had no opportunity to secure the requisite licences in time to meet that threat, but the judge had ruled against this defence at a preparatory hearing. The judge clearly doubted whether this defence could possibly succeed on the facts, and it seems that the defence had not at that stage identified any evidence that would have sufficed to put the defence in issue, but the Court of Appeal's view was that the judge's ruling was premature and that it was dangerous to rule out such a defence at the pre-trial stage:

The judge allowed his own factual conclusions to be the basis for concluding it could not be done before the jury. That seems to us to be dangerous. We are all aware of cases where, at first, cross-examination seems a quixotic task, but in which witnesses reveal more than might have been foreseen. What the judge in effect was saying to the defence is: "You are not allowed to cross-examine on issues on which I have already reached a factual conclusion". That seems to us a very dangerous basis for making a preliminary ruling, shutting out such a defence from being advanced . . .

The difficulty with the ruling the judge gave is that he could not be satisfied on the material before him that that was all the material the defence was going to deploy, and it has now emerged that there is further material that the defendants seek to deploy. Quite what it adds up to, absent any particulars, is difficult to discern, but of one thing we are quite clear: that there is a danger in ruling out a defence for all time without any possibility of knowing that that is all the defence intend to adduce.

A5 Parties to Offences

A5.14 Withdrawal

O'Flaherty [2004] 2 Cr App R 315 and Mitchell [2008] EWCA Crim 2552 (noted in the November update and in Updating Supplement 1) were considered in Campbell [2009] EWCA Crim 50. C and H were part of a group of men who were recorded on CCTV assaulting and kicking V. V got up and staggered across the road, where he was further assaulted by Y, who also attempted to rob him. V died four days later. C, H and Y were all charged with his murder.

Two expert witnesses (the pathologist who carried out V's post-mortem and a consultant neuropathologist, who carried out a microscopic examination of V's brain) each concluded that the cause of death was an accumulation of injuries sustained during the two assaults. C and Y were convicted of murder. H was convicted of manslaughter and the verdicts were upheld on appeal, where Scott Baker LJ said:

30. There was little, if any, difference between the experts as to the cause of death. The judge made it perfectly clear . . . that it was a matter for the jury whether they accepted the opinion evidence of the experts.

31. It was an important plank in the appeals of Campbell and Henry that the deceased's death was not caused by any assault on their part but by the separate and subsequent assault by Yateman on the other side of the road for which they were not responsible. In our judgment the jury was fully entitled from the evidence they had heard to conclude that the actions of Campbell and Henry in the earlier incident were a significant cause of death and that causation was therefore established.

32. There was evidence of causation at the end of the prosecution case and the judge summed up the issue of causation appropriately to the jury.

33. . . . We were referred to Rafferty [2007] EWCA Crim 1846 which was a case where death was caused by new and intervening event in a chain of events. It was submitted by the appellants that on a similar basis the Yateman attempted robbery was such an event. We cannot accept that this case fell into the Rafferty category. The act or acts of Yateman, if they alone caused the death were not of such a fundamentally different nature from what had gone before that they amounted to a new and intervening act in the chain of events.

A7 Human Rights

In A v United Kingdom (App. No. 3455/05) (2009) The Times, 20 February 2009, the European Court of Human Rights ruled (as did the House of Lords in A v Secretary of State [2005] UKHL 71) that the preventative detention originally imposed in the 'Belmarsh case' on terrorist suspects who could not be charged in the UK or deported to their own countries violated their rights under the ECHR, Article 5, although the court accepted that the UK authorities had acted in good faith. The court ruled (at [171]):

It is . . . clear . . . that the applicants were certified and detained because they were suspected of being international terrorists and because it was believed that their presence at liberty in the United Kingdom gave rise to a threat to national security. The Court does not accept the Government's argument that Article 5.1 permits a balance to be struck between the individual's right to liberty and the State's interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court's jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee.

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Part B Offences

B1 Homicide and Related Offences

B1.118 Complicity in Suicide: Procedure

The High Court's ruling in R (Purdy) v DPP [2008] EWHC 2565 (Admin) has been upheld by the Court of Appeal in R (Purdy) v DPP [2009] EWCA Civ 92.

B1.122 Complicity in Suicide: Elements

In R (Purdy) v DPP [2009] EWCA Civ 92 (see B1.118) the claimant's immediate concern was whether her husband would be likely to face prosecution under the Suicide Act 1961 if he were to assist her, in England, to travel to Switzerland, where she would then be helped to commit suicide at a clinic operating in accordance with Swiss Law.

All parties concerned (including the Court of Appeal) appear to have assumed that an offence under the Suicide Act 1961, s. 2, would indeed be committed by the aider in such circumstances but, with respect, this is a doubtful assumption. Statutory offences of procuring or assisting that are intended to have such an ambit invariably include words such as, 'anywhere in the world' or 'in any place outside the United Kingdom'; but s. 2 includes no such words and cannot have been intended to apply to suicides committed abroad.

In contrast, cases such as that in which a Coventry man was allegedly encouraged or goaded into suicide by e-mails sent from Minnesota would appear to fall squarely within the ambit of the s. 2 offence.

See M. Hirst, Suicide in Switzerland: Complicity in England? [2009] Criminal Law Review 335.

B7 Company, Investment and Insolvency Offences

B7.61 Offences Concerning Debt Relief Orders

The new part 7A of the Insolvency Act 1986 was brought into force on 6 April 2009 by the Tribunals, Courts and Enforcement Act 2007 (Commencement No. 7) Order 2009 (SI 2009 No. 382), art. 2.

B19 Offences Related to Drugs

B19.31 Section 4(3)(b): Being Concerned in Supply to Another

Hughes (1985) 81 Cr App R 344 and the Misuse of Drugs Act 1971, s. 4(3)(b) were considered in Baker [2009] EWCA Crim 535, where it was pointed out that s. 4(3)(b) contains neither the word 'enterprise' nor the word 'participate'. The language of that provision is straightforward. If (as in Baker) D knowingly introduces a friend who wants to obtain a controlled drug such as heroin to someone who is willing to supply it, and it is supplied and paid for by the friend on the basis that D will later pay her for his own share, it is open to a jury to conclude that D thereby becomes concerned in the supply of heroin.

The court in Baker warned that the words of a judgment interpreting a statute should not be given the same status as the wording of the statute itself.

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Part C Road Traffic Offences

C7 Sentencing Generally

C7.24 Financial Penalty Deposits

The Road Safety (Financial Penalty Deposits) Order 2009 (SI 2009 No. 491) specifies certain matters for the purposes of part 3A of the Road Traffic Offenders Act 1988, which provides that constables or vehicle examiners may impose a financial penalty deposit requirement on a person in certain circumstances. Articles 3 to 5, with the Schedule to the Order, specify the person, offences and circumstances in which a financial penalty deposit requirement can be imposed. Article 6 specifies the manner of payment. Article 7 sets out the steps to be followed by the Secretary of State where making an appropriate refund in accordance with part 3A.

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Part D Procedure

D9 Disclosure

D9.26 Public Interest Immunity

See R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), which is noted at F9.6.

D14 Trial on Indictment: General Matters

D14.90 Securing the Attendance of Witnesses: Punishment for Failure to Attend

Wang [2005] EWCA 476 and Abbott [2004] EWCA Crim 91 (which Wang follows) were considered in Popat [2008] EWCA Crim 1921. Giving the judgment of the court, Hughes LJ said:

[Counsel for the appellant] submits that the decision in Abbott is superseded by the Criminal Procedure Rules which make provision for the manner of service of a witness summons - that is to be found in rule 4.7(2). We have no doubt that [this] provides for how a summons is to be served. What it does not do is to alter the existing law as set out in Abbott that, in addition to service, bringing the document to the attention of the witness is sufficient to give rise to the obligation to attend so that failure to attend may be contempt of court (as in this case it was). In the present case there was a summons, it was still in force, it was brought to the attention of the witness and he quite deliberately failed to come. That is contempt of court. . . .

We should add that it is the common experience of judges sitting in the Crown Court that where a witness is reluctant and has failed to appear in response to a summons, very often the mere issue of a warrant for arrest is enough to achieve attendance. Knowing that, it is very common for Crown Court judges to give a direction at the time of issuing a warrant for arrest which is designed in the interests of the witness to avoid the witness having to be locked up overnight or perhaps for longer. We do not wish to discourage that humane exercise of the Crown Court's jurisdiction, but we do point out that, as this case demonstrates, a direction not to execute a warrant except at the Crown Court means that if the witness chooses not to come the warrant can never be executed. Accordingly, a different form of humane direction is required. We have no doubt that there are several possibilities. One which is sometimes adopted is to direct that the police officer need not execute the warrant if satisfied that the witness is going to attend voluntarily, or need not execute it if the witness agrees to come with the officer. Another may be in some circumstances to issue a warrant backed for bail. Whilst we do not criticise the judge for not anticipating the difficulty that arose in the present case, we point out that the facts of the case demonstrate that the particular form of direction given in this case is inappropriate as things turn out.

D14.118 Anonymity

Mayers [2008] EWCA Crim 2989 (noted in the January update) was considered in Nazir [2009] EWCA Crim 213.

D25 Appeal to the Court of Appeal

D25.22 Inconsistent Verdicts

Where a jury unaccountably acquits on some counts and convicts on others the Court of Appeal is notoriously reluctant to admit that such verdicts are inconsistent, even where the counts on which the jury acquit depend as much on the credibility and veracity of the complainant as the counts on which they convict; but in W [2009] EWCA Crim 476 the court conceded that the jury's verdicts were indeed logically inconsistent.

W and K were jointly charged with orally raping C. In her evidence C had described how she had been raped in a hotel room first by W while K waited in the bathroom and then by K when W had finished with her. She described how W and K had laughed about it together afterwards. The trial judge told the jury to give separate consideration to the charges against each defendant and the jury responded by convicting W but acquitting K.

On appeal the Crown submitted that these verdicts could not be impugned because they were not obviously inconsistent with the judge's direction to consider each defendant's case separately (see Chohan [2007] EWCA Crim 3175).

The Court of Appeal disagreed. Applying Martin [1999] EWCA Crim 2267 and distinguishing Chohan, the court ruled that the question was whether one could postulate a legitimate chain of reasoning by the jury which would explain the apparent inconsistency between their verdicts. The court simply could not do so. The different verdicts were inexplicable and W's conviction was therefore unsafe.

D31 Extradition

D31.3 A Part 1 Warrant

See Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin) at D31.9.

D31.9 Extradition Offences

The Extradition Act 2003, s. 2(4) requires a European Arrest Warrant (EAW or 'Part 1 Warrant') to contain 'particulars of any other warrant issued in the category 1 territory for the person's arrest in respect of the offence'. An issue has arisen in a number of cases as to whether 'any other warrant' includes for this purpose any other EAW issued against that person, or whether it refers to a domestic warrant within that category 1 territory. In Jaso v Central Criminal Court No. 2 Madrid [2007] EWHC 2983 (Admin) the Divisional Court ruled that s. 2(4)(b), read in conformity with the Framework Decision, Article 8.1(c), requires EAWs to contain evidence of any enforceable judgment, etc., on which they purport to be based, but does not require such warrants to make any reference to other warrants, whether domestic warrants or EAWs which have previously been issued in respect of the requested person.

In Louca v The Office of Public Prosecutor in Bielefil [2008] EWHC 2907 (Admin) the Divisional Court ruled that there was no obligation on the part of the requesting state to include particulars of any previous EAW; and that the requirement in s.2(4)(b) to include particulars of any other warrant was satisfied by including particulars of the domestic decision on which the EAW was based. Louca has now been followed in Office of Public Prosecutor of Hamburg, Germany v Hughes [2009] EWHC 279 (Admin).

In Hughes the court also ruled that it had the power under the Civil Procedure Rules, r. 3.10 to remedy an error in the date of arrest endorsed on the prosecutor's notice of his intention to appeal. In so ruling the court had to distinguish Mucelli v Government of Albania [2009] UKHL 2, in which the House of Lords had only recently insisted on strict compliance with statutory requirements for serving notice of appeal. May P explained:

The short, but decisive, point of distinction between this case and Mucelli is that the 7 day permitted period for giving the appellant's notice is a requirement of the primary legislation (repeated in terms in paragraph 22.6A(3)(a) of the practice direction); but, that apart, the appellant's notice has to be given "in accordance with the rules of court". The requirement for endorsing the notice with the date of arrest is a requirement of the rules of court - see rule 52.1(4) for the rule which directs attention to the practice direction. Once you are into the rules, relevant discretionary general rules are also available, there being nothing in the primary legislation to gainsay this.

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Part E Sentencing

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

E4.6 Detention for Life or Detention for Public Protection

In W [2009] EWCA Crim 390, the applicant was convicted of attempted murder and of possessing a firearm with intent to endanger life. He was aged 14 at the time of the offences, and had been in various kinds of trouble before, but had not been convicted of any offences of violence and in expert reports was not assessed as being dangerous; but the trial judge's view was that the seriousness of the offences required a sentence of detention for public protection with a minimum term of six years.

Having considered various mitigating factors, the Court of Appeal substituted a determinate sentence of 12 years' detention, less time spent in custody on remand. The court acknowledged that offences of this nature committed by one so young are bound to cause deep concern, and that the attempted murder would normally justify the imposition of an indeterminate sentence, but the court felt that the judge had given insufficient consideration to the applicant's youth or to the positive reports. Dobbs J said:

30 . . . As a matter of general principle an offender of this applicant's age is far more susceptible to change than an adult, and thus, if influenced to the good, more likely to reform. The rationale underlying the guidance from the Youth Justice Board, is that an indeterminate sentence, such as Detention for Public Protection, is unnecessary save in cases of very grave risk, since the likelihood of change is inherent in youth. The evidence of change in this case, was all one way - to the good. The applicant has already shown that he is susceptible to change for the better. He has shown a determination to accept the verdict of the jury and the sentence of the court, and also to make the most constructive use of what will be a lengthy time in detention. The very objective that the indeterminate sentence was designed to achieve, namely the reduction of risk and danger, is being achieved.

. . .

35. We conclude that there was insufficient material before the court to justify the rejection of the findings in the two reports in relation to dangerousness. Both reports, set against the background of the seriousness of the offences had emphasised, amongst other things, the importance of the applicant's youth at the time of the offences - his immaturity, his vulnerability to peer pressure at the time, and his inability then to fully understand the impact of his actions. The court has, of course, to be astute to the possibility that those involved in assessing the applicant might lose objectivity and take too favourable a view, given that the applicant is personable. If the favourable evidence in front of the court consisted of only one person taking such a view, then the court would incline to caution. Here, however, there are reports from a number of different sources which attest to the applicant's behaviour. It is difficult for the court to dismiss such findings. There is significant evidence of the applicant's change of attitude and increased maturity, evidence which supports the approach advocated in relation to the sentencing of young offenders.

E7 Custodial Sentences: Detention and Custody of Offenders under 21

See W [2009] EWCA Crim 390, noted above at E4.6.

E19 Confiscation Orders

E19.7 The Process

The current law governing the imposition of confiscation orders continues to require the imposition of orders that all too often operate as a double penalty by confiscating the supposed proceeds of failed crimes from which the offenders concerned never really profited in the first place. Where for example a cigarette smuggler's cartons are seized within minutes of him failing to declare them to HM Revenue and Customs, it is highly artificial (if legally correct) to describe the financial penalty that follows his conviction as a 'confiscation order'. There are in reality no proceeds to be confiscated. The order, if sought, becomes an additional punishment or fine in everything but name and risks creating a serious imbalance between the gravity of the offending and the total penalty imposed. This does not happen when an offender is properly deprived of the actual realised proceeds of his crime.

In Morgan and Byegrave [2008] EWCA Crim 1323, the court conceded that a way out can sometimes be found. This is because 'it may amount to an abuse of process for the Crown to seek a confiscation order which would result in an oppressive order to pay up to double the full restitution which the defendant has made or is willing immediately to make, and which would thus deter him from making it'. The possibility that an application for confiscation may be oppressive was also recognised in Shabir [2008] EWCA Crim 1809. These rulings were considered in Lowe [2009] EWCA Crim 194, where any profit or advantage D might have made from a transaction designed to defraud his company's creditors had been clawed back by the liquidator before the criminal proceedings began. The trial judge and the Court of Appeal nevertheless concluded that a confiscation order in the full amount was required. The court opined that it would be very rare for a situation to arise in which an application for a confiscation order would be considered oppressive:

Indeed, if the principles set out in Morgan and Byegrave are observed by prosecutors, it may never arise. It is not, for example, an abuse of process to seek to recover more than a defendant has profited from his crime nor where he has made restitution outside the very narrow circumstances identified in Morgan and Byegrave. If it were otherwise the case and the jurisdiction exercised more widely, the court would be defeating the clear decision of Parliament, by enacting the legislation in the terms in which it did, not only to impose a draconian policy but also to remove the discretion of the court to avoid those consequences, save in a case where abuse was established.

The court added this postscript, per curiam:

20. In May [2008] UKHL 28, the opinion of the Appellate Committee of the House of Lords delivered by Lord Bingham emphasised . . . that the court should in applying the provisions of the Act to the facts of a case focus very closely on the language of the statute and view any judicial exegesis with caution; that guidance should be found in the statutory language rather than in the proliferating case law.

21. There are two points which were evident in this appeal and which are evident in other appeals to which that observation is important:

i) It is essential that the court hearing the proceedings finds and sets out all the relevant facts in its ruling (or judgment), including the facts that are agreed before it. It is evident that many confiscation hearings are not prepared in advance as they should be. There are many complaints that Defence Statements are inadequate. Timetables set out in the Criminal Procedure Rules or the court's directions frequently slip. Sometimes it is only at the last minute, either immediately before the court sits or even in the course of a hearing, that some matters are agreed and the real issues emerge, considerably burdening the task of the judge hearing the proceedings. If identifying the issues is left to the last minute, then insufficient attention is paid to ensuring that any procedural steps needed for the evidence to be admissible are taken. In an occasional case, where difficult issues arise, it may be the case that counsel with more experience of such issues is needed. Difficulties are from time to time compounded by a lack of a properly paginated bundle. It is, in the experience of many in this court, that, for reasons such as those we have outlined, it is not always clear from the ruling (or judgment) below what the facts were on which the issues which arose were determined. As the task of the court hearing the confiscation proceedings is to apply the statutory provisions to the facts (as agreed or found), it is essential that the ruling (or judgment) sets out all the relevant facts, as agreed and as found.

ii) Too many authorities are cited to courts. Advocates should bear the observations in May clearly in mind before any authority is cited to the judge hearing the proceedings or in this court. We were provided with a large bundle of authorities which were unnecessary.

E19.28 Confiscation Orders and Sentence

In CPS v Gilleeney [2009] EWCA Crim 193 the court ruled that:

[The Proceeds of Crime Act 2002] s. 14(1)(a) plainly contemplates that proceedings under section 6 may commence before sentences are imposed. . . . There is no requirement to complete the proceedings under section 6 within a particular period, or before sentence, or that a direction under section 14(1)(a) requires directions beyond that to provide statements of information.

It is however important for courts or judges to make clear whether they are proceeding under section 6 before sentencing the defendant for the offence (or any of the offences) concerned (under s. 14(1)(a)), or postponing proceedings under section 6 for a specified period (under s. 14(1)(b)).

E19.32 Enforcement

In Smith [2009] EWCA Crim 344, in which the appellant had pleaded guilty to conspiracy to supply cocaine, the court made this obiter observation as to the enforcement of confiscation orders:

An application was made to the District Judge in the Magistrates Courts to enforce the confiscation order. It appears that some evidence was put before the judge that the defendant was trying to realise assets or obtain the money. That comprised merely, as we understand it, some assurance from his lawyers. It is self-evident and important to note that no leeway whatsoever should be given to anyone subject to a confiscation order unless there is hard evidence in the form of money deposited or properties secured that show that the sums are being realised. A simple assurance from a lawyer is totally worthless and should not be acted on in the absence of hard evidence of the kind we have described. We say that because it appears, although the information before us is not complete, that the District Judge may have extended the time for payment until 20th March. If the account we have given is correct the judge wrongly exercised his discretion to do so and no leeway should have been shown whatsoever to this appellant.

E19.33 Reconsideration

Gokal v Serious Fraud Office [2001] EWCA Civ 368 and Re McKinsley [2006] 1 WLR 3420 were applied in Younis [2008] EWCA Crim 2950, where the court stated that, although the procedure for applying to vary a confiscation order was now governed by the Proceeds of Crime Act 2002, s. 23, the substance of the jurisdiction (previously contained in the Drug Trafficking Act 1994, s. 17 and the Criminal Justice Act 1988, s. 83, has not been changed. It could not have been the intention of Parliament in s. 23 of the 2002 Act that a defendant should be entitled to re-litigate matters which had been determined against him in the original confiscation proceedings.

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Part F Evidence

F6 Examination-in-chief

F6.20 Recent Complaints

The evidential status of complaints made years after the alleged offence was considered in Gillooley [2009] All ER (D) 284 (Feb), where the complaint was one of indecent assault on a male child (B) who did not report it for several years, first mentioning it to a girlfriend and then some years later to his mother.

The judge admitted this evidence not under the CJA 2003, s. 120, but under s. 114(1)(d) of that Act. Defence counsel had not objected to this, as it formed part of the background facts as to B's delay in making the complaint (cf. Breeze [2009] EWCA Crim 255). In his summing-up, however, the judge directed the jury that B's complaint to his mother was not independent evidence in support of B's case, 'but it is evidence you are entitled to consider because it will help you to decide whether he has told the truth'. That direction was based on the Judicial Studies Board's specimen direction on recent complaints admitted under s. 120.

The Court of Appeal's view was that the direction was nevertheless appropriate in the circumstances.

F9 Public Policy and Privilege

F9.6 Exclusion on Grounds of Public Policy: National Security, Dipomatic Relations and International Comity

In R (Binyam Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), the High Court was required to consider whether it should order the publication or release of its own earlier summary (or redaction) of 42 secret US intelligence documents which apparently provide evidence that the claimant was indeed subjected to 'cruel, inhuman or degrading treatment or torture' while in custody in Pakistan. There was no question of the original documents being published, and in the court's view no damage would thereby be caused to legitimate intelligence or anti-terrorist operations. The court also observed that:

The suppression of reports of wrongdoing by officials (in circumstances which cannot in any way affect national security) would be inimical to the rule of law and the proper functioning of a democracy. Championing the rule of law, not subordinating it, is the cornerstone of a democracy. . . .

It is our clear view that the requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice.

The court nevertheless stopped short of releasing or publishing this redaction, because of concerns that such action might lead the US intelligence agencies (despite the replacement of the Bush Administration by the Obama one) to withhold vital information from British colleagues in the future. As a result, it will fall to the new US government to decide whether to allow this material to be put into the public domain.

F12 Evidence of Bad Character of Accused

F12.3 Convictions

Ainscough (2006) 170 JP 517 was considered in W [2009] All ER (D) 75 (Feb) (see below, F12.22).

F12.22 Propensity as an Issue

Hanson [2005] 1 WLR 3169 was considered in W [2009] All ER (D) 75 (Feb), in which the court rejected an argument that evidence of a single sexual assault on a boy 11 years before was incapable of providing evidence of a propensity to commit offences of that kind unless it involved some highly unusual form of sexual activity. The appellant's behaviour on that occasion had involved touching the penis of a 13-year-old boy, and the instant case involved a similar complaint by a boy of the same age, to which the defence was one of accidental contact. The court held that the evidence of the former complainant (who testified at the later trial) was evidence which the jury could reasonably have considered to be evidence of propensity and could assist them in deciding whether the touching complained of had or had not been accidental.

F12.23 Propensity to Untruthfulness

Cambell [2007] 1 WLR 2798 was considered in Foster [2009] EWCA Crim 353, where the trial judge in a robbery case was criticised for directing the jury as if D's previous convictions for robbery and attempted robbery were primarily relevant to his credibility, when they had been admitted under the Criminal Justice Act 2003, s. 101(1)(d) as relevant to criminal disposition. The Court of Appeal did not think that this impacted significantly on the safety of the jury's verdict. Richards LJ said:

17. It is true that in the present case the judge does not appear to have taken sufficiently on board the guidance in Campbell, although we are told that a copy of that judgment was provided to him. It was unhelpful to tell the jury that they could take the previous convictions into account in deciding the appellant's truthfulness. The judge did not give the jury the help to which they were entitled in relation to focusing on the possible relevance of the previous convictions, namely to the question whether the appellant had a tendency to commit offences of the kind with which he was charged on this occasion. We accept the submission that the direction was unsatisfactory.

18. Nevertheless, we do not think that in this case the jury can have been seriously misled by the direction given by the judge. That direction emphasised that the jury must not convict the appellant on his record and that they must consider all the evidence in the case. It also emphasised the age of the previous convictions. The bearing that those convictions might have on the question of the appellant's guilt was a matter of common sense. There is no reason to believe that the jury may have placed impermissible reliance on them. . . .

F17 Admissions and Confessions

F17.19 Confession Tendered by Co-Accused

In Nazir [2009] EWCA Crim 213, the appellant and M were jointly charged with the murder of the appellant's sister, S. It was an 'honour killing' within a Pakistani family of a girl who sought a marriage of which the family disapproved. M admitted his involvement in the murder (although he claimed that he had not intended to kill her) and also said that nobody else was involved. The jury heard the terms of his confession but were directed (with the agreement of defence counsel) that:

Anything said by one defendant about another defendant in the course of a police interview when that other defendant is not present either to confirm or deny what he said cannot be evidence in the case of the other absent defendant and the reason for it is that because that second person is not there to either confirm or deny or challenge what he said.

That might have been an appropriate direction had M's confession been one that threatened to implicate the appellant, but since it tended to exonerate him it was admissible for that purpose by virtue of the PACE 1984, s. 76A .

The Court of Appeal in Nazir rejected the argument that only those parts of M's interviews that were incriminatory of M could properly have been taken into account by the jury, and those of his statements that were exculpatory of the appellant would have had to be excluded from their consideration. Stanley Burton LJ said:

We . . . can conceive of cases in which a statement made by a co-defendant to the police cannot sensibly be regarded as a confession. But statements made in an interview that are partly inculpatory of the interviewee and also in part exculpatory of another person are nonetheless confessions within the statutory definition. . . . In essence, [M] in his interviews said that he alone stabbed [S]. One cannot sensibly separate the admission that he stabbed her from the admission (for that is what it is) that he acted alone. By saying that he acted alone, he accepted sole responsibility for the murder. That was as much a confession as the statement that he stabbed her.

24. Moreover, for reasons that we give below, it was necessary for the jury to be able to have regard to the whole of the interviews in order for them to assess what if any weight should be given to those parts that were exculpatory of the appellant.

25. We conclude, therefore, that if the appellant had relied on s. 76A, the entirety of [M's] interviews would have been available to the jury. . . .

The court nevertheless concluded that the misdirection could not have affected the jury's verdict in the case against the appellant, whose conviction was upheld.

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NEW legislation

Tribunals, Courts and Enforcement Act 2007 (Commencement No. 7) Order 2009 (SI 2009 No. 382)

This Order brought into force the new part 7A of the Insolvency Act 1986 on 6 April 2009.

Criminal Defence Service (Information Requests) Regulations 2009 (SI 2009 No. 391)

These Regulations specify the nature of allowable information requests under sch. 3 to the Access to Justice Act 1999 (i.e. requests to the Commissioners for HM Revenue and Customs and the Secretary of State about an individual who has applied for representation as to his financial eligibility). Such requests may include requests for information about the individual's income, capital gains and specified benefits, whether the individual is a partner in a business or a director of a company and whether the individual is living with someone as a couple. The Regulations also provide that an information request to the Secretary of State (in practice, the Secretary of State for Work and Pensions) may ask about the individual's benefit status for the previous two years and whether the individual is living with someone as a couple.

Fixed Penalty (Amendment) Order 2009 (SI 2009 No. 488)

This Order amends the principal Order of 2000 (SI 2000 No. 2792), which applies principally to drivers of goods and passenger vehicles. New fixed penalty offences are created and the criteria for assessing the amount of the penalty which applies are altered.

Road Safety (Financial Penalty Deposits) Order 2009 (SI 2009 No. 491)

This Order specifies certain matters for the purposes of part 3A of the Road Traffic Offenders Act 1988, which provides that constables or vehicle examiners may impose a financial penalty deposit requirement on a person in certain circumstances. Articles 3 to 5, with the Schedule to the Order, specify the person, offences and circumstances in which a financial penalty deposit requirement can be imposed. Article 6 specifies the manner of payment. Article 7 sets out the steps to be followed by the Secretary of State where making an appropriate refund in accordance with part 3A of the Act.

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