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Blackstone's Criminal Practice 2009

November 2008

November Update 2008

Updates to Blackstone's Criminal Practice 2009 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice. This month's update includes several contributions from other Criminal Practice authors.

The November update primarily considers developments reported in October 2008.

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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

A5 Parties to Offences

A5.14 Withdrawal

O'Flaherty [2004] 2 Cr App R 315 was applied in Mitchell [2008] EWCA Crim 2552 in upholding a conviction for murder. The Court of Appeal took the view that there was ample evidence on which to find that the appellant had played the leading role in starting the serious violence and by her continued presence had clearly not withdrawn from it. Although there was a short lull in the violence whilst some of those involved went for weapons, whether there was one enterprise or two was not the central issue and was in any event addressed by considering the scope of the enterprise she had joined and deciding whether that enterprise had come to an end by the time of the fatal acts.

The Court also made some pointed observations about the complexity of the current law on joint venture and the lengths to which it requires trial judges to go in summing up. Thomas LJ said:

The Law Commission has in its reports on Homicide (2006) and Participating in Crime (2007) set out proposals for reform of the law; this is currently being considered by Ministers. Pending any change which it is to be hoped would set out clear and simple principles easy for a jury to apply, we venture to suggest that consideration should be given to giving directions in much simpler form and that the higher courts should approve a simpler approach. The concept of joint enterprise is in the ultimate analysis based on a concept that should in most cases be susceptible to explanation to a jury in short order without a judge being justifiably concerned that, unless the law is explained in detail the higher courts will overturn the verdict.

A7 Human Rights

A7.71 The Burden of Proof and the Presumption of Innocence

In Grayson v UK (2008) The Times, 2 October 2008, the European Court of Human Rights rejected the contention of each applicant that, in confiscation proceedings brought under the Drug Trafficking Act 1994, the fact that the legal burden of proof was on the defendant to show that he/she did not have 'realisable assets' equivalent to the 'benefit figure', was in breach of Article 6 of the ECHR and Article 1 of Protocol No. 1. See further E19.3.

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Part B Offences

B1 Homicide and Related Offences

B1.118 Complicity in Suicide: Procedure

In R (Purdy) v DPP [2008] EWHC 2565 (Admin), [2008] All ER (D) 284 (Oct), the Divisional Court has decided that there is no duty on the DPP 'to promulgate a specific policy as to the circumstances in which a prosecution will be brought for aiding and abetting, counselling or procuring a suicide contrary to s. 2(1) of the [Suicide Act 1961], in particular where the assisted suicide takes place in a country where the practice is lawful'. The existence of the offence under s. 2(1) does not, as the House of Lords has already indicated in R (Pretty) v DPP [2002] 1 AC 800, interfere with rights under Article 8 of the ECHR. Even if the judgment of the European Court of Human Rights in Pretty v UK (2002) 35 EHRR 1 can be taken as indicating, contrary to the views expressed in the House of Lords, that there is such interference, any such interference is 'in accordance with the law' notwithstanding the nature of the discretion as to prosecution conferred on the DPP and the interference would be justified under Article 8(2).

B1.122 Complicity in suicide: Elements

In R (Purdy) v DPP [2008] EWHC 2565 (Admin), [2008] All ER (D) 284 (Oct) (see B1.118) the claimant's immediate concern was whether her husband would be likely to face prosecution under the Suicide Act 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 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.

B1.133 Corporate Manslaughter: Related Offences

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brought part 2 of the Serious Crime Act 2007 into force from 1 October 2008, including s. 62 of that Act which ensures that the principle of no individual liability for corporate manslaughter also applies to assisting or encouraging such an offence.

B2 Non-fatal Offences against the Person

B2.65 Administering Poison etc so as to Endanger Life: Sentence

A sentence of four and a half years' imprisonment was upheld in the case of an offender who administered methadone to a three-year-old child in order to secure further drugs for himself. The offender proposed to submit the child's urine sample in order to show that he was reliant only on methadone and therefore eligible for further supplies of methadone. The dose proved near fatal, the case being described as 'serious', not least because the offender was not candid with the medical authorities (MK [2008] 2 Cr App R (S) 437).

B2.119 Child Cruelty or Neglect: Sentencing Guidelines

In P [2008] 1 Cr App R (S) 466, the Court of Appeal quashed a custodial sentence of seven months, commenting that it was a case for mercy not punishment (low grade neglect, poor parenting and the offender having substantial personal problems of his own).

B2.123 Child Cruelty: Mens Rea

Sheppard [1981] AC 394 and W (Emma) [2006] EWCA Crim 2723 were considered in D [2008] EWCA Crim 2360, [2008] All ER (D) 207 (Oct), in which it was confirmed that the adverb 'wilfully' must indeed bear the same meaning wherever it is used in the CYPA 1933, s. 1. The court in D could 'see no good reason for supposing that Parliament intended its meaning to vary according to which verb it governs'.

B2.134 Offences of Harassment

In DPP v Hardy [2008] All ER (D) 315 (Oct) it was held that a series of 95 phone calls made over a 90-minute period to an agency on behalf of an unsuccessful job applicant may have begun as a legitimate enquiry as to the reasons for rejection but had clearly escalated into conduct that was at least capable of constituting harassment, especially since it included threats to continue that behaviour all night.

B3 Sexual Offences

B3.21 Rape: Consent

The Court of Appeal considered the extent of permissible judicial comment as to why a complainant might not make an immediate complaint in Doody [2008] EWCA Crim 2394. The appellant had been convicted of six rapes of his partner. In respect of the most serious allegation, the victim had not reported it to police officers who attended her home on the same evening that it had taken place. When summing-up, the trial judge gave a lengthy description of a number of reasons why an immediate complaint might not be made. The Court of Appeal observed that a judge is entitled to make comments as to the way evidence is to be approached. That is particularly so in an area where there is a danger that a jury might come to an unjustified conclusion without an appropriate warning. Such comment is to ensure fairness to the complainant. But such comment must be uncontroversial. The fact that the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint is sufficiently well known to justify a comment to that effect. The Court said that an example in general terms of an appropriate direction in such circumstances is that suggested by HHJ Rook QC in a letter to the Judicial Studies Board Serious Sexual Offences Seminar as follows:

Experience shows that people react differently to the trauma of a serious sexual assault. There is no one classic response. The defence say that the reason the complainant did not report this until her boyfriend returned from Dubai ten days after the incident is because she has made up a false story. That is a matter for you. You may think that some people may complain immediately to the first person they see whilst others may feel shame and shock and not complain for some time. A late complaint does not necessarily mean it is a false complaint. That is a matter for you.

That general direction should be tailored to the facts of the particular case. In addition, the judge could also have legitimately remarked upon the particular feelings of shame and embarrassment which may be suffered when the allegation is against a partner. But the trial judge had gone too far. The passage from his summing-up cited in the judgment was said by the Court of Appeal (at [12]) to read 'like the prosecution closing speech'. Nevertheless, in all the circumstances of the case, the verdicts were held to be safe.

B3.33 Sexual Assault: Sentencing

In Larcombe [2008] EWCA Crim 2310, the Court of Appeal gave some helpful reminders and explanation as to the way in which the SGC Guideline is to be used when dealing with sexual offences.The offender was a 46-year-old man who had been convicted of two offences of sexual assault contrary to the SOA 2003, s. 3. The assaults had happened within five months of each other and each had been perpetrated on a train, involving touching the inside of the clothed thigh of the first victim, a 15-year-old boy,and stroking the penis area of his second victim, a 16-year-old boy. The sentencing judge viewed the offender as a predatory paedophile, and observed that his victims had been targeted and traumatised, but on the available information could not find that he was dangerous under the provisions of the CJA 2003. He was sentenced to concurrent terms of two and a half years imprisonment in relation to each offence. When passing sentence, the judge remarked that the sentencing guidelines for the offence of sexual assault were of limited value as they were only concerned with the mechanics of the touching and not the wider aggravating factors he had identified. For the first offence (where there is no genital contact and the offender is aged 13 or over), the starting point is a community order and the range is an appropriate non-custodial offence. For the second offence (involving contact with the genitalia of a child aged 13 or over), the starting point is 12 months custody and the range is 26 weeks to two years.

The Court of Appeal observed that, if that was all the assistance the guideline provided, then they would have agreed with the sentencing judge. But the sentencing tables are not to be considered in isolation and sentencers will be misled if they do not take into account the principles and explanation which apply to them. In giving the judgment of the Court, Pitchford J said (at [11]-[14]):

11 The guideline provides much relevant guidance on the application of the tables. Sexual offences in particular demand flexibility. The starting points and ranges are not rigid. Movement within and between ranges will depend on the circumstances of individual cases, particularly aggravating and mitigating features (page 5, paragraph 1.3). All sexual offences where the activity is non-consensual, coercive or exploitative result in harm (page 6, paragraph 1.10 and 1.11).

12 The difficulty of assessing seriousness where there is an imbalance between culpability and harm does not arise in relation to sexual offences (page 7, paragraph 1.13). The guideline recognises the range of options open to sentencers, including the imposition of custodial sentences where the risk of re-offending is high (page 10, paragraph 1.21). The offence guidelines relate to sentencing on conviction for a first time offender after a plea of not guilty. The list of aggravating factors is not exhaustive, but a factor which is an ingredient of the offence cannot also be an aggravating factor. The presence of aggravating factors will influence the type and length of sentence significantly (page 15, Summary of General Principles).

13 The expected approach is for the court to identify the description which most nearly matches the particular facts of the offence. This will identify a starting point from which the sentencer can depart to reflect aggravating or mitigating factors affecting the seriousness of the offence. The particular circumstances may make it appropriate that the provisional sentence falls outside the range, including previous convictions. Then the court will take account of personal mitigation, together with any plea of guilty (page 18, Sentence Ranges and Starting Points).

14 In non-consensual offences, the younger the child and the greater the age gap between the offender and the victim the higher the sentence will be (page 19, paragraph 2.8). The notes explanatory to sexual assault offences at page 32 make clear that the nature of the sexual activity will be the primary factor in assessing seriousness and should be used as the starting point, but the presence of aggravating factors can make an offence significantly more serious than the nature of the activity alone might suggest. We note that one of the generic factors listed at page 10 indicating a more than usual serious degree of harm is the existence of multiple victims.

The Court therefore concluded that the judge was perfectly entitled to find that the appropriate starting point was significantly beyond the 12-month starting point stipulated for the second offence. However, he had insufficiently reflected the fact that the assaults were on the clothed bodies of the boys. Sentences of two years concurrent on each count were therefore substituted.

B3.49 Rape of a Child under 13: Sentencing

In A-G's Ref (No. 29 of 2008) [2008] EWCA Crim 2026, for offences of attempted rape of a child under 13, assaulting a child under the age of 13 by penetration and meeting a child following sexual grooming, the court substituted a sentence of two years' imprisonment for a community sentence imposed by the sentencing judge. The offender was an immature loner of 19 years of age with low average intelligence who commenced over the internet an ostensibly consensual relationship with an 11-year-old girl. Sexual activity between them occurred twice. In giving the judgment of the court, Sir Igor Judge P, said:

35. The basic problem in this case is that the law exists, not only to protect children from the baleful, damaging influence of adults with an unacceptable sexual interest in children, but also because the law acknowledges the reality that some children, even children as young as 11 years of age need protection from themselves. When the child is only 11 years old, even when there is powerful mitigation - and there is powerful mitigation here - arising from the child's willing involvement without any influence from the offender in a sexual relationship, a non-custodial sentence simply does not vindicate the essential principle that children may indeed need protection from themselves.

36. In our judgement, the circumstances in which a non-custodial sentence can possibly be appropriate when the man in question is an adult, even if a young immature adult, who starts or continues serious sexual activity with a child he knows to be 11 years old, so that there is no excuse whatever in ignorance, must be vanishingly rare. The protection of children for themselves is the pre-eminent consideration in the sentencing decision. Although the length of any sentence must reflect all the realities of the individual case, not simply the label attached to the offence, the length of the sentence must reflect the mitigation, but that a custodial sentence must be passed, save in those vanishingly rare cases, seems to us to be inevitable.

B3.70 Rape and Offences Against Children Under 13: Sentencing

In Cartlidge (22 October 2008 unreported, CA) the complainant was just three months short of her 16th birthday at the time of the offences of sexual activity with a child contrary to the SOA 2003, s. 9. The offender, who was a medical student of good character aged 24, had first made contact with the victim via the internet. When they later met up, he took her back to his home. Against her wishes, he repeatedly tried to carry her over to his bed and touched her private parts. She was taken home at her request. (This was the subject matter of count 1). The victim met C again a few weeks later. He gave her vodka to drink and whilst she was affected by the alcohol, he had sex with her (count 2). When his computer was examined, a large amount of pornographic material was found upon it. He subsequently pleaded guilty to two counts alleging sexual activity with a child and a further 22 counts (counts 3 to 24) alleging the making and possessing of photographs or pseudo photographs of a child. He was sentenced to a total of four years' imprisonment. That sentence was comprised of concurrent sentences of six months and three years for Counts 1 and 2 respectively, and a further total of 12 months of consecutive but concurrent sentences of imprisonment for the counts concerned with indecent photographs.

The Court did not interfere with the sentences imposed in respect of the pornographic material. In respect of the offences contrary to s.9, the Court remarked that the sentencing judge had identified the appropriate range of sentencing under the Sentencing Guidelines Council Guidelines (a starting point of four years with a sentencing range of three to seven years). The judge had also rightly recognised that whilst there would ordinarily be a significant reduction in the sentence when the complainant was close to her 16th birthday, a large part of that reduction could be cancelled out when the victim, as in this case, had been exploited. Nevertheless, having regard to the totality principle the Court took the view that the sentence of three years in respect of count 2 was too high and reduced it to one of 18 months' imprisonment. All other sentences were left undisturbed such that the total sentence was one of two years and six months.

In Kloss (November 2008 unreported, CA) the victim, H, was 15 years and 8 months when the offences were committed. The appellant had been sentenced to a total of six and a half years' imprisonment following guilty pleas to offences of sexual activity with a child, meeting a child following sexual grooming and offences related to the making and possession of indecent photographs of a child. He was 32 at the time of the offences, was effectively of good character and admitted his conduct when first spoken to by the police. The offender had initially made contact with the victim over the internet. About a week later, H had exposed her breasts to the offender over a webcam. They met up after about six weeks of contact over the internet and the offender took H to his home. There they had full, unprotected vaginal intercourse. They met again some two weeks later, again had unprotected sex and engaged in a number of other sex acts. The offender filmed the sexual activity and the images were found on his computer. There were also images of other girls aged 14 and 15 on the computer. His offending behaviour in relation to those girls was taken into consideration. The Court of Appeal viewed the offending behaviour as substantially more serious than that in Cartlidge. But whilst they had little doubt that the sentencing judge had in mind the SGC Guidelines when passing sentence, he did not refer to them and therefore did not identify the relevant guideline nor say why he was exceeding the range contained within it. The Court observed that he should have done so and his reasons for departing from the guideline could then have been considered. The Court concluded that the total sentence of six and a half years was manifestly excessive and substituted sentences totalling four and a half years imprisonment.

B3.75 Child Sex Offences: Sentencing

The application of the SGC Guideline when sentencing for an offence contrary to the SOA 2003, s. 10 was considered in Price [2008] EWCA Crim 1974. The offender, who was aged 37 and of previous good character, was sentenced to 16 months' imprisonment for an offence of inciting a child to engage in sexual activity. He ran a small bus company and drove children to and from school. The victim was one of the regular passengers on the bus and was aged 14 at the time of the offence. She and the offendert began to exchange text messages which became progressively more sexually explicit. Ultimately, three photographs of the victim depicting her penetrating her own vagina with her finger were sent from the victim's mobile phone to the offender's. On two occasions he sent her similar images of his erect penis. The basis of the conviction appears to have been that by sending the kind of text messages he had sent, the offender had caused and incited the victim to insert her finger into her vagina for the purposes of a photograph. The sentencing judge observed that the SGC guideline stipulated that, for penile penetration of the vagina, anus or mouth, or penetration of the vagina or anus with another body part or object, the starting point was four years' custody, with a range of three to seven years, but took the view that the guidelines were not directly applicable because they envisaged a second party indulging in the sexual act. The Court of Appeal agreed that the range of three to seven years relate to conduct substantially more serious than that involving the offender. The sentence of 16 months' imprisonment was quashed and a sentence of nine months imprisonment was substituted.

B3.296 Keeping a Brothel and Related Offences: Sentencing

For a further example of the application of the SGC Guideline in respect of keeping a brothel see Peiwen Shi & Li Yang [2008] EWCA Crim 1930.

B4 Theft, Handling and Related Offences

B4.50 Robbery and Assault with Intent to Rob: Sentencing

In Hamilton [2008] 2 Cr App R (S) 488, the Court of Appeal held that little assistance could be derived from the SGC guideline in the case of offenders who targeted multiple victims (approaching vulnerable females in motor vehicles, using or threatening violence to obtain cash card numbers and remaining with victims whilst accomplice went to cash machine to steal money).

B5 Fraud Blackmail and Deception

B5.41 Blackmail: Sentencing Guidelines

In A-G's Ref (No. 67 of 2007) (W) [2008] 1 Cr App R (S) 549, the Court of Appeal substituted a sentence of four years' imprisonment in place of a 12-month suspended sentence in the case of a man of 45 years, of impeccable good character, who blackmailed his elderly uncle under threat of revealing that he had previously sexually abused the offender. The victim committed suicide as a result of the threat.

B6 Falsification, Forgery and Counterfeiting

B6.94 Scope of Offences under the Trade Marks Act 1994, s. 92

Johnstone [2003] 1 WLR 1736 and the civil case of Arsenal Football Club plc v Reed [2003] 3 All ER 865 were considered in Boulter [2008] EWCA Crim 2375, where the appellant argued that the pirated DVDs, CDs and counterfeit goods found in his possession were of such poor quality that no one could think that their trade origins were those of the trade mark owners. Accordingly, it was argued, the use of false trade marks was unlikely to jeopardise the guarantee of origin which constituted the essential function of the rights owned by the trade mark owners.

The argument was (not surprisingly) rejected. As the court explained:

In the present case, it is not and could not seriously be suggested that the use of the EMI logo or other logos was anything other than a replication of those badges as signs of origin registered by the proprietors. It had no other rational purpose. Whether the reproductions were poor and whether they were actually likely to deceive is in our judgment neither here nor there.

B7 Company, Investment and Insolvency Offences

B7.7 Financial Assistance Provided by Companies in Connection with the Acquisition of their Own Shares

The Institute of Chartered Accountants in England and Wales has published updated 'Guidance on Materiality in Financial Reporting by UK Entities' (Technical Release 03/08).

B7.39 Insolvency and Liquidiation Offences: Re-use of Company Names

Ricketts v Ad Valorem Factors Ltd [2003] EWCA Civ 1706 was applied in First Independent Factors and Finance Ltd v Mountford [2008] EWHC 835 (Ch).

B10 Terrorism Piracy and Hijacking

B10.38 Money Laundering: Defence

In A and others v HM Treasury [2008] EWCA Civ 218, the court (Sedley LJ in part dissenting) overturned the decision in A and others [2007] EWHC 869 (Admin) to the extent that it ruled that the Terrorism (United Nations Measures) Order 2006 was lawful subject to the severance of one part of its terms. Article 4(2) of the Order provides for a person to be designated under the order if:

... the Treasury have reasonable grounds for suspecting that the person is or may be

(a) person who commits ... acts of terrorism;

(b) a person identified in the Council decision;

(c) a person owned or controlled, directly or indirectly, by a designated person; or

(d) a person acting on behalf of or at the direction of a designated person.

The court held that the words 'or may be' should be severed from the terms of art. 4.

The Al-Qa'ida and Taliban (United Nations Measures) Order 2006 was also found to be lawful but the Court held that a merits based judicial review should be available for any person subject to the order.

B10.202 and B10.206 Other Aviation Security Offences

The SCA 2007, s. 63(1) and sch. 6, para. 18 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the Aviation and Maritime Security Act 1990, s. 11(3)(b) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

B10.225 Counter-terrorist Powers under the Terrorism Act 2000

In R (I) v City of Westminster Magistrates' Court [2008] EWHC 2146 (Admin), an application was made for permission to judicially review the continued detention of a suspect arrested and detained under the TA 2000, s. 41 and sch. 8. The basis of the submission was that a District Judge considering further detention should have the power to grant bail with conditions and the absence of such a power renders the scheme under s. 41 and sch. 8 incompatible with Article 5 of the ECHR. The Divisional Court ruled that the claim was unarguable and refused permission for any form of judicial review.

B14 Offences Against the Administration of Justice

B14.29 Perverting the Course of Justice: Sentencing Guidelines

Three recent cases have examined sentencing issues in connection with this offence.

In Cameron [2008] EWCA Crim 2493 the court quashed a 12-month custodial sentence imposed on a 20-year-old student of previous good character for attempting to influence (but not intimidate) a juror by asking a friend to send the juror a text message proclaiming the defendant's innocence. She had been naive and had not initially realised the seriousness of her actions. After hearing the trial judge warn the jury against such approaches she had vainly attempted to prevent the text being sent and it had not in the end disrupted the trial. She was remorseful and had pleaded guilty at the first opportunity.

The court observed that a custodial sentence was inevitable, but given the exceptional circumstances it could have been shorter. A sentence of four months' detention was substituted, with the warning that it was 'not to be regarded as providing any sort of sentencing guideline'.

In contrast, the court in McKenning [2008] EWCA Crim 2301 fully endorsed the sentence of two years' imprisonment imposed on a woman aged 22 who had accused an innocent man of rape. Her victim had been arrested and detained for over 27 hours. He had been on bail for a further three months and had been assaulted by her boyfriend. The court noted the impact on him and added:

This allegation involves more than the individual victim. Every false allegation of rape increases the plight of those women who have been victims of this dreadful crime. It makes the offence harder to prove and, rightly concerned to avoid the conviction of an innocent man, a jury may find itself unable to be sufficiently sure to return a guilty verdict.

Similar observations had previously been made in C [2008] Crim LR 394, [2007] EWCA Crim 2551.

In Sheehan-Dinler [2008] EWCA Crim 1341 (an application under the CJA 1988, s. 36) the court quashed a suspended sentence imposed on a disqualified motor-cyclist who had repeatedly breached his disqualification whilst 'taking every step he could to ensure that he was not identified'. This included disguising his own appearance and constructing false identities to disguise his ownership of six different motorcycles. The court observed that:

Where a person is convicted of perverting the course of justice it will be only the most exceptional of cases that does not result in an immediate sentence of imprisonment. In the present case, bearing in mind all the matters underlying the offences, and taking into account the pleas of guilty, we consider that the offender could not have expected less than 18 months' immediate imprisonment, subject to personal mitigation.

After allowing for personal mitigation, a sentence of six months' immediate imprisonment was substituted, in addition to 12 months' disqualification from driving.

B14.52 Assisting Offenders: Sentencing Guidelines

Where an offender is convicted after a defence conducted on the basis that he cannot be convicted until the jury is satisfied of the co-accused's guilt (see B14.54 in the main work) but that all other elements of the offence are admitted, the offender should not be sentenced in the same way as if he had pleaded guilty at the earliest opportunity, but should nonetheless receive a 'significant discount' (Khatab [2008] 2 Cr App R (S) 530).

B14.75 Contempt: Jurisdiction and Procedure

In M (M) [2008] EWCA Crim 1901 the court held that the Crown Court has jurisdiction to deal with contempt in the form of a breach of a restraint order imposed under the Proceeds of Crime Act 2002. Such cases fall within the Supreme Court Act 1981, s. 45(4) and are comparable to the jurisdiction exercised by judges of the High Court in civil cases when faced with breaches of freezing orders (formerly known as Mareva injunctions). The court rejected arguments that that references to 'contempt' in s. 45(4) could only mean criminal contempt or that there was any particular significance in the fact that the Criminal Procedure Rules contain no specific rules to cover such cases. Prior to the introduction of those rules, there were many aspects of Crown Court work which were not dealt with under the old Crown Court Rules.

B14.76 Contempt: Circumstances in which Summary Procedure is Justified

The court in M (M) [2008] EWCA Crim 1901 (see also B14.75) also rejected the argument that cases involving breaches of restraint orders are unsuitable for determination by the summary procedure in the Crown Court. After considering and distinguishing Balogh v St Albans Crown Court [1975] QB 73 (where the judge had effectively been the prosecutor) and DPP v Channel 4 Television Co [1993] 2 All ER 517 at p. 520E (where there had arguably been an issue as to civil liberties of general importance) the court noted that the proceedings in this case had been instituted by the CPS and concluded:

We can see no reason why the contempt proceedings should not be tried by a single judge in the court whose restraint order the defendant is said to have breached, just as would occur in the case of a freezing injunction.

B14.89 Contempt: Committed by Witnesses, Jurors or Defendants: Sentencing

In A-G v ITV Central Ltd [2008] EWHC 1984 (Admin), a fine of £25,000 was imposed against a broadcaster who revealed the antecedent history of a defendant awaiting trial for murder, resulting in an aborted trial.

In Adewunmi [2008] 2 Cr App R (S) 326, the offender had failed to repatriate assets pursuant to an order made under the Proceeds of Crime Act 2002. A sentence of 12 months' imprisonment was held to be appropriate, following information that large sums of money had by the time of the appeal been repatriated and that further monies would follow.

B16 Revenue, Customs and Social Security Offences

B16.15 Customs and Excise: Procedural ProvisionsIn Chambers [2008] EWCA Crim 2467 the Court of Appeal expressed considerable concern that the regulations setting out the circumstances under which liability to duty may arise are not readily accessible and quashed a compensation order based on regulations superseded over five years before the events giving rise to the prosecution. See also E19.16.

B16.47 Sentencing Guidelines for Social Security Fraud

In Cullen [2008] EWCA Crim 1667 the court upheld a sentence of 16 months' imprisonment (consecutive to 32 months' imprisonment for other offences) on a 47-year-old man upon his plea of guilty to three offences under the Social Security Administration Act 1992, s. 111A. He had been fraudulently claiming income support and incapacity benefit for over 10 years. In Temple [2008] EWCA Crim 1803, where a single parent aged 40 had received over £28,000 in overpayments, 15 months' imprisonment was reduced to 12 months.

B17 Offences Involving Misuse of Computers

B17.2 Unauthorised Access Offence (Hacking)

There is an error in the text where the Computer Misuse Act 1990, s. 1 is set out. In s. 1(1)(b) the words 'is unauthorised' should appear after 'intends to secure'.

B19 Offences Related to Drugs

B19.43 Meaning of 'Produce', 'Concerned in Production'

In Dunn [2008] EWCA Crim 2308, the Court of Appeal said that the facts of that case required a careful direction from the judge as to how the jury should approach them when considering whether D participated in an alleged venture to produce a controlled drug. A direction tailored to the facts of the particular case was necessary in addition to the general direction on participation.

B19.76 Incitement

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brought sch. 6, para. 53 of the Act into force on 1 October 2008. Note that the offence under the Misuse of Drugs Act 1971, s. 19 has been preserved for the purposes of part 2 of the SCA 2007 (doing an act that is capable of encouraging or assisting the commission of offence): see s. 49(5) and sch. 3, para. 9 of the SCA 2007, which came into force on 1 October 2008 (see SI 2008 No. 2504 and last month's update at A6.1).

B21 Offences Relating to the Proceeds of Criminal Conduct

B21.3 Money Laundering and Criminal Property

In Anwoir [2008] EWCA Crim 1354 (noted in the main text sub nom Anwar) Latham LJ referred to Director of the Assets Recovery Agency v Green [2005] EWHC Admin 3168 and Craig [2007] EWCA Crim 2913 and continued:

... there are two ways in which the Crown can prove the property derives from crime: (a) by showing that it derives from conduct of a specific kind or kinds and that conduct of that kind or those kinds is unlawful, or (b) by evidence of the circumstances in which the property is handled which are such as to give rise to the irresistible inference that it can only be derived from crime. This in our judgment gives proper effect to the decision in Green, and is consistent with the decisions of this court in Gabriel [2007] 2 Cr App R 11, K [2007] 1 WLR 2262 and, of course, Craig. We consider that it is also consistent with the approach of this court in El Kurd [2001] Crim LR 234.

Anwoir was applied in F [2008] EWCA Crim 1868 (a prosecution appeal pursuant to the CJA 2003, s. 58) where the court held that the trial judge had been wrong to accept a submission of no case to answer merely because the prosecution were unable to identify any particular criminal conduct as the source of the property in question. It was open to the jury to conclude that the property was criminal property on the basis of the surrounding circumstances.

The following point has been certified for possible consideration by the House of Lords:

Whether in a prosecution under section 327 or 328 of the Proceeds of Crime Act 2002 section 340 requires the Crown to prove at least the class or type of criminal contact that it is alleged generated the proceeds of crime.

B23 Immigration Offences

B23.4 Illegal Entry and Deception: Sentencing

The guidance in Kolawole [2005] 2 Cr App R (S) 71 applies where possession of a false identity document contrary to the Identity Cards Act 2006, s. 25 was related to an activity designed to undermine immigration control. Imminent removal of the offender from the country did not justify departing from that guidance and so a sentence of 12 months was substituted for four months in A-G's Ref (Nos. 1 and 6 of 2008) [2008] EWCA Crim 677. It was quite different where the offence was committed not to undermine immigration control but so that an unsuccessful asylum seeker who was neither hiding nor trying to avoid removal and who could not in fact be removed could obtain employment. In those circumstances, a sentence of six months suspended and 80 hours community service was not unduly lenient (A-G's Ref (Nos. 1 and 6 of 2008). The offender's circumstances in Ishmael John [2008] EWCA Crim 2022 were similar, in particular, his being irremovable even though his asylum claim had failed. However, he had used two different identities and intended to stay out of sight of the authorities. His sentence of 15 months was reduced to eight.

In Rahim [2008] EWCA Crim 1679 a sentence of 15 months for using a forged United Kingdom residence permit to obtain employment was reduced to nine months, although the Court of Appeal said that the original sentence would have been unimpeachable had the forged document been a passport.

A recommendation for deportation was set aside where a false passport had been used to obtain employment in Olajide [2008] EWCA Crim 1655 and in Mvumi [2008] EWCA Crim 2144 where the policy of not returning failed asylum seekers to Zimbabwe, the offender's country, made such a recommendation inappropriate.

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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

By virtue of the Road Traffic Offenders (Prescribed Devices) Order 2008 (SI 2008 No. 1332), an additional device measuring odometer pulses between two points is now also a prescribed device.

C7 Sentencing Generally

C7.2 Penalty Points

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the RTOA 1988, s. 28(2) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

C7.9 Disqualification for Certain Offences

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 ((SI 2008 No. 2504). As a result, the reference in the RTOA 1988, s. 34(5) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

C7.12 Disqualification for Repeat Offences

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the RTOA 1988, s. 35(5A) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

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Part D Procedure

D1 Powers of Investigation

D1.1 Police Powers

Amendments to Code A sect. 4, together with a new Annex E, were introduced on 27 October 2008 by the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008 (SI 2008 No. 2638) in respect of certain police force areas.

The Armed Forces, Army, Air Force and Naval Discipline Acts (Continuation) Order 2008 (SI 2008 No. 1780) continues in force for 12 months from 8 November 2008 the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957, and the Armed Forces Act 2006 itself, which would otherwise have expired by virtue of the Armed Forces Act 2006, s. 382.

D1.7 Conduct of Stop and Search Powers

In certain police force areas, by virtue of the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008 (SI 2008 No. 2638), where a person in a public place is requested to account for themselves under Code A, para. 4.12, the recording requirements are amended. Under the amended provisions, the officer must provide a receipt of the encounter, but need only record information on the person's self-defined ethnicity.

D1.18 Arrest without Warrant

A person arrested under the Mental Health Act 1983, s. 136(1), may be detained at a police station, as a place of safety, for up to 72 hours for the purpose of examination and assessment. Home Office Circular 007/2008 The use of police stations as Places of Safety under section 136 of the Mental Health Act 1983 provides that '[e]very effort should be made to ensure that a police station is used only on an exceptional basis' (para. 2.2). The Mental Health Act 2007 has amended the 1983 Act so that a person detained under the provisions may be moved from one place of safety to another (s. 136(3) and (4)). See the Circular for further explanation of the changes.

D1.38 Right of Access to Solicitor: Action When a Request is Made

It was held in Gearing v DPP [2008] EWHC 1695 (Admin) that a delay of 22 minutes between the request for legal advice and action by the police to contact a solicitor did amount to a breach of the PACE 1984, s. 58(4). However, following Kennedy v CPS (2003) 167 JP 267, taking the necessary steps to contact a solicitor should not delay the drink/drive procedure. See also C5.20 in the main work.

D1.39 Delaying Access to a Solicitor

Samuel [1988] QB 615 was followed in James [2008] EWCA Crim 1869, in which the court reiterated that the right of access to legal advice was one of the most important and fundamental rights of a citizen, which could only be denied on rare occasions where the police believed that the specific solicitor would act improperly.

D1.58 Conduct of Interviews

The asking of hypothetical questions in a police interview is not prohibited, although such questioning may need to be approached with care (Stringer [2008] EWCA Crim 1222).

D2 The Decision to Prosecute and Diversion

D2.13 Cases Where Consent is Required

The DPP is not required to publish a specific code setting out the factors relevant to determining whether to prosecute for aiding and abetting, counselling or procuring suicide under the Suicide Act 1961, s. 2(1) (R (Purdy) v DPP [2008] EWHC 2565 (Admin)). Such prosecutions require the consent of the DPP by virtue of s. 2(4) of the 1961 Act.

D2.42 Bail following Charge

The Police and Justice Act 2006 (Commencement No. 10) Order 2008 (SI 2008 No. 2785) extended, from 14 November 2008, the number of local justice areas where bail may be granted on the basis that a person attend a police station for a live-link court hearing.

D2.45 Detention Following Charge

A person may be treated as having been brought before a magistrates' court pursuant to the PACE 1984, s. 46(1) if he attends attend the hearing through a live-link. At present the provisions apply only in specified local justice areas. See the CDA 1998, ss. 57A to 57C, as introduced by the Police and Justice Act 2006, s. 45, and the Police and Justice Act 2006 (Commencement No. 10) Order 2008 (SI 2008 No. 2785).

D3 Courts, Judges and Parties

D3.32 Actual or Apparent Bias:The Gough Test Revisited

In Helow v Secretary of State for the Home Department [2008] UKHL 62, Lord Hope of Craighead (at [2]) observed that the fair-minded and informed observer 'is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument. She is not unduly sensitive or suspicious ... But she is not complacent either. She knows that fairness requires that a judge must be, and must be seen to be, unbiased'. Lord Mance (at [39]) said that:

the question is one of law, to be answered in the light of the relevant facts, which may include a statement from the judge as to what he or she knew at the time, although the court is not necessarily bound to accept any such statement at face value, there can be no question of cross- examining the judge on it, and no attention will be paid to any statement by the judge as to the impact of any knowledge on his or her mind.

D3.53 Court Order Restricting the Commencement of a Prosecution

The Supreme Court Act 1981, s. 42, was considered by the Divisional Court in R (Ewing) v DPP [2008] EWHC 2655 (Admin).The applicant in this case was subject to a 'civil proceedings order' under s. 42(1A)) as opposed to a 'criminal proceedings' or 'all proceedings' order under the same provision, and the question was whether he was thereby required to obtain leave of the High Court under s. 42(3) before bringing an action for judicial review against the CPS, who had taken over and discontinued a private prosecution brought by him.

The court held (citing Tottenham Magistrates Court, ex parte Gleaves [1993] COD 332) that his proposed application for judicial review would have constituted civil proceedings (although related to a criminal matter) and was thus subject to the civil proceedings order made against him.

D3.63 Abuse of Process: Losing or Destroying Evidence

R (Ebrahim) v Feltham Magistrates' Court, [2001] 1 All ER 831 was applied in Prosecution Appeal (No. 23 of 2008); C [2008] All ER( D) 258 (Oct), where the Court of Appeal allowed the Crown's appeal against a judge's ruling that inadvertent police failure to secure CCTV evidence which might have assisted the defence case (e.g., by proving that their clothing that day did not match that which the offenders were described as wearing) required the prosecution to be stayed. It was only in the most exceptional circumstances that a prosecution, otherwise properly brought, should be stayed. These were (i) where the court concluded that the defendant could not receive a fair trial, and (ii) where it concluded that it would be unfair for the defendant to be tried. In this case the CCTV evidence might have favoured either the defendants or the prosecution, but it had not deprived the defendants of their ability to present their case fully and fairly. It followed that the judge ought not to have stayed the prosecution.

D3.78 The General Rule that Proceedings Should be in Open Court

In Re Times Newspapers Ltd [2008] EWCA Crim 2396, Latham LJ (at [12]) said that 'It is clearly an important aspect of open justice that defendants' names should be made public … But there is no doubt that a court may, in appropriate circumstances, order that the identity of a defendant can be protected from publicity by withholding his or her name'.  His lordship went on to note that the Contempt of Court Act 1981, s. 11, does not, of itself, give any such power.  At [16], his lordship observed that, at common law, there is 'no authority for the proposition that anonymity can be ordered for any purpose which is not connected to, or does not have an effect on, the administration of justice, or is not provided for in any statutory exception'. It followed that, in order for the court to be entitled to make any order for anonymity, it must be satisfied either 'that the administration of justice would be seriously affected' were anonymity not to be granted, or that there is a 'real and immediate' risk to the life of any of the accused were anonymity to be refused (at [17]).

D5 Preliminary Proceedings in Magistrates' Courts

D5.23 Pre-trial Hearings by Television Link

The Police and Justice Act 2006 (Commencement No. 10) Order 2008 (SI 2008 No. 2785) brings s. 45 (attendance by accused at certain preliminary or sentencing hearings) fully into force on 14 November 2008 in specified local justice areas (27 in London and 3 in Kent). This has the effect that it substitutes a new s. 57C (use of live link at preliminary hearings where accused is at police station) in the CDA 1998, that aspect of s. 45 having previously been fully implemented only in the local justice areas of Lambeth and Southwark; the other aspects of s. 45 having been fully implemented since January 2007.

D7 Bail

D7.31 Electronic Monitoring

The CJIA 2008, sch. 11 (amending the BA 1976, ss. 3 and 3AA and adding ss. 3AB and 3AC: electronic monitoring requirements) was brought into force on 3 November 2008 by the Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No 2712). See D7.97.

D7.78 Breach of Bail Conditions

In R (Gangar) v Leicester Crown Court [2008] All ER (D) 112 (Oct), the accused had been sentenced to five months' imprisonment for breach of a bail condition. Before the Divisional Court, it was common ground that the BA 1976 does not empower a court to punish a person for breach of a bail condition, still less to impose a custodial sentence for such a breach. The sentence passed was therefore unlawful and would be quashed.

D7.97 Text of the Bail Act 1976

The CJIA 2008, sch. 11 (amending the BA 1976, ss. 3 and 3AA and adding ss. 3AB and 3AC: electronic monitoring requirements) was brought into force on 3 November 2008 by the Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No 2712).

The following subsections are substituted for s. 3(6ZAA):

(6ZAA) The requirements which may be imposed under subsection (6) include electronic monitoring requirements.

The imposition of electronic monitoring requirements is subject to section 3AA (in the case of a child or young person), section 3AB (in the case of other persons) and section 3AC (in all cases).

(6ZAB) In this section and sections 3AA to 3AC 'electronic monitoring requirements' means requirements imposed for the purpose of securing the electronic monitoring of a person's compliance with any other requirement imposed on him as a condition of bail.

In s. 3AA, the following subsections are substituted for s. 3AA(1) and (4):

(1) A court may not impose electronic monitoring requirements on a child or young person unless each of the following conditions is met.

(4) The third condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.

In s. 3AA(5), the phrase 'such a requirement' is substituted by the phrase 'electronic monitoring requirements' and s. 3AA(6) to (10) and (12) (which are superseded by s. 3AC) are omitted.

The new ss. 3AB and 3AC are as follows:

3AB.- (1) A court may not impose electronic monitoring requirements on a person who has attained the age of seventeen unless each of the following conditions is met.

(2) The first condition is that the court is satisfied that without the electronic monitoring requirements the person would not be granted bail.

(3) The second condition is that the court is satisfied that the necessary provision for dealing with the person concerned can be made under arrangements for the electronic monitoring of persons released on bail that are currently available in each local justice area which is a relevant area.

(4) If the person is aged seventeen, the third condition is that a youth offending team has informed the court that in its opinion the imposition of electronic monitoring requirements will be suitable in his case.

3AC.- (1) Where a court imposes electronic monitoring requirements as a condition of bail, the requirements must include provision for making a person responsible for the monitoring.

(2) A person may not be made responsible for the electronic monitoring of a person on bail unless he is of a description specified in an order made by the Secretary of State.

(3) The Secretary of State may make rules for regulating-

(a) the electronic monitoring of persons on bail;

(b) without prejudice to the generality of paragraph (a), the functions of persons made responsible for such monitoring.

(4) The rules may make different provision for different cases.

(5) Any power of the Secretary of State to make an order or rules under this section is exercisable by statutory instrument.

(6) A statutory instrument containing rules under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) For the purposes of section 3AA or 3AB a local justice area is a relevant area in relation to a proposed electronic monitoring requirement if the court considers that it will not be practicable to secure the electronic monitoring in question unless electronic monitoring arrangements are available in that area.

(8) Nothing in sections 3, 3AA or 3AB is to be taken to require the Secretary of State to ensure that arrangements are made for the electronic monitoring of persons released on bail.

D8 Assets Recovery

D8.9 Detention of Cash

The applicant for the return of cash shoulders the burden of proving, to the civil standard, that there is no basis in law on which the cash could reasonably be suspected of having been obtained through criminal conduct (Chief Constable of the Greater Manchester Police v City of Salford Magistrates' Court [2008] EWHC 1651 (Admin)).

D8.30 Exercise of the Power

In SFO v Lexi Holdings [2008] EWCA Crim 1443, the Court of Appeal said that the provisions of the PCA 2002 are significantly different from the pre-2002 legislation and that In Re X would be decided differently today. It added that '[unless] there is no conflict with the object of satisfying any confiscation order that has been made, a restraint order should not be varied so as to allow for the payment of a debt to an unsecured creditor'.

D8.32 Procedure

The Crown Court has power to deal with an allegation of contempt of court consisting of a breach of its own restraint orders (M (M) [2008] EWCA Crim 1901; and see also Adewunmi [2008] EWCA Crim 71). See further B14.75.

D9 Disclosure

D9.20 The Defence Case Statement

The CPIA 1996, s. 6A(1)(ca) was brought into force on 3 November 2008 by the Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) in respect of cases to which part 1 of the CPIA 1996 applies at that date or afterwards by virtue of s. 1(1) or (2).

D9.24 Sanctions for Failure in Defence Disclosure

The CPIA 1996, s. 11(2)(f)(ii) was brought into force on 3 November 2008 by the Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) in respect of cases to which part 1 of the CPIA 1996 applies at that date or afterwards by virtue of s. 1(1) or (2).

D9.38 Public Interest Immunity: Intercept Material

In Khyam [2008] EWCA Crim 1612 the Court of Appeal considered the interaction between ss. 17 and 18 of the RIPA 2000. It stated that the circumstances which might lead it to depart from the prohibition in s. 17 must be highly unusual and material.

D9.45 Third Party Disclosure: Compulsory Disclosure Route

The possibility that the civil courts may be used as a means to compel the disclosure of information in criminal proceedings arises as a result of the decision of the Divisional Court in R (Binyan Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048 (Admin). In that case, the court made a Norwich Pharmacal order requiring disclosure by the Foreign Secretary of material which it considered was essential to a fair trial in criminal proceedings in the USA for terrorist offences. The case raises the interesting possibility that applications may be made for Norwich Pharmacal orders in future in circumstances in which the arguably stricter requirements of the witness summons procedure would prevent disclosure of information by a third party.

D12 Arraignment and Pleas

D12.54 Plea Bargaining

Goodyear [2005] 1 WLR 2532 was applied in Clark [2008] All ER (D) 247 (Oct).

D19 Trial on Indictment: Sentencing Procedure

D19.9 Disputes about the Facts following a Plea of Guilty

In Temple [2008] EWCA Crim 2511 the Court of Appeal emphasised the importance of the guidance provided in Underwood [2005] 1 Cr App R 178 and warned that '[i]n our view, too many practitioners have either forgotten the guidance given by this court in the case of R v Underwood or they choose to ignore it'.

D19.52 Sentencing Defendant for Matters of which He has not been Convicted

In Lavery [2008] EWCA Crim 2499 the Court of Appeal was faced with two main questions:

First, how should the court approach offences to be taken into consideration that reveal offending of a substantially more serious nature than the offence or offences for which the defendant stands to be sentenced? Secondly, is the court entitled to take account of offences to be taken into consideration when assessing whether there is a significant risk to members of the public occasioned by the commission by the defendant of further specified offences under sections 225 and 226?

As to the first question, the court's answer was that:

There is no reason in principle why an offence to be taken into consideration and which is of a more serious nature than the index offence or offences should not result in a higher sentence than would otherwise have been the case, as the sentence will reflect the defendant's overall criminality.

A defendant should not however be invited to have an offence taken into consideration where it is more serious than the offences to which he pleads guilty and is likely to attract a higher penalty (CPS Code of Practice). As Lord Judge CJ noted:

It will be open to a judge to refuse to take an offence into consideration if he forms the view that to do so would be to distort the sentencing exercise and to lead to an unjust result and that the public interest requires that the offence be charged. But it may be extremely difficult for a judge to decline to take offences into consideration when a defendant wants to wipe the slate clean. That underlines the importance of the prosecution following the relevant Code of Practice.

D22 Sentencing in the Magistrates' Court

D22.14 Provisions of the Magistrates' Courts Act 1980 and the Powers of Criminal Courts (Sentencing) Act 2000 relating to Magistrates' Sentencing Powers

The MCA 1980, s. 32(1)(b) is repealed by the SCA 2007, sch. 6, para. 55. The repeal came into force on 1 October 2008 (SI 2008 No. 2504).

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

D24.6 Application Procedure in Civil Proceedings

In Birmingham City Council v Shafi and Ellis [2008] EWCA Civ 1186, it was held (at [44]) that, where a local authority seeks an injunction in circumstances in which an ASBO would be available, the court should 'save perhaps in exceptional circumstances, refuse to grant injunctive relief of the kind which can be obtained by an ASBO'.

D24.9 Appeals

In R (Langley) v Preston Crown Court [2008] EWHC 2623 (Admin), Scott Baker LJ said (at [22]):

In summary, therefore, in the county court there is a right of appeal against an ASBO and its variation to the High Court or Court of Appeal as appropriate, but only with permission. Permission would only be given if an appeal had a real prospect of success or there was some other good reason. There would only exceptionally be a rehearing. An ASBO, and probably a variation of an ASBO, made on conviction in the Crown Court is appealable to the Court of Appeal (Criminal Division) but only with leave, and an appeal would ordinarily only be allowed if the decision was wrong in principle or in some way manifestly excessive. An ASBO made in the magistrates' court on conviction is, we think, appealable to the Crown Court under s. 4 of the Act in the same way as a freestanding ASBO but in neither case is there a right of appeal against a variation of the original ASBO. Case stated and judicial review, are remedies available against the magistrates court but not the County Court.

His lordship went on (at [23]) to reason that it is therefore:

... logical that, in the case of variation of ASBOs by the magistrates' court, there should not be an appeal on fact, but there will be a right of review by way of case stated or judicial review. In all cases, the appellate court is able to consider the key issue that will arise on a variation of an ASBO, i.e. whether the exercise of judgment that a variation was necessary, was reasonable, rational and proportional.

This leads to the conclusion (at [24]) that, under s. 4, 'there is no right of appeal against a decision by the magistrates' court to vary or discharge an ASBO'.

D24.13 Use of ASBOs Following Conviction

In Thomas [2008] EWCA Crim 2151, the offender was sentenced to eight-and-a-half years' imprisonment and was also made subject to an ASBO for a period of 10 years, suspended until his release from prison. Maddison J said (at [5]) that 'It will not necessarily be wrong in principle in every case to make an ASBO suspended until the release of the defendant concerned from a prison sentence' but went on to refer to the decision of Henriques J in Shane Tony P [2004] 2 Cr App R (S) 343 that '… where custodial sentences in excess of a few months are passed, and offenders are liable to be released on licence, circumstances in which there is demonstrable necessity to make ASBOs are likely to be limited'. In the instant case, the offender would be on licence for four-and-a-quarter years following his release, and it was not possible to know what his situation would be at the end of that substantial period of licence.

Similarly, in Belaid [2008] EWCA Crim 2153, the offender was sentenced to a term of 30 months' imprisonment and made subject to an ASBO, to run for three years from the date of the his release from prison. The Court of Appeal ruled that it could not be said that the ASBO was 'necessary'. For a period of some 15 months after his release, the offender would be on licence (the terms of which could be crafted to deal with the residual risk of re-offending in the light of all that is known at the time of his release) and subject to recall to prison. That, said the Court, would provide protection against re-offending at least as powerful as an ASBO. The Court also noted that his offending was driven by drug dependency, which would be the subject of attention whilst he was serving the custodial part of his sentence, leading to the 'real possibility' that he would break free of drug addiction whilst in prison.

In Cooke v DPP [2008] EWHC 2703 (Admin), [2008] All ER (D) 202 (Oct), the Divisional Court ruled that an ASBO should not be made where an individual's mental impairment means that he does not have the capacity to understand the order, or that he could not comply with it, since the order would not be necessary for the protection of the public in such a case. Where such an issue arises, evidence pertaining to the person's mental impairment ought to be given by a psychiatrist (not by a psychologist or psychiatric nurse).

D25 Appeal to the Court of Appeal (Criminal Division)

D25.19 Conduct of Lawyers

Paragraph A2-72 of the new 'Guide to Commencing Proceedings in the Court of Appeal Criminal Division' published in October 2008, describes the waiver procedure which is required of an applicant when grounds of appeal criticising the conduct of lawyers are advanced.

D26 Procedure on Appeal to the Court of Appeal (Criminal Division)

D26.1 The Rules and the Guide

A new 'Guide to Commencing Proceedings in the Court of Appeal Criminal Division' ('the Guide') was issued in October 2008. The new Guide takes account of and explains the application of the revised CrimPR relating to appeals.

D28 Challenging Decisions of Magistrates' Courts

D28.6 Procedure on Appeal to the Crown Court

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. A new part 63 (appeal to the Crown Court) revises and simplifies the rules so that they correspond broadly with the other rules affecting appeals.

D28.10 Abandonment of Appeal

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. A new part 63 (appeal to the Crown Court) revises and simplifies the rules so that they correspond broadly with the other rules affecting appeals. The requirement for a notice of abandonment to be given 'not later than the third day before the day fixed for hearing the appeal' will no longer apply. In addition, r. 78.1 is amended so as to omit r. 78.1(3) and the subsequent reference to it, with the effect that the Crown Court has a discretion to award costs in an appeal from a magistrates' court in all cases (even where a timely notice of abandonment has been served).

D30 Public Funding and Costs

D30.6 Public Funding: Nature of Representation

In Z (9 October 2008 unreported, Leeds Crown Court), the court laid down general guidance in relation to the grant of two counsel in criminal cases. (1) The fact that the prosecution were represented by two counsel had little bearing on whether the defence ought to have the same number. (2) It is not enough that a case should involve substantial, complex or novel issues of law, the fundamental question for the court was why in such cases the case could not be presented by a single advocate. (3) The identity of the proposed second advocate is not relevant. (4) It will not usually be appropriate to decide on the level of representation until the prosecution case and defence case statement have been served. (5) The application should state with some precision the work to be done by the second advocate and the reason why it cannot be done by a single advocate alone. (6) The court expects both advocates to be present throughout the entire case, save where the trial judge grants a leave of absence. (7) It is imperative that defendants receive the most appropriate representation; in cases where the criteria is met for leading counsel and junior that is the application that should be made. The financial benefit that comes from being a leading junior should not cloud that decision-making. The same principles apply to the use of inexperienced juniors. (8) The court has the power to keep the need for two counsel under review and can amend the certificate at any time should it be appropriate to do so.

Following this judgment the Government announced a short consultation in relation to rates of pay for very high cost criminal cases. The proposed increase in rates paid to some advocates and litigators are to be funded by savings on the use of two counsel and it can be assumed that this judgment will take on added importance in that light.

D30.11 Recovery of Costs

The Criminal Defence Service (Recovery of Defence Costs Orders) (Amendment) Regulations 2008 (SI 2008 No. 2430) amend the Criminal Defence Service (Recovery of Defence Costs Orders) Regulations 2001. They introduce discretion for the court to make no RDCO in certain circumstances. They also provide that, in addition to the exemptions which previously applied, no such order shall be made in respect of funded defendants who are in receipt of certain benefits, or who are under 18, and clarify that no such order shall be made where a funded defendant has assets or income below a certain level. One effect of these amendments is that an RDCO can be made in relation to appeals against sentence in the Crown Court. When assessing the funded defendant's financial circumstances, the court may take account of the value of resources or expectations of which the funded defendant has deprived himself (reg. 8). The amendments clarify the circumstances in which the income and capital of the funded defendant's partner can be taken into account (reg. 9(b)) and provide that the judge may take account of assets or income above a certain level when determining the amount of the order (reg. 9(c)). The court is also required to give reasons for its decision (reg. 11).

D30.28 Statutes and Regulations on Costs

The Costs in Criminal Cases (General) (Amendment) Regulations 2008 (SI 2008 No. 2448) amend the principal Regulations 1986 (SI 1986 No. 1335) so as to make minor amendments in order to achieve consistency in the regulations on costs unnecessarily incurred, wasted costs orders and third party costs orders and update references to legal aid (regs. 3 to 5 and 9), transfer responsibility for determining most costs payable out of central funds in criminal proceedings in magistrates' courts from justices' clerks to the National Taxing Team of Her Majesty's Courts Service (regs. 6, 7, 8 and 10), update legislative references to proceedings for breaches of requirements of sentences or orders (reg. 11) and provide for the payment of allowances to intermediaries (regs. 6 and 12 to 16).

D31 Extradition

D31.3 A Part 1 Warrant

A number of cases have considered whether the contents of a particular warrant have provided the information required by the Extradition Act 2003, s. 2 (see, for example, Glica v Government of Poland [2008] EWHC 1111 (Admin) and Lacorre v High Instance Court of Paris [2008] All ER (D) 309 (Oct)).

D31.9 Extradition Offence

Note the court's finding in Lacorre v High Instance Court of Paris [2008] All ER (D) 309 (Oct) that where there is a gap in the information contained in a European Arrest Warrant describing the conduct then it was not open to the court to fill it by guesswork.

D31.10 Physical or Mental Condition

The court has emphasised in Jervis v The Office of the Public Prosecutor of the Court of Appeals Rennes and another [2008] EWHC 2011 (Admin) that the condition in the Extradition Act 2003, s. 25 should be proved by adequate medical evidence; in that case the evidence was not found to be sufficient to establish that s. 25 should apply. In Olah v Plzen Regional Court, Czech Republic [2008] EWHC 2701 (Admin), the High Court found that the judge's decision to refuse the defendant an adjournment to obtain psychiatric evidence should be quashed. The High Court considered that there had been no grounds for the judge to consider that the request had been a 'fishing expedition'.

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Part E Sentencing

E2 Custodial Sentences: General Provisions

E2.8 Crediting of Periods of Remand in Custody

The Criminal Justice and Immigration Act 2008 (Commencment No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 21(1) and (3) to (7) of the Act; s. 21(4) inserts s. 240A into the CJA 2003.

The new section provides that where a court sentences an offender to imprisonment in respect of an offence which was committed on or after 4 April 2005, where the offender was remanded on bail, and that bail was subject to both a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under s. 3(6ZAA) of the Bail Act 1976: see D7.97), the court must normally direct that the 'credit period' is to count as time served by the offender as part of the sentence. The credit period is determined by the number of days on which the offender's bail was subject to these two conditions (including the first day, but excluding the last day) and then dividing that number by two (s. 240A(3)). If the court is of the opinion that it would be 'just in all the circumstances' not to give any credit for the days spent on bail under these conditions, the court should explain what the circumstances are which led to that conclusion (s. 240A(4) and (10)). Alternatively, the court may direct that a period of days which is less than the credit period is to count as time served (s. 240A(5)). This approach may be appropriate, in particular, if the offender has breached either or both of the conditions whilst on bail (s. 240A(7)). The court should state in open court the number of days on which the offender was subject to the conditions and the number of days which are being credited (s. 240A(8)).

In line with s. 240, the term 'imprisonment' in s. 240A must be taken to apply to sentences of detention in a young offender institution, extended sentences of imprisonment or detention in a young offender institution and determinate sentences of detention under s. 91 of the PCC(S)A 2000. Again in line with s. 240, a suspended sentence counts as a sentence of imprisonment for these purposes if it takes effect in consequence of breach.

Section 23 of and sch. 6 to the CJIA 2008 contain transitional provisions to deal with the situation where, for the purposes of s. 21, the relevant offence was committed before 4 April 2005. Before that date, s. 240 of the CJA 2003 was not in force, and the law is still governed by the CJA 1967, s. 67.

E3 Mandatory Life Sentences

E3.1 Murder: Life Imprisonment

The Criminal Justice and Immigration Act 2008 (Commencment No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 22 of the Act; s. 22(3) amends s. 269(3) of the CJA 2003 so as to add a reference to s. 240A (see E2.8) to follow the reference to s. 240.

E3.5 Court of Appeal Guidance

In Height [2008] EWCA Crim 2500, [2008] All ER (D) 297 (Oct) A person who arranged and paid for his wife to be murdered should receive the same starting point as the person carrying out the killing. A judge was entitled to make a 'broad overall' judgment as to criminality.

Herbert [2008] EWCA Crim 2501, [2008] All ER (D) 298 (Oct) applied the principles laid down in Height (judgment in which was delivered by the court earlier in the same day). This high profile case involved defendants convicted of killing a young girl, and inflicting GBH on her boyfriend, and was widely reported at the time.

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

E4.9 Assessment of Dangerousness

According to the Court of Appeal in Lavery [2008] EWCA Crim 2499, it was clear from the wording of s. 229 of the CJA 2003 that the court was entitled to take account of offences which the offender had asked to have taken into consideration on sentence when assessing whether there was a 'significant risk' under ss. 225 to 228. See D19.52.

E4.16 Period Specified under the Powers of Criminal Courts (Sentencing) Act 2000, s. 82A

The Criminal Justice and Immigration Act 2008 (Commencment No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 22 of the Act; s. 22(5) amends s. 82A(3) of the PCC(S)A 2000. In paragraph (b), before 'if' there is inserted 'or under section 240A of that Act of 2003 (crediting periods of remand on bail subject to certain types of condition)'. A court setting a minimum period under that section will be required to take into account the effect of time spent by the offender on bail, where that bail was subject to both a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under s. 3(6ZAA) of the Bail Act 1976). The court must normally direct that the 'credit period' is to count as time served by the offender as part of the minimum period. If the court is of the opinion that it would be 'just in all the circumstances not' to give any credit for the days spent on bail under these conditions, the court should explain what the circumstances are which led to that conclusion (s. 240A(4) and (10)). Or, the court may direct that a period of days which is less than the credit period is to count as time served (s. 240A(5)). This approach may be appropriate, in particular, if the defendant has breached either or both of the conditions whilst on bail (s. 240A(7)). The court should state in open court the number of days on which the defendant was subject to the conditions and the number of days which are being credited (s. 240A(8)).

Section 23 of and sch. 6 to the CJIA 2008 contain transitional provisions to deal with the situation where, for the purposes of s. 22, the relevant offence was committed before 4 April 2005. Before that date, s. 240 of the 2003 was not in force, and the law is still governed by the Criminal Justice 1967, s. 67.

E7 Detention and Custody of Offenders under 21

E7.15 Requirement to Take Into Account Period Spent on Remand

The Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712) brings into force on 3 November 2008 inter alia s. 22 of the Act; s. 22(6) amends s. 101(8) of the PCC(S)A 2000. In that subsection, for 'in custody' shall be substituted '(a) in custody, or (b) on bail subject to a qualifying curfew condition and an electronic monitoring condition (within the meaning of section 240A of the CJA 2003)'. A court imposing a detention and training order will be required to take into account the effect of time spent by the defendant on bail, where that bail was subject to both a 'qualifying curfew condition' (requiring that person to remain at one or more specified places for a total of not less than nine hours in any given day) and an 'electronic monitoring condition' (imposed under s. 3(6ZAA) of the Bail Act 1976). See further E2.8.

E19 Confiscation Orders

E19.3 and E19.6 The Human Rights Act 1998

In Grayson v UK (2008) The Times, 2 October 2008, the European Court of Human Rights rejected the contention of each applicant that, in confiscation proceedings brought under the Drug Trafficking Act 1994, the fact that the legal burden of proof was on the defendant to show that he/she did not have 'realisable assets' equivalent to the 'benefit figure', was in breach of Article 6 of the ECHR and Article 1 of Protocol No. 1. The Court held (at [49]) that it was not incompatible with 'the notion of a fair hearing in criminal proceedings to place the onus on each applicant to give a credible account of his current financial situation'. Whether there is a distinction to be drawn between cases in which property has been shown to have been 'received' by a defendant (Drug Trafficking Offences Act 1986 and the Drug Trafficking Act 1994) and cases in which the defendant 'obtained property' (CJA 1988 and PCA 2002) remains to be seen.

See also Joyce v Dover Magistrates' Court [2008] EWCA Crim 1448, and Flaherty v City of Westminster Magistrates' Court [2008] EWCA Crim 2589 (Admin).

E19.7 The Process: A Summary

In Morgan, Bygrave [2008] EWCA Crim 1323, the Court of Appeal remarked that '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': see also Farquahar [2008] EWCA Crim 806, and Fedee [2008] EWCA Crim 840. In Shabir [2008] EWCA Crim 1809 the Court of Appeal said that this jurisdiction 'must be exercised with considerable caution, indeed sparingly. It must be confined to cases of true oppression. In particular, it cannot be exercised simply on the grounds that the judge disagrees with the decision of the Crown to pursue confiscation, or with the way it puts its case on that topic'.

The case of Charlton [2008] EWCA Crim 2304 illustrates the mandatory steps to be followed under part 2 of the PCA 2002. In Prince [2008] EWCA Crim 1592, the Court of Appeal, citing Soneji [2006] 1 AC 340, stated that the Court should adopt a broad interpretation of the statutory procedural requirements 'which would avoid rendering wholly ineffective the Parliamentary intention of providing orders for confiscation'.

E19.11 The Effect of the Basis of a Guilty Plea

In Corcoran [2008] EWCA Crim 1600, on the special facts of that case, the basis of plea formed the agreed basis for the purposes of confiscation proceedings. See however McCarry [2008] EWCA Crim 1587, which applied Lazarus [2005] 1 Cr App R (S) 552.

E19.13 Making a Confiscation Order: Stage One - Determining Criminal Lifestyle

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brought part 2 of that Act (encouraging or assisting crime) into force on 1 October 2008 (see A6.1 in the main work and in this supplement). Note that an offence under the SCA 2007, s. 44 of doing an act capable of encouraging or assisting the commission of an offence specified in the PCA 2002, sch. 2 is a 'lifestyle offence' (SCA 2007, sch. 6, para. 62).

E19.14 Stage Two - Determination of Benefit from Criminal Conduct

In Waller [2008] EWCA Crim 2037, the issue was whether a confiscation order should have included (as the value of D's benefit from his criminal conduct) the value of the tobacco 'smuggled' as well as the evaded duty. The Court of Appeal answered that question in the affirmative, noting that neither in Bakewell [2006] EWCA Crim 2 nor Homer [2006] EWCA Crim 1559 (where the duty evaded was identified as the benefit that had accrued in those cases) 'was there any discussion about claims based on the value of the goods supplied as well as the duty evaded'. It is not clear whether cases such as Moran [2001] EWCA Crim 1770 and IK [2007] EWCA Crim 491 had been cited to the court and considered. It is perhaps arguable that Waller pays insufficient regard to the distinction in the Customs and Excise Management Act 1979 between (a) goods which may lawfully be imported but which are subject to the payment of duty and taxes, and (b) goods prohibited from importation. If X evades the payment of income tax on his lawfully obtained income, is X's benefit the tax evaded plus his taxable income? It is submitted that the answer is, or ought to be, 'no' - but the position might be different if D obtained employment by deception and thus the income was indeed the 'proceeds' of that criminal conduct.

In Ilyas v Aylesbury Vale District Council [2008] EWCA Crim 1303, it was held that, for the purposes of the statutory assumption under the CJA 1988, s. 72AA(4)(a) (i.e. that property 'was received by him, at the earliest time when he appears to the court to have held it, as a result of or in connection with the commission of offences to which this part of this Act applies') the assumption was not confined to offences committed by the defendant. The Court of Appeal stated that if Parliament had intended to confine the application of the assumption to offences committed by the defendant, it would have been easy to do so by express words. The Court held that s. 72AA contained two 'safety valves', 'First, 72AA(3) gave the court a discretion as to whether to apply the statutory assumptions at all; and second, section 72AA(5)(c) provided that the court is not to make any particular assumption if satisfied that there would be a serious risk of injustice in the defendant's case if that assumption were to be made'. It is respectfully submitted that for the purposes of confiscation legislation other than the 1988 Act, the relevant 'criminal conduct' is that of the defendant and not the criminal conduct of a third party (note, for example, the use of the expression 'his general criminal conduct' as it appears in the PCA 2002, s. 10).

E19.16 Stage Two - Determination of Benefit from Criminal Conduct: Joint Enterprise and Individual Benefit

Sivaraman [2008] EWCA Crim 1736 usefully illustrates the application of the trilogy of cases decided by the House of Lords in May, Jennings, and Green, in cases where the defendant played a subordinate role in the offending venture.

See Ajula [2008] EWCA Crim 637 in which the case of Sharma [2006] 2 Cr App R (S) 416 was considered.

Chambers [2008] EWCA Crim 2467 is an object lesson in ensuring that a count/charge has a proper legal base, and that the legislation relied upon is up-to-date. It was only by chance that the Court of Appeal discovered (thanks to a lawyer in the Asset Forfeiture Division of the RCPO) that the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992 no longer applies to tobacco products. The Court also made observations that are relevant to the determination of the 'benefit' figure in respect of confiscation proceedings in such cases, 'On the hearing of the appeal [prosecuting counsel] accepted, in our judgment correctly, that the appellant would only have obtained a benefit by way of a pecuniary advantage in the form of the evasion of excise duty if he was himself under a liability for the payment of that duty which he dishonestly evaded. To help somebody else to evade the payment of duty payable by that other person, within intent to defraud, is no less criminal, but in confiscation proceedings the focus is on the benefit obtained by the relevant offender. An offender may derive other benefits from helping a person who is under a liability for the payment of duty to avoid that liability, e.g. by way of payment for the accessory's services, but that is another matter. In order to decide whether the offender has obtained a benefit in the form of the evasion of a liability, it is necessary to determine whether the offender had a liability which he avoided. In the present case that turns on whether the appellant was liable for the payment of excise duty on the relevant goods under the relevant Regulations' [para.12].

Note that para.13(3)(e) of the 2001 regulations (as amended) states that duty is payable by 'any person who caused the tobacco products to reach an excise duty point'. Consider, among other cases, Bakewell [2006] EWCA Crim 2, Rowbotham [2006] EWCA Crim 747, and Edwards [2004] EWCA Crim 2923 (in the latter case the parties clearly were aware of the 2001 Regulations).

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

In Islam [2008] EWCA Crim 1740, the Court of Appeal applied (correctly it is submitted) Hussain [2006] EWCA Crim 621, i.e. that the value of an illicitly obtained controlled drug is nil. To hold otherwise would, in many cases, lead to absurdly high 'benefit' valuations for the purposes of the Drug Trafficking Act 1994 and the PCA 2002 that would be out of all proportion to what D had in fact 'received' (Drug Trafficking Act 1994) or 'obtained' (PCA 2002). Consider, for example, the lorry driver who is paid £5,000 to import 30 kgs of a Class A drug into the UK. The solution (attributed to Lord Bingham in Dore) is an imperfect one because some controlled drugs that are not illicitly manufactured or subject to a total ban on distribution, could be legitimately sold. However, if there is evidence that D contributed to the purchase price of the drug then the sum expended will be assumed to have been obtained from the proceeds of criminal conduct (under the PCA 2002) unless that assumption is shown to be incorrect. What still tends to be overlooked is that it is the history/origin of the money expended that is relevant for the purposes of the 'expenditure assumption'. Money, legitimately obtained by D, does not constitute a 'benefit' to him at the moment that he parted with it to buy illicit drugs. The money is a 'benefit' in the hands of the supplier because, at the moment that he obtained it, he did so in connection with criminal conduct. For the purposes of the 'benefit' determination, the court must always focus on the moment that D 'obtained' (PCA 2002) or 'received' (Drug Trafficking Act 1994) the property when deciding whether D did so in connection with criminal conduct, or not.

E19.24 Stage Four - Determination of the Available Amount

See Grayson v UK (2008) The Times, 2 October 2008 at E19.3.

E19.27 The Family Home

When a court is considering what interests a husband and wife intended that they should have in a property in their joint names, the search is for the result which the parties, in the light of their conduct, may be taken to have intended and not for the result which the court itself considers fair (Gibson v RCPO [2008] EWCA Civ 645, applying Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432).

E19.29 Relationship with Other Orders

In Morgan, Bygrave [2008] EWCA Crim 1323, the Court of Appeal considered the effect on a potential confiscation order of an offender paying or offering to pay compensation to his victim[s] without waiting to be sued for it in civil proceedings. Morgan concerned the position in cases still governed by the Criminal Justice Act 1988; Bygrave concerned the position where the Proceeds of Crime Act 2002 applies. The problem is that neither piece of legislation appears to make any allowance for such payment. As Hughes LJ explained (at [15] to [16]):

If the defendant waits to be sued by the victim and the victim sues or indicates an intention to do so, section 71(1C) CJA 1988, or section 6(6) POCA 2002 as the case may be, creates a discretion in the court whether to make a confiscation order or not. It does not follow that the court will not make a confiscation order. At least if there appear to be benefits obtained from criminal conduct which go beyond the loss caused to the suing loser, it ought ordinarily to make an order. There may be other reasons why an order should be made in a particular case. But it would not necessarily be improper, if there were no benefit to the offender beyond the loss which will be recovered by civil action, for the judge to decline to make a confiscation order. And if an order is made in such a case, the Judge is not bound to make it for the full amount of benefit obtained, up to the defendant's realisable assets, but instead can make it for such sum as he thinks fit or just: see section 71(1C)(c) CJA 1988 or section 7(3) POCA 2002, as the case may be. Thus the order can be made for the amount of any excess benefit obtained by the defendant beyond that which is being removed by the loser's civil action, or by a compensation order made to relieve the loser from having to go through with that civil action. In that way the defendant can be made to disgorge all criminal benefit obtained, up to the amount of his assets, but need not be required to pay more than he has obtained.

If, however, instead of waiting to be sued, the defendant repays the loser before he comes to court, or indicates that he stands ready to repay immediately, there will probably be no actual or intended civil action by the loser. In that event, section 71(1C) CJA 1988, or section 6(6) POCA 2002, will not apply. That will mean two things. First, the making of a confiscation order is mandatory once the Crown asks for it. Second, the order which must be made can only be for the full sum of benefit obtained, up to the amount of the defendant's realisable/available assets. If the only benefit the defendant has obtained is the amount which he has repaid to the loser, this has the inevitable consequence that there must be a confiscation orders for the same sum again, so long as the defendant has assets to meet it. That means he pays up to double the benefit he has obtained from crime. And if there is excess benefit obtained beyond the sum due to the identified loser, there is no power in the court to tailor the confiscation order to that excess; rather the order must be for the whole benefit obtained.'

The court accepted that the law was indeed anomalous in this respect, and that it would be wrong to discourage offenders from making prompt and full restitution to their victims (see also Farquhar [2008] EWCA Crim 806) but held that injustice could be avoided without doing violence to the terms of the legislation.

There is an individual decision to be made by the Crown in each case whether to ask the court to apply the confiscation process. Similarly, it is open to the Crown to discontinue the confiscation proceedings at any stage.

The court retains the jurisdiction to stay an application for confiscation, as any other criminal process, where it amounts to an abuse of the court's process. In the present context, that power exists where it would be oppressive to seek confiscation. See Mahmood [2005] EWCA Crim 2168; Hockey [2007] EWCA Crim 1577.

This may be appropriate where demonstrably (i) the defendant's crimes are limited to offences causing loss to one or more identifiable loser(s), (ii) his benefit is limited to those crimes, (iii) the loser has neither brought nor intends any civil proceedings to recover the loss, but (iv) the defendant either has repaid the loser, or stands ready willing and able immediately to repay him, the full amount of the loss. It does not follow that a confiscation order is always unfair or oppressive just because it may result in the offender paying out more than his actual profit or share of the profit.

In cases where no payment has yet been made, justice may best be achieved by making a confiscation order coupled with an order under the Proceeds of Crime Act 2000, s. 13(6) for the offender's victims to be paid their compensation out of that order. In Bygrave that was the solution adopted by the Court of Appeal.

E21 Exclusions and Disqualifications

E21.12 Sexual Offences Prevention Orders

In Allen [2008] EWCA Crim 2535, [2008] All ER (D) 103 (Oct) the appellant was convicted on strong evidence (including DNA tests performed on a hydatiform mole resulting from a faulty conception) of the repeated rape of his stepdaughter between the ages of 11 and 15. Pre-sentence reports indicated that he would pose a continued risk to female children living in the same household. He was sentenced to 15 years' imprisonment and a SOPO was imposed by which he was:

Firstly, not to reside in any household with a child under the age of 18 years of age. Secondly, not to be alone with or not to have any contact with any child under the age of 18 years, except in the presence of that child's parents or guardian who must be aware of your sexual conviction, save in the course of normal situations where contact is contingent upon normally daily activities; and thirdly, not to engage in the work, employment or other such activity with a child or young person who you responsibly believe to be under the age of 18 years, either on a professional or voluntary basis or to apply any such work, employment or any such activity.

The court accepted the need for a SOPO. The criteria for the assessment of dangerousness pursuant to s. 229 of the Criminal Justice Act 2003 was not for same as the test for imposing a SOPO. The former required that there was a 'serious risk of harm to the public', whilst in the case of the latter, there was a lesser but mandatory requirement of 'necessity' for the purpose of protecting the public from serious harm. A general risk to young females was properly to be marked by the imposition of a SOPO and it was 'necessary' for that purpose.

Nevertheless,the SOPO imposed was unnecessarily wide. There was no need for it to limit his contact with male children or (in the circumstances of this particular case) with his own natural children. The terms of the SOPO would be varied accordingly.

---

Part F Evidence

F2 The Discretion to Exclude Evidence

F2.26 Prosecutions Founded on Entrapment

As to the need for 'reasonable grounds for suspicion' (Loosely, principle (e) (ii)), see also Ramanauskas v Lithuania [2008] Crim LR 639. R was a prosecutor. Acting on nothing more than rumours about R's openness to bribes, AZ, an anti-corruption officer, asked him to secure a person's acquittal. R refused a number of times but later agreed. The Ministry of Interior then authorised AZ to offer a bribe without risk of prosecution. The bribe was offered again and R accepted it. Finding a violation of the ECHR, Article 6, the European Court of Human Rights held that this was a case of entrapment, with no evidence that R would have committed the offence in the absence of the repeated offers. The Government could not be excused from responsibility for its officers by arguing that AZ had initially acted in a private capacity, because that would allow the relevant principles to be circumvented by 'privatisation' of incitement.

F2.30 Significant and Substantial Breaches

Ibrahim [2008] 2 Cr App R 311 (see main work at F17.32) furnishes guidance on the application of the PACE 1984, s. 78 to 'safety interviews' carried out under the Terrorism Act 2000, sch. 8 or the fruits of such interviews. It was held that much will turn on the nature of the warning or caution (if any) given, so that if, for example, a suspect is assured in terms that any information provided by him will not be used against him, that will provide a powerful argument against the admission of incriminating evidence obtained in consequence. It was further held that much may also turn on whether the interviews produce evidence directly relevant to the charge which led to detention or whether the first connection that the prosecution may establish against him with any offence arises directly from his full cooperation during the course of the safety interview. These will be fact-specific decisions to be made in the overall circumstances of each case. See also the main work at B10.223.

F4 Competence and Compellability of Witnesses

F4.13 Spouse or Civil Partner of the Accused

The SCA 2007, s. 63(1) and sch. 6, para. 15 came into force on 1 October 2008 (SI 2008 No. 2504). As a result, the reference in the PACE 1984, s. 80(3)(c) to incitement has effect as a reference to (or to conduct amounting to) encouraging or assisting the offences under part 2 of the SCA 2007.

F6 Examination-in-Chief

F6.13 Refreshing Memory: Production of Documents for Inspection and Cross Examination

Bass [1953] 1 QB 681 and Skinner (1994) 99 Cr App R 212 were considered in R (Saunders) v Independent Police Complaints Commission [2008] EWHC 2372 (Admin) where one of the issues was whether the Independent Police Complaints Commission (IPCC) should have issued directions to prevent any conferring or collaboration between police officers who had been involved in a fatal shooting incident, particularly in connection with production of the officers' initial accounts. It was submitted that this failure constituted a violation of the ECHR, Article 2, in respect of the right to an adequate investigation into the death of any person at the hands of 'state agents'. Underhill J noted the real dangers of both collusion and innocent contamination inherent in such collaboration, but continued:

It does not follow from the acknowledgment of the risks inherent in the practice of permitting officers to confer, and in particular to collaborate in writing up their notes, that there should be a general prohibition on the practice; and in any event the latter practice has, as I have shown, the endorsement of the Court of Appeal. A ban on 'mere' conferring not only would be difficult to enforce in practice but would in many cases have serious operational disadvantages: prompt exchange of information between officers in the immediate aftermath of an incident is often essential. That objection might not apply to collaboration in the production of notes; but, as already observed, there are advantages as well as disadvantages in officers pooling their recollections, and the theoretically optimal practice of their doing so only after they have produced an uncontaminated first account may be both cumbersome in practice and of limited real value (particularly in a case where there has already been a degree of conferring in the immediate aftermath of the incident).

The ACPO's latest guidance, reminds officers to include in their notes only their own recollection of events and requires officers to state with some specificity when notes had been written up together.

There may be an argument for applying tighter restrictions to cases involving (for example) fatal shootings by officers, and in some cases failure to prevent it might undermine the fairness of a subsequent investigation, but Underhill J was not prepared to say in this case that the mere fact that there had been collaboration in the production of witness statements meant that a breach of Article 2 had been established.

F7 Cross-examination and Re-examination

F7.24 Protection of Complainants: Evidence or a Question Relating to Evidence Adduced by the Prosecution

The natural meaning of the phrase 'evidence adduced by the prosecution' in the YJCEA 1999, s. 41(5)(a) is evidence given by prosecution witnesses in the course of their evidence-in-chief and by defence witnesses in the course of cross-examination by the prosecution. However, in order to ensure a fair trial, the phrase should be read in a broader sense to include evidence given by prosecution witnesses in the course of cross-examination by the defence, provided that it was not deliberately elicited by defence counsel and was potentially damaging to the defence case (Hamadi [2008] Crim LR 635).

F9 Public Policy and Privilege

F9.25 Privilege against Self-incrimination: Statutory Provisions Requiring Answers to Questions

In R (Malik) v Manchester Crown Court [2008] EWHC1362 (Admin), where the Divisional Court was of the view that the Terrorism Act 2000, sch. 5, para. 6 (see B10.215) does not oust the privilege, it was said that clear language (express or by necessary implication) is required to show that Parliament intended to abrogate the privilege gainst self-incrimination, the privilege being a fundamental principle of the common law.

F9.27 Privilege against Self-incrimination: Free-standing Material Not Created under Compulsion

The House of Lords has given leave to appeal against the decision of the Court of Appeal in C plc v P [2007] EWCA Civ 493, now reported at [2007] 3 WLR 437. In R (Malik) v Manchester Crown Court [2008] EWHC 1362 (Admin) the Divisional Court has expressed the view that the law is currently unclear on the question whether the privilege against self-incrimination applies to pre-existing documents and that the preferred approach for judges to adopt, until the House of Lords has resolved the appeal in C plc v P, is to treat the privilege as an important relevant factor to be taken into account when exercising discretion in respect of the admissibility of pre-existing documents. In R (Malik) v Manchester Crown Court itself, which concerned the requirement to disclose material under the Terrorism Act 2000, sch. 5, para. 6 (see B10.215), guidance was given as to the factors to be taken into account in exercising the discretion. These were said to include the degree of benefit of the material to the investigation, the importance of the privilege itself, the gravity of the offence with which the person surrendering the privilege might be charged, the risk of prosecution, and the power, in any subsequent prosecution, to exclude evidence under the PACE 1984, s. 78. In the later decision of S [2008] EWCA Crim 2177, [2008] All ER (D) 89 (Oct) a requirement, contained in a notice under the RIPA 2000, s. 49, for disclosure of a key to data in encrypted files, was held not to infringe the privilege against self-incrimination nor to contravene the ECHR, Article 6. The Court of Appeal held that, although it was clearly established in domestic law that evidence existing independent of the will of the subject does not normally engage the privilege, and the key existed separately from each defendant's 'will', being a fact and not an admission of guilt, a requirement of disclosure under compulsion of knowledge of the means of access to material may engage the privilege, if the material itself is incriminating. However, even assuming that the material in question was incriminating, it would have been open to the trial judge to exclude evidence of the means by which the prosecution had gained access to it. Moreover, in any subsequent trial, there would be power under the PACE 1984, s. 78 to exclude evidence in relation to the material, the key or means of access to it, and the defendant's knowledge of the means of access to it. Thus, neither the process nor any subsequent trial could realistically be stigmatised as unfair.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.22 Criminal Justice Act 2003: Admissibility under s. 101(1)(d)

The requirement in Hanson [2005] 1 WLR 3169 to give careful consideration to the probative value of propensity evidence was stressed in Urushadze [2008] EWCA Crim 2498, where U's previous convictions for shoplifting were of little value in indicating a propensity towards street robbery.

F15 The Rule Against Hearsay

F15.12 Hearsay and Matters Stated

In West Midlands Probation Board v French [2008] EWHC 2631 (Admin) it was held that, where a prisoner had been released on licence, the licence or notice (which set out the terms and conditions of release and which was signed by the prisoner and the prison governor) was hearsay in consequence of the CJA 2003, s. 115(3), the purpose of the maker being to cause the prisoner and others to believe the statements in the licence and to act accordingly.

The court went on to hold that the licence was an admissible document despite being hearsay (see F16.16 and F16.22), but with respect it is doubtful whether it was hearsay at all. The purpose of the licence or notice would was to set out the terms on which the prisoner was to be set at liberty. On that basis it provided original and not hearsay evidence of those terms. As the court said (at [32]) the notice had been produced to prove three things:

(i) that a Licence had been granted to French ...; (ii) that the Licence contained conditions, as set out in the Licence, which included the condition that he must keep appointments with the probation service as arranged; and (iii) that French had counter-signed the Licence, thereby acknowledging that he had been given it and that the requirements had been explained to him.

Even if one were to view the notice as a mere memorandum of the terms of release, rather than as the formal source of those terms, the presence of the prisoner's undisputed signature on the document could not be regarded as anything other than original evidence of the fact he had been given it and had signed it.

F16 Exceptions to the Rule Against Hearsay

F.16.4 Unavailable witnesses

See, as to anonymous witnesses, Criminal Evidence (Witness Anonymity) Act 2008 at D14.118 of the main work and above.

F16.16 Documents Prepared for Purposes of Criminal Proceedings or Investigation

The licence setting out the conditions of a prisoner's release is not a document prepared for the purposes specified by the CJA 2003, s. 117(4)(a): (West Midlands Probation Board v French [2008] EWHC 2631 (Admin)).

F16.18 Discretionary Exclusion under PACE s. 78

In Pulley [2008] EWCA Crim 260 it was held, in line with Cole and Keet [2007] 1 WLR 2716, that the provisions of the CJA 2003 s. 114(2) should have been considered when ruling on the discretionary exclusion of statements by a deceased person that were otherwise admissible under s. 116(1). Because there were serious doubts about the accuracy of the statements, the contents of which did not fit comfortably with other available evidence, the admission of the statements deprived P of a fair trial.

F16.20 Hearsay Admissible in the Interests of Justice

A hearing on admissibility under the CJA 2003, s. 114(1)(d) must be conducted on the basis that the material and arguments deployed are available to all concerned parties. Material that had been presented to the judge on an ex parte application and was not available to the defence should form no part of the consideration (Ali [2008] EWCA Crim 146).

F16.22 Admissibility of Public Documents

In West Midlands Probation Board v French [2008] EWHC 2631 (Admin) it was held that, where a prisoner released on licence was charged with breach of conditions, a copy of the licence could be proved either as a public document under the CJA 2003, s. 118(1)(b) or under s. 117(see F16.13 of the main work) or under the Documentary Evidence Act 1868, s. 2 (see F8.10 of the main work). It is not clear what hearsay purpose was served by proving the licence: see F15.12 above.

F16.47 Video Recordings of Evidence

In R (SA) [2008] 2 Cr App R 112 the failure to give notification to the court of the availability of the special measure of video recorded evidence, the same having been brought into force by statutory instrument, did not render inadmissible evidence given pursuant to a special measures direction permitting a recording to be given in evidence.

F19 Inferences from Silence and Non-production of Evidence

F19.4 Failure to Reveal Facts Afterwards Relied upon in Court

The comments of the court in Brizzalari (2004) The Times, 3 March 2004, that a direction under the CJPOA 1994, s. 34 should be reserved for the mischief at which it is aimed, were endorsed in Maguire [2008] EWCA Crim 1028. The court discouraged 'anything which over-formalises common sense'.

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Appendices

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

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008 (SI 2008 No. 2638) provides for revisions of the Code to come into force on 27 October 2008. In certain police force areas, where a person in a public place is requested to account for themselves under Code A, para. 4.12, the recording requirements are amended. Under the amended provisions, the officer must provide a receipt of the encounter, but need only record information on the person's self-defined ethnicity.

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NEW legislation

Health and Safety (Offences) Act 2008

This revises the mode of trial and maximum penalties applicable to certain offences relating to health and safety. It received the Royal Assent on 16 October 2008 and will come into force three months later. It has no retrospective effect (see s. 3(2)).

Employment Act 2008

This Act contains provisions (in s. 15) by which offences under the Employment Agencies Act 1973 will become triable either way and subject to potentially unlimited fines. The revised mode of trial and penalties will come into effect on 6 April 2009.

Human Fertilisation and Embryology Act 2008

This Act amends the Human Fertilisation and Embryology Act 1990 and the Surrogacy Arrangements Act 1985. It makes provision about the persons who in certain circumstances are to be treated in law as the parents of a child.

It includes provisions (in s. 29) amending existing offences under s. 41 of the 1990 Act. These amendments will be brought into force in accordance with orders made by the Secretary of State.

Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) Order 2008 (SI 2008 No. 2638)

This Order provides for revisions of the Code to come into force on 27 October 2008. In certain police force areas, where a person in a public place is requested to account for themselves under Code A, para. 4.12, the recording requirements are amended. Under the amended provisions, the officer must provide a receipt of the encounter, but need only record information on the person's self-defined ethnicity.

Criminal Justice and Immigration Act 2008 (Commencement No. 3 and Transitional Provisions) Order 2008 (SI 2008 No. 2712)

Inter alia, this Order brings the following provisions into force on 3 November 2008:

• s. 21(1) and (3) to (7) (credit for period of remand on bail: terms of imprisonment and detention);
• s. 22 (credit for period of remand on bail: other cases);
• s. 23 (credit for period of remand on bail: transitional provisions);
• s. 33(1), (3), (5) and (6) (removal under Criminal Justice Act 1991);
• s. 34(1), (3), (4)(a), (5), (6), (8) and (9) (removal under Criminal Justice Act 2003), save insofar as s. 341(6) provides that the CJA 2003, s. 260(3A) ceases to have effect;
• s. 41 (disclosure of information for enforcing fines);
• s. 51 (bail conditions: electronic monitoring);
• s. 60 (contents of an accused's defence statement);
• s. 129 (inspection of police authorities);
• sch. 6 (credit for period of remand on bail: transitional provisions);
• sch. 11 (electronic monitoring of persons released on bail subject to conditions);
• sch. 22 (police misconduct and performance procedures), paras. 1 and 2, paras. 3, 4, and 7 (for the purposes of making regulations), and para. 8 (for the purpose of making rules);
• sch. 23 (investigation of complaints of police misconduct etc.), paras. 1 to 3 and 12(1), and paras. 5, 12(4) and 19 (for the purpose of making regulations);
• sch. 26 (minor and consequential amendments), paras. 5 and 29(3), (4) , (6) and (7);
• sch. 28 (repeals and revocations) insofar as relating to the CJA 1991, s. 46A, the CJA 2003, s. 260(3) and (6), the CYPA 1969, s. 23AA(4) and the Bail Act 1976, s. 3AA(6) to (10) and (12).

Police and Justice Act 2006 (Commencment No. 10) Order 2008 (SI 2008 No. 2785)

This Order brings into force on 14 November 2008 the following provisions of the Act:

1. ss. 45 (attendance by accused at certain preliminary or sentencing hearings) to the extent not already in force and 46 (live link bail) in the following local justice areas in London: Barking and Dagenham, Barnet, Bexley, Brent, Bromley, Camden and Islington, City of London, City of Westminster, Croydon, Ealing, Enfield, Greenwich and Lewisham, Hackney and Tower Hamlets, Hammersmith and Fulham and Kensington and Chelsea, Haringey, Harrow Gore, Havering, Hillingdon, Hounslow, Kingston-upon-Thames, Merton, Newham, Redbridge, Richmond-upon-Thames, Sutton, Waltham Forest, and Wandsworth; and the local justice areas of Central Kent, East Kent and North Kent;
2. (b) sch. 14, paras. 47 and 49 to 51 (amendments to the Railways and Transport Safety Act 2003).

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