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Blackstone's Criminal Practice 2009

Updates 2009

October 2008

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Blackstone's Criminal Practice 2009

October 2008

October 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.

The October update primarily considers developments reported in September 2008.

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

Part A General Principles of Criminal Law

A1 Actus Reus

A1.28 Causation: Acts of Third Parties

Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22 may no longer be considered to lay down principles of general application (following Lord Bingham's comments in Kennedy (No. 2) [2007] UKHL 38), but it remains good law in the specific context of liability for pollution offences under provisions such as the Water Resources Act 1981, s. 85(1), and it was applied in that context in L [2008] EWCA Crim 1970, where Hughes LJ said:

Here the charge was causing, rather than knowingly permitting [pollution of a watercourse]. Liability for this offence is, if not absolute, extremely strict, notwithstanding its juxtaposition in the statute with the neighboring offence of knowingly permitting. On the authority of the decision of the House of Lords in Environment Agency v Empress Car Co (Abertillery) Ltd, and of other authorities there reviewed, it may be committed by maintaining a tank containing a polluting substance which escapes into a watercourse even if the immediate occasion of the escape is the unforeseeable act of a third party, providing that that intervening act can be described as a normal fact of life as distinct from an extraordinary and abnormal event. Even an intervening interference by a trespasser may lead to the criminal responsibility of the tank owner. The decision in that case was that in such circumstances maintaining the tank causes the pollution.

In Empress the defendant company could be said to have contributed to the pollution of a watercourse by their complete disregard for elementary safety precautions, which left their premises defenceless against vandalism of the kind that seems to have occurred, but that accusation cannot really be made against the defendants in L, whose only contribution to the 'crime' was that they were responsible for storing central heating oil on their club's premises. The escape of the oil was the fault of independent contractors working on their site, but liability was strict.

For other aspects of this case, see A5.17 below.

A5 Parties to Crime

A5.17 Corporate Liability (and Unincorporated Associations)

In L [2008] EWCA Crim 1970, the court considered the potential liability of members of an unincorporated association for offences involving the activities of that association (in this case the pollution of a watercourse by heating oil escaping from the premises of a golf club).

Although unincorporated associations are not regarded for most purposes as having legal personality, there are many important exceptions to that principle, as Hughes LJ notes in L at [15]. A number of offence-creating statutes expressly provide for the prosecution and liability of such entities (see for example the Corporate Manslaughter and Corporate Homicide Act 2007, s. 1(2) and the Health Act 2006, ss. 76 and 77). Moreover, under the Interpretation Act 1978, where an enactment passed after 1889 purports to impose criminal liability on 'persons' this may include unincorporated associations. See L at [17] and [27] see also W Stevenson & Sons (a partnership) [2008] EWCA Crim 273.

In some cases, it is specifically provided that any prosecution should be brought against the association or firm, and not against individual members, but in other cases there is no such restriction. In L, the prosecution had been brought against two of the club's 900 members (namely its Chairman and Treasurer). The trial judge ruled that this was wrong because they were not personally at fault and that the club should itself have been charged. The prosecution conceded that this would indeed have been a more appropriate way in which to proceed, but the Court of Appeal took a different view. It was true that the defendants were not personally at fault. It was also true that no officer of a corporation could have incurred liability unless personally at fault, but in this case liability arose merely because they were members. Hughes LJ explained:

33. In this the judge went further than he was entitled to go. It is one thing to say that Parliament ought to have included a further provision in the statute, but it is quite another to re-write the Act as if it had. The Interpretation Act contains no justification for such an insertion. Nor do we think that it is correct to say that there is no reason why the criminal liability of officers (or members) of an unincorporated association should exist on a basis different to that of the officers of a corporation. Although many statutes make it possible to prosecute an unincorporated association, and although we have held that this is perfectly possible under section 85 Water Resources Act, it does not follow that such an association is for all purposes the same as a company or other corporation. It is not. A corporation has, for all legal purposes, independent legal personality. It is also regulated, often heavily. It must have a registered address and registered directors and secretary. An unincorporated association may indeed look very like a corporation in some cases, and it may have standing and de facto independence, but equally it may not. A prosecution which could only be brought against an informal grouping of building workers, or sportsmen, or campaigners would be likely to be wholly ineffective. It is a necessary consequence of the different nature of an unincorporated association that all its members remain jointly and severally liable for its actions done within their authority. In the present case, the 900-odd members of the club were indeed all maintainers of the tank and, on the law as explained in Empress Car Co all guilty of the strict liability offence of causing the leakage.

34. This is not vicarious liability for the offence of the club, as was suggested in argument before the judge. Vicarious liability, when it exists, arises out of the employment by the defendant of another person to act for him. There is no sense in which the chairman, treasurer, or any other member of this club employed the club to do anything for them. The criminal liability of the members of the club, including the chairman and the treasurer, is primary liability, not vicarious liability. It arises because, as Empress Car Co holds, each person jointly maintains the tank and has thus caused the leak.

35. It follows that the correct position under section 85 of the Water Resources Act 1991 is that a prosecution for the strict liability offence of causing polluting matter to enter controlled waters may be brought, on the facts of this case, against either the club in its own name, or against individual members. It is for the Crown in any individual case to determine the defendant(s) whom it seeks to prosecute. The court would interfere only in the very limited case of oppression involving abuse of process. No doubt relevant considerations will include the extent of the association's stability and assets and the nature of the act or omission said to constitute an offence. We have heard no argument on whether in exceptional circumstances it could be permissible for the Crown to seek to proceed against both the club and individuals, but there are no such exceptional circumstances here.

Despite that ruling, the court concluded that it would not be in the interests of justice for a fresh trial to take place, and directed the acquittal of the defendants.

A6 Inchoate Offences

A6.1 Incitement

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brings inter alia ss. 46 to 67 of the Act into force on 1 October 2008, including the repeal of the offence of incitement.

A6.9 Encouraging or Assisting Crime: Serious Crime Act 2007

The Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504) brings inter alia ss. 46 to 67 of the Act into force on 1 October 2008, together with schs. 3 (listed offences) and 4 (extra-territoriality).

A6.12 Intentionally Encouraging or Assisting an Offence

A6.20 Encouraging or Assisting an Offence Believing it will be Committed

A6.27 Encouraging or Assisting Offences Believing One or More will be Committed

A6.33 Encouraging or Assisting Another Person to Commit an Inchoate Offence

A6.34 Jurisdiction and Procedure

Part B Offences

B17 Offences Involving Misuse of Computers

B17.2 Unauthorised Access Offence ('Hacking')

The Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503) inter alia brings ss. 35 to 38 (computer misuse) of the Act into force on 1 October 2008.

B17.9 Unauthorised Access Offence with Intent to Commit Further Offences: Procedure

The Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503) inter alia brings the repeal of s. 12 of the Computer Misuse Act 1990 into force on 1 October 2008.

B17.11 Unauthorised Modification of Computer Material

The Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503) inter alia brings ss. 35 to 38 (computer misuse) of the Act into force on 1 October 2008.

B17.13 Unauthorised Modification of Computer Material: Procedure

The Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503) inter alia brings the repeal of s. 12 of the Computer Misuse Act 1990 into force on 1 October 2008.

B17.16 Unauthorised Acts with Intent to Impair Operation of Computer etc.

The Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503) inter alia brings ss. 35 to 38 (computer misuse) of the Act into force on 1 October 2008.

B17.17 Making, Supplying or Obtaining Articles for Use in Offences under s. 1 or s. 3

The Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503) inter alia brings ss. 35 to 38 (computer misuse) of the Act into force on 1 October 2008.

B22 Immigration Offences

B22.6 Illegal Entry and Deception: Defences

As to the importance of having regard to the Council of Europe Convention on Action against Trafficking in Human Beings and related protocols, see O (2008) The Times, 2 October 2008. The appellant in this case had been arrested at Dover in possession of false identity documents. She claimed to have been the victim of sex trafficking. This may or may not have been true, but it seems that neither the prosecution nor the defence at trial had made any enquiries to ascertain whether it was.

The Court of Appeal concluded that in those circumstances she had not received a fair trial. The prosecution should have been aware of the protocols which were contained in the Code for Crown Prosecutors. Her own lawyers failed to conduct any enquiries in the face of credible material that she might have been a victim of trafficking. The court hoped that the 'shameful circumstances of the instant case' would not be repeated. Accordingly, the conviction was quashed.

B22.29 Trafficking for Sexual Exploitation

See O (2008) The Times, 2 October 2008 at B22.6.

Part D Procedure

D12 Arraignment and Pleas

D12.9 Unfitness to Plead: Trial of the Facts

In B and others [2008] EWCA Crim 1997, the court was faced with a complex case involving allegations of serious sexual abuse over a period of 40 years. Eight of the ten defendants were arraigned and pleaded not guilty; but the other two were found unfit to plead. The judge determined at a preparatory hearing that it would be 'entirely wrong' for a single jury to decide both the guilt or innocence of the fit defendants and whether the unfit ones had done the acts alleged. The prosecution appealed against this ruling.

On appeal the Court of Appeal was referred to an article by Baird and Wade entitled 'The Criminal Procedure (Insanity and Fitness to Plead) Act 1991 and the Juries Act 1974: Irreconcilable problems?' [1999] Crim LR 656 which argued that the Juries Act 1974, s. 11, ordinarily prohibits a jury from trying for than one issue and that a joint trial of fit and unfit defendants would be 'overwhelmingly inequitable' especially where cut-throat defences are run. The Court of Appeal disagreed. After considering the historical origins of the Juries Act 1974, s. 11, Toulson LJ said (at [24]):

When a jury is empanelled to decide whether allegations contained in an indictment are proved by the evidence presented to the jury, that is the relevant issue for the purposes of section 11(4). What may properly be contained in the indictment is governed by other legislation and case law, so there is no irreconcilable conflict. Where a jury has been empanelled to decide whether a person is guilty of a charge in the indictment, that necessarily includes finding whether he committed the actus reus. If during the course of a trial of co-defendants one becomes unfit, the trial of the issue of his guilt comes to an end, but the proceedings continue in order for the jury to determine as a fact for the purposes of section 4A of the Criminal Procedure (Insanity) Act whether he committed the actus reus. The proceedings continue for that purpose on the indictment, for that document identifies the alleged acts and, as already noted, if at the end of the trial the jury is not satisfied that he committed the act or acts alleged, the defendant is to be acquitted on the relevant count or counts. It is a more limited issue than that which the jury was originally empanelled to decide, but it is an ordinary rule of pleading that the greater includes the less, see Biles v Caesar [1957] 1 WLR 156. (By contrast, section 11(5)(b) and (c) made special provision for cases where the matter subsequently determined by the jury was outwith the scope of that which it was originally empanelled to decide.) The same principle must in our judgment apply if the unfitness occurs before the commencement of proceedings before a jury.

The interests of the fit and unfit defendants, and those of witnesses and the public must be balanced in every case. The Court of Appeal did not accept that it is invariably unjust to determine the two issues together. The purpose of such a hearing is to try to arrive as nearly as possible at the same result as if there had been a full trial, the dual objectives being that, if it could not have been proved after a full trial that the person in question did the acts alleged, he should be acquitted but, if it could be proved, he should be eligible to be detained under the protectionary powers.

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

D14.118 Anonymity of Witnesses

The 21st amendment to the Consolidated Criminal Practice Direction deals with the procedure for applications under the Criminal Evidence (Witness Anonymity) Act 2008 and creates new paras. I.15.1 to I.15.24 to cover that procedure.

D15 Trial on Indictment: The Prosecution Case

D15.70 Appeals by Prosecution against Adverse Rulings

The CJA 2003, part 9, gives little indication as to the criteria that the Court of Appeal should take into account in deciding whether to grant leave to the Crown to appeal against an adverse ruling, but some guidance has now been provided by the Court of Appeal in Al-Ali [2008] WLR (D) 302. Scott Baker LJ, giving the judgment of the Court, considered s. 61(5) of the Act (in both its old and amended forms) and ruled that in deciding whether to grant leave to appeal the court should apply a broad 'interests of justice' test, instead of merely considering whether the prosecution case is arguable or whether it has some prospect of success.

In its original form (which governed the case itself), s. 61(5) provided:

But the Court of Appeal may not make an order under subsection (4)(a) or (b) [reversing or varying the ruling and either ordering that proceedings for that offence resume or ordering that a fresh trial take place in the Crown Court] in respect of an offence unless it considers it necessary in the interests of justice to do so.

As amended by the CJIA 2008, s. 44, it now provides:

But the Court of Appeal may not make an order under subsection (4)(c) [acquittal] in respect of an offence unless it considers that the defendant could not receive a fair trial if an order were made under subsection (4)(a) or (b).

In the Court's view, this amendment does not limit the discretion in such cases.

D17 Trial on Indictment: After Defence Closes

D17.17 Restrictions on Prosecution Closing Speeches

Mondon (1968) 52 Cr App R 695 and Stovell [2006] EWCA Crim 27 were considered in Rabani [2008] EWCA Crim 2030.

D25 Appeal to the Court of Appeal

D25.23 Conduct of the Trial Judge

Cross-examination of defence witnesses by the judge was condemned in Harirbafan [2008] EWCA Crim 1967. The appellant was convicted of attempting to remove criminal property from the jurisdiction, knowing or suspecting that it represented in whole or in part the proceeds of criminal conduct. He was subsequently sentenced to three years' imprisonment. The prosecution case was strong but, having referred to Matthews (1984) 78 Cr App R 23 and Sharp (1998) 94 Cr App R 144, Toulson LJ said (at [3]):

Interruptions by a judge which are excessive or which demonstrate a lack or apparent lack of impartiality, by taking on the role of a prosecutor, may prejudice a fair trial and jeopardise the safety of a conviction in two particular ways, which may be cumulative. First, they may disrupt the process by which the defence advocate seeks to adduce evidence, whether by examination-in-chief or cross- examination, in such a way that the defendant is prejudiced by the jury being deprived of the opportunity of hearing that evidence given and challenged in an orderly and coherent way. Secondly, such interruptions, if they are excessive and take on the substance of cross-examination, may have the potential to poison the minds of the jury against the defendant, by causing the jury to perceive that the judge, who is supposedly an independent figure and likely to carry respect in the eyes of the jury, clearly thinks that the defendant is trying to fool the jury.

He concluded (at [33]):

We are driven to the view that the interventions of the Recorder, in the course of the evidence given for the defence, had both the ill-effects previously mentioned as potential vices of inappropriate judicial interventions. They prevented particularly the appellant's witnesses, particularly his sister, from being able to give a coherent explanation to the jury of the source of documents. Further, the nature and tone of the interventions crossed by far the line between clarification and cross-examination. Cross-examination by a judge is unacceptable.

D30 Public Funding and Costs

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).

Part E Sentencing

E1 Sentencing: General Provisions

E1.13 Personal Mitigation

Gosford-Hall [2008] EWCA Crim 1264 provides a remarkable illustration of the range of matters that may be considered relevant in mitigation of sentence. The defendant was a man of distinction, aged 68, whose many achievements (including the founding the Bloomsbury Society, which attempts to promote racial harmony and human rights through multi-cultural community events) contrasted with his unfortunate habit of abusing drink and drugs and committing sexual assaults (albeit relatively minor ones, such as bottom-pinching) when thus intoxicated. He had been imprisoned for this kind of behaviour some years before and his two latest offences had activated a three-month suspended sentence imposed a year earlier, again for similar misconduct.

There was other mitigation, including the fact that he cared for his wife who had a disability. In the circumstances the court reduced his total sentence from nine months to six by making the sentences imposed for his most recent offences concurrent rather than consecutive.

E21 Exclusions and Disqualifications

E21.2 Drinking Banning Orders

The Civil Procedure (Amendment) Rules 2008 (SI 2008 No. 2178) include amendments to part 65 removing the provisions relating to drinking banning orders. The Explanatory Note indicates that this is because the relevant provisions of the Violent Crime Reduction Act 2006 have not been implemented and the Explanatory Memorandum states that such implementation 'has been delayed indefinitely'.

Appendices

Appendix 7 The Consolidated Criminal Practice Direction

NEW legislation

Crime (International Co-operation) Act 2003 (Designation of Participating Countries) (England, Wales and Northern Ireland ) Order 2008 (SI 2008 No. 2156)

This Order designates the United States of America as a participating country under s. 51(2)(b) of the 2003 Act for the purpose of ss. 32, 35, 43, 33 and 45 of that Act; those provisions enable customer information orders and account monitoring orders to be requested by a designated country and for requests for such orders to be made to the designated country.

Civil Procedure (Amendment) Rules 2008 (SI 2008 No. 2178)

The amendments made by these Rules include amendments to Part 65 removing the provisions relating to drinking banning orders. The Explanatory Note indicates that this is because the relevant provisions of the Violent Crime Reduction Act 2006 have not been implemented and the Explanatory Memorandum states that such implementation 'has been delayed indefinitely'.

Criminal Defence Service (Recovery of Defence Costs Orders) (Amendment) Regulations 2008 (SI 2008 No. 2430)

These Regulations 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 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. The effect of these amendments is also 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).

Costs in Criminal Cases (General) (Amendment) Regulations 2008 (SI 2008 No. 2448)

These Regulations 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).

Police and Justice Act 2006 (Commencement No. 9) Order 2008 (SI 2008 No. 2503)

This Order brings the following provisions of the Act into force on 1 October 2008:

(a) ss. 35 to 38 (computer misuse);

(d) in part 4 of sch. 15 (repeals and revocations) the entries relating to ss. 11, 12, 14, 16 and 17 of the Computer Misuse Act 1990, sch., para. 7 and sch. 8, para. 347 to the Courts Act 2003 and sch. 16, para. 7 to the Serious Organised Crime and Police Act 2005.

Serious Crime Act 2007 (Commencement No. 3) Order 2008 (SI 2008 No. 2504)

This Order brings the following provisions of the Act into force on 1 October 2008:

(a) ss. 46 to 67 (i.e. part 2 - encouraging and assisting crime) together with schs. 3 (listed offences), 4 (extra-territoriality), 5 (amendments relating to service law) and 6 (minor and consequential amendments);

(b) s. 68(1) to (7) (disclosure of information to prevent fraud);

(d) s. 71(3) and (6) (code of practice for disclosure of information to prevent fraud);

(e) s. 72 (data protection rules);

(f) s. 91(1) (transitional and transitory provisions and savings) in so far as it relates to the provisions in sub-paragraph (g);

(g) sch. 13, paras. 5, 6 and 8 (transitional and transitory provisions and savings);

(h) in sch. 14 (repeals and revocation) the entries relating to the Criminal Law Act 1977, the Magistrates' Courts Act 1980, the Magistrates' Courts (Northern Ireland) Order 1981, the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, the Public Order Act 1986, the Computer Misuse Act 1990, the International Criminal Court Act 2001 and the Police and Justice Act 2006.

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