Email this to a Friend

Printer-Friendly View

Blackstone's Criminal Practice 2009

Updates 2009

Part B

You are here: Home > Academic, Professional, & General Blackstone's Criminal Practice 2009 Updates 2009 > Part B

Companion Website

Blackstone's Criminal Practice 2009

Part B

Updates to Part B: Offences

B1 Homicide and Related Offences

B1.15 Diminished Responsibility

Even where, on a charge of murder, there is uncontradicted medical evidence of a significant mental abnormality affecting the accused, the general rule is that the charge of murder should be left to the jury. Save where the prosecution concede the issue, only in very exceptional cases should a charge of murder be withdrawn form the jury on the basis of diminished responsibility. The trial judge would have to be satisfied that on the evidence (including the expert medical evidence), no reasonable jury could fail to conclude that the accused had established the essential elements of the defence on a balance of probabilities. See Khan [2009] EWCA Crim 1569.

B1.19 Diminished Responsibility: Relevance of Intoxication

Dietschmann [2003] 1 AC 1209 and Wood [2008] EWCA Crim 1305 were considered in Stewart [2009] EWCA Crim 593, where the trial judge had directed the jury in accordance with Tandy, shortly before the House of Lords in Dietschmann reconsidered the approach to adopt in such cases. The Court of Appeal quashed D's conviction for murder and ordered a retrial. Lord Judge CJ referred to the International Classification of Diseases (ICT) and the Diagnostic and Statistical Manual of Mental Disorders (DSM) criteria and said:

This order enables us to address [counsel's] suggestion that further guidance should be offered about the directions to the jury. Whether or not brain damage is discernible, alcohol dependency syndrome is a disease (ICD10) or disorder of the mind (DSM - IV - TR). It is not excluded from the operation of section 2 of the Homicide Act 1957. If the defence of diminished responsibility is to operate according to its statutory structure, the law must take account of advances in medical knowledge. Nevertheless, when the issue arises, it must be addressed in the context of a further principle, that the voluntary consumption of alcohol, and the defendant's voluntary intoxication, does not provide a defence to murder, although it may, in an extreme case, bear on the question of the defendant's intent (R v Sheehan and Moore [1974] 60 CAR 208. These principles have to be reconciled.

Alcoholism varies greatly in its nature and extent. As with other conditions, it involves different levels of severity. A heavy drinker does not necessarily suffer from alcohol dependency syndrome and someone suffering from it may very well have lengthy periods when he is either sober or when his mental responsibility is not significantly impaired by alcohol. Thus, for example, in the present case, the appellant's condition did not preclude sensible, intelligent discussions both with a doctor and his probation officer not long before he killed the deceased. One of the criteria for ICD10 purposes includes the 'difficulty', not, we emphasise, the impossibility of controlling the use of alcohol, and DCM-IV-TR acknowledges that unsuccessful efforts to cut down or control alcohol abuse may be an indication of the presence of the disorder, and in other words, would allow for temporary improvements without undermining the overall diagnosis of alcohol dependency syndrome. In short, even if the diagnosis is agreed and correct, not every alcoholic is suffering from such abnormality of mind that his mental responsibility for his actions at the time of the killing is or must be treated as if it were substantially impaired. Thus, although the condition is a disease encompassed by section 2 of the 1957 Act, the defence is not established simply on the basis of a diagnosis of alcohol dependency syndrome.

With these considerations in mind we have re-examined paragraph 41 of the judgment in Wood, and in particular the sentence which reads '. . . the jury should focus exclusively on the effect of alcohol consumed by the defendant as a direct result of his illness or disease and ignore the effect of any alcohol consumed voluntarily'. Taken with the references to 'voluntary' drinking later in this paragraph, we accept that the clause, '. . . and ignore the effect of any alcohol consumed voluntarily' may appear to require the jury to 'separate out' (to use Mr Richardson's words [in criminal Law Week]) each and every drink consumed by the defendant and decide whether it was taken voluntary or involuntarily. As he argues, that would be unrealistic, when, at some levels of severity what may appear to be 'voluntary' drinking may be inseparable from the defendant's underlying syndrome.

The effect of Wood was to align the principles which apply when the defendant's alcohol dependency syndrome has not (yet) caused discernible brain damage to those where it has. The consumption of vast amounts of alcohol may therefore reduce murder to manslaughter, first, when the effect of the intoxication is so extreme that the prosecution has failed to prove the necessary intent to kill or cause grievous bodily harm (R v Sheehan and Moore) and second, assuming that the necessary intent is proved notwithstanding the consumption of alcohol, on the basis of diminished responsibility, provided the defendant proves that he was suffering from such abnormality of mind induced by the disease or illness of alcohol dependency syndrome that his mental responsibility for his actions in doing the killing was substantially impaired.

We offer these suggestions to trial judges structuring a summing up for the purposes of the defence of diminished responsibility based on alcohol dependency syndrome. At an early stage the judge may wish to reflect on the ordinary principles relating to voluntary intoxication. He should then outline the ingredients of the defence, effectively paraphrasing section 2 of the 1957 Act in the familiar way.

The jury should be directed to decide, first, whether the defendant was indeed suffering from an abnormality of mind at the time of the killing. For this purpose R v Byrne [1960] 2 QB 396 continues to be of assistance. The judge is likely to direct the jury that it does not necessarily follow from the fact that the defendant suffers from alcohol dependency syndrome that he has established the necessary abnormality of mind. This depends on the jury's findings about the nature and extent of the syndrome and whether, looking at the matter broadly, his consumption of alcohol before the killing is fairly to be regarded as the involuntary result of an irresistible craving for or compulsion to drink.

If the defendant proves the necessary abnormality of mind, the second question, is whether this was caused by disease or illness. In this class of case, the answer to this second question will normally follow from whatever answer is appropriate to the first question.

Finally, and assuming that the particular defendant's alcohol dependency syndrome did indeed constitute an abnormality of mind due to disease or illness, which was present at the time of the killing, directions about whether the defendant's mental responsibility for what he did was substantially impaired should be addressed in conventional terms. The jury should be assisted with the concept of substantial impairment, and may properly be invited to reflect on the difference between a failure by the defendant to resist his impulses to behave as he actually did, and an inability consequent on it to resist them.

In answering their questions, the jury should be directed to consider all the evidence, including the opinions of the medical experts. The issues likely to arise in this kind of case and on which they should be invited to form their own judgment will include (a) the extent and seriousness of the defendant's dependency, if any, on alcohol (b) the extent to which his ability to control his drinking, or to choose whether to drink or not, was reduced, (c) whether he was capable of abstinence from alcohol, and if so, (d) for how long, and (e) whether he was choosing for some particular reason, such as a birthday celebration, to decide to get drunk, or to drink even more than usual. Without seeking to be prescriptive about considerations relevant to an individual case, the defendant's pattern of drinking in the days leading to the day of the killing, and on the day of the killing itself, and notwithstanding his consumption of alcohol, his ability, if any, to make apparently sensible and rational decisions about ordinary day to day matters at the relevant time, may all bear on the jury's decision whether diminished responsibility is established in the context of this individual defendant's alcohol dependency syndrome.

We acknowledge that this decision will rarely be easy. Indeed it is fair to say that diminished responsibility has always raised complex and difficult issues for the jury, not least because the defence usually involves conflicting medical evidence addressing legal, not medical concepts, for a jury of lay persons to decide. The jury is often called upon to confront problems relating to the operation of the mind with which they will be unfamiliar. Nevertheless the resolution of these problems continues to be the responsibility of the jury, and when addressing their responsibility they are inevitably required to make the necessary judgments not just on the basis of expert medical opinion but also by using their collective common sense and insight into the practical realities which underpin the individual case.

B1.22 Provocation

Smith (Morgan James) [2001] 1 AC 146 and A-G for Jersey v Holley [2005] 2 AC 580 were considered in Symmons [2009] EWCA Crim 654, in the course of which Dyson LJ said:

50. There is now no doubt as to the constituents of provocation. The defendant must have been provoked by things said or done or by both together to lose his self-control (limb 1). The jury must form a view as to the gravity of the provocation for the defendant in all the circumstances; and then (limb 2) decide whether, having regard to the actual provocation and their view as to its gravity, a person having the power of self-control to be expected of a person of the sex and age of the defendant would have done what the defendant did.

B1.37 Sentencing Guidelines: Diminished Responsibility

Chambers (1983) 5 Cr App R (S) 190 was considered in Wood [2009] EWCA Crim 651. D (an alcoholic, aged 50, with a long criminal record including offences of violence) had initially been convicted of murder and sentenced to life with a minimum term of at least 18 years. His victim had been subjected to what the court described as 'a murderous and prolonged attack of extreme ferocity'. D's conviction for murder was quashed in 2008 and a conviction for manslaughter on the grounds of diminished responsibility was substituted (see Blackstone's Criminal Practice 2009 at B1.19).

The question of sentence was deferred to this later hearing, where the five-judge court was assisted by a psychiatric report which advised that 'although [D] is not violent on a regular basis, he has the ability to cause serious harm in the context of inter-personal conflict and especially when he is under the influence of alcohol'. Lord Judge CJ (giving the judgment of the Court) said:

11. There are two distinct questions for decision. In the absence of any medical disposal (and none is suggested) the first question is whether the case requires a sentence of imprisonment for life under section 225(2) of the 2003 Act or imprisonment for public protection under section 225(3) of the Act as amended by the Criminal Justice and Immigration Act 2008. Whichever of these orders is appropriate, the second question is the assessment of the minimum term to be served by the appellant before any possibility of his release on parole may arise. That raises questions as to the nature of the link, if any, between the legislative structures introduced by section 269 of the 2003 Act for the determination of the minimum term in cases of murder, and the assessment of the minimum term where the defendant is convicted of manslaughter by reason of diminished responsibility.

. . .

19. . . . the striking feature of this offence is not simply that the victim was killed, but he was killed in the course of a prolonged murderous (on the judge's findings, unprovoked) attack of repeated and utmost ferocity. We accept, of course, that the appellant's culpability was diminished, but it was very far from extinguished, and his level of responsibility for his actions merits examination in the light of his immediate activities both before the attack began and after it was concluded, and his insight into the need to do what could be done to cover up the fact of the killing and his involvement in it. In our judgment the level of his responsibility was just, but only just sufficiently diminished for the purposes of section 2 of the Homicide Act. As in Chambers, a very substantial element of mental responsibility remained. Finally, the risk represented by the appellant has not yet diminished. While in custody he is not able to obtain alcohol but there is no basis on which we can be satisfied that the alcohol dependency syndrome from which he suffered at the date of his crimes is now permanently cured, and that if and when released, he would not return to his excessive and dangerous drinking habits.

20. In the circumstances of this case, we are satisfied that the appropriate sentence is a discretionary sentence of imprisonment for life.

Lord Judge then moved on to consider the setting of a minimum term.

21. There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant's culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. There is no express statutory link between the guidance in schedule 21 of the 2003 Act and the principles to be applied to sentencing decisions in diminished responsibility manslaughter. Where diminished responsibility is established it serves to reduce the defendant's culpability for his actions when doing the killing, but the remaining circumstances of the homicide are unchanged. Specific features of the seriousness of the homicide, for example a double rather than a single killing, or the sadistic killing of a child may be common both to murder and diminished responsibility manslaughter. At the same time the mitigating features expressly identified in schedule 21 extend to what may approximate but not amount to the defence of diminished responsibility and provide an additional connection between the schedule and the defence. Finally, the culpability of the defendant in diminished responsibility manslaughter may sometimes be reduced almost to extinction, while in others, it may remain very high. Accordingly when the sentencing court is assessing the seriousness of the offence with a view to fixing the minimum term, we can discern no logical reason why, subject to the specific element of reduced culpability inherent in the defence, the assessment of the seriousness of the instant offence of diminished responsibility manslaughter should ignore the guidance. Indeed we suggest that the link is plain. . .

. . .

24. As a case of murder, the trial judge assessed the minimum term at 18 years. We have not been invited to, and we see no reason to disagree with this assessment. It carefully reflected the essential features of the case as described in this judgment. The minimum term must now be reduced to allow for the level of reduced culpability consequent on diminished responsibility. We shall not repeat the very grave features which led us to conclude that imprisonment for life is appropriate in this case. Bearing in mind that the protection of the public for the future is secured by the sentence of imprisonment for life, the minimum term should be fixed at 13 years.

B1.55 Gross Negligence

In Evans [2009] EWCA Crim 650 a five-judge Court of Appeal has provided some clarification as to the circumstances in which a duty of care may arise, and has also clarified the roles of the judge and jury in determining whether such a duty of care has arisen.

The appellant, E, and her mother, T, were convicted of the manslaughter of E's half-sister (and T's daughter), C, who had injected herself with what proved to be an overdose of heroin. All three women had been heroin users, and the appellant had procured the heroin in question from a local dealer, A. When C became ill, showing signs of having overdosed, E and T stayed with her but decided against calling for help for fear that so doing would get them all into trouble. C died during the night. In respect of E, the judge's direction to the jury was that:

. . .the only matter which in law is capable of giving rise to a duty of care owed by [E] to [C] would be if [E] did, on this occasion, as the prosecution allege, act as an intermediary, giving the drugs to [C] herself having first obtained them from [A]. If the prosecution have made you sure that [E] did on this occasion act as an intermediary, giving the drugs to [C] herself, having first obtained them from [A], that is a matter which in law is capable of giving rise to a duty of care. It is for you to decide whether the prosecution has made you sure that such a duty of care has arisen on the facts found by you.

E's conviction was upheld. Lord Judge CJ explained:

20. The question in this appeal is not whether the appellant may be guilty of manslaughter for having been concerned in the supply of the heroin which caused the deceased's death. It is whether, notwithstanding that their relationship lacked the features of familial duty or responsibility which marked her mother's relationship with the deceased, she was under a duty to take reasonable steps for the safety of the deceased once she appreciated that the heroin she procured for her was having a potentially fatal impact on her health.

21. When omission or failure to act are in issue two aspects of manslaughter are engaged. Both are governed by decisions of the House of Lords. The first is manslaughter arising from the defendant's gross negligence (Adomako [1995] 1 AC 171). The second arises when the defendant has created a dangerous situation and when, notwithstanding his appreciation of the consequent risks, he fails to take any reasonable preventative steps (Miller [1983] 2 AC 161) . . .

Having considered a number of other authorities, including Wacker [2003] 1 Cr App R 329, and Khan [1998] Crim LR 830, Lord Judge continued:

31 . . . The duty necessary to found gross negligence manslaughter is plainly not confined to cases of a familial or professional relationship between the defendant and the deceased. In our judgment, consistently with Adomako and the link between civil and criminal liability for negligence, for the purposes of gross negligence manslaughter, when a person has created or contributed to the creation of a state of affairs which he knows, or ought reasonably to know, has become life threatening, a consequent duty on him to act by taking reasonable steps to save the other's life will normally arise.

Without her involvement in the supply of heroin, the jury was directed that there was no duty on the appellant to act even after she became aware of the serious adverse effect of the drug taking on C. If on the other hand she was so involved, that fact, taken with the other undisputed facts would, and on our analysis of the relevant principles did give rise to a duty on the appellant to act. In law the judge's directions about the ingredients of gross negligence manslaughter, as applied to this case, were correct.

Lord Judge then turned to the respective roles of judge and jury, an issue on which the previous authorities were in some disarray.

42. In Willoughby the court directly addressed what was said to be a 'conflict' between the authorities on the question whether the judge or jury should decide whether such a duty existed. It was held, after examining the words used by Lord Mackay in Adomako that this issue, as well as the issues of breach of duty and assessment of criminality, were matters for the jury.

43. We are troubled by this conclusion. It depends on the view that this was indeed the effect of Lord Mackay's observations in Adomako. We are unable to agree that this interpretation is correct. It was suggested in Willoughby that Lord Mackay's use of the words 'the jury must go on' carried the clear implication that the existence or otherwise of a duty of care would usually be a matter for the jury. However it is plain that Lord Mackay was anxious to avoid over elaboration, and we find it difficult to agree that his use of colloquial language ('the jury must go on') was intended to bear the weight laid upon it by Willoughby. Our view is reinforced by Lord Mackay's later observation that 'the task of trial judges in setting out for the jury the issues of fact and the relevant law in cases of this class is a difficult and demanding one'.

44. In our view if Lord Mackay had been intending to depart from what we have described as first principles he would have said so and explained why. Moreover, although we agree that before a conviction can be returned the jury must indeed be sure that the defendant owed the necessary duty of care, this begs the question whether the conclusions of the jury should follow on the basis of their findings of fact or whether the jury is required or indeed entitled to make a decision of law. Notwithstanding the terms of the judgment, in his valuable commentary on Willoughby at [2005] Crim LR 390 at 392, Professor Ormerod suggests that 'the present decision does not relegate the duty question to one of fact. It remains a question of law, and the jury are to be directed on what the law is - i.e. whether a duty exists if they find certain facts to be established'. His reasoning is persuasive, and consistent with principle.

45. In some cases, such as those arising from a doctor/patient relationship where the existence of the duty is not in dispute, the judge may well direct the jury that a duty of care exists. Such a direction would be proper. But if, for example, the doctor were on holiday at the material time, and the deceased asked a casual question over a drink, it may very well be that the question whether a doctor/patient relationship existed, and accordingly whether a duty of care arose, would be in dispute. In any cases where the issue is in dispute, and therefore in more complex cases, and assuming that the judge has found that it would be open to the jury to find that there was a duty of care, or a duty to act, the jury should be directed that if facts a + b and/or c or d are established, then in law a duty will arise, but if facts x or y or z were present, the duty would be negatived. In this sense, of course, the jury is deciding whether the duty situation has been established. In our judgment this is the way in which Willoughby should be understood and, understood in this way, no potential problems arising from Article 6 and Article 7 of the ECHR are engaged.

The court concluded that the jury in this case should not have been left to decide whether the appellant owed a duty of care, but that in the circumstances this did not cast any doubt on the safety of her conviction.

B1.63 Causing or Allowing the Death of a Child or Vulnerable Adult: Elements

The scope of the offence under the Domestic Violence, Crime and Victims Act 2004, s. 5(1), was examined by the Court of Appeal in Khan [2009] EWCA Crim 2. S, a young woman from Pakistan, was brought to England in order to marry K, who treated her with brutal violence on a number of occasions before murdering her by beating her to death. Four other adult members of the same household who were alleged to have had frequent contact with S were charged under s. 5 and convicted of allowing the death of a vulnerable adult. The prosecution case was that K had been beating S throughout the three weeks before her death and that it must have been apparent to each defendant that she was being subjected to serious violence. Three of them appealed against their convictions. One of the grounds of appeal was that the trial judge failed to direct the jury that it was necessary for membership of the household and frequency of contact to coincide with the facts or circumstances which would give rise to criminal liability, including the defendant's awareness of a significant risk of serious physical harm, and foresight of the circumstances in which the fatal beating occurred. The court rejected that argument. Lord Judge CJ said (at [30]):

In our judgment, the question whether contact between the defendant and the victim was frequent or not, is free-standing. Although 'member of the same household' is defined in section 5(6), there is no further definition of 'frequent contact'. The reason is clear. None is needed. Unless the contact was frequent, the prosecution would fail. Assuming, however, that it was indeed frequent, the defendant would nevertheless be entitled to be acquitted unless the criteria in section 5(1)(i)(d) and (iii) were also established. The submission by the appellants seeks to import into the words 'frequent contact' the criteria found in section 5(1)(d). They are irrelevant to the determination of the simple question of fact whether the individual appellant's contact with [S] was or was not frequent for the purposes of identifying him or her as a potential defendant.

This sufficed to dispose of the appeal on that particular issue, but Lord Judge added some more general comments (at [32] and [33]) as to the application of s. 5:

Section 5(1)(d)(i) and (iii) defines the subjective elements which must be established by the prosecution. It applies when the defendant was aware of the risk of serious physical harm and foresaw the occurrence of the unlawful act or course of conduct which resulted in death. It applies, however, when the defendant was unaware of the risk, but ought to have been aware of it, and when he did not foresee, but ought to have foreseen the occurrence of the act. The objective therefore is to bring within the ambit of the offence, not only those who are actually aware of the risk and foresaw the unlawful act, but those who chose to close their eyes to a risk of which they ought to have been aware, and which they ought to have foreseen.

These apparently broad routes to criminal liability are narrowed by the requirement that, even if the necessary level of awareness and foresight are established, the defendant cannot be convicted unless he or she failed to take the steps which could reasonably have been expected. In our judgment, this pre-condition requires close analysis of the defendant's personal position. We note the concern expressed by Jonathan Herring in Familial Homicide, Failure to Protect and Domestic Violence: Who's the Victim [2007] Crim LR 923 that abused women, for example, may be prosecuted for allowing their violent partners to kill their child. However, section 5(1)(d)(ii) makes clear that the protective steps which could have been expected of the defendant depend on what reasonably have been expected of him or her. In the present case, for example, if either of the female appellants had herself been subjected by [K], to serious violence of the kind which engulfed [S], the jury might have concluded that it would not have been reasonable to expect her to take any protective steps, or that any protective steps she might have taken, even if relatively minor, and although in the end unsuccessful to save the deceased, were reasonable in the circumstances. We are not attempting to lay down principles of law on what are questions exclusively of fact, but seeking merely to illustrate the ambit of this paragraph, and its potential importance to an individual defendant, and to put the submissions on behalf of these appellants into context.

There was a further ground of appeal, arising from the fact that the fatal attack on S occurred in the garage at night, when the appellants were asleep, and involved a degree of violence that was markedly more extreme than anything inflicted on her in the house itself during the previous three weeks. The circumstances, it is said, were utterly different and none of the individual appellants foresaw or ought to have foreseen such an attack. This argument was also rejected. Lord Judge said (at [39]):

The act or conduct resulting in death must occur in circumstances of the kind which were foreseen or ought to have been foreseen by the defendants. They need not be identical. The violence to which [S] was subjected on the night she was killed was of the same kind but it was violence of an even more extreme degree than the violence to which her husband had subjected her on earlier occasions. The place where the fatal attack took place was irrelevant. Although ultimately a jury question, the circumstances would probably have been the same kind, if not identical, if the fatal attack had occurred while the couple were on holiday, away from their home.

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).

B1.118a Complicity in Suicide: Procedure

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

B1.118b Complicity in Suicide: Procedure

The Court of Appeal's ruling in the Purdy case (noted in the March update) has been reversed by the House of Lords in R (Purdy) v DPP [2009] UKHL 45. It was held that the DPP should indeed be required to promulgate an offence-specific policy identifying the facts and circumstances which he would taken into account in deciding in a case such as that which the claimant's case exemplified, whether or not to consent to a prosecution under the Suicide Act 1961, s. 2(1). Such guidance is needed because there is already an obvious gulf between what s. 2(1) says and the way that it is being applied in practice in compassionate cases of this kind.

Having considered the ruling of the European Court of Human Rights in Pretty v United Kingdom (Application 2346/02)[2002] 2 FCR 97, the Appellate Committee noted that it conflicted with the Committee's earlier ruling in R (Pretty) v DPP [2002] 1 AC 800 on a on a narrow but important point, namely, whether the guarantee in Article 8 could apply to the manner in which a person wished to die. In light of that, the Committee decided not to follow its own decision on that issue, and to recognise that the right to respect for private life in Article 8(1) was engaged in the instant case.

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.

B1.122a Complicity in Suicide: Elements

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

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

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

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

B1.122b Complicity in Suicide: Elements

In R (Purdy) v DPP [2009] UKHL 45 (see B1.118) the claimant's immediate concern was whether her husband would be likely to face prosecution under the Suicide Act 1961 if he were to assist her, in England, to travel to Switzerland, where she would then be helped to commit suicide at a clinic operating in accordance with Swiss law.

As at all previous stages of the case, the parties and courts concerned assumed that an offence under the Suicide Act 1961, s. 2(1), would indeed be committed within the jurisdiction in such circumstances but, at some point after the Committee had finished hearing oral argument, it became aware of the possibility that this might not be so (a possibility first suggested here in the November 2008 update).

Statutory offences of procuring, causing or assisting that are intended to apply in respect of things that are procured etc. to happen abroad will ordinarily include words such as, 'anywhere in the world' or 'in any place outside the United Kingdom'; but s. 2(1) includes no such words and does not appear to have been intended to apply to suicides committed abroad. The obvious inference is that Parliament did not intend to criminalise involvement in suicides committed abroad. Having belatedly considered this possibility, and received written submissions on it from the parties and the Attorney-General, the Appellate Committee concluded that the issue was too difficult to be resolved without full argument.

Some obiter views were expressed. Lord Hope was minded to conclude that s. 2(1) clearly does apply to such cases. Lord Phillips noted that the Suicide Act 'plainly' does not apply to suicides abroad, and this led him to the bizarre conclusion that complicity on the part of a British citizen in a suicide committed abroad must still be murder, as it was before the Act was passed. With respect, this conclusion was based on a simple misreading of s. 3(3), which merely provides that the Act governs English law, and not that of Scotland or Northern Ireland. Thanks to s. 1 of the Act, the English law of murder no longer applies to suicide or complicity in suicide either in England or 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

B2.31 Assault on Constable in Execution of his Duty: Actus Reus

A police officer in plain clothes who wishes to exercise his power to stop and search must ordinarily produce his warrant card before so doing, in accordance with PACE Code A, failing which the search becomes unlawful and the officer in question would not be acting in the execution of his duty: see B v DPP [2008] EWHC 1655 (Admin).

B2.36 Resisting or Wilfully Obstructing Constable: Elements

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

B3.14 Rape: Sentencing Guidelines: Life Imprisonment

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

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.

B3.136 Sexual Activity with a Person with a Mental Disorder Impeding Choice: Elements

In C [2009] UKHL 42, the House of Lords has reversed the judgment of the Court of Appeal in C [2008] EWCA Crim 1155 and restored the respondent's conviction in that case.

The questions certified for the consideration of the Appellate Committee were summarised by the parties as follows:

Whether the decision of the Court of Appeal has unduly limited the scope of section 30(1) of the Sexual Offences Act beyond that which Parliament intended. Specifically:
in holding that a lack of capacity to choose cannot be person or situation specific;

in holding that an irrational fear that prevents the exercise of choice cannot be equated with a lack of capacity to choose; [and]

in holding that to fall within section 30(2)(b) a complainant must be physically unable to communicate by reason of his mental disorder?

The Committee answered 'yes' to each of these questions. Baroness Hale, with whom the rest of the Committed concurred, suggested that the Court of Appeal may have been unduly influenced by judgments relating to capacity at common law, whereas the Sexual Offences Act 2003, s. 30, had in fact put the matter beyond doubt:

A person is unable to refuse if he lacks the capacity to choose whether to agree to the touching "whether because he lacks sufficient understanding of the nature or reasonably foreseeable consequences of what is being done, or for any other reason" (s. 30(2)(a)). Provided that the inability to refuse is "because of or for a reason related to a mental disorder" (s. 30(1)(c)), and the other ingredients of the offence are made out, the perpetrator is guilty. The words "for any other reason" are clearly capable of encompassing a wide range of circumstances in which a person's mental disorder may rob them of the ability to make an autonomous choice, even though they may have sufficient understanding of the information relevant to making it. These could include the kind of compulsion which drives a person with anorexia to refuse food, the delusions which drive a person with schizophrenia to believe that she must do something, or the phobia (or irrational fear) which drives a person to refuse a life-saving injection . . . or a blood transfusion . . .

The 2003 Act also makes it clear that the question is whether the complainant has the capacity to choose whether to agree to "the touching", that is, the specific act of sexual touching of which the defendant is accused. . . The complainant here, even in her agitated and aroused state, might have been quite capable of deciding whether or not to have sexual intercourse with a person who had not put her in the vulnerable and terrifying situation in which she found herself. . . The question is whether, in the state that she was in that day, she was capable of choosing whether to agree to the touching demanded of her by the defendant.

As to inability to communicate of the purposes of s. 30(2)(b),

There are, of course, some physical disorders of the brain which lead to disorders of the mind. But it is quite clear that in the 2003 Act Parliament had in mind an inability to communicate which was the result of or associated with a disorder of the mind. There is no warrant at all for limiting it to a physical inability to communicate.

One of the more puzzling features of this case was the prosecution's decision to substitute the s. 30 charge for the original charge of rape. Baroness Hale suggested a possible reason:

The view may have been taken that the offence under section 30 is somewhat easier to prove. The prosecution has only to prove the inability to refuse rather than that the complainant actually did not consent.

But if we focus only on the issue of consent and ability to refuse, the boot appears to be on the other foot: it must be easier to prove that a complainant did not in fact consent than to prove that she was incapable of consenting, which is what 'inability to refuse' would necessarily involve. A person cannot consent unless she has the freedom and capacity to do so. It follows that if she was unable to refuse then she could not have given valid consent on that occasion; whereas it is perfectly possible for a jury to find that although she was capable of consenting she did not in fact do so.

In mens rea terms, however the s. 30 offence may sometimes be easier to prove. As Baroness Hale explained:

The mens rea for rape is that the defendant does not reasonably believe that the complainant consents (s. 1(1)(c)). This puts a greater burden of restraint upon people who know or ought to know that a person's mental disorder is likely to affect her ability to choose. This may explain why the decision was made to charge the s. 30 offence in this case.

Baroness Hale also considered that an alternative count for a s. 34 offence might usefully have been added to the indictment: see her opinion in C at [32].

B3.282 Indecent Photographs of Children, etc

The Criminal Justice and Immigration Act 2008 (Commencement No. 4 and Saving Provision) Order 2008 (SI 2008 No. 2993) inter alia brings into force on 26 January 2009, ss. 63 to 68 (extreme pornography) and sch. 14 (special protection for providers of information society services).

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

B4.5 Sentencing Guidelines: Offences of Theft Generally

The Sentencing Guidelines Council has issued a new sentencing guideline which relates to Theft and Burglary in a building other than a dwelling (December 2008). It applies to offenders aged over 18 falling to be sentenced for theft on or after 5 January 2009. The guidelines cover inter alia (i) theft in breach of trust (thereby superseding the former Court of Appeal guidelines in Barrick (1985) 81 Cr App R 78 and Clark [1998] 2 Cr App R 137: see B4.8) (ii) theft in a dwelling, (ii) theft from the person (see B4.7) and (v) theft from a shop (superseding Page [2005] 2 Cr App R (S) 221: see B4.6).

B4.5a Sentencing Guidelines: Offences of Theft Generally

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). Theft now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B4.6 Sentencing Guidelines: Shoplifting

B4.7 Sentencing Guidelines: Theft from the Person

B4.8 Sentencing Guidelines: Theft in Breach of Trust

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).

B4.58 Burglary: Sentencing Guidelines

B4.58a Burglary: Sentencing Guidelines

In Saw [2009] EWCA Crim 1 the Court of Appeal re-examined the sentencing guidelines for domestic burglary issued almost exactly six years earlier in McInerney [2003] EWCA Crim 3003 and issued fresh guidance on the starting points for sentences in cases of domestic burglary by adults.

The guidance is issued 'pending definitive guidance on the subject of domestic burglary which may be issued by the Sentencing Guidelines Council'.

Note that the definitive guidance recently issued by the SGC deals only with non-domestic burglary.

B5 Fraud Blackmail and Deception

B5.6 Sentencing Guidelines for Fraud Offences Generally

In Darwin [2009] EWCA Crim 860, where a husband and wife were convicted of a number of deception and money laundering offences arising from the husband's faked death by drowning, the trial judge was held to have been justified in imposing prison sentences in excess of six years, although such sentences were higher than would be usual in respect of frauds of comparable size. He had been right to take account of the involvement of the rescue services and of the fact that the couple's sons had been treated as pawns in the fraudulent enterprise, and had been, directly and unequivocally, victims of the scheme. The sentences imposed had been severe, but their culpability had been very high, the fraud had been drawn out, and the crime had had a gross impact on their sons.

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

B6.46 Using a False Instrument: Sentence

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

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.

B6.94a False Application or Use of Trade Marks: Scope of Offences

In Kousar [2009] EWCA Crim 139, the appellant lived with her husband, a market trader. She was aware that he stored merchandise from his business at the matrimonial home, and acquiesced in it being there. Some of this merchandise was seized and found to be counterfeit, and she was convicted of an offence under the Trade Marks Act 1994, s. 92(1)(c), by which:

A person commits an offence who with a view to gain for himself or another, or with intent to cause loss to another, and without the consent of the proprietor . . .
(c) has in his possession, custody or control in the course of a business any such goods with a view to the doing of anything, by himself or another, which would be an offence under paragraph (b).

On appeal, her conviction was quashed. There was in the Court of Appeal's view no evidence that she ever possessed or exercised control over the merchandise. At most, she allowed her husband to do that in the home, when she might perhaps have objected; but as David Clarke J explained:

Control, in the sense of ability to demand that the property be removed or ability to remove it oneself, is in fact no more than knowledge and acquiescence. That is not enough . . .

A finding of being able to exercise a measure of control, which is the basis upon which this issue was in due course left to the jury, is not the same as a finding that she did exercise control.

Moreover:

The Crown had to prove that her possession of the goods was possession in the course of a business and it seems to us that, if they could not establish that she was involved in the business as a participant, whether paid or otherwise, in the business of dealing with these goods, then they could not establish that element of their case. Thus, even if, contrary to our view, her so-called ability or right to control the goods was sufficient to render her in possession of them, this still did not suffice to establish that further element of these offences. Our conclusion, therefore, is that this appellant in truth did not have a case to answer.

B7 Company, Investment and Insolvency Offences

B7.1 Scope of the Companies Acts

The Companies Act 2006 (Commencement No. 8, Transitional Provisions and Savings) Order 2008 (SI 2008 No. 2860) inter alia brings the following provisions of the Act into force on 1 October 2009 for all remaining purposes, namely in part 36 (offences under the Companies Acts), ss. 1121 to 1123 (liability of officer in default), s. 1125 (meaning of 'daily default fine') and ss. 1127 to 1133 (other provisions).

The transitional provision in art. 7 includes the following:

(1) Where a provision creating an offence is repealed and re-enacted without modification by or under the Companies Act 2006-

(a) an offence committed before the commencement of the new law is to be charged under the old law,

(b) an offence committed after the commencement of the new law is to be charged under the new law, and

(c) an offence committed partly before and partly after the commencement of the new law is to be charged under the new law and not under the old.

(2) For this purpose an offence is committed partly before and partly after the commencement of the new law if a relevant event occurs before commencement and another relevant event occurs after commencement.

(3) A 'relevant event' means an act, omission or other event (including any result of one or more acts or omissions) proof of which is required for conviction of the offence.

(4) This article is without prejudice to section 1297(2) of the Companies Act 2006 (continuity of the law).

B7.4 Liability of Officers in Default

The Companies Act 2006 (Commencement No. 8, Transitional Provisions and Savings) Order 2008 (SI 2008 No. 2860) inter alia brings ss. 1121 to 1123 into force for all remaining purposes on 1 October 2009.

B7.6 Summary Offences: General Provisions

The Companies Act 2006 (Commencement No. 8, Transitional Provisions and Savings) Order 2008 (SI 2008 No. 2860) inter alia brings s. 1125 (meaning of 'daily default fine') and ss. 1127 to 1133 (other provisions) into force for all remaining purposes on 1 October 2009.

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).

B7.16 Offences under the Financial Services and Markets Act 2000

The Financial Services and Markets Act 2000, ss. 401 and 402 were considered (not in the context of an alleged offence under that Act, but in the context of an alleged offence of insider dealing contrary to the CJA 1993, s. 52) in R (Uberoi) v City Of Westminster Magistrates Court [2008] EWHC 3191 (Admin), in which it was held that s. 402 gives the FSA power to bring such prosecutions without first obtaining the consent of the Secretary of State or DPP in accordance with the CJA 1993, s. 61(2).

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).

B7.57 Disqualification from Company Management etc.

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

B7.61 Offences Concerning Debt Relief Orders

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

B8 Damage to Property

B8.37 Sentencing Guidelines (Basic Offence)

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Damage Act 1971, s. 1(1) attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B9 Offences Affecting Security

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

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

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

B10 Terrorism Piracy and Hijacking

B10.3 Definition of Terrorism

The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 75 of the Act, which amends the definition of terrorism in the Terrorism Act 2000, s. 1(c) so as to include a racial cause amongst the objectives sought to be advanced.

B10.6 Membership of a Proscribed Organisation: Procedure and Jurisdiction

The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 29 of the Act, which amends the Terrorism Act 2006, s. 19(2) so as to require consent to prosecution from the A-G where an offence is committed outside the UK.

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.

B10.39 Failure to Comply with a Duty of Disclosure: General Duty

The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 77 of the Act, which amends the Terrorism Act 2000, s. 19(1) so as to marginally widen the duty.

B10.56 Information about Acts of Terrorism: Sentencing

Guidance on principles to be applied in sentencing for offences under the Terrorism Act 2000, s. 38B, was provided in Sherif [2008] EWCA Crim 2653, a case arising out of the unsuccessful terrorist bombing attacks on the London transport system in July 2005. The defendants in this case were persons who had known of the planned attacks and had either assisted the bombers in some way (before or after the offences) or had failed to disclose evidence concerning them. Latham LJ said (at [45]):

(a) The offences under s. 38B of the Terrorism Act 2000 carry maximum sentences of 5 years imprisonment. The first general question, therefore, is whether the judge was right to impose, on so many counts, the maximum sentence. It is well established that the maximum sentence for any offence should not be imposed except for the worst type of offending. ... In many cases, it will be the seriousness of the terrorist activity about which a defendant has failed to give information which will determine the level of criminality, rather than the extent of the information which could be provided which will affect the sentence. ...

(b) ...there is nothing wrong in principle with imposing consecutive sentences where both limbs of s. 38B of the Act have been charged. The failure to give information before the act, arguably the more serious offence, and failure to give information afterwards are entirely separate offences, although the failure may arise out of the same state of mind, for example misplaced loyalty. Where, as here, the offence of assisting an offender is charged, however, care needs to be taken to ensure that there is criminality over and above the failure to inform if a consecutive sentence is to be justified.

(c) ...There is of course always a place for exceptional personal mitigation even in cases as grave as this. We are very much alive to the personal dilemma that can be presented to someone faced with the unexpected and unwelcome news, or the gradual realisation, that a close family member or friend may be about to participate or has participated in a terrorist outrage. We understand that every encouragement must be given to such people to come forward to tell the authorities what they know, to prevent bloodshed or to bring to justice those responsible. There may be cases where the court may be able to show some understanding and even mercy when someone, if vulnerable either because of age or their particular relationship with an offender, for a time, mistakenly and misguidedly puts loyalty to a family or to a friend before duties to the public or before disclosing what they know to the police.

B10.76 Collection of Information: Elements

The elements of the offence under the TA 2000, s. 58 were examined by the House of Lords in G [2009] UKHL 13. The cases considered were prosecution appeals against the application of the ratio of K [2008] 2 WLR 1026 by the Court of Appeal. The report of the Appellate Committee was delivered by Lord Rodger. He recognised that the aim of s. 58 was to catch information which would typically be of use to terrorists, as opposed to ordinary members of the public, and thus confirmed the dictum in K, delivered by the then Lord Chief Justice, Lord Phillips (who also presided over the committee as the Senior Law Lord), that to fall within s. 58 the information collected or possessed by the accused must, of its very nature, be designed to provide practical assistance to a person committing or preparing an act of terrorism. Because that is its nature, s. 58(3) requires someone who collects, records or possesses the information to show that he had a reasonable excuse for doing so. It is not necessary that the information should be useful only to a person involved in an act of terrorism. For instance, information on where to obtain explosives is capable of falling within s. 58(1), even though an ordinary criminal planning a bank robbery might also find it useful. The Committee also confirmed the dictum in K that the role of extrinsic evidence is limited. It can be used to explain to the jury the significance of something in the document, such as a chemical formula, which may be used in connection with the planning of an explosion. It can also be used to explain the true nature of the information in a document which, by design, is apparently innocuous but whose real nature and contents are concealed by the use of some sort of code. But, since the document must contain information which is, of its very nature, likely to be useful to a potential terrorist, evidence cannot be led with the aim of showing that a document, such as a timetable, containing everyday information, should be treated as falling within s. 58(1).

The Committee went on to provide further analysis and definition of the elements of the offence, which may be summarised as follows. First, the Crown must prove that the accused had control of a record which contained information that was likely to provide practical assistance to a person committing or preparing an act of terrorism. Second, the Crown must prove that he knew that he had the record. Third, the Crown must prove that he knew the kind of information which it contained, although it does not have to prove that he knew everything that was in the document or record. The Crown must establish all three elements beyond reasonable doubt and, if it does so, then it has proved its case. The accused therefore falls to be convicted unless he establishes a defence of reasonable excuse under s. 58(3).

B10.77 Collection of Information: Specific Defence

In G [2009] UKHL 13 (see B10.76 above) the House of Lords overturned the definition of reasonable excuse for the purposes of s. 58(3) set out by the Court of Appeal in K [2008] 2 WLR 1026. Lord Rodger stated:

73 . . . The language of ss. 57(2) and 58(3) is completely different and it is neither appropriate nor possible to interpret the two provisions as if they said substantially the same thing. Had Parliament intended to provide substantially the same defence to both sections, nothing would have been easier than to use the same language.

74. The defence in s. 57(2) is crafted to suit the offence created by s. 57(1). The offence arises only because of the reasonable suspicion that the defendant possesses the article for a purpose connected with the commission etc of an act of terrorism. That is why the accused is given a defence which relates to the actual purpose for which he possesses the article. So it would indeed be a defence to a s. 57(1) charge for a defendant to show, for instance, that his actual purpose for having an explosive was to blow open a bank vault. He would get out of the s. 57(1) charge but would have constructed a cast-iron case against himself under s. 4(1) of the Explosive Substances Act 1883, which carries a maximum penalty of 14 years imprisonment.

75. By contrast, as we have already explained, the offence under s. 58(1) does not depend on the defendant having a terrorist purpose. It depends, rather, on the nature of the information which the accused collects, records or possesses. The defendant cannot change the nature of the information, but is not to be convicted if he shows that he had a reasonable excuse for collecting, recording or possessing it.

76. A defence in terms of reasonable excuse is to be found in a whole range of provisions under the 2000 Act. And it is, of course, a familiar feature of many other offences, such as possession of an offensive weapon under s. 1(1) of the Prevention of Crime Act 1953 and s. 47(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, and failure to provide a specimen of blood or urine under s. 7(6) of the Road Traffic 1988. The Court of Appeal's decision in R v K . . . singles out this particular use of the defence in s. 58(3) and imposes on it a construction which is utterly different from the construction which has been put on the equivalent defence in other statutes.

Lord Rodger continued that the real issue under s. 58 is not whether the accused had a terrorist purpose. Whether he had such a purpose is neutral. Instead the accused has to show that he had an objectively reasonable excuse for possessing the document or record which Parliament has made it prima facie a crime to possess because of its potential utility to terrorists. Possessing such a document or record for the purposes of carrying out a bank robbery is a purpose which is not connected with terrorism, but it is not a reasonable excuse.

B10.86 Encouragement of Terrorism: Procedure

The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 29 of the Act, which amends the Terrorism Act 2000, s. 117(2A) so as to require consent to prosecution from the A-G where an offence is committed outside the UK.

B10.143 Use or Threat of Noxious Substances or Things to Cause Harm or Intimidate

The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, inter alia s. 75 of the Act, which amends the definition of terrorism in the Anti-terrorism, Crime and Security Act 2001, s. 113(2) so as to include a racial cause amongst the objectives sought to be advanced.

B10.185 Recklessly Endangering the Safety of an Aircraft

Custodial sentences of six months were upheld in Hussain [2008] EWCA Crim 1559, where the two defendants (aged 19 and 21) persistently targeted a low flying police helicopter at night, dazzling the pilot with a bright green laser beam shone from the ground. They each pleaded guilty to recklessly acting in a manner likely to endanger an aircraft.

The Court of Appeal distinguished this case from Voice [2008] EWCA Crim 953, in which a custodial sentence for the same offence had been quashed on appeal. The dazzling of the helicopter pilot in Voice had been negligent and transitory, whereas the behaviour of the defendants in this case had been prolonged and deliberate, and had involved a laser device which the defendants had no legitimate reason to be using.

(Note: The prosecution appears to have been brought under the Air Navigation Order 2005 (SI 2005 No 1970), art. 73, although this is not expressly referred to in the transcript.)

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.

B10.207 Sentencing

In Jalil [2008] EWCA Crim 2910, the appellants had been convicted of involvement in a major terrorist conspiracy involving plans to load stretch limousines with propane gas cylinders and explosives and detonate them in the underground car parks beneath suitable buildings, plans to detonate a 'dirty' radioactive bomb and plans to hijack a petrol tanker for use to ram a building. The court repeated the observation previously made in Barot [2007] EWCA Crim 1119 - a case involving the principal architect of the proposed offences - concerning the authority of Martin [1999] 1 Cr App R (S) 477.

The bracket of sentences postulated in Martin should no longer be regarded as valid in the most serious kind of terrorist conspiracies in which murder was the primary object. Hughes LJ said:

The court [in Barot] returned, as it had done in Martin, to the relationship between sentences for such terrorist plots and the time actually served by the worst kind of murderers. It did so in the light of the enormous change made in sentencing for murder by the provisions of section 269 and Schedule 21 of the Criminal Justice Act 2003, which raise the time actually served for the worst kind of murders to 30 years or more. It upheld the life sentence, on the ground that Barot presented a threat to life and limb whose duration could not reliably be predicted. But it held that a minimum term of 40 years, as passed by the judge, should, save in quite exceptional circumstances, be reserved for the terrorist convicted after trial, of a serious attempt to commit mass murder by a viable method. Where the offence is of conspiracy, and the acts of the defendant fall short of imminent attempt, it held that the sentence should be lower.

Martin was much discussed in Barot. It was agreed on all sides that the level of sentencing in Martin could not govern sentences for terrorist conspiracies where murder was the primary object, but Martin was in any event not such a conspiracy. More importantly, for present purposes, the court accepted that terrorist offences are graver today than those of which this country had experience in previous times, reaching the level of public emergency threatening the life of the nation (see the observations of the House of Lords in A v SSHD [2005] 2 AC 68). It concluded that 'the guidelines suggested by the court in Martin require review.' That also followed, it is plain, from the relationship between sentences for terrorist conspiracies (of the Martin kind) and time actually served by the worst kind of murderers, now that the latter has been so much uplifted by Parliament.

B10.207a Sentencing for Offences Committed in a Terrorist Context

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

B10.223 Informing a Solicitor

The Counter-Terrorism Act 2008 (Commencement No. 2) Order 2009 (SI 2009 No. 58) brings into force, on 16 February 2009, on 16 February 2009, inter alia s. 82 of the Act, which includes an amendment of the Terrorism Act 2000, sch. 8, para. 9 affecting the circumstances in which a direction may be given under that paragraph (that a detained person may consult a solicitor only within the sight and hearing of an officer).

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.

B11 Public Order Offences

B11.66 Harassment, Alarm or Distress: Sentencing

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Public Order Act 1986 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B11.92 False Alarm of Fire

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Fire and Rescue Services Act 2004, s. 49 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B11.109 Demonstrations without Authorisation in Designated Area

As to when a demonstration amounts to a public procession under the Public Order Act 1986, s. 11(1) and (2), see Kay v Metropolitan Police Commissioner [2008] UKHL 69, in which it was held that a fixed and known route was not an essential characteristic of a 'procession commonly or customarily held'. This was relevant to the 'Critical Mass' cycling event which involves a mass cycle ride that starts from same meeting point in London at same time each month since 1994, but does not have a fixed and known route.

Lord Phillips said (at [21]):

Section 11 does not require notice to be given of every procession that is capable of creating a disturbance. The fact that, on their natural meaning, the words of section 11(2) are wide enough to exclude some processions in respect of which the police do not have all the information that they would wish is no reason to give those words an unnatural meaning. They should be given their natural meaning so as to apply to Critical Mass as a procession that is commonly or customarily held. For this reason I would allow this appeal.

A wider issue also arose, and was considered in some of the opinions delivered, but did not ultimately fall to be decided, namely, whether 'Critical Mass' involved any advance planning or organisation such that, because of its spontaneous nature and because those who took part in it knew where and when it was to start, s. 11 had any application at all to it. Brief consideration was also given to the position of organisers who were proposing to hold, for the first time, a procession which had no predetermined route, but the case was determined solely on the basis of the narrower issue noted above.

B11.183 Drunk and Disorderly

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Justice Act 1967, s. 91 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B11.183a Drunk and Disorderly

The offence of being drunk and disorderly was considered in Carroll v DPP [2009] EWHC 554 (Admin), in which Sweeney J said:

8. This is one of the most basic offences in the criminal calendar. It requires proof of three elements, namely that (1) the defendant was drunk; (2) he was in a public place; and (3) he was guilty of disorderly behaviour. Only the first and third elements call for further comment in this case.

9. As to the first element in Neale v E (a minor) (1983) 80 Crim App R 20, this court … decided that the word 'drunk' should be given its ordinary and natural meaning. In the end, therefore, whether a defendant was drunk is a simple question of fact in each case. On familiar principles it is the voluntary consumption of alcohol which is the requisite mens rea, such as it is, of this most basic offence. If that voluntary consumption results in the defendant becoming drunk then the first element of the offence is proved.

10. As to the third element, there is no requirement or mens rea at all. What is required is proof that objectively viewed the defendant was guilty of disorderly behaviour. Specific drunken intent and recklessness are nothing to the point. The words 'disorderly behaviour' are again to be given their ordinary and natural meaning. In the end, therefore, it is a simple question of fact in each case: whether the defendant is guilty of disorderly behaviour.

B11.187 Found Drunk in Public

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Licensing Act 1872, s. 12 now attracts a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons aged under 16.

B11.188 Alcohol Consumption in Designated Public Places

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Justice and Police Act 2001, s. 12 now attracts a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons aged under 16.

B11.194 Sale of Alcohol to a Person who is Drunk

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). An offence under the Licensing Act 2003, s. 146(1) and (3), 149(3) and (4) or 151 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16. An offence under s. 149(1) or 150 attracts a penalty of £ 50 for persons aged 16 or over and £ 30 for persons under that age.

B11.196 Sale of Alcohol to a Person who is Drunk

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Licensing Act 2003, s. 141 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B12 Offences Relating to Weapons

B12.208 Fireworks Offences

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Explosives Act 1875, s. 80 and the offence under the Fireworks Act 2003, s. 11 now both attract a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B13 Offences Affecting Enjoyment of Premises

B13.81 Trespassing on a Railway

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the British Transport Commission Act 1949, s. 55(1) now attracts a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons aged under 16.

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).

B14.68 Wasting Police Time

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Criminal Law Act 1967, s. 5(2) now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

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.

B14.94 Contempt: Disclosures Relating to Jury Deliberations

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

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')

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.

B17.2a 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'.

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.

B18 Offences Involving Writing, Speech or Publication

B18.16 Publishing, or Having for Publication for Gain, an Obscene Article

The Criminal Justice and Immigration Act 2008 (Commencement No. 4 and Saving Provision) Order 2008 (SI 2008 No. 2993) inter alia brings into force on 26 January 2009, s. 71 of the Act, which amends the Obscene Publications Act 1959, s. 2(1)(b) so as to increase the maximum penalty on conviction on indictment from three years' imprisonment to five years.

B18.35 Improper Use of Public Electronic Communications Network

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Communications Act 2003, s. 127 now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B19 Offences Related to Drugs

B19.2 Meaning of Controlled Drug

The Misuse of Drugs Act 1971 (Amendment) Order (SI 2008 No. 3130) reclassifies cannabis, cannabis resin, cannabinol and its derivatives from Class C drugs to Class B drugs with effect on 26 January 2009. In addition, any substance which is an ester or ether of cannabinol or of a cannabinol derivative is so reclassified.

B19.6 Meaning of 'Cannabis' and 'Cannabis Resin'

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

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

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

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).

B19.109 Class C Drug Offences

As to the reclassification of cannabis and fixed penalties for possession of it, see B19.110.

B19.110 Class C Drug Offences

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2009 (SI 2009 No. 83) amends the principal Order of 2002 (SI 2002 No. 1837). The offence under the Misuse of Drugs Act 1971, s. 5(2), so far as relating to cannabis and related substances, now attracts a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16.

B20 Offences Relating to Dangerous Dogs, Hunting and Animal Welfare

B20.9 Offences Involving Hunting with Dogs

In DPP v Wright; R (Scott) v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin), the Divisional Court held:

. . .the term 'hunts' a wild mammal with a dog, as used in section 1 of the Hunting Act 2004, does not include the mere searching for an unidentified wild mammal for the purpose of stalking or flushing it. That said, the question whether a person 'hunts' a wild mammal with a dog is heavily fact specific, and we do not attempt to define by reference to particular hypothetical factual circumstances when hunting takes place for the purpose of the 2004 Act and when it does not.

B20.11 Offences Involving Hunting with Dogs: Exemptions and Defences

In DPP v Wright; R (Scott) v Taunton Deane Magistrates' Court [2009] EWHC 105 (Admin), the Court confirmed that the only burden of proof placed on the defence by the Hunting Act 2004, s. 1 and sch. 1 is evidential.

B21 Offences Relating to the Proceeds of Criminal Conduct

B21.1 Proceeds of Crime Act 2002, Part 7

As noted in Blackstone's Criminal Practice, the money laundering provisions of the Proceeds of Crime Act 2002 do not apply where the conduct allegedly constituting the offence began before 24 February 2003 and ended on or after that date. The old money laundering provisions previously contained in the Criminal Justice Act 1988, ss. 93A to 93C, and the Drug Trafficking Act 1994, ss. 49 to 51 continue to have effect in such circumstances.

In Khanani [2009] EWCA Crim 276 the sole issue pursued on appeal concerned the dates within which an alleged money laundering arrangement charged under the PCA 2002, s. 328, was alleged to have been committed. If the arrangement in question had begun prior to 24 February 2003 (although the indictment it seems referred instead to the 23 February) it could not have fallen within the ambit of the 2002 Act.

The appellant had established a Hawala banking arrangement with a businessman who carried out a money exchange business in Karachi. That arrangement pre-dated 24 February 2003, but the only evidence of illegal money laundering adduced by the prosecution concerned things done on or after that date and on that basis it was held that the 2002 Act was indeed applicable. As the court explained:

[The prosecution] had to show that there was an arrangement under which the transfer of criminal property was being facilitated by the defendant. Their case for showing that criminal property was being processed during the indictment period was based on the evidence to which we have referred, that is to say, that there was ledger evidence showing receipts of substantial sums of cash and there was surveillance evidence showing the unusual way in which some of those cash transfers were being made. That was the basis for the prosecution establishing the first ingredient, namely that criminal property was being processed.

During the period before the indictment there was no such evidence. None was available to the prosecution because when they conducted their search, the records which they found did not go back to any such earlier period. It may well be that the arrangement made between the appellant and his Pakistani principal ante-dated the indictment period, but it by no means follows that criminal property was being processed under it . . .

[Counsel for the appellant] submitted that in this case it was positively incumbent on the prosecution to prove that the appellant had not been guilty of criminal conduct prior to the indictment period. He accepted in his submissions that there was no evidence upon which the jury could have made a positive decision when the appellant first received criminal property. All that the prosecution evidence went to show was that he had received criminal property during the indictment period. He submitted that in such circumstances it was incumbent on the prosecution positively to prove that he had not received criminal property prior to that date. No authority was cited to support that proposition, which we consider to be wrong in principle and would place upon the prosecution a burden which would in practical terms be impossible to discharge.

That sufficed to dispose of the appeal, but the court might perhaps have gone further. Even if it was clear that some money laundering transactions had indeed occurred between the parties prior to commencement of the 2002 provisions, this would preclude prosecution under s. 328 only if it were impossible to treat the later transactions as anything other than part of one seamless ongoing arrangement. But the gist of the prosecution case was that numerous individual sums of varying amounts were being laundered from time to time. If the prosecution choose to ignore instances occurring before commencement and focus exclusively on those occurring only after commencement, there would surely be no question of contravening the principle against imposing retrospective criminal liability.

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.

B21.8 Offences of Concealment etc

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

B22 Immigration Offences

B22.6 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.

B22.6a Illegal Entry and Deception: Defences

Having considered Makuwa [2006] EWCA Crim 175 and Asfaw [2008] 2 WLR 1178 the Court of Appeal held in Hasan [2008] All ER (D) 116 (Nov) that the phrase, 'as soon as was reasonably practicable' when used in the Immigration and Asylum Act 1999 s. 31(1)(c) does not mean 'at the earliest possible moment'. Where an aircraft carrying a refugee who is using false documents lands briefly in some other safe country, that does not necessarily preclude him from seeking asylum when his flight eventually reaches the UK.

The court held it to be clear from Makuwa that once there is credible evidence that the accused is a refugee the burden of proof is on the prosecution to prove the contrary; but in relation to the other matters which must be established under s. 31(1) the burden of proof is on the defendant. The usual standard of proof for defendants then applies. It was meanwhile considered clear from Asfaw that ss. 31(1) and (2) must be construed generously in accordance with the 1951 Refugee Convention.

B22.29 Trafficking for Sexual Exploitation

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

B22.34 Trafficking People for Exploitation

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

(d) a person uses or attempts to use him for any purpose within sub-paragraph (i), (ii) or (iii) of paragraph (c), having chosen him for that purpose on the grounds that-
he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and

a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.

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.

^ Return to the top

About this book
Price, bibliographic details, and more information on the book