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Blackstone's Criminal Practice 2009

Updates 2009

Part D

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Blackstone's Criminal Practice 2009

Part D

Updates to Part D: Procedure

D1 Powers of Investigation

D1.1 Police Powers

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

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

D1.1a Police Powers in the Investigation of Crime

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (SI 2008 No. 3146) brings into operation on 1 January 2009 a revision of Code A (see D1.4). It also brings into operation the clarification in paras. 2.2 and 2.3 of Code A regarding reasonable suspicion not being based on single factors alone. Paragraphs 4.10A and 4.10B of PACE Code A are also amended to clarify the position on providing receipts for stops and searches. The revision of para. 4 (recording requirements including recording of encounters not governed by statutory powers), together with the consequential deletion of Annexes D and E, will mean that constables will no longer be required to record all encounters not governed by statutory powers. Constables will need to record only information on the ethnicity of a person who is the subject of such an encounter. A receipt will also be made available to the person. The amended Code A may be viewed here.

D1.1b Police Powers in the Investigation of Crime

The Borders, Citizenship and Immigration Act 2009, part 1 (in force from 21 July 2009), includes provision for the investigation and detention powers of designated customs officials and immigration officers and for the application of PACE Codes in investigations conducted and detention authorised by such officials and officers.

D1.1c Police Powers in the Investigation of Crime

The Police and Criminal Evidence Act 1984 (Armed Forces) Order 2009 (SI 2009 No. 1922) revokes the Police and Criminal Evidence Act 1984 (Application to the Armed Forces) Order 2006 (SI 2006 No. 2015) and makes broadly equivalent provision to replace it, taking account of the implementation of the Armed Forces Act 2006 on 31 October 2009.

D1.2 Reasonable Suspicion

O'Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 was considered and the ruling of the High Court in Raissi v Commissioner of Police of the Metropolis [2007] EWHC 2842 (QB) was affirmed in Metropolitan Police Commissioner v Raissi [2008] EWCA Civ 1237.

One of the issues that arose in Raissi was whether an officer who is instructed to arrest a person, but without being given reasonable grounds to suspect that person's guilt, may properly assume that his superior must have some other (undisclosed) information that would justify the arrest. Dicta expressed by members of the Appellate Committee in O'Hara may have appeared at first sight to be ambiguous on that issue, but the Court of Appeal in Raissi was ultimately satisfied that no differences of opinion existed within the Committee. It is clearly no defence for an officer to say that he was 'only obeying orders' and there is no practical difference in practice between such blind obedience and an assumption that the orders must have some justification. It cannot avail the arresting officer to say that his superior probably had other information justifying arrest but he did not tell him what it was.

D1.4 Powers to Stop and Search

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).

D1.4a Powers to Stop and Search

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (SI 2008 No. 3146) brings into operation on 1 January 2009 a revision of para. 4 of Code A. It also brings into operation the clarification in paras. 2.2 and 2.3 of Code A regarding reasonable suspicion not being based on single factors alone. Paragraphs 4.10A and 4.10B of PACE Code A are also amended to clarify the position on providing receipts for stops and searches. The revision of para. 4 (recording requirements including recording of encounters not governed by statutory powers), together with the consequential deletion of Annexes D and E, will mean that constables will no longer be required to record all encounters not governed by statutory powers. Constables will need to record only information on the ethnicity of a person who is the subject of such an encounter. A receipt will also be made available to the person.

D1.7 Conduct of Stop and Search Powers

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

D1.18 Arrest without Warrant

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

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

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

D1.39 Delaying Access to a Solicitor

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

D1.58 Conduct of Interviews

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

D1.99 Access to and Retention of Seized Property

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

D1.105 Surveillance and Covert Human Intelligence Sources

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

D2 The Decision to Prosecute and Diversion

D2.13 Cases Where Consent is Required

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

D2.30 Conditional Cautions: Conditions that May be Imposed

The Criminal Justice and Immigration Act 2008 (Commencement No. 9) Order 2009 (SI 2009 No. 1678) brings into force the following provisions of the Act on 8 July 2009:

sch 26, para 61 (variation of conditions attached to conditional cautions), which inserts s. 23B into the Criminal Justice Act 2003
insofar as they relate to the amendments to the Criminal Justice Act 2003 made by s. 17 of the Police and Justice Act 2006, sch 26, paras. 60 and 62 and the repeals in sch. 28, part 4 relating to the Criminal Justice Act 2003, s. 23A(7) to (9).

The Police and Justice Act 2006 (Commencement No. 11) Order 2009 (SI 2009 No. 1679) brings the following provisions of the Act into force on 8 July 2009 in certain specified police areas:

s.17(3) (specific types of conditions) insofar as it inserts s. 22(3A)(a) into the Criminal Justice Act 2003
s.17(5) (making of statutory instruments).

The police areas specified are Cambridgeshire, Merseyside and Norfolk. The effect of the Order is to permit financial penalties to be attached to conditional cautions.

D2.39 Fixed Penalty Notices

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) and revokes the (Amendment) Order of 2005 (SI 2005 No. 581) (and the (Amendment) Order of 2008 (SI 2008 No. 3297), which never came into force). It provides a new list of offences (as sch. 1 to the 2002 Order) attracting a fixed penalty of £ 80 for persons aged 16 or over and £ 40 for persons aged under 16 and a further list of offences (as sch. 2 to the 2002 Order) attracting a fixed penalty of £ 50 for persons aged 16 or over and £ 30 for persons under 16. The possession of cannabis etc. is added to the list of offences in sch. 1.

D2.39a Fixed Penalty Notices

Where a fixed penalty notice has been issued in respect of one offence, this does not make it improper for criminal proceedings to be instigated in respect of some other and more serious offence relating to the same incident, if evidence of that more serious offence subsequently comes to light: see Gore [2009] EWCA Crim 1424.

D2.42 Bail following Charge

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

D2.43 Bail following Charge: Power to Impose Conditions

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to amend r. 19.1 (application to magistrates' court to vary conditions of bail) with effect from 6 April 2009. An applicant must serve notice, not less than 24 hours before the hearing, specifying the variation or conditions proposed and the reasons for the variation and give details of the address at which he would reside if the court imposed a condition of residence.

D2.45 Detention Following Charge

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

D3 Courts, Judges and Parties

D3.9 Crown Court: Justices

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

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

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

D3.36 Disqualification of Judges of the Crown Court from Hearing Particular Cases

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) substitute part 63 of the principal Rules with effect on 6 October 2008. Rule 63.10 will govern the constitution of the court when hearing an appeal; it has a similar effect to the old r. 6.9 in barring justices from hearing certain appeals but the phrase used is clearer as it applies to justices who 'took part in the decision under appeal'.

D3.39 Who Should Commence a Prosecution?

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. A new r. 2.5 aims to clarify which representatives can act in criminal proceedings and provides 'anything that a party may or must do may be done . . . by a person with the corporation's written authority, where that party is a corporation'. A new part 7 of the principal Rules covers starting a prosecution in a magistrates' court.

D3.45 Prosecutions by other Persons

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

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

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

D3.50 Government Departments

The Borders, Citizenship and Immigration Act 2009, s. 31(1) (in force from 21 July 2009) empowers the Attorney General to assign to the Director of Revenue and Customs Prosecutions the function of instituting (or assuming the conduct of) criminal proceedings in England and Wales related to criminal investigations by customs officials, immigration officers, officials of the Secretary of State, the Secretary of State, the Director of Border Revenue (appointed under s. 6 of the Act), and by the police.

D3.51 Discontinuance of Prosecutions Conducted by the DPP

In R (B) v DPP [2009] EWHC 106 (Admin), the court condemned a decision by the CPS to offer no evidence at a prosecution for wounding with intent to do GBH on the basis that the complainant (FB) suffered from a mental illness that might affect his recollection. Counsel had formed the view that a medical report prepared by Dr C precluded him from putting the complainant before the jury as a reliable witness in the absence of any other evidence to confirm his identification of the defendant (HR) as his attacker, even though there was no doubt that he had indeed been the victim of an attack in which part of his ear had been bitten off.

The court held that this decision was flawed in law, and amounted to a violation of ECHR, Article 3. Toulson LJ said:

In the present case, if the prosecutor had applied the merits based approach and asked himself whether he thought that it was more likely than not, or at least as likely as not, that FB's identification of HR as the ear biter was the result of an hallucination, I cannot see how merely on the strength of Dr C's report he could have answered that question in the affirmative. There was an opportunity to explore the matter further, because Dr C was due to be available to answer further questions, but the decision to offer no evidence forestalled that.

The reasoning process for concluding that FB could not be placed before the jury as a credible witness was irrational in the true sense of the term. It did not follow from Dr C's report that the jury could not properly be invited to regard FB as a true witness when he described the assault which he undoubtedly suffered. The conclusion that he could not be put forward as a credible witness, despite the apparent factual credibility of his account, suggests either a misreading of Dr C's report (as though it had said that FB was incapable of being regarded as a credible witness) or an unfounded stereotyping of FB as someone who was not to be regarded as credible on any matter because of his history of mental problems.

In this case FB suffered a serious assault. The decision to terminate the prosecution on the eve of the trial, on the ground that it was not thought that FB could be put before the jury as a credible witness, was to add insult to injury. It was a humiliation for him and understandably caused him to feel that he was being treated as a second class citizen. Looking at the proceedings as a whole, far from them serving the State's positive obligation to provide protection against serious assaults through the criminal justice system, the nature and manner of their abandonment increased the victim's sense of vulnerability and of being beyond the protection of the law. It was not reasonably defensible and I conclude that there was a violation of his rights under Article 3.

The court awarded FB compensation of £ 8,000. The decision not to prosecute could not be reversed because HR was acquitted when the Crown offered no evidence against him.

D3.53 Court Order Restricting the Commencement of a Prosecution

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

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

D3.54 Abuse of Process: The Power to Stay Proceedings

In Seddon [2009] EWCA Crim 483, D had been extradited from Spain on a charge of blackmail, after jumping bail in England. He was then prosecuted in England for an offence under the Bail Act, s. 6, which had not been mentioned in the European Arrest Warrant and could not be described as a 'lesser included offence'. The Court of Appeal ruled that this prosecution was unlawful. See D31.2 below.

D3.58 Abuse of Process: Delay

In some circumstances excessive delay and the consequent disappearance of evidence must inevitably be fatal to the fairness of any trial. An illustration is provided by Joynson [2008] EWCA Crim 3049, in which there was an astonishing 35-year gap between the date of the alleged sexual offences against children and the prosecution. Potentially vital documentary evidence had disappeared and the memories of witnesses must inevitably have been degraded. No warning from the trial judge could possibly compensate for this and the appellant's convictions were quashed on the basis that the trial ought not to have proceeded in the first place.

D3.62 Power to Stay Proceedings: Sexual Offences and Delay

In K [2008] EWCA Crim 3177, the court repeated the point that decisions to stay or not stay prosecutions on grounds of delay are 'fact and witness sensitive':

Analysis on paper goes so far but cannot possibly make up for the inestimable advantage of experiencing how the witnesses explain themselves, the manner and extent to which they can be and are cross examined and the extent to which the defence can deploy arguments beyond a simple denial. This court will obviously intervene if there is no material upon which a trial judge can reach a conclusion which he or she expresses; or if the decision is one to which no reasonable tribunal properly directed could have reached. But these are extreme cases and must be seen as such.

D3.63 Abuse of Process: Losing or Destroying Evidence

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

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

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

D5 Preliminary Proceedings in Magistrates' Courts

D5.3 Content of the Written Charge

An allegation of an offence in an information or charge must contain-
a statement of the offence that-

describes the offence in ordinary language, and

identifies any legislation that creates it; and

such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

D5.4 Laying an Information and Issuing a Summons

The Criminal Procedure (Amendment) Rules 2008 The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. A new part 7 (starting a prosecution in a magistrates' court) simplifies the rules but r. 7.2 makes no change of substance to the procedure on laying an information and the issue of a summons.

D5.4a Laying an Information and Issuing a Summons

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute a new r. 7.4(1) with effect from 6 April 2009. The change is effectively a drafting change and there is no change of substance.

D5.8 Service of the Summons or Requisition

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. A new part 7 (starting a prosecution in a magistrates' court) simplifies the rules and does not reproduce all the requirements formerly contained in r. 7.7. An amendment is made to r. 4.4 as regards service on a corporation so as to remove the references there to 'England and Wales'.

D5.23 Pre-trial Hearings by Television Link

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

D5.25 Trial in Absence of the Accused

D6 Classification of Offences and Determining Mode of Trial

D6.4 Advance Information

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 21 with effect from 6 April 2009. The new part 21 applies from 6 April unless the court otherwise directs; if it does so direct, the old part 21 continues to apply (rr. 2.1(12) and 21.1). The new part 21, which is much simplified, applies to any offence that can be tried in a magistrates' court (including summary offences).

D6.7 Advance Information: Failure to Comply

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 21 with effect from 6 April 2009. The new part 21 applies from 6 April unless the court otherwise directs; if it does so direct, the old part 21 continues to apply (rr. 2.1(12) and 21.1). The new part 21, which is much simplified, includes no provision equivalent or similar to r. 21.6(1) of the old rules.

D6.44 Adjustment of Charges to Dictate Mode of Trial

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

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

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

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

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

Davis J concluded:

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

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

D7 Bail

D7.30 Conditions that May be Imposed by the Court

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to amend part 19. The amendments include the insertion of a new r. 19.25 which gives legislative effect to the well established court practice of requiring prosecutors (with the police) to investigate the suitability of an address proposed as a condition of residence when a defendant is released on bail. The prosecutor is placed under an obligation to assist the court and a defendant who may be released under such a condition is required to co-operate with the prosecutor in providing the court with such assistance. The amendments also include changes in the procedure for notices of applications where a party wants a magistrates' court to impose conditions of bail under the Bail Act 1976, s. 3(8).

D7.31 Electronic Monitoring

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

D7.45 Applications to Vary the Conditions of Bail

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to amend r. 19.1 (application to magistrates' court to vary conditions of bail). An applicant must serve notice, not less than 24 hours before the hearing, specifying the variation or conditions proposed and the reasons for the variation and give details of the address at which he would reside if the court imposed a condition of residence.

D7.78 Breach of Bail Conditions

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

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

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

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

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

D7.83 The Offence of Absconding

D7.97 Text of the Bail Act 1976

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the electronic monitoring of persons on bail;

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

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

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

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

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

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

D8 Assets Recovery

D8.4 Civil Recovery Orders

Evidence that was (or would have been) excluded in a criminal trial may nevertheless remain admissible in civil recovery proceedings, although the civil court does have some discretion to exclude it. In Serious Organised Crime Agency v Olden [2009] EWHC 610 (QB), Holroyde J said:

I do not accept [counsel's] submission that exclusion of the evidence from the civil proceedings must follow inevitably from a finding in the criminal courts that it was unlawfully obtained. In my view, the decision whether to exercise the court's power in civil proceedings to exclude evidence which would otherwise be admissible must depend upon an assessment of the circumstances of those proceedings. The court must balance competing considerations: on the one hand, the public interest in the court considering all relevant evidence; and on the other hand, the need to avoid a disproportionate interference with the rights of an individual. I cannot accept [counsel's] submission that it is all one whether the unlawfulness consisted (at one extreme) of a simple error leading to an unwitting breach of a statutory requirement, or consisted (at the other extreme) of a deliberate, flagrant and outrageous assault upon a suspect. Nor can I accept his further submission that it is irrelevant whether the unlawfully-obtained evidence provided the only possible foundation for the case, or whether the evidence might equally well have been obtained by lawful means.

D8.9 Detention of Cash

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

D8.13 Compensation

In exercising its power under the Magistrates' Court Act 1980, s. 64(1), to make 'such order as to costs . . . as it thinks just and reasonable' a magistrates' court is entitled, when dismissing forfeiture proceedings, to take into account its view that the application was one that had been reasonably made. This may mean that the court then dismisses the defendant's application for costs: see R (Perinpanathan) v City of Westminster Magistrates' Court [2009] EWHC 762 (Admin). A recent and contrasting ruling in R (Orton) v Truro Magistrates' Court [2009] EWHC 168 (Admin) was doubted in Perinpanathan and dismissed as 'of no real authority'.

D8.28 Restraint Orders

A restraint order may be made not only under the Proceeds of Crime Act 2002, ss. 40 to 42, but also under the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005 No. 3181) in accordance with s. 444 of the Act. The House of Lords has ruled in King v Director of Serious Fraud Office [2009] UKHL 17 that a restraint order under the 2005 Order can properly be made or exercised in response to an external request only in respect of property situated within England and Wales.

The object of a restraint order is to preserve relevant property that may be needed to satisfy an order for the recovery of specified property or a specified sum of money - see the definitions in section 447 . . . Jurisdiction to make an external restraint order only arises where the external request 'concerns relevant property in England or Wales' . . .

. . . Furthermore, no machinery is provided for exercise of those powers outside England and Wales. In this respect there is a significant distinction between POCA, which deals with domestic orders, and the Order, which deals with external orders. Section 74 of POCA provides that if the prosecutor believes that there is realisable property situated in a country outside the United Kingdom he can ask the Secretary of State to forward a request for assistance in restraining dealing with the property or in realising the property. Had it been intended that external restraint orders or external orders should take effect outside the jurisdiction the Order would surely have made provision similar to that in section 74 of the Act.

D8.28a Restraint Orders

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

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

D8.30 Restraint Orders: The Exercise of the Power

Solicitors to whom a client has previously made a payment on account of their fees, and who are holding that payment in their client account, may appropriate that payment in satisfaction of fees incurred, even after a restraint order has been made pursuant to the Proceeds of Crime Act 2002, s. 41, restraining the client from disposing of his assets: see Revenue and Customs Prosecutions Office v Allad [2008] EWCA Crim 1741.

D8.30a Exercise of the Power

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

D8.32 Procedure

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

D8.32a Confiscation Orders: Procedure

Proceedings to enforce a confiscation order by civil means attract the protection of the ECHR, Article 6(1). Enforcement of a confiscation order involves the imposition of a financial penalty, analogous to a fine. The ultimate sanction in default of payment is imprisonment. Accordingly, enforcement of confiscation proceedings involves the determination of a criminal charge: R (Minshall) v Marylebone Magistrates' Court [2008] EWHC 2800 (Admin). In that case, however, the fact that enforcement of a confiscation order imposed on the claimant in October 2000 was suspended until May 2006 pending various complex appeals by the claimant and others (and was not finally proceeded with until August 2006) did not constitute an infringement of the claimant's Convention rights. Whilst the period between the imposition of the confiscation order and the enforcement proceedings had been unusually long it was not unreasonable within the meaning of Article 6(1).

D9 Disclosure

D9.9 Prosecution Disclosure

In RF [2009] EWCA Crim 678 the Court of Appeal noted the prosecution's general duty of disclosure, but added (at [36]-[39]):

However, it is self evident that where there may be material relevant in that sense overseas outside the European Union, the power of the Crown and the courts of England and Wales to obtain material is limited. Essentially, if informal requests for the material are declined, the powers are limited to what is set out in the Crime (International Co-operation) Act 2003 and in relevant international conventions, such as the Drugs Convention. There may be cases where a foreign entity will simply not make the material available, a foreign court will not compel production under a Letter of Request and steps under the relevant convention will not produce the documents. There may be other cases where the authorities of a foreign state, though willing to show material to officers acting on behalf of the United Kingdom, will not allow the material to be copied or otherwise made available and the courts of the foreign state will not order its provision.

There cannot, for these reasons, be any absolute obligation on the Crown to disclose relevant material held overseas outside the European Union by entities not subject to the jurisdiction of these courts; the position is quite different to the position where the information is held in the United Kingdom or by a person amenable to the jurisdiction of these courts. As Sir Igor Judge said in R v Khyam [2008] EWCA Crim 1612 at paragraph 37:
The prosecuting authorities in this jurisdiction simply cannot compel authorities in a foreign country to acknowledge, let alone comply with, our disclosure principles.

The obligation is one to take reasonable steps. Whether the Crown has complied with that obligation is for the courts to judge in each case on the provision of full information to the court. ...

. . .

It is, however, important that the position in such a case is clearly set out in writing so that the court and the defence know what the position is. The police and prosecuting authorities in the United Kingdom may not be able to complete the requisite lists, but it is their duty to record and explain the position and set out, insofar as they are permitted by the authorities of the foreign sovereign state, such information as they can and the steps they have taken. Where they are not permitted to disclose everything that they know, then that fact must be made clear on the documentation provided to the court so that the court can consider what to do.

D9.20 The Defence Case Statement

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

D9.23 Sanctions for Failure in Defence Disclosure

In Essa [2009] EWCA Crim 43, the court rejected the argument that the Criminal Procedure and Investigation Act 1996, s. 11(5), is incompatible with the defendant's right to a fair trial under ECHR, Article 6. Hughes LJ said:

Certain it is that the right to silence is part of the right to a fair trial, as it is certain, even more importantly but distinctly, that the right not to incriminate oneself is. Those two rights are different. However, for the same reasons as section 34 is compatible with the European Convention, so is section 11(5) which entitles comment by the Crown on the absence of a defence statement. Contrary to any submission otherwise, the use which can be made of section 11(5) is not without judicial control. True it is that the Crown does not now need to make a preliminary application to the judge for leave to cross-examine upon the topic. That does not prevent the judge from interfering and stopping the cross-examination if it is unfair, still less does it avoid the necessity for the judge to decide, if such cross-examination has been embarked upon, the terms in which he directs the jury. If the cross-examination was unfair it is open to the judge to tell the judge to disregard it. In those circumstances, there is no doubt that section 11(5) is perfectly compatible with the Convention.

The Court also commented on the fact that the appellant had apparently been advised by his solicitors and counsel not to submit a defence statement in accordance with the CPIA, s. 5(5). Hughes LJ said:

We are at a loss to understand how any lawyer can properly give that advice to any defendant in the face of section 5(5) of the Criminal Procedure and Investigation Act. Whatever may be the primary purposes of the statute, its requirement is that the accused give a defence statement to the court and the prosecutor. In the present case it could hardly have been simpler. It is not open to those who advise defendants to pick and choose which statutory rules applicable to the conduct of criminal proceedings they obey and which they do not.

. . . The only possible purpose of not saying it, which we are sure did not apply in this case, would be to enable the defendant to keep up his sleeve the possibility of advancing some different defence.

D9.24 Sanctions for Failure in Defence Disclosure

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

D9.38 Public Interest Immunity: Intercept Material

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

D9.26 Public Interest Immunity

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

D9.45 Third Party Disclosure: Compulsory Disclosure Route

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

D11 The Indictment

D11.2 Requirement that an Indictment be Signed

Clarke [2008] 1 WLR 338 was considered in Leeks [2009] EWCA Crim 1612, in which the Court of Appeal quashed L's conviction and ordered a retrial on the basis that he had pleaded guilty to a count that had been improperly added to the original indictment without the requisite formal amendment. Although the circumstances were not identical to those in Clarke, the principle and approach had to be the same. L's guilty plea and subsequent conviction had all been founded on a nullity.

D12 Arraignment and Pleas

D12.6 Procedure for Determining Unfitness to Plead

In Norman [2008] EWCA Crim 1810, the Court of Appeal made a number of observations per curiam as to the issues that may arise where a trial of facts is required under the Criminal Procedure (Insanity) Act 1964, s 4A:

Once it is clear that there is an issue, such cases need very careful case management to ensure that full information is provided to the court without the delay so evident in this case.

When full information is available, the court will need carefully to consider whether to postpone the issue of trial of fitness to plead under s. 4(2), given the consequences that a finding of unfitness has for the defendant - see for example the judgment in R v M (Edward) [2001] EWCA Crim 2024 . . .

If the court determines that the appellant is unfit to plead, then it is the court's duty under s. 4A(2) of the Criminal Procedure (Insanity) Act 1964 carefully to consider who is the best person to be appointed by the court to put the case for the defence. . . . The duty under s. 4A(2) is a duty personal to the court which must consider afresh the person who is to be appointed; it should not necessarily be the same person who has represented the defendant to date, as it is the responsibility of the court to be satisfied that the person appointed is the right person for this difficult task. . . . Given the responsibility that the Act places on the court, it would not be unusual if the judge needed a little time to consider who was the best person to be so appointed.

Under present legislation, this court cannot order a retrial . . . save in very limited circumstances. . . . Serious public concern could arise where this court considered a verdict unsafe and was compelled to enter an acquittal, but nothing further could be done. We would hope that Parliament might give consideration to this lacuna in the statutory provisions and consider granting this court power to order a re-trial of the issue as to whether the defendant did the act with which he is charged.

D12.9 Unfitness to Plead: Trial of the Facts

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

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

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

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

D12.34 Retrial Provisions of the CJA 2003

The Court of Appeal's ruling in A [2008] EWCA Crim 2908 establishes that the 'new and compelling evidence' which is required by the CJA 2003, s. 78(1) in relation to the offence that is to be retried need not necessarily relate directly the incident giving rise to the alleged offence, but may take the form of bad character evidence admissible under the CJA 2003, s. 101. In A itself, the respondent was tried but acquitted in 2004 on two charges of indecent assault and one charge of rape. The complainant in each case was a girl, SN, aged 15.

After seeing an article about his acquittal in a local newspaper, the respondent's first wife contacted the police and told them that long before the trial the respondent had been arrested for indecent assaults on three children when working at a school. An extensive police investigation followed and in due course the respondent faced a further 17 counts involving several different complainants, and it was largely on that basis that it was sought to reopen the SN case in respect of the alleged rape. Her complaints, which may have seemed unconvincing when tried in isolation, could now be seen as forming part of a series of complaints. Indeed, they occurred approximately half way through the lengthy history of the respondent's alleged misconduct with children, as he moved around the country. Lord Judge CJ said:

[SN's] evidence at trial was set against that of a man who put himself forward as someone of good character, who had worked with hundreds or thousands of children, inviting the disingenuous inference that she stood alone in making complaints against him.

SN is no longer a single complainant alleging sexual abuse, but one of eight complainants whose evidence would be cross-admissible and relevant to the allegation of rape. She takes her chronological place in the middle of a series of independent groups of complainants from different locations spanning a period of some 14 years of the respondent's working life. We acknowledge that, apart from one complaint of buggery, SN makes the most serious complaint against him, and record that, whatever the respondent may have admitted in relation to at least some of the other complaints in his letters to the police, he has continued to deny this particular allegation. However the simple reality is that the second trial of this allegation will take place in a markedly different evidential context from the first. On the basis of the large amount of material we have briefly summarised in this judgment, a conviction is highly probable and the interests of justice will best be served by quashing the acquittal and ordering a re-trial.

D12.34a Retrial Provisions of the Criminal Justice Act 2003

The retrial provision of the Criminal Justice Act 2003 were considered in B and G [2009] EWCA Crim 1077, in which the Court of Appeal took a strict view of the circumstances in which new evidence might justify the retrial of an acquitted person. The new evidence in this case came from a convicted murderer, D, who had entered into an agreement with the police pursuant to the Serious Organised Crime and Police Act 2005, s. 74, and now offered to give evidence against his two former co-defendants, who had been acquitted.

Refusing an application for a retrial, the Court of Appeal held that it was not enough that the new evidence gave rise to a case for the acquitted defendants to answer. Only compelling new evidence of guilt, of the kind that could not realistically be disputed, would suffice.

The specific considerations set out in the CJA 2003, s. 79, were not exhaustive; it was necessary to step back and ask whether in all the circumstances it was in the interests of justice that there should be a retrial.

In this case, D was an untrustworthy witness, who appeared to be cynical and willing to manipulate the system in order to reduce his own sentence. If such evidence was truly compelling (e.g., because it revealed something wholly new which could be confirmed), it might still be in the interests of justice for the acquittal to be quashed. But this was not such a case. D was a fluent and circumstantial liar who said whatever suited him and was adept at tailoring it to the known facts. This made it difficult to know whether his evidence was truthful or not.

D12.52 Plea Bargaining

The A-G has issued new Guidelines about discussions between the prosecution and defence on pleas in cases of serious and complex fraud. The new Guidelines have effect from 5 May 2009 and are available via http://www.attorneygeneral.gov.uk/sub_publications_guidelines.htm

D12.54 Plea Bargaining

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

D13 Juries

D13.15 Selection of a Jury

The Juries Act 1974, s. 18, was considered by the Court of Appeal in Jalil [2008] EWCA Crim 2910, in which it was held that a jury ballot could still lawfully be held where two out of 14 potential jurors had been stood by. Standing by only put those two potential jurors to the back of the list: it did not mean they were ineligible. Having noted that under s. 12(3) of the Act 'the time for a challenge for cause to be made is after the ballot' the court added:

That does not, of course, mean that the oft-followed and convenient procedure of inviting the judge, where all parties agree, to rule in anticipation upon a possible challenge for cause is wrong, or ought not to be followed. It is not always appropriate, but if the judge agrees to do so, and rules for the defendant's prospective challenge, no doubt the potential juror in question will be excused there and then and will not go into the ballot. Equally, if the judge is against the defence submission, subsequent argument in this court that the jury was in consequence not free of apparent bias is no doubt open to the defendant. In neither case is there any need to go through the rigmarole of renewed challenge and repeated ruling at the ballot stage. If objections are upheld, it is no doubt possible that the pool of jurors might be reduced to the point where a ballot is impossible. But that is not this case...

D13.24 Police Officers and Employees of Prosecuting Authorities as Jurors

Abdroikov [2007] UKHL 37 and Khan [2008] 2 Cr App R 13 were considered in Yemoh [2009] EWCA Crim 930, in which the Court of Appeal rejected the argument that a trial in which there was evidence that the appellant had been abusive to the police in an interview became unfair owing to the presence of a serving police officer on the jury. The officer was not otherwise connected with the case or with any of the witnesses involved.

The court said:

111. ... The system here proceeds on the assumption that a juror will reveal any difficulties that he or she may have in impartially approaching the case being tried and that other jurors will play a role in ensuring impartiality. No appeal would succeed on the speculative basis that a juror may have been partial towards a witness. We see no need for any further enquiries to be made.

112. As we have already said, it is submitted to us on behalf of Yemoh that the introduction of what was said by Yemoh at the time of being charged adds additional weight to the submission that the appellant did not have a fair trial because of the presence on the jury of a police officer. We can deal with this submission shortly. We agree with the judge that the introduction of evidence abusing the police should not lead to the discharge of a policeman from the jury. In this respect a policeman is in no different position than a black juror trying a case in which there is evidence of abuse of black people. We would not expect the black juror to be discharged on the grounds of apparent bias.

D13.45 Discharge of Jurors or Entire Jury

The trial judge's power to decide when and if a juror (or entire jury) should be discharged was considered in S [2009] All ER (D) 75 (Jan).

D13.57 Discharge of Jurors or Entire Jury: Accidental Prejudice

Porter v Magill [2002] 1 All ER 465 and Lawson [2005] EWCA Crim 84 were applied by the Privy Council in Mitcham v The Queen [2009] UKPC 7.

D13.66 Judge-only Trials on Indictment

The circumstances in which the defendant's right to trial by jury may be removed were considered by the Court of Appeal in T [2009] EWCA Crim 1035. The court held that, unless express statutory language indicates otherwise, 'the highest possible forensic standard of proof is required to be established' before the right to trial by jury is removed. That is the criminal standard. Nevertheless, where an application by the prosecution under the Criminal Justice Act 2003, s. 44 or s. 46 is granted:

[18] ... the end result is not an unfair trial, but a trial by judge alone, where the necessary procedural safeguards available in a trial by jury are and remain available to the defendant. It therefore does not follow from the hallowed principle of trial by jury that trial by judge alone, when ordered, would be unfair or improperly prejudicial to the defendant. The trial would take place before an independent tribunal, and as it seems to us, for the purposes of article 6 of the European Convention of Human Rights, it is irrelevant whether the tribunal is judge and jury or judge alone.

As to the possibility of providing the jury with protection:

[19] ... the judge must take account of the question whether the level of protection appropriate to protect the integrity of the jury might affect unfavourably the way in which the jury approached its task. If a misguided perception is created in the minds of the jury by the provision of high level protection this would plainly sound on the reasonableness of such a step.

One must also consider whether:

[19] ... in some cases at any rate, even the most intensive protective measures for individual jurors would be sufficient to prevent the improper exercise of pressure on them through members of their families who would not fall within the ambit of the protective measures.

Where a judge is required to discharge the jury, he should not ordinarily order a retrial, but continue without the jury:

[20] ... Given that one of the purposes of this legislation is to discourage jury tampering, and given also the huge inconvenience and expense for everyone involved in a re-trial, and simultaneously to reduce any possible advantage accruing to those who are responsible for jury tampering or for whose perceived benefit it has been arranged by others, and to ensure that trials should proceed to verdict rather than end abruptly in the discharge of the jury, save in unusual circumstances, the judge faced with this problem should order not only the discharge of the jury but that he should continue the trial. The fact that he has been invited to consider material covered by PII principles, whether during the trial, or in the course of considering the application, should not normally lead to self-disqualification.

The evidence relied upon by the prosecution in support of an application to discharge the jury should ordinarily be disclosed to the fullest extent possible There will however be cases where evidence of the risk of jury tampering will be so sensitive that it can only be addressed under PII principles. If this were not allowed:

[26] ... the process could not apply where the actual or potential interference with the jury was of the most serious or sophisticated kind, and where, for example, disclosure of the evidence might imperil life or health or involve the disclosure of police operational evidence or methodology which, if disclosed, would be of considerable interest to the criminal world and damaging to the public interest. In such cases, faced with an order for disclosure, the Crown would be left with no alternative but to discontinue the prosecution. If so, the objective of the jury tampering would have succeeded.

Lastly, in cases which arise for decision under s. 44:

[32] ... To ensure consistency of approach and acknowledge the importance of any interference with the principle of jury trial, for the time being, arrangements should be made for the case to be referred to one of the Presiding Judges of the Circuit for a listing decision. The application will normally be heard and decided by the Presiding Judge. If the application is granted then, subject to any appeal, the Presiding Judge should identify a senior and experienced judge to conduct the trial.

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

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

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

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

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

D14.118 Anonymity of Witnesses

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

D14.118a Anonymity of Witnesses

The Court of Appeal in Mayers [2008] EWCA Crim 1418 has issued important guidance on the interpretation of the Criminal Evidence (Witness Anonymity) Act 2008, and in particular the statutory conditions (A - C) and considerations governing the admission of anonymous testimony.

Specific attention is given to the different considerations that apply where the witness in question is not an ordinary frightened witness but an undercover officer or member of the security services whose ability to maintain his cover or work on subsequent cases would be undermined by his identification.

The guidance given by the court is not easily summarised, but includes the following:

The [anonymity] order should not be made where the oral testimony of the witness, realistically analysed, is not potentially important or where the proposed anonymous evidence could be addressed by admissions or agreed facts or, subject to proper editing, capable of being read. It must in any event also be clear that notwithstanding, for example, the powers vested in the court in relation to contempt in an appropriate case, the witness will not testify. The test is stark. That the witness might prefer not to testify, or would be reluctant or unhappy at the prospect, is not enough. Condition C is expressly directed to oral testimony, and the evidence envisaged in its provisions is the evidence to be given by a witness who will be called - or at the stage when the application is made - is intended to give oral testimony. Section 12 of the Act identifies those to whom its arrangements may extend. A witness is defined as "any person called, or proposed to be called, to give evidence at the trial." It was suggested in argument that unless the risk to the safety of the witness was attributable to the actions of the defendant personally, condition A could not be established. We disagree. The problem arises if and when the safety of the witness is under threat: the threat may come from any source.

Condition A is not fulfilled unless the order is necessary for the protection of the safety of the witness or any other person, or to prevent serious damage to property or, alternatively, to prevent real harm to the public interest. In relation to human beings, the issue is unemblemished by adjectives. The question is safety, and this may encompass the risk of personal injury or death, or a reasonable fear of either. In relation to property however the risk must be serious, and any harm to the public interest must be real. In this context, different consideration may inform the decision of the court when deciding between different civilian witnesses, for example, children and adults, vulnerable and troubled witnesses, and police officers. It is of course possible to envisage situations which may simultaneously cause real or create the potential for real harm to the public interest, as required by condition A and serious danger to the interests of justice as reflected in condition C.

As to condition B (under which any measures adopted must be consistent with the defendant receiving a fair trial) it may be worth noting the strict approach of the European Court of Human Rights in Al-Khawaja and Tahery v United Kingdom [2009] ECHR 110 to cases in which the admission of hearsay evidence by the prosecution makes it impossible for the defendant effectively to challenge his accusers. The court noted that the problems caused by witness anonymity may be similar and continued:

Whatever the reason for the defendant's inability to examine a witness, whether absence, anonymity or both, the starting point for the Court's assessment of whether there is a breach of Article 6(1) and (3)(d) is set out in Lucà v Italy (2003) 36 EHRR 807...:

If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later stage, their admission in evidence will not in itself contravene Article 6. The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6...

D14.118b Anonymity

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

D14.118c Anonymity

Mayers [2008] EWCA Crim 1418 (noted in the January 2009 update) was applied in Powar [2009] EWCA Crim 594, in which an already strong case against the defendants on a charge of murder was supported by a number of independent witnesses (local residents) who had seen the incident and had been granted anonymity at the trial on the basis that they were clearly in fear of the defendants and would not otherwise be prepared to testify. Checks by the prosecution revealed that none of the anonymous witnesses had previous convictions or had otherwise come to the adverse notice of the police. There was no reason to think that there was anything in their backgrounds to suggest that they had any reason to be dishonest. Nor was there any reason to think that any of them bore any malice, grievance, grudge or ill will towards the defendants, or that any of them would derive any benefit, gain or advantage by their conviction. Certain inadvertent disclosures by the prosecution may have given the defendants some idea of who the anonymous witnesses might be, but each witness remained anxious to preserve what was left of their anonymity, for fear of the consequences of testifying.

The trial judge declined to reveal their exact identities, and the Court of Appeal agreed with her ruling. They also held that it was a ruling that the judge could still have made had the Criminal Evidence (Witness Anonymity) Act 2008 been in force at the time:

79. It was one thing for the appellants to have a suspicion as to the identity of an anonymous witness but it was quite another thing to confirm the identity of the anonymous witnesses to them. Furthermore, stripping the witnesses of the protection of anonymity would inform any one in the public gallery, including the associates of the appellants, of their true identity, which the judge thought would again heighten the risks.

80. In our judgment, this ruling was plainly right: it would have been highly irresponsible indeed dangerous to authorise a public revelation of the witnesses' names.

. . .

105. We give full weight to the need for defendants to know the names of those who give evidence against them. However, in our judgment, the anonymous witnesses in this case were ordinary law abiding neighbours, who were terrified of giving evidence against the appellants, whom they feared, on reasonable grounds, having seen them batter a man to death in the street in front of their houses and in respect of whom there was a long history giving rise to an aura or atmosphere of fear. They would not give evidence without the protection of anonymity. We see nothing to suggest that they - or any of them - were dishonest or lacked credibility or had any reason at all to give other than truthful evidence. There was, we think, a proper opportunity to examine the view which they had of the incident. There was a strong case against both appellants, without even considering the evidence of the anonymous witnesses. It was, in our judgment, plainly in the interest of justice that the orders were made.

106. For these reasons, applying the statutory test in section 11 of the Act, we do not consider that the order for anonymity was not one which the trial court could have made if the Act had been in force at the time. Furthermore, and in any event, we are entirely satisfied that the appellants received a fair trial and that the convictions are safe.

D15 Trial on Indictment: The Prosecution Case

D15.53 Submission of No Case to Answer: the Test to be Applied

An example of a fatally flawed prosecution case is provided by Grant [2008] EWCA Crim 1890, where on a charge of robbery the only evidence against the appellant was that his DNA had been recovered from a balaclava thought to have been used by the robber and recovered near the scene. But the balaclava bore traces of at least one other person's DNA, and the expert witnesses could not even be certain that any of the DNA actually recovered came from the robber.

In those circumstances it was held that the judge ought to have stopped the case at the close of the prosecution evidence. There was no way in which a jury could properly have been satisfied on that evidence that the appellant was the robber. It proved only that it might have been him.

He had refused to answer questions when interviewed, which was no doubt suspicious, but he could not have a case to answer on that basis alone (see Criminal Justice and Public Order Act 1994, s. 38 at F19.6 of the main work).

D15.70 Appeals by Prosecution against Adverse Rulings

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

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

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

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

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

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

D16 Trial on Indictment: the Defence Case

D16.9 Order of Defence Evidence

In Sutton [2008] EWCA Crim 3129,, D faced charges of theft (shoplifting) but claimed to have acted absent-mindedly whilst depressed and suffering from sleep deprivation. He called an expert witness (Dr Wood) in support of this defence, but there was some difficulty as to the expert's availability and rather than adjourn the trial the judge insisted on the expert giving evidence before D himself. The judge then commented critically on the fact that much of Dr Wood's evidence involved describing what D had told him about the various background matters which underpinned his opinion.

The Court of Appeal considered that the trial had been rendered unfair. Hooper LJ said:

16. In our view, requiring the expert to give evidence first deprived the appellant of a fair trial. It must have been extremely difficult for the jury to follow the evidence of the psychiatrist. [Counsel] rightly points out that they knew something about the case from the opening. But they were having to listen to evidence describing the expert's view as to the defendant's mental state without having had the benefit of seeing the defendant, hearing his account, not only of the day but of the important background to that day.

17. Without suggesting that defence witnesses can never be called out of order, in our view this was not the right approach to adopt in this case. What the jury needed to hear was, first, what the prosecution witnesses were saying about the events in question on the day, secondly what the defendant was saying about the day and his personal history and thirdly the evidence given by the expert. If the right order had been followed, [counsel] would have been able to invite Dr Wood to comment on the evidence that had been given particularly by the defendant and ask him to draw conclusions from it.

18. For these reasons alone we would allow the appeal.

D17 Trial on Indictment: After Defence Closes

D17.17 Restrictions on Prosecution Closing Speeches

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

D18 Trial on Indictment: Procedure Relating to Retirement of the Jury and Verdict

D18.11 Retirement of the Jury: Consequences of Improper Separation

Ketteridge [1915] 1 KB 467 and Goodson [1975] 1 WLR 549 were considered in S [2009] All ER (D) 75 (Jan). See D13.45.

D19 Trial on Indictment: Sentencing Procedure

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

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

D19.44 Duty to Make Sentence Conform to Facts Consistent with Verdict: Secondary Offending

Lawrence (1981) 3 Cr App R (S) 49 was considered in Khan [2009] EWCA Crim 389,, in which the appellant had been convicted of doing an act tending to pervert the course of justice (by attempting to bribe a probation officer to give him a positive report) but was sentenced on the basis that he had also subsequently threatened that officer. Evidence of the telephone conversation and threats was admissible as evidence in rebuttal of his defence that the offer of a bribe was nothing more than a joke. The issue on appeal concerned the extent to which a judge could take into account in sentence matters of evidence which tended to aggravate the offence charged but which had not been charged as a separate offence or admitted by the offender.

The Court of Appeal held that the judge was entitled to take the threats into account. Hedley J said:

12. Nothing in this judgment is intended to cast doubt upon the general proposition that no-one should be sentenced for criminal conduct in respect of which he has neither accepted it nor been convicted. Moreover nothing in this judgment is intended to give comfort to the view that such conduct is capable of being established in a Newton hearing. Nevertheless where the conduct is relevant to a criminal charge being considered by a jury and where such conduct has been the subject of specific scrutiny in a trial then unless reliance on that conduct is inconsistent with a verdict, a judge should be able to take that conduct into account on sentence provided he is satisfied that it has been established to his satisfaction to the criminal standard. Clearly treating someone as having an intention to supply drugs is inconsistent with a conviction for simple possession or treating someone as intending to cause really serious bodily harm is inconsistent with a verdict for inflicting the same.

13. The court recognises that there may be areas of uncertainty. For example where a person is convicted of sexual activity in circumstance where they are in a position of trust, the consent of the victim is irrelevant. However, the absence of consent would be a seriously aggravating feature so far as sentence is concerned. We can see that that decision taken by the sentencing judge alone might well be thought to contravene the general principle. However, consent would not have been an issue specifically addressed in the trial. Here, however, the relevant aggravating feature was not only addressed but was a specific issue having regard to the nature of the defence. It is that fact which in our view permits the judge to have taken account of it here.

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

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

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

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

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

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

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

D20 Summary Trial: General and Preliminary Matters

D20.3 The Information or Written Charge: Content

An allegation of an offence in an information or charge must contain-

a statement of the offence that-

describes the offence in ordinary language, and

identifies any legislation that creates it; and

such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.

More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission.

D20.5 Rule against Duplicity

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. A new part 7 (starting a prosecution in a magistrates' court) simplifies the rules; it contains no equivalent to the former r. 7.3(1) restricting trial of 'an information or written charge that charges more than one offence'.

D20.22 Advance Warning of the Prosecution Case

D21 Summary Trial: The Course of the Trial

D21.7 Change of Plea

D21.22 Opening Speech

D21.44 Defence Case and Speeches

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The sequence for representations and the introduction of evidence set out in r. 37.3 provides only for defence representations after the close of evidence. The prosecution may, following defence representations about the case, make representations 'about the relevant law' and the defence may respond.

D21.45 Evidence in Rebuttal

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The sequence for representations and the introduction of evidence set out in r. 37.3 provides for further evidence to be presented by 'a party' and includes a reference to rebuttal evidence by way of example (r. 37.3(3)(f)).

D21.56 Role of Clerk where Accused is Unrepresented

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to substitute part 37 with effect where the court tries a case or the accused pleads guilty from 6 April 2009. The new part 37 refers to the role of the justices' legal adviser (a term newly defined in r. 2.2(1) to include a justices' clerk or his assistant). The duties to assist an unrepresented accused are preserved albeit in different language and spread across the rules in part 37.

D22 Sentencing in the Magistrates' Court

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

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

D23 Trial of Juveniles

D23.13 Attendance of Parent or Guardian

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to replace parts 37 and 38 with a new part 37, having effect in both the adult and youth court from 6 April 2009. The procedure for a parent to act on a juvenile's behalf is not replicated in the new part 37.

D23.14 Advance Information

D23.15 Course of the Trial in the Youth Court

D23.56 Summary Trial Procedure for Juveniles tried in an Adult Magistrates' Court

D23.60 Procedure before Sentence in the Youth Court

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076) amend the principal Rules with effect on 6 October 2008. Rule 44.1(2)(d) is amended so as to remove the words 'local education authority', although reports from such authorities may still be read aloud as they are covered by the reference to 'local authority' in that rule.

D23.60a Procedure before Sentence in the Youth Court

The Criminal Procedure (Amendment No. 2) Rules 2008 (SI 2008 No. 3269) amend the CrimPR inter alia so as to replace parts 37 and 38 and most of part 44 with a new part 37, having effect in both the adult and youth court from 6 April 2009.

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

D24.6 Application Procedure in Civil Proceedings

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

D24.8 Variation or Discharge of an ASBO

The Criminal Justice and Immigration Act 2008 (Commencement No. 6 and Transitional Provisions) Order 2009 (SI 2009 No. 140) brings into force on 1 February 2009, inter alia, s. 123 of the Act, which provides for the review of ASBOs made in respect of persons aged under 17.

D24.9 Appeals

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

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

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

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

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

D24.13 Use of ASBOs Following Conviction

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

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

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

D24.14 Breach of the ASBO

Definitive guidelines have been published dealing with breaches of ASBOs (adult and youth offenders). The guidelines will be effective from 5 January 2009.

D24.14a Breach of the ASBO

The burden of proof in relation to an alleged breach of an ASBO (contrary to the CDA 1998, s. 1(10)) was considered by the Court of Appeal in Charles [2009] EWCA Crim 1570.

Thomas LJ said:

It cannot have been intended by Parliament to place any burden of proof on the defendant under s. 1(10) which criminalises conduct that Parliament itself has not criminalised and has not prescribed the terms in which that can be done. Applying therefore the test in Edwards and in Hunt, we are of the clear view that the burden of proving reasonable excuse rests on the Crown where the defendant has raised the issue on the evidence before the court. The Act is perfectly workable on the basis that it imposes only an evidential burden on the defendant, but leaves the legal burden on the Crown.

D24.19 Individual Support Orders

The Criminal Justice and Immigration Act 2008 (Commencement No. 6 and Transitional Provisions) Order 2009 (SI 2009 No. 140) brings into force on 1 February 2009, inter alia, s. 124 of the Act, which amends the provisions relating to ISOs. The effect of those amendments is fully explained in the main work.

D24.23 Closure Orders

The Criminal Justice and Immigration Act 2008 (Commencement No. 4 and Saving Provision) Order 2008 (SI 2008 No. 2993) inter alia brings s. 118 and sch. 20 (closure orders: premises associated with persistent disorder or nuisance) into force on 1 December 2008.

D24.50 Violent Offender Orders

The Criminal Justice and Immigration Act 2008 (Commencement No. 10) Order 2009 (SI 2009 No 1842) brings part 7 of the Act (violent offender orders) fully into force on 3 August 2009.

D24.51 Violent Offender Orders

The Criminal Justice and Immigration Act 2008 (Violent Offender Orders) (Notification Requirements) Regulations 2009 (SI 2009 No. 2019) set out the notification requirements for a person who is subject to a violent offender order (or an interim violent offender order) under part 7 of the Criminal Justice and Immigration Act 2008 who wishes to travel outside the UK.

D25 Appeal to the Court of Appeal

D25.19 Conduct of Lawyers

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

D25.22 Inconsistent Verdicts

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

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

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

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

D25.23 Conduct of the Trial Judge

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

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

He concluded (at [33]):

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

D25.35 Statutory Basis of Appeal against Sentence

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

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

D26 Procedure on Appeal to the Court of Appeal

D26.15 Hearing of an Appeal: Practice in Usual Case

In Erskine [2009] EWCA Crim 1425 Lord Judge CJ regretted the practice of excessive citation of authority and, having considered the Consolidated Criminal Practice Direction, issued detailed instructions to counsel in criminal appeals as to the citation of authority. See appendix 7 below.

D26.20 Receipt of Evidence by the Court of Appeal

In Moyle [2008] EWCA Crim 3059 evidence of the appellant's mental illness was admitted on appeal in support of a defence of diminished responsibility, even though no such defence had been advanced at the trial. Pill LJ referred to Neaven [2007] 2 All ER 891 and said:

There is now strong medical evidence, which we accept, that the appellant was, at the time..., suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts in doing the killing. All four doctors have expressly stated that the criteria in section 2 of the 1957 Act were satisfied. They also acknowledge that the appellant declined to cooperate with doctors at the time of trial...

As in Neaven, the appellant's decisions at the time of trial were affected by the illness itself; the sense of attack on his personal integrity leading to an unwillingness to disclose the extent of his health problems and the fear of being returned to hospital. There can be no suggestion that the appellant was holding back on a defence of diminished responsibility for tactical reasons connected with his trial.

D26.20 Receipt of Evidence by the Court of Appeal

Erskine [2009] EWCA Crim 1425 provides a useful guide to circumstances in which the Court of Appeal exceptionally may allow a defence such as diminished responsibility to be advanced for the first time on appeal. See also Moyle [2008] EWCA Crim 3059.

(For other aspects of this case, concerning the citation of authorities in appeals to the Court of Appeal, see the July update.)

D27 Reference to the Court of Appeal

D27.1 Reference by the Criminal Cases Review Commission

The conflict between R (Director of Revenue and Customs Prosecutions) v Criminal Cases Review Commission [2007] 1 Cr App R 395 and Cottrell [2007] 1 WLR 3262 was noted once again in Rowe [2008] EWCA Crim 2712, where Lord Judge CJ emphasised that it is not open to the CCRC to choose between these two authorities when deciding whether to refer a case to the Court of Appeal. In this context, Cottrell is authoritative and must be followed.

D28 Challenging Decisions of Magistrates' Courts

D28.6 Procedure on Appeal to the Crown Court

D28.10 Abandonment of Appeal

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

D28.14 Appeal to Divisional Court by Way of Case Stated

In Brett v DPP [2009] EWHC 440 (Admin) (see C5.26) Leveson LJ noted that the appellant could have appealed to the Crown Court instead of to the Divisional Court and warned:

If the purpose of appealing by way of case stated is to improve the prospect of the case not being tried at all (which [counsel] asserts is the effect of her experience), the sooner that those advising defendants are disabused of the merit of such an approach the better. The default position in almost every case should be to remit any prosecution that remains viable back to the originating court for re-trial before a differently constituted bench. Once those advising defendants have understood this approach, it would be incumbent upon them to ensure that their clients were very aware of that risk so that, even if successful, they did not assume or even believe that the case would come to an end. If, in relation to magistrates' court cases, the result is greater use of the appeal by way of re-hearing in the Crown Court rather than appeal to this court by way of case stated, for my part, I would consider that outcome desirable.

D29 Appeals to the House of Lords and the Role of the European Court of Justice and the European Court of Human Rights

D29.1 Appeal to the House of Lords

The Constitutional Reform Act 2005 (Commencement No. 11) Order 2009 (SI 2009 No. 1604) brings into force on 1 October 2009, inter alia, ss. 23 to 44 and 47 to 60 of the Act, which relate to the establishment of the Supreme Court. Associated minor and consequential amendments are also brought into force.

The Supreme Court Rules 2009 (SI 2009 No. 1603) govern the practice and procedure in the Supreme Court of the United Kingdom.

D30 Public Funding and Costs

D30.2 Public Funding in Criminal Proceedings

Lord Chancellor v Rees [2008] EWHC 3168 (QB) examines "questions of very significant public importance" in relation to the manner in which Determining Officers should assess criminal lawyers' fees on an ex post facto assessment and in particular whether and, if so, to what extent it is appropriate for reference to be made to the general market in criminal lawyers' fees as a cross-check that the fee proposed is not out of kilter with market forces.

D30.3 Grant of Right to Representation

In R (GKR Law Solicitors) v Liverpool Magistrates Court [2008] EWHC 2974 (Admin), a driver sought to call her 12-year-old son as a witness at a hearing in which she asserted special reasons for not having her licence endorsed. She claimed that he had witnessed an incident that had scared her into speeding away, and argued that she should be granted legal representation in order that her son could be examined in chief by a trained advocate. This was refused by the magistrates' court, but an application for judicial review by her solicitors was successful. Cox J held that it had clearly been in the interests of justice to grant legal representation, so as to secure the necessary professional skills to enable a fair and proper consideration of the questions to be determined. Cox J noted the statutory requirement that special measures be taken to assist a young child in giving evidence to the court so as to improve the quality of his evidence. The defendant lacked the necessary skills and resources to make the appropriate arrangements herself for those special measures to be undertaken.

D30.3a Grant of Right to Representation

The Criminal Defence Service (Provisional Representation Orders) Regulations 2009 (SI 2009 No. 1995) provide for the grant by the Legal Services Commission of a provisional right to publicly funded representation in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in cases of serious or complex fraud. They also provide for the circumstances in which such orders must be withdrawn.

D30.5 Applying for a Representation Order in the Crown Court, Court of Appeal or House of Lords

D30.6 Nature of Representation

The Criminal Defence Service (General) (No. 2) (Amendment) Regulations 2009 (SI 2009 No. 1853) amend the principal Regulations of 2001 so as to provide for legal representation under provisional representation orders in cases of investigations of serious or complex fraud governed by the Attorney General's Guidelines on plea discussions in such cases. They also extend the provisions on change of representative and on cases involving more than one defendant to cover provisional representation orders and change references to 'junior counsel' in various places in the principal Regulations to references to 'junior advocates'.

D30.11 Recovery of Costs

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

D30.13 Jurisdiction to Make a Defendant's Costs Order

A recent and contrasting ruling in R (Orton) v Truro Magistrates' Court [2009] EWHC 168 (Admin) was doubted in Perinpanathan and dismissed as 'of no real authority'.

D30.13a Defendant's Costs Orders

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

It may be helpful to suggest some of the circumstances which may be thought relevant in a case which involves a claim by a successful defendant for reimbursement from central funds of expenses incurred by him in relation to legal professional services during a period when a representation order was in force. In my view, the determining officer will wish amongst other circumstances to consider-
The profession, and professional qualifications, of the person who provided the relevant services, and the capacity in which he was acting at the time when he provided them. Often that will be obvious, but in some cases it may require careful consideration on an item-by-item basis.

The exact nature and purpose of the professional services provided. By way of illustration: expert evidence as to foreign law is likely to be outside the competence of the solicitors and counsel instructed under the representation order; but preparation of schedules and summaries will generally be well within their competence, and indeed will often be work suitable for fee-earners of a lower grade.

The reasons why it is said to have been necessary and reasonable to engage that person to provide those services, and to do so at the time when the services were provided.

The reasons why it is said such services could not be provided by the legal team instructed under the representation order, bearing in mind that the representation order is intended to provide the level of legal advice and representation appropriate to the specific case.

The reasons why the claim did not, by either of the possible routes I have mentioned or in any other way, form part of the solicitors' claim for fees and disbursements under the representation order.

The basis on which, and the rate at which, the provider of the services charged the applicant.

The extent to which there is any duplication of, or overlap with, work also done by the lawyers instructed under the representation order.

What was said on the claimant's behalf when the application for the defendant's costs order was made in the criminal proceedings.

If the claimant's application for reimbursement of his expenses is not made at the same time as the claim made by his lawyers under the representation order, the reason why that is so.

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

D30.20 Amount of Order for Prosecution Costs

It was held in Balshaw [2009] EWCA Crim 470 that under the Prosecution of Offences Act 1985, s. 18(1), an order to pay prosecution costs might properly include an order to pay for the cost of an accountancy report commissioned by the police when investigating the accused's business affairs. The costs incurred by the police were costs relevant not only to the investigation but also to the presentation of the case at trial. Accordingly, the judge was correct to conclude that the order was just and reasonable.

D30.28 Statutes and Regulations on Costs

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

D31 Extradition

D31.2 Part 1 of the Act

The speciality rule (under which a person extradited from State A to State B for one offence cannot ordinarily be prosecuted in State B for a different or additional offence allegedly committed prior to his extradition) was considered in Seddon [2009] EWCA Crim 483. D had been extradited from Spain on a charge of blackmail, after jumping bail in England. He was then prosecuted in England for an offence under the Bail Act, s. 6, which had not been mentioned in the European Arrest Warrant and could not be described as a 'lesser included offence'.

The Court of Appeal ruled that this was unlawful:

Exercising our duty to construe section 146(3)(b) so far as possible consistently with the international obligations which this country has undertaken through the Framework Decision, it is quite clear to us that the section did not extend to permit Mr Seddon to be dealt with in Manchester for the Bail Act offence which was wholly extraneous to and additional to the extradition offence of blackmail and to which there was the merest passing reference in the warrant. All of that follows, as it seems to us, from the essentially reciprocal nature of extradition to which we have already referred.

The court added:

. . . including in the EAW a request for surrender in relation to the Bail Act offence is the course which should be taken wherever there is a realistic possibility that the court should have open to it upon surrender process not only for the substantive offence but also for the bail offence. We draw attention to the existence of the alternative procedure referred to in s. 146(3)(c) of the [Extradition Act 2003]. It remains open to any appropriate judge to seek specific consent from the requested State to proceedings for any specific offence and even after surrender. Section 149(1) makes clear that any judge of the Crown Court is included within the definition of 'appropriate judge'. It follows that any judge of the Crown Court can initiate a request to the requested State for specific consent to process for an additional Bail Act or for that matter any other offence. If he or she were to do so, he should do so ordinarily through counsel for the Crown who will, via the prosecuting authority, transmit the request through the Serious and Organised Crime Agency. That however is not, as it seems to us, by any means the preferred route because it will inevitably lead to undesirable delay. Much the best course is to include the reference to the Bail Act offence specifically as one of the extradition offences for which surrender is sought and so to say plainly from the beginning in the European Arrest Warrant.

D31.3 A Part 1 Warrant

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

D31.5 Part 1 of the Act

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

D31.5a The Extradition Hearing

The Extradition Act 2003, s. 20, was examined by the Divisional Court in Atkinson v Supreme Court of Cyprus [2009] EWCA Crim 1579. The appellants had been acquitted at their trial for manslaughter in Cyprus, and returned to the UK, but were then found guilty in their absence on an appeal to the Supreme Court of Cyprus. An EAW was issued and following a hearing before a district judge, an extradition order was made under part 1 of the Extradition Act 2003.

The Divisional Court held that the Supreme Court proceedings were in effect a part of the trial. The appellants had known of those proceedings and had decided not to attend, albeit on legal advice. They had thus been deliberately absent for the purposes of s. 20(3), and could not in any event have played any active part in those proceedings. The extradition order was upheld.

D31.6 Part 2 of the Act

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

D31.8 Part 2 of the Act: The Extradition Hearing

An illustration of possible circumstances in which extradition must be refused because of the risk of a denial or justice in the requesting state is provided by Brown v Government of Rwanda [2009] EWHC 770 (Admin), in which the court allowed an appeal against the Secretary of State's order that the appellants were to be extradited to Rwanda to face trial in that country for crimes of genocide. The risk of injustice included both a likely inability to adduce the evidence of witnesses supporting the appellants and a risk that the speciality rule would not be observed.

D31.9 Extradition Offences

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

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

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

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

D31.11 Appeals

In Mucelli v Government of Albania [2009] UKHL 2 the House of Lords considered the time-limits imposed by the Extradition Act 2003 on persons facing extradition who seek to appeal against the order of the District Judge. It was held that such an appellant must not only file his appeal notice but serve it on the respondent within the specified period of 7 days (in part 1 cases) or 14 days (in cases governed by part 2 of the Act).

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