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Blackstone's Criminal Practice 2009

Updates 2009

September 2008

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Blackstone's Criminal Practice 2009

September 2008

September Update 2008

Updates to Blackstone's Criminal Practice 2008 are produced by Michael Hirst, Professor of Criminal Justice, De Montfort University, Leicester, and Laurence Eastham, Editorial Co-ordinator, Blackstone's Criminal Practice.

The September update deals primarily with developments during August 2008.

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

Part A General Principles of Criminal Law

A5 Parties to Crime

A5.1 Liability of Principals and Accessories Generally

Calhaem [1985] QB 808 and Bryce [2004] 2 Cr App R 592 were considered by the Court of Appeal in Luffman [2008] EWCA Crim 1379, in which the appellants paid C to murder L's husband, S, and provided C with a sawn-off shotgun and cartridges with which to commit the offence. C killed S using the weapon provided and was duly convicted of his murder. The jury at C's trial predictably rejected his story that he 'never intended to carry out the killing', but was forced to do so in self-defence, when S resisted C's attempt to rob him.

C then became the principal prosecution witness against the appellants, but persisted in his story that he had never intended to commit the murder he had been hired to commit. That part of his story was not challenged by the appellants in cross-examination. Instead, they seized upon it to support their own defences, and contended:

they had not 'counselled' the offence because C had never formed the intention to murder the deceased in accordance with their wishes;
there was no causal connection between their solicitation of C and the offence which had in fact been committed;
C had acted outside the scope of his authority and had attempted to commit robbery without their knowledge or authorisation; and
the circumstances of the killing had been outside their contemplation.

A key argument underlying the first two contentions was that secondary liability for counselling or procuring an offence requires a causal link to be established between the acts of the alleged secondary parties and the commission of the offence in question. But as the Court of Appeal rightly noted, the authorities suggest that a causal link is necessary only where the prosecution rely on 'procuring'. On a charge of 'counselling' (or indeed of aiding or abetting), it is no defence to argue that the principal offender would have committed the offence without any help or encouragement. Even if a causal link was needed, there was ample evidence to suggest that such a link did exist. The jury at C's trial had rejected his plea of self-defence and he had killed S with the gun and ammunition provided by the appellants. The Court also rejected the contention that C's actions (and in particular his attempt to rob S) took him outside the scope of any authority given by the appellants. Even if C killed S because his plan to rob S went wrong, his actions 'were not so fundamentally different from those foreseen by the appellants as to sever any causal connection between the appellants' act and the commission of the offence.'

Part B Offences

B2 Non-fatal Offences

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

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

B2.36 Resisting or Wilfully Obstructing Constable: Elements

B10 Terrorism Piracy and Hijacking

B10.185 Recklessly Endangering the Safety of an Aircraft

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

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

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

Part C Road Traffic Offences

C3 Road Traffic Offences Triable on Indictment

C3.17 Causing Death by Dangerous Driving: Sentence

The severity of current sentencing policy in respect of motorists who kill is illustrated by Rosevere [2008] All ER (D) 127 (Aug), in which a 61-year-old driver received a sentence of 30 months' imprisonment after pleading guilty on a charge of causing death by dangerous driving. He ran over a drunken woman who was lying in the carriageway of a poorly lit road, dressed in dark clothing. He did not stop, later claiming that he was suffering from a migraine and had not realised what he had hit, but he had been convicted of causing death by reckless driving in 1990 after hitting a deaf pedestrian who stepped into his path.

The trial judge did not regard this earlier case as a relevant sentencing consideration, saying, 'This is not a case involving excessive speed or of inherently bad driving over any great distance, nor are there any other aggravating features present', but the Court of Appeal disagreed, opining that in view of that earlier conviction the sentence was if anything too lenient.

We now have a sentencing regime that routinely punishes fatal driving offences more severely than either negligent or constructive manslaughter. See Hirst, 'Causing Death by Driving and other Offences: A Question of Balance' [2008] Crim LR 339.

Part D Procedure

D1 Powers of Investigation

D1.4 Powers to Stop and Search

D3 Courts, Judges and Parties

D3.9 Crown Court: Justices

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.

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.

D5.8 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'.

D8 Assets Recovery

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.

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.

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).

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'.

D23 Trial of Juveniles

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.

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).

Part E Sentencing

E2 Custodial Sentences: General Provisions

E2.11 Concurrent and Consecutive Custodial Sentences

In Hills [2008] EWCA Crim 1871, H fell to be sentenced for a serious assault on a prison officer committed while he was within the minimum term of an indeterminate sentence he was serving at the time. The judge concluded that this was a case in respect of which a concurrent sentence was inappropriate, and ordered that the three-year sentence he was imposing for the assault should not commence until the end of the minimum term (which was in February 2010).

Upholding this sentence, the Court of Appeal said:

In our view, there is no reason in principle why the court should not impose a sentence structured in the way that this sentence was. Section 154 of the Powers of Criminal Courts (Sentencing) Act 2000 declares that:
'A sentence imposed, or other order made, by the Crown Court . . . shall take effect at the beginning of the day on which it was imposed, unless the court otherwise directs'.
That seems to us to give to the court the power to direct that a sentence should or could commence at a different date. The sentencing regime which has been created in particular by the Criminal Justice Act 2003 provides for clear dates upon which minimum terms will come to a end which enable a court to identify with precision the date upon which otherwise an offender could be considered for release on parole. That being the case, there is in our judgment no practical reason why an order should not be made which requires the offender to commence to serve an additional period after the minimum period before he can be considered for parole. The old authorities to the contrary effect are no longer relevant now that minimum terms are clearly identified.

E3 Mandatory Life Sentences

E3.2 Schedule 21 Principles

The imposition of 'whole life' tariffs came under scrutiny in Bieber [2008] EWCA Crim 1601, where the appellant had been sentenced for the murder of a police officer and the attempted murder of two others. The trial judge concluded that the circumstances of the killing, in which an already injured and disabled officer was shot a second time through the head as he lay helpless on the ground, merited a whole life tariff. He said:

You had already disabled him and he was defenceless, you could have escaped then, but you chose to wait and fire a second shot at point blank range . . .

On appeal, it was contended (1) that the circumstances of the killing did not justify a whole life tariff on the basis of sch. 21; and (2) that whole life tariffs infringe the ECHR, Article 3 on the basis that they amount to 'inhuman or degrading treatment or punishment.'

The second of these grounds was clearly raised an issue of great importance and was addressed first. It had previously been raised without success in Secretary of State ex parte Hindley [2001] 1 AC 410, but appeared to have been given some support by the ruling of the ECHR Grand Chamber in Kafkaris v Cyprus (Application no. 21906/04, Feb 2008) in which it was suggested by some judges and expressly stated by others that:

The imposition of an irreducible life sentence, even on an adult offender, is in principle inconsistent with Article 3 . . .

The Strasbourg Court nevertheless concluded that:

Matters relating to early release policies including the manner of their implementation fall within the power member States have in the sphere of criminal justice and penal policy. . . . There is not yet a clear and commonly accepted standard amongst the member States . . . concerning life sentences and, in particular, their review and method of adjustment.

In the view of the Court of Appeal a whole life tariff, imposed to reflect the appropriate punishment and deterrence for a very serious offence does not conflict with Article 3. Mindful however of the fact that irreducible life sentences may one day be condemned in Strasbourg, the Court of Appeal went on to consider whether a 'whole life tariff' is in practice irreducible, and concluded that it is not. The Secretary of State has a limited power to release a life prisoner under the Crimes (Sentences) Act 1997, s. 30 (e.g., where the life prisoner has become old, incapacitated and terminally ill). If that power is not exercised when the circumstances appear to warrant it, it may then (but only then) be open to a prisoner to contend that his rights under Article 3 have been infringed.

On the particular facts of this case, the Court of Appeal concluded that it was one that fell into the 30-year band (albeit with several aggravating circumstances) rather than the whole life band. A minimum term of 37 years was substituted.

E19 Confiscation Orders

E19.13 Making of Confiscation Orders

Where the defendant's offences involve obtaining inflated fees or payments by deception, the entire amount obtained (which in this case was just under £180,000) represents the proceeds of his offending, even if (as in Shabir [2008] EWCA Crim 1809), the dishonestly inflated portion of that was much smaller. In Shabir it was calculated as just £464. To make matters worse, the defendant's case became, by statutory definition, one of a criminal lifestyle. The result was a confiscation order in the sum of £212,464.

The courts have consistently declined to construe the defendant's 'benefit' in this context as his net or retained profit (see for example Smith [2001] UKHL 68) with the result that confiscation orders have often appeared punitive rather than restitutionary, and sometimes unfairly so. Moreover, once the Crown decides to invoke the confiscation process, the making of an order is mandatory, and its amount cannot be moderated by judicial decision; but the courts do retain the power to stay an application where it is so oppressive as to constitute an abuse of process.

In some cases (particularly 'criminal lifestyle ones) it may be proper to impose a confiscation order for a sum much greater than the proven gain from the offences of which the defendant has been convicted, but in this case the order was oppressive and it was clear that the prosecution had given no thought to the circumstances that made it so. The court concluded that:

On the very unusual and exceptional facts of this case, we are sure that if application had been made to the judge to stay the confiscation application for abuse of process his answer could only have been that such stay should be granted.

An order in the sum of £464 was accordingly substituted.

E21 Exclusions and Disqualifications

E21.12 Sexual Offences Prevention Orders

When imposing a Sexual Offences Prevention Order under the Sexual Offences Act 2003 at the same time as imposing a notification requirement under sch. 3 to that Act, a court or judge should ensure that the terms of the Sexual Offences Prevention Order are consistent with the duration of the notification requirements.

Excessively wide terms must also be avoided. In Hammond [2008] EWCA Crim 1358, the original order, although designed to prevent the defendant from accessing child pornography, would have prevented him from accessing any online material not connected with his work or education. As the Court of Appeal observed, this would (inter alia) prevent him from accessing the internet to order a train ticket or to book a holiday. The court substituted a term by which, 'he is not to download any photographs or pseudo photographs of any person under the age of 18'.

If the transcipt is correct, the court does not confine the prohibition to indecent images. On the other hand, a prohibition on downloading would not appear to extend to the viewing of images or video streams that are not copied to the viewer's hard drive.

Appendices

Appendix 1

The Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076), which take effect on 6 October 2008, add new provisions to the Criminal Procedure Rules 2005, including the following:

- new rules in part 2 (understanding and applying the Rules) make transitional provision and explain when the new rules in parts 7 and 63 will apply and part 2 is further amended to include a new rule about representatives and `supporting adults' to clarify which representatives can act in criminal proceedings;

- part 4 (service of documents) is amended to clarify the operation of r. 4.4 (service by leaving or posting a document) and to avoid confusion in respect of service on a company registered in Scotland or in Northern Ireland;

- a new part 7 (starting a prosecution in a magistrates' court), in substitution for the existing part 7 (commencing proceedings in a magistrates' court);

- part 37 (summary trial) is amended to include three rules transferred from part 7;

- part 55 (road traffic penalties) is amended to include the provision which was r. 7.6 (statutory declaration under section 72 and 73 of the Road Traffic Offenders Act 1988), which has been transferred, with minor revision, on the revision and simplification of part 7;

- a new part 63 (appeal to the Crown Court) revises and simplifies the rules so that they correspond broadly with the other appeal rules which have recently been revised and simplified;

- part 65 (appeal to the Court of Appeal: general rules) is amended to reflect recent legislation and to enhance the notes;

- part 66 (appeal to the Court of Appeal against ruling at preparatory hearing) is amended to reflect the amendment to s. 31 of the Criminal Appeal Act 1968 effected by s. 47 of, and para. 11 of sch. 8 to, the Criminal Justice and Immigration Act 2008;

- part 68 (appeal to the Court of Appeal about conviction or sentence) is amended to make provision for rights of appeal to the Court of Appeal (i) against wasted costs orders and third party costs orders, and (ii) against a serious crime prevention order where a case is certified fit for appeal;

- part 78 (costs orders against the parties) is amended because the new part 63 rules remove the three-day time-limit for giving notice to abandon an appeal to the Crown Court so the associated costs rule in part 78 is amended to remove reference to that time limit and to allow the exercise of judicial discretion as to costs where such an appeal is abandoned.

NEW legislation

Sexual Offences (Northern Ireland) Order 2008 (SI 2008 No. 1769)

Sexual Offences (Northern Ireland Consequential Amendments) Order 2008 (SI 2008 No. 1779)

When brought fully into force, the 'Consequential Amendments' Order will amend some legislation applicable to England and Wales, notably the Sexual Offences Act 2003, although the practical impact of the amendments is largely confined to Northern Ireland itself, where some provisions of the 2003 Act will cease to apply (being replaced by corresponding but not identical provisions of the main Order).

Criminal Procedure (Amendment) Rules 2008 (SI 2008 No. 2076)

These Rules, which take effect on 6 October 2008, add new provisions to the Criminal Procedure Rules 2005, including the following:

- new rules in part 2 (understanding and applying the Rules) make transitional provision and explain when the new rules in parts 7 and 63 will apply and part 2 is further amended to include a new rule about representatives and `supporting adults' to clarify which representatives can act in criminal proceedings;

- part 4 (service of documents) is amended to clarify the operation of r. 4.4 (service by leaving or posting a document) and to avoid confusion in respect of service on a company registered in Scotland or in Northern Ireland;

- a new part 7 (starting a prosecution in a magistrates' court), in substitution for the existing part 7 (commencing proceedings in a magistrates' court);

- part 37 (summary trial) is amended to include three rules transferred from part 7;

- part 55 (road traffic penalties) is amended to include the provision which was r. 7.6 (statutory declaration under section 72 and 73 of the Road Traffic Offenders Act 1988), which has been transferred, with minor revision, on the revision and simplification of part 7;

- a new part 63 (appeal to the Crown Court) revises and simplifies the rules so that they correspond broadly with the other appeal rules which have recently been revised and simplified;

- part 65 (appeal to the Court of Appeal: general rules) is amended to reflect recent legislation and to enhance the notes;

- part 66 (appeal to the Court of Appeal against ruling at preparatory hearing) is amended to reflect the amendment to s. 31 of the Criminal Appeal Act 1968 effected by s. 47 of, and para. 11 of sch. 8 to, the Criminal Justice and Immigration Act 2008;

- part 68 (appeal to the Court of Appeal about conviction or sentence) is amended to make provision for rights of appeal to the Court of Appeal (i) against wasted costs orders and third party costs orders, and (ii) against a serious crime prevention order where a case is certified fit for appeal;

- part 78 (costs orders against the parties) is amended because the new part 63 rules remove the three-day time-limit for giving notice to abandon an appeal to the Crown Court so the associated costs rule in part 78 is amended to remove reference to that time limit and to allow the exercise of judicial discretion as to costs where such an appeal is abandoned.

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