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Blackstone's Criminal Practice 2006

Part B 1 - 10

Updates to Part B, sections B1 - B10


January 2006

B1 Homicide and Related Offences

Note the publication on 20 December 2005 of the Law Commission's Consultation Paper No 177, "A New Homicide Act for England and Wales". This is available for download free of charge.

Author: MH


May 2006

B1.17 Diminished Responsibility: Relevance of Intoxication

The principles established in Dietschmann [2003] UKHL 10 did not change the law relating to diminished responsibility and intoxication, but merely restated the law, so as to correct erroneous rulings of the Court of Appeal in Egan [1992] 4 All ER 470 and Atkinson [1985] Crim LR 314. See Hendy [2006] EWCA Crim 819. It followed that a judge who prior to the ruling in Dietschmann directed a jury in accordance with Egan had misdirected the jury, and the appellant's conviction for murder was quashed.

Author: MH


February 2006

B1.21 Provocation: the Objective Condition

Any lingering doubts as to whether a decision of the Privy Council (A-G for Jersey v Holley [2005] UKPC 23 could lawfully overrule a decision of the House of Lords (Smith (Morgan James) [2001] 1 AC 146) now appear to have been dispelled. The Court of Appeal, at least, is satisfied that Holley now represents the position under English law. This was assumed with little argument in Mohammed [2005] EWCA Crim 1880, but has now been reiterated after full and careful consideration in James [2006] EWCA Crim 14, from which the following extracts are taken:

"The decision of the majority [in Holley] has been taken to be the law on three occasions by this court and, as we understand the position, is being followed in directions to juries in England and Wales. If these appeals, or any other raising the same issue, reach the House of Lords, the result would seem to be a foregone conclusion. Half of the Law Lords were party to the majority decision in Holley. Three more in that case accepted that the majority decision represented a definitive statement of English law on the issue in question.

It is not this court, but the Lords of Appeal in Ordinary who have altered the established approach to precedent. There are possible constitutional issues in postulating that a Board of the Privy Council, however numerous or distinguished, is in a position on an appeal from Jersey to displace and replace a decision of the Appellate Committee on an issue of English law. Our principles in relation to precedent are, however, common law principles. Putting on one side the position of the European Court of Justice, the Lords of Appeal in Ordinary have never hitherto accepted that any other tribunal could overrule a decision of the Appellate Committee. Uniquely a majority of the Law Lords have on this occasion decided that they could do so and have done so in their capacity as members of the Judicial Committee of the Privy Council. We do not consider that it is for this court to rule that it was beyond their powers to alter the common law rules of precedent in this way.

The rule that this court must always follow a decision of the House of Lords and, indeed, one of its own decisions rather than a decision of the Privy Council is one that was established at a time when no tribunal other than the House of Lords itself could rule that a previous decision of the House of Lords was no longer good law. Once one postulates that there are circumstances in which a decision of the Judicial Committee of the Privy Council can take precedence over a decision of the House of Lords, it seems to us that this court must be bound in those circumstances to prefer the decision of the Privy Council to the prior decision of the House of Lords. That, so it seems to us, is the position that has been reached in the case of these appeals."

Author: MH


November 2005

B1.31 Sentencing Guidelines: Provocation

In Lindsay [2005] All ER (D) 349 (Oct) (28 October 2005, CA), the Court of Appeal upheld an eight-year sentence of imprisonment imposed on a defendant who picked up a sword in self-defence when attacked in his home by three masked intruders armed with loaded handguns, and killed one of them by slashing him repeatedly with that sword. The prosecution case was that, although he had initially acted in self defence, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder.

This apparently harsh sentence was clearly influenced by the fact that the defendant was himself a low-level cannabis dealer who kept the sword in readiness for such events, and will hopefully not be seen as setting a precedent for sentencing ordinary householders who 'go too far' when defending themselves against armed intruders.

See also A-G's Ref (No. 88 of 2005); Martin [2005] All ER (D) 366 (Oct) (31 October 2005, CA).

Author: MH


6 December 2005

B1.31 Sentencing Guidelines: Provocation

The Sentencing Guidelines Council has issued a 'final guideline' in respect of defendants who are convicted of (or plead guilty to) manslaughter by reason of provocation and are sentenced after 28 November 2005. Manslaughter by reason of provocation is a serious offence for the purposes of the Criminal Justice Act 2003, s. 224. The guideline makes it clear it must almost always result in a custodial sentence and that the degree and extent of the provocation must be balanced against the offender's response when determining the appropriate sentence.

Eleven specific considerations are identified:

  1. Sentences for public protection must be considered in all cases of manslaughter.
  2. The presence of any of the general aggravating factors identified in the Council's Guideline: Overarching Principles, Seriousness [16 December 2004] or any of the additional factors identified in the instant Guideline will indicate a sentence above the normal starting point.
  3. The offence will not be an initial charge but will arise following a charge of murder. The Council Guideline: Reduction in Sentence for a Guilty Plea [16 December 2004] will need to be applied with this in mind. In particular, consideration will need to be given to the time at which it had been indicated that the defendant would plead guilty to manslaughter by reason of provocation.
  4. An assessment of the degree of the provocation as shown by its nature and duration is the critical factor in the sentencing decision.
  5. The intensity, extent and nature of the loss of control must be assessed in the context of the provocation that preceded it.
  6. Although there will usually be less culpability when the retaliation to provocation was sudden, it is not always the case that greater culpability will be found where there has been a significant lapse of time between the provocation and the killing.
  7. It is for the sentencer to consider the impact on an offender of provocative behaviour that had built up over a period of time.
  8. The use of a weapon should not necessarily move a case into another sentencing bracket.
  9. Use of a weapon might reflect the imbalance in strength between the offender and the victim and how that weapon had come to hand is likely to be far more important than the use of the weapon itself.
  10. It is an aggravating factor where the weapon was brought to the scene in contemplation of use before the loss of self-control (which might occur some time before the fatal incident).
  11. Post-offence behaviour is relevant to the sentence. It might be an aggravating or mitigating factor. When sentencing, the judge must consider the motivation behind the offender's actions.

Three basic sentencing bands are then identified.

  • In cases involving a low degree of provocation occurring over a short period, the sentence range is one of 10 years' imprisonment to life imprisonment, with a starting point of 12 years.
  • In cases where there had been a substantial degree of provocation occurring over a short period, the sentence range is one of four to nine years' imprisonment, with a starting point of eight years.
  • In cases involving a high degree of provocation occurring over a short period, the sentence range (where custody is necessary) is one of up to four years' imprisonment, with a starting point of three years.

Additional aggravating factors may include: the concealment or attempts to dispose of evidence; dismemberment or mutilation of the body; commission of the offence in the presence of a child or other vulnerable family member.

Additional mitigating factors may include: where the offender acted to protect another; spontaneity and lack of premeditation; previous experiences of abuse and/or domestic violence; evidence that the victim presented an ongoing danger to the offender or another; actual (or reasonably anticipated) violence from the victim.

Author: LL


6 February 2006

B1.34 Constructive Manslaughter: Unlawful act

Carey [2006] EWCA Crim 17 limits the breadth of unlawful act manslaughter. A verbal altercation turned to violence in the course of which the first defendant punched and kicked one victim. The second defendant assaulted the deceased by pulling her hair back and punching her in the face. The third defendant assaulted another. The deceased was one of the first to run away, after which she felt faint. She died that evening of a heart condition which was congenital and progressive but which had not been diagnosed before her death. The prosecution relied on the affray as constituting the unlawful act and the judge accepted the prosecution submission that, when determining whether the affray had subjected the deceased to the threat of at least some physical harm, it was legitimate to aggregate the violence by the other defendants in order to decide whether the aggregated violence had been a cause of death.

The Court held that the count for manslaughter should have been withdrawn from the jury. A person who inflicts a slight injury of which a person dies is liable for manslaughter. To hold the defendants liable for the death of the deceased in this case would extend the law: it would come close to saying that if X had committed an unlawful act but for which Y would not have died, X was criminally liable for the death of Y. What is required is that X committed an unlawful act that was dangerous in the sense that sober and reasonable persons would recognise that the act was such as to subject Y to the risk of physical harm that in turn caused Y's death. Whether an act is dangerous in the relevant sense depends upon what knowledge may be imputable to a reasonable person present at the scene. Knowledge of the victim's attributes may be relevant. Here, no reasonable person would have been aware of the victim's heart condition. This distinguishes the instant case from Dawson (1985) 81 Cr App R 50, and from Watson [1989] 1 WLR 684 in which the victim's approximate age and frail state would have been obvious to a reasonable person.

In some circumstances affray may be a suitable unlawful act but not in this instance because a sober and reasonable person would not have appreciated that an apparently healthy person of 15 years would suffer shock as a result of it. The only dangerous act in the relevant sense was the assault by the second defendant. But the deceased's death was not caused by injuries that were a foreseeable result of the assault. Other participants would be guilty of manslaughter if they were liable for the assault as secondary parties but the acts of those who participated in the affray but were not party to the assault did not, in any relevant sense, cause the death.

As to the definition of affray itself (Public Order Act 1986, ss. 3(1) and (4)), the Act requires that a person be put in fear for his personal safety. The words should not be glossed by adding any requirement that terror be caused.

Click here for the full text of the judgment.

Author: LL


April 2006

B1.34 Constructive Manslaughter

As predicted in the February update, the prosecution will seek to appeal to the House of Lords in respect of the Court of Appeal's ruling in Carey [2006] EWCA Crim 17. The Court of Appeal in Carey, [2006] All ER (D) 107 (Mar) has now certified a question of law of general public importance for possible consideration by the Appellate Committee, namely:

'If in the course of an affray, a person uses unlawful violence amounting to an assault, and that assault is the only act that all sober and reasonable people would inevitably recognise must subject the victim to the risk of some harm resulting therefrom, and if the victim dies as a result of the affray but not as a result of the assault, whether anyone who is guilty of the affray is also guilty of manslaughter - whether or not he was party to the assault'.

Author: MH


June 2006

B1.34 Constructive Manslaughter

In Dhaliwal [2006] EWCA Crim 1139, the Court of Appeal held that where D inflicts physical and/or psychological abuse on V and thereby causes her some kind of recognised psychiatric illness (ie injury amounting in law to actual or grievous bodily harm for the purposes of the Offences Against the Person Act 1861, s 47 or s 20) his conduct may give rise to liability for manslaughter (ie constructive manslaughter) should this illness in turn cause V to commit suicide. Conditions such as post-traumatic stress disorder, battered woman syndrome, or reactive depression were identified as potential causes. In Dhaliwal, however, the prosecution could not prove that V had suffered any such psychiatric injury. The infliction of mere psychological harm would not suffice.

The Court of Appeal left open the possibility that a manslaughter conviction might sometimes be supportable on a somewhat different basis, which had been suggested by the trial judge but disavowed by the prosecution, namely that: "where a decision to commit suicide has been triggered by a physical assault which represents the culmination of a course of abusive conduct, it would be possible . . . to argue that the final assault played a significant part in causing the victim's death".

Author: MH


September 2005

B1.36 Likely to Cause Bodily Harm

Attorney-General's Reference (No. 3 of 2004) [2005] EWCA Crim 1882 provides an interesting decision on liability for manslaughter and the scope of joint enterprise. See A5.5.

Author: MH


September 2004

B1.39 Manslaughter by Gross Negligence

In a prosecution for manslaughter by negligence, arising in Yaqoob [2005] EWCA Crim 1269 from the failure of a partner/manager to inspect the tyres of a minibus involved in a fatal accident, it was entirely open to the jury to find that there was a duty to inspect and maintain beyond that required for a MOT test, council inspections and other duties imposed by regulation. It was well within the competence of a jury to assess that duty without any expert evidence; these were not technical issues beyond their competence and they did not need expert help.

Author: MH


November 2005

B2.19 Assault: Sentencing guidelines

The principle established in McNally [2000] 1 Cr App R (S) 535, namely that deterrent sentences may be required in cases where hospital or medical personnel are attacked, was followed in A-G's Ref (No. 69 of 2005); Potter [2005] All ER (D) 331 (Oct) (27 October 2005, CA).

Author: MH


February 2006

B2.21 Assault Occasioning Actual Bodily Harm

The concept of actual bodily harm was considered by the Divisional Court in DPP v Smith (Michael Ross) [2006] EWHC 94 (Admin), in which it was held that the cutting of a person's hair may amount to such harm, even if no pain is caused and even though no living tissue is affected. Judge P said:

'In my judgment, whether it is alive beneath the surface of the skin or dead tissue above the surface of the skin, the hair is an attribute and part of the human body. It is intrinsic to each individual and to the identity of each individual. Although it is not essential to my decision, I note that an individual's hair is relevant to his or her autonomy. Some regard it as their crowning glory. Admirers may so regard it in the object of their affections. Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it. While it is so attached, in my judgment it falls within the meaning of "bodily" in the phrase "actual bodily harm". It is concerned with the body of the individual victim.'

Plucking or cutting a single hair may at one level be actual bodily harm, but Smith should not be construed as deeming this minimal form of injury to be chargeable under the Offences Against the Person Act 1861, s 47. As Creswell J observed in his short concurring judgment:

'To a woman her hair is a vitally important part of her body. Where a significant portion of a woman's hair is cut off without her consent, this is a serious matter amounting to actual (not trivial or insignificant) bodily harm'. (emphasis added)

Author: MH


26 May 2006

B2.21; B1.34 Psychiatric Injury and Bodily Harm: Manslaughter

D [2006] EWCA Crim 1139 holds that to amount to bodily harm previous psychological and physical abuse must produce a recognised psychiatric condition.

This was an appeal from a ruling by HH Judge Roberts that a prosecution for manslaughter and inflicting grievous bodily harm by the accused upon his wife could not proceed. The wife committed suicide after a prolonged period of physical abuse. The Crown did not argue that the final assault played a significant part in causing the victim's death: it chose instead to advance the case on the basis that the accused's course of conduct produced a psychological condition which amounted to injury for the purposes of the Offences Against the Person Act 1861 and thus manslaughter. The principal difficulty that the Crown faced was that, of three expert witnesses, only one felt able to make a diagnosis of depressive disorder and psychiatric illness. The Crown concluded that a jury could not be satisfied that the accused's conduct had produced a recognised psychiatric illness and so was obliged to put its case on the footing that psychological injury without any recognised psychiatric illness could amount to bodily harm for the purposes of the 1861 Act.

The Court of Appeal rejected this contention. Having regard to prior authority, both civil and criminal (Chan-Fook [1994] 1 WLR 689; Ireland [1998] AC 147), the Court concluded that psychological injury not amounting too psychiatric illness does not constitute bodily harm for the purposes of the 1861 Act. The Court thus states (at [31]): 'In our judgment the limits have been addressed in the House of Lords, in both the criminal and civil contexts, and provide authority binding on us. In any event, however, the extension sought by the prosecution would introduce a significant element of uncertainty about the true ambit of the relevant legal principles to which the concept of "bodily harm" in the 1861 Act applies, which would be compounded by the inevitable problems of conflicting medical opinion in this constantly developing area of expertise. By adhering to the principle of recognisable psychiatric illness, although some medical experts may be concerned with the way in which the definitions are arrived at, the issue which requires to be addressed can be clearly understood and those responsible for advising the prosecution and the accused can approach their cases with an appropriate degree of certainty'.

The Court then proceeded to address liability for manslaughter, concluding (at [32]): 'As to manslaughter, in summary, as a matter of law, the prosecution of a spouse, or partner, or indeed any other individual whose unlawful conduct causes recognisable psychiatric illness, such as, for example, post-traumatic stress disorder, or battered wife syndrome, or reactive depression, with resulting suicide, subject always to issues of causation, is not excluded from the ambit of this offence'.

Click here for the full text of the judgment

Author: LL


June 2006

B2.21 Assault occasioning Actual Bodily Harm: Actus Reus

Chan-Fook [1994] 2 All ER 552 and Ireland [1997] 4 All ER 225 were considered by the Court of Appeal in Dhaliwal [2006] EWCA Crim 1139 (see A1.30).

Author: MH


December 2005

B2.25 Assault on Constable in Execution of Duty

A constable cannot be acting in the execution of his duty when unlawfully on private property, but even where the officer has no legal right to remain when required to leave, offensive remarks directed at the officer and telling him to 'go away' will not necessarily suffice to withdraw any implied permission to enter or remain, and the officer must in any event be given a reasonable opportunity to leave once such permission has effectively been withdrawn: see R (Fullard) v Woking Magistrates' Court [2005] EWHC 2922 (Admin).

Author: MH


November 2005

B2.30 Resisting or Wilfully Obstructing a Constable

In DPP v Glendinning [2005] EWHC 2333 (Admin), the Administrative Court held (following Bastable v Little [1907] 1 KB 59) that no offence of wilful obstruction is committed where the defendant warns other motorists of a police speed trap ahead, unless it is established that those warned were either already speeding or were likely to do so at the location of the speed trap.

Click here for the full text of the judgment.

Author: MH


November 2005

B2.41 Wounding or Causing Grievous Bodily Harm with Intent: Alternative Verdicts

Lahaye [2005] EWCA Crim 2847 confirms that on a charge of wounding with intent to do grievous bodily harm a conviction for malicious wounding (under the Offences Against the Person Act 1861, s. 20 OAPA) is available even if not expressly charged on the indictment, and even if the prosecution have presented the case as one of deliberate and premeditated stabbing. The Court of Appeal nevertheless recommended that it would be preferable, in such cases, for the lesser offence to be included on the face of the indictment.

Click here for the full judgment in Lahaye.

Author: MH


January 2006

B3.1 Sexual Offences Act 2003

In A (Prosecutor's appeal) (2006) The Times, 5 January 2006 the Court of Appeal was faced with the same kind of problem as that which arose in Newbon [2005] Crim LR 738, [2005] Arch News 6, and came to the same conclusion, although in this case the offences in question were indecent or sexual assaults, rather than offences of rape as alleged in Newbon. The court noted that the Secretary of State is empowered by s. 141 to make transitional arrangements to deal with this kind of problem, but has failed to exercise his powers, and it was not open to the court to cure the inactivity of the Secretary of State by way of statutory interpretation.

Author: MH


6 December 2005

B3.6 Rape - sentence

Jones (Robbie Darren), [2005] EWCA Crim 2308 shows that the guidance given in Millberry [2002] EWCA Crim 2891 is to be applied flexibly. In Jones whilst the offence was not premeditated, the defendant tied the victim, aged 16, up at knifepoint, anally penetrated him and then penetrated his mouth. The defendant made it clear that he would admit the matter so that the victim did not have to give evidence. He cooperated with the procedure by taking the victim (to whom he was related by marriage) to the police station. He pleaded guilty. A psychiatric report concluded that the defendant did not suffer from any mental illness but he had features of Antisocial Personality Disorder and Borderline Personality Disorder. He had committed a similar offence of buggery at knifepoint some years previously and he posed a high risk of offending. The defendant was sentenced to life imprisonment with a notional determinate sentence of 12 years and thus a specified period of six years.

The Court of Appeal would not interfere with the specified period. This case exhibited five serious aggravating features; the age of the complainant, the use of a knife, the period during which the complainant was held on the premises, the fact that the victim's hands were tied, and anal followed immediately by oral penetration. The victim was put at risk of severe psychological damage and the defendant posed a high level of risk of repeat offending.

Author: LL


30 January 2006

B3.6 Rape: Sentence

Best [2006] All ER (D) 134 (Jan) (20 January 2006, CA) exemplifies the Court's approach to sentencing guidelines for rape when faced with a young offender who poses a grave and continuing danger to the public. The defendant, a pupil aged 15 at the time of the offence, raped the complainant, a 28-year-old teacher, by forcing her, with brutality over and above that required for the commission of the offence, to have oral sex. Pre-sentence and psychological reports indicated that he presented a high risk of harm to the public and a high risk of violent re-offending. He was non-compliant and uncooperative. Victim impact statements disclosed that the victim's confidence and social life had been devastated, that she was unable to teach, and lived in fear of returning to her vocation.

The defendant was sentenced to an indeterminate term of detention for life with a notional determinate term of nine years.

On appeal, it was held that it was not wrong in principle to impose an indeterminate sentence. The guideline principles are guidelines only. The court should not approach sentencing in a mechanistic fashion, but should have regard to the circumstances of the individual case as a whole. Such factors as the defendant's age, guilty plea, intelligence and disturbed childhood were relevant, but had to be balanced against the substantial aggravating factors, the impact on the victim, and the forceful and degrading nature of the rape itself. The defendant's youth and the fact that an indeterminate sentence did not provide him with a fixed date at which he could aim could not be a matter that prevented an appropriate sentence being passed. Here, an indeterminate sentence was proper. The notional indeterminate period of nine years was also appropriate. This was an exceptional case in the upper range of seriousness.

Author: LL


July 2006

B3.6 Sentencing Guidelines for Rape

The Millberry guidelines were considered in A-G's References (Nos. 14 and 15 of 2006); French and another [2006] EWCA Crim 1335 (the notorious 'baby rape' case) in which the Court of Appeal held that the principal offender's offending was so gross as to go beyond anything envisaged by the guideline authorities. It combined the aggravating features of repeated rape of a victim over a period of time, breach of trust, and rape of the most vulnerable victim possible - a tiny baby. A starting point of 24 years' imprisonment was held to be appropriate, although this was reduced to take account of his guilty plea (as to which see E1.6 below).

Author: MH


16 December 2005

B3.34 Rape of child under 13: Sentence

In A [2005] EWCA Crim 3104 (full transcript not yet available) the Court of Appeal considered the appropriate level of sentence where the victim, aged 11, consented to intercourse and where the offender was aged 15 and had previously been reprimanded for offences of making indecent photographs of children. The defendant met the victim on the Internet. She was aware of his true age and passed herself off as 13 but at the time intercourse took place he was aware of her true age. Four acts of intercourse took place in various locations, including the girl's home and changing rooms in clothes shops. The defendant's conduct was marked by persistence. The girl's mother had made it clear to him that she was concerned for her daughter's welfare. The trial judge stated that the starting point was ten years' detention. In the light of the defendant's guilty pleas, he was sentenced to concurrent terms of seven years' detention under the Powers of Criminal Courts (Sentencing) Act 2000, s. 91.

The Court of Appeal held that the trial judge was right to conclude that the offending was serious enough to merit a long sentence of detention. The defendant had targeted the victim with a high degree of sophistication, planning and deception for a 15-year-old. The fact that the victim had been party to some of the deception offered little if any mitigation. Insufficient regard was, however, had to the defendant's age as well as his perception that the victim was a willing participant. A starting point of five years would have been appropriate. In the light of his guilty pleas a sentence of detention for three and a half years would be appropriate, but in the light of the defendant's interest in child pornography and the risk of future offending an extended sentence was required. A licence period of three and a half years was also imposed. See further Corran [2005] EWCA Crim 192, cited at B3.34 of the main work.

Author: LL


20 January 2006

B3.34 Rape-sentence-child under 13 (Seconed Update)

In D [2006] All ER (D) 92 (Jan) (18 January 2006, CA) the Court of Appeal considered the sentence to be imposed upon a child who has sexual intercourse with another child aged under 13. The defendant was aged 13 at the time of the offences. The victim was his sister, aged 11 to 12 at the time. She had learning difficulties and had apparently consented to the activity. The defendant pleaded guilty to five counts of rape on the basis that he had not forced the complainant to have intercourse, she had not asked him to stop, he had not ejaculated inside her, he had committed the offences because he was curious to see what sex was like, and that he had not understood that it was wrong to do as he did. A pre-sentence report suggested a custodial sentence and noted that the defendant appeared to have little empathy with the victim. It was recommended that he be placed in a secure unit in which he could undertake a specialised programme.

The Court of Appeal reduced the sentence from four years and three months to three years. It stated that a custodial sentence was not wrong in principle in such circumstances and that such a sentence needed to be long enough to enable the secure unit to work with the defendant. However, given the defendant's age, guilty plea and mitigation, the original sentence was excessive.

Corran [2005] EWCA Crim 192 was followed.

Author: LL


25 April 2006

B3.35, B3.75 Rape of a Child and the ECHR

G (Home Secretary Intervening) [2006] EWCA Crim 821 establishes a number of points. The defendant, aged 15, pleaded guilty to an offence of rape of a child aged under 13, namely a girl aged 12, contrary to the Sexual Offences Act 2003, s. 5. His basis of plea was that the girl consented and that he reasonably believed her to be over 13, having been so informed by her on a previous occasion.

The Court held as follows:

  1. Section 5 creates an offence of strict liability to which belief in consent or the age of the victim has no application.
  2. Section 5 could be read restrictively so as to accord with the ECHR, Article 6 but that a statute which creates a strict liability offence, as here, and which renders a defendant liable to conviction despite an absence of blameworthy conduct does not result in an infringement of Article 6. A-G's Ref (No. 4 of 2002) [2005] AC 264 per Lord Bingham at [49] to [51] is not to the contrary: it refers only to the standard of proof necessary to establish a statutory defence.
  3. Section 5 is not therefore incompatible with Article 6 and need not be read down.
  4. It is possible that, on particular facts, the prosecution of a child under s. 5 rather than s. 13, or the bringing of a prosecution at all, may amount to an interference with the rights of a child under Article 8, which cannot be justified under Article 8.2. Here, however, the initial charge under s. 5 was justified. It does not follow that, because the sexual activity was consensual, the judge was obliged to substitute a charge under s. 13. In some cases the fact that there was consent will not become apparent until after a Newton hearing. If the facts show that the conduct was less serious than originally thought, the judge should be able, by an appropriate sentence, to ensure that there is no interference with Article 8.1 rights that cannot be justified under Article 8.2.
  5. There was here no interference with rights under Article 8, but the sentence was, in any event, more severe than was required on the facts. The presence of consent is relevant to sentence where the defendant is young. A short period of custody is likely to suffice. Here, however, the facts were exceptional and a non-custodial sentence was appropriate. The conduct really fell within s. 13 rather than s. 5 and a conditional discharge was ordered.

Click here for the full text of the judgment

Author: LL


May 2006

B3.35 Rape of a Child: Elements

The Court of Appeal in G [2006] EWCA Crim 821 has confirmed that rape of a child is a strict liability offence as far as the age of the child is concerned, and rejected arguments that such an interpretation involves any conflict with the ECHR, Article 6 or, in the case of a child offender, with Article 8. The court recognised that in cases involving consensual acts between children a prosecution for child rape under the Sexual Offences Act 2003, s 5 might often be excessive and inappropriate. In this case, however, the original allegation had been one of non-consensual rape, and when the defendant pleaded guilty on the basis of de facto consent and mistaken belief as to age it was appropriate for this to be reflected merely in the sentence. Lord Phillips CJ said:

"We accept the possibility that prosecution of a child under section 5 rather than section 13, or indeed prosecution at all, in relation to consensual sexual intercourse may, on the particular facts, produce consequences that amount to an interference with the child's Article 8.1 rights that are not justified under Article 8.2. Where, however, as here no criticism can be made of an initial charge of breach of section 5, we do not consider that it follows that the judge must necessarily substitute an alternative charge of breach of section 13 if it transpires that the sexual activity was, or must be treated as, consensual. In some cases this will not occur until after a Newton hearing."

Author: MH


July 2007

B3.35 Rape of a Child: Elements

In G [2006] EWCA Crim 821 (noted in the update for May 2006) the Court of Appeal confirmed that rape of a child is a strict liability offence as far as the age of the child is concerned, and rejected arguments that such an interpretation involves any conflict with the ECHR, Article 6 or, in the case of a child offender, with Article 8. The court has now (see G [2006] All ER (D) 197 (Jun)) certified two points of law of general public importance arising from this case, namely:

  1. whether a criminal offence of strict liability violated art 6(1) and / or (2) of the European Convention on Human Rights; and
  2. whether it was compatible with a child's rights under art 8 of the Convention to convict him of rape contrary to s. 5 of the Sexual Offences Act 2003 in circumstances where the agreed basis of plea established that his offence fell properly within the ambit of s. 13 of the 2003 Act (child sex offences committed by children or young persons).

Author: MH


July 2006

B3.46 Causing or Inciting a Child under 13 to Engage in Sexual Activity

In Walker [2006] All ER (D) 08 (Jun) (6 June 2006, CA) it was held that the offence of inciting sexual activity may be committed without proof that D ever intended that the activity in question should take place. So, when D said to a child over the telephone, "show us your fanny" there was no need for proof that he ever intended her to do so. No full transcript is yet available, but the decision is, with respect, a surprising one.

In both Armstrong [2000] Crim LR 279 and C (David Alexander)) [2006] EWCA Crim 2827 approval was given to this proposed definition of incitement (from Law Com 177):

A person is guilty of incitement to commit an offence if-

  1. he incites another to do or causes to be done an act or acts which, if done, will involve the commission of the offence or offences by the other; and
  2. he intends or believes that the other, if he acts as incited, shall or will do so with the fault required for the offence or offences

There is of course a difference between inciting another to commit an offence (contrary to common law or to provisions such as the Offences Against the Person Act 1861, s. 4) and inciting a child to act in a certain way (for the purposes of the Sexual Offences Act 2003, s. 8 or s. 10). The child would not ordinarily commit an offence even if he does so act. But incitement is incitement, and the idea of incitement without intent seems to be at odds with the above definition. Does it mean that, at common law (or under the Offences Against the Person Act 1861, s. 4) D may be guilty of inciting or soliciting E to commit an offence without for one moment intending that E should ever do any such thing, but nevertheless intending that if E does by chance respond to the incitement, he would do so with the requisite mens rea? That would not be an impossible definition, but it would be a very strange one.

Author: MH


31 July 2006

B3.71 Causing child to watch sexual act

In Abdullahi [2006] All ER (D) 334 (Jul) the defendant caused the 13-year-old complainant, whom he plied with drink and drugs, to watch a pornographic film depicting heterosexual and homosexual sexual activity. Subsequently, in his room, he touched the complainant's penis. He was charged with offences under the SOA 2003, ss. 12 and 14. The judge directed the jury, in relation to the s. 12 offence, that they would have to be satisfied that the defendant showed the images for the purpose of obtaining sexual gratification, either by enjoying seeing the complainant looking at the images or with a view to putting him in the mood to provide sexual gratification to the defendant later. The defendant contended that the section refers only to immediate sexual gratification.

The Court holds that while the phrase "putting the complainant in the mood" is better suited to the offence under s. 14, the s. 12 offence is not limited to immediate sexual gratification. The offence can be committed even where the display of the relevant material or act is not contemporaneous with or simultaneous to the sexual gratification. The form which sexual gratification can take is not defined. Provided that the defendant's purpose was sexual gratification, it may take any of the myriad forms which sexual gratification can take. Nothing in s. 12 requires that the sexual gratification be immediate or precludes a longer plan to obtain further gratification in the event of obtaining a sexual act with the child.

In the result the offence goes beyond voyeurism into grooming. It would seem to overlap with incitement to commit an offence under s. 10, for example. It may also overlap with s. 14. It is, with respect, an unexpectedly wide construction of the offence but, whether or not the ratio of the case accurately reflects the will of Parliament, it is clear and unequivocal and unless and until it is revisited reflects the law.

Author: LL


November 2005

B3.84 Meeting a Child following Sexual Grooming: Sentence

In T [2005] EWCA Crim 2681, the Court of Appeal upheld a longer than commensurate sentence of eight years' imprisonment with an extended licence period of two years, imposed following a guilty plea. The appellant, aged 43, had purported to befriend a girl aged nine. He had done very little with her before she became suspicious and reported his approaches, but he had a number of previous convictions (including one for rape) and was described as a 'relentless, predatory paedophile'.

Author: MH


May 2006

B3.84 Meeting a Child following Sexual Grooming: Sentencing

In Mohammed [2006] All ER (D) 167 (Apr), concurrent sentences of 3½ years' imprisonment were upheld for offences committed by a 55-year-old male appellant who had been found guilty of conduct described as the 'deliberate predatory grooming' of a 'demonstrably young and vulnerable' 13-year-old girl with learning difficulties. Intimate text messages had been exchanged and she had spent occasional nights at his house. The court rejected the appellant's claim that he had acted out of mere foolish infatuation and noted that the maximum penalty for the offence (10 years) was much higher than that imposed on him.

Author: MH


October 2005

B3.109 Sexual Activity with Child Family Member: Sentencing

Thomas (Robert) [2005] EWCA Crim 2343 gives guidance on assessing sentence in cases of sexual activity with a child family member. In this instance the offender, a foster carer, was 47 years of age. The girl was aged 17. At the time of the conduct (penetrative sexual intercourse) she had left the offender's home and was living semi-independently. Sexual intercourse took place at her residence. There seems to have been no element of force but the girl was disturbed by what had taken place. The offender was sentenced to four years' imprisonment, reduced on appeal to two and one-half years in light of the circumstances and the appellant's guilty plea.

The court identified three particular factors which are relevant to sentencing for this offence: the age of the parties; the nature of the sexual activity engaged in and the number of occasions when the activity occurs. The younger the child and the greater the gap between her age and that of the offender, the more serious the case is likely to be. The nature and length of time of penetration are relevant. Penile penetration will usually, though not always, be more serious than non-penile penetration. Full sexual intercourse is likely to be at or near the top of the range of seriousness so far as the conduct is concerned.

The court rejects any analogy with sentencing for incest.In particular the court was not prepared to assume that an offence committed against a victim who is on longer in foster care is necessarily less serious than an offence committed against a person who is still in care. particularly where the offence is committed against a girl in circumstances where it would almost certainly not have been committed had the girl not been in the appellant's care as a foster carer.

A-G's Ref (No. 104 of 2004) ( Garvey and others) [2004] EWCA Crim 2672 and Corran [2005] EWCA Crim 192 were referred to.

Author: MH


21 November 2005

B3.206; B3.211 Trafficking: Sexual exploitation

Maka [2005] All ER (D) 219 (Nov), (16 November 2005, CA), for which a neutral reference and a full transcript are awaited, deals with sentencing for the offences under the Sexual Offences Act 2003, ss. 57 (trafficking into UK for sexual exploitation) and 58 (trafficking within UK for sexual exploitation). In each case the maximum penalty is 14 years' imprisonment on indictment and six months on summary conviction. This case echoes the strongly deterrent message in Attorney-General's Reference (No 6 of 2004) [2004] EWCA Crim 1275.

In this case the victim was a 15-year-old Lithuanian girl who was lured into the United Kingdom on a promise of well-paid work. Her passport was taken away and she was sold by the defendant to a man who raped her and forced her to work as a prostitute. She escaped and contacted the defendant who sold her to another man. On a further occasion she was again sold by the defendant. She was made to work in a brothel. The victim eventually escaped and contacted the police.

The judge in sentencing the defendant stated that human trafficking was an increasing problem. It involved misery and degradation. Lithuanians were particularly vulnerable since Lithuania entered the EU and Lithuanian criminals were targeting the United Kingdom. He imposed sentences of nine years' imprisonment on count one (trafficking into: s.57), nine years on counts two and seven (trafficking within the UK) to run consecutively to that passed on count 1, and eight years on other counts to run concurrently.

On appeal the Court of Appeal rejected arguments that the starting point was too high, that other men had been more seriously involved than the appellant, and that there was only one victim. While the sentence of nine years' imprisonment for the count of trafficking "into" the UK might be thought too severe when taken in isolation, the crucial question was whether the sentence taken as a whole was excessive having regard to the appalling conduct in respect of the 15-year-old girl. The sentence was appropriately severe having regard to the need to deter others in Lithuania or in other parts of Europe as well as those in the United Kingdom.

Click here for the Sexual Offences Act 2003, ss. 57 and 58.

Author: LL


23 February 2006

B3.206 Trafficking into the UK for Sexual Exploitation: Sentencing

In Ramaj [2006] All ER (D) 242 (Feb), 17 February 2006, CA the court considered what sentence should be passed on an offender of previous good character who trafficks a woman into the United Kingdom for the purposes of prostitution. Here, the offender was aged 19 and of previous good character. The complainant was an 18-year-old Lithuanian woman. The defendant was charged with a number of offences including rape but the jury accepted that the woman, though naïve, worked willingly as a prostitute and convicted the defendant of the trafficking offence and of brothel keeping. He was sentenced at trial to 10 years' imprisonment for trafficking and 18 months' imprisonment for brothel keeping.

On appeal, it was held; that the sentences were too severe. The victim had not been coerced. The defendant was of previous good character. The sentences would be quashed. A sentence of five years' imprisonment was substituted for the trafficking offence and three months' imprisonment for brothel keeping. Maka [2005] EWCA Crim 3365 was distinguished and Middleton [2004] EWCA Crim 1487, [2005] 1 Cr App R (S) 42 applied.

Author: LL


20 January 2006

B3.271 Voyeurism-sentence

Turner [2006] All ER (D) 95 (Jan) considers when a custodial sentence may be appropriate for voyeurism (i.e. an offence under the Sexual Offences Act 2003, s. 67). In this instance the defendant was the manager of a sports centre. He recorded footage of four women taking showers. There was no indication that the footage had been shown to anyone else. The defendant pleaded guilty at the first opportunity and asked that another offence be taken into consideration and expressed remorse. He was sentenced to 14 months' imprisonment. On appeal, the Court upheld a custodial sentence but reduced its duration to nine months. This was on the basis that the defendant abused his trust and that the effect on the victims was traumatic. There might be circumstances in which the effects of such an act would be comparable to sexual assault.

The Court distinguishes IP [2004] EWCA Crim 2646 (cited in Blackstone's Criminal Practice at B3.248) in which a non-custodial sentence was indicated. The basis for distinguishing the case is not clear but it may be that the fact that in that case the offence was committed against an adult member of the family, in the family home, and that the defendant had moved out of the family home were thought sufficient to take the case out of the realm of a custodial sentence.

Given the stress placed in both cases on the fact that the defendant had not sought to disseminate the images, it would appear that dissemination will of itself suggest the propriety of a custodial sentence.

Author: LL


18 November 2005

B3.271 Indecent Photographs of Children

The mental element required for the offence of possessing indecent photographs with a view to their being shown or distributed for the purposes of the Protection of Children Act 1978, s. 1(1)(c ) is that one of the defendant's reasons for allowing access to others, in this instance allowing files to remain in a shared folder accessible on a peer-to-peer network, is to enable others to see it or download it. It is not enough that the defendant knew that the pictures might be seen. The issue, to which such knowledge may have evidential value, is his reason for allowing the files to remain where others might have access to them: Dooley (2005) The Times, 10 November 2005.

Author: LL


24 March 2006

B3.272 Possession of Indecent Photographs

In Porter [2006] EWCA Crim 560, the Court of Appeal considers when a person may be said to be in possession of indecent photographs and images which he has deleted from the hard drive of his computer. The accused had deleted large numbers of indecent images from his computer before the relevant dates in the indictment. He did not have the software necessary to retrieve the deleted items; indeed some such software could only be obtained from the US government. The accused could have purchased software necessary to retrieve some of the material, but there was no evidence that he had sought to do so.

The Court holds that, for the purposes of the Criminal Justice Act 1988, s. 160, a person who cannot retrieve or gain access to deleted material no longer has custody or control of it - he has placed it beyond his reach. If the image is within his control because he can produce it on his screen, make a hard copy of it or send it to someone else, he will possess it. Whether deleted images on a hard disk drive are within an accused"s control is a matter for the jury.

Author: LL

Click here for the full text of the judgment.


10 May 2006

B4.25; B4.34; F8.26 Theft: Appropriation and Dishonesty; Bankers' Books

In Wheatley and Penn v Commissioner of Police of the British Virgin Islands [2006] UKPC 24 the Privy Council held, first, that the disbursement of funds held to the order of government constitutes appropriation for the purposes of theft and, secondly, that an intention to cause loss is not a necessary element in dishonesty.

Wheatley was Financial Secretary to the BVI government. He had a direct interest in two enterprises owned by Penn, P&W Heavy Equipment, and Accurate Construction. Penn built a substantial wall to protect the property of one Alice Thomas from erosion. Following heavy rain, that wall fell down in one piece. The government agreed to replace the wall. Two contracts were entered into: each totalled less than $60,000 so apparently falling within the category of petty contracts though in aggregate they fell outside that category. Wheatley and his staff signed the requisite purchase orders and payment vouchers. Accurate then paid $9,400 to Wheatley's consulting business in relation to these transactions.

On these facts their lordships held that Wheatley had appropriated property belonging to the government. They also held that he had done so dishonestly. On the first issue their lordships remark that appropriation has been given a very wide meaning and the disbursement of funds belonging to government falls within it. Of the second issue, their lordships state (at [11]):

"It is certainly true that in most cases of theft there will be an original owner of money or goods who will be poorer because of the defendant's conduct. But in one of the two cases in R v Morris the defendant was arrested before paying the reduced price for the goods, so that the supermarket suffered no loss, and in R (on the application of A) v Snaresbrook Crown Court [2001] All ER (D) 123, para 25, it was accepted that the alleged theft was carried out for a purpose which could financially benefit the company. In providing that an appropriation may be dishonest even where there is a willingness to pay, section 204(2) [of the Virgin Islands Criminal Code] shows that the prospect of loss is not determinative of dishonesty."

Having regard to the manoeuvres in which Wheatley engaged, there was ample evidence of dishonesty on his part.

Two minor points may be noted. First, their lordships note the strictness with which English courts have construed statutory provisions such as that in the Local Government Act 1972, s. 94, which strike at potential conflicts of duty and interest. Secondly, their lordships hold that an order to inspect under the Bankers Books Evidence Act 1879 is not a precondition to the reception into evidence of an entry in such books. An order for inspection would, for example, clearly be unnecessary if a customer waived his rights to confidentiality and the bank agreed to inspection and copying of its books.

Click here for full text of the judgment

Author: LL


June 2006

B4.34 Meaning of Dishonesty

The question whether there can be theft when property is acquired pursuant to a contractual agreement was considered by the Privy Council in Wheatley and Penn v Commissioner of Police of the British Virgin Islands [2006] UKPC 19. The primary issue here was one of dishonesty. Founding on the dissenting opinion of Lord Hutton in Hinks [2001] 2 AC 241 at pp 255-260, the appellants submitted that, where a contract had been made and services rendered for an appropriate price, there can be no dishonest appropriation of that price when it is paid.

This argument was rejected. On the facts of the case, the appellants' conduct, which involved both non-disclosure of conflicting interests, and "wholly inappropriate and grossly misleading" billing was so bad that a finding of dishonesty was not only permissible but inevitable. Moreover, there was no dissonance between the criminal and the civil law, since the contracts made by the first appellant, contrary to his authority and with the connivance of the second appellant, were plainly voidable at the suit of the other party.

Author: MH


December 2005

B4.50 Robbery: Sentencing Guidelines

The guidelines provided in A-G's Ref (Nos 4 and 7 of 2002) [2002] EWCA Crim 127 have no application to sentencing in cases of street robbery involving the use of guns, for which more severe deterrent sentences will almost invariably be required: see Mitchell [2005] All ER (D) 74 (Nov), 4 November 2005, CA. The Sentencing Guidelines Council has issued new draft guidelines concerning robbery. In contrast to the final guideline on provocation, which must be taken into account by sentencers, this draft does not yet have direct legal force, but its principal proposals include:

  • The starting point for young offenders who rob with threats or minimal force should be a community sentence.
  • If a youth produces a weapon or injures the victim, he should be sentenced to between one and six years' imprisonment, with a starting point of three years.
  • Causing serious injury to a victim should lead to between six and 10 years for juveniles, with a starting point of seven years.
  • Sentences for adults should have a starting point of 12 months' imprisonment, even for robberies in the lowest category. Announcing the new proposals, Lord Phillips CJ denied that they would significantly alter current sentencing practices.

Author: MH


August 2006

B4.50 Robbery: Sentencing Guidelines

The Sentencing Guidelines Council has issued a new final Guideline on sentencing for three important categories of this offence: (i) street robbery or 'mugging', (ii) robberies of small businesses, and (iii) the less sophisticated commercial robberies. Separate sentencing ranges and starting points are indicated for adults and for young offenders. For the terms of the Guideline, see the SGC's web site. The Guideline applies to the sentencing of offenders convicted of robbery who are sentenced on or after 1 August 2006. The Guideline does not include two other categories of robbery: (iv) professionally planned commercial robberies and (v) violent personal robberies in the home.

Author: MH


October 2005

B4.103 Aggravated Vehicle-Taking: Sentence

As to the imposition of consecutive sentences where the defendant has been convicted both of aggravated vehicle-taking and of a related offence (in this case driving while disqualified), see Forbes [2005] EWCA Crim 2069. The trial judge in that case imposed the maximum permissible sentences (two years plus six months consecutive detention in a young offender institution, each consecutive to the unexpired portion of a previous sentence from which he had been released on licence) on a defendant who had a shocking record, enjoyed police chases and was rightly described as a 'menace' to other road users; but the sentences were reduced to 18 months plus four months consecutive on the basis that no allowance had been made for his guilty pleas (even though such pleas were in effect unavoidable, given the evidence against him).

Click here for full text of the judgment.

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Author: MH


October 2005

B5.26 Obtaining Property by Deception: Sentencing

In Seward [2005] EWCA Crim 1941 the Court of Appeal gave consideration to sentencing for deception offences involving 'identity theft' – an increasingly frequent type of offence, but one for which (as the court noted) there is a paucity of sentencing authorities.

The appellant, who had a drug problem, was sentenced to imprisonment for eight offences of dishonesty, including two of obtaining property of a total value of £10,000 by deception and four of using a false instrument. It was argued that the appellant's rehabilitation might instead have benefited from a drug treatment and testing order, for which he had been assessed as suitable, but the court concluded that the prison sentence imposed, whilst severe, was not unjustified and should be upheld. Henriques J said (at [14]):

'Identity fraud is a particularly pernicious and prevalent form of dishonesty calling for, in our judgment, deterrent sentences. There was here an actual loss of £10,000, none of which was recovered even though stolen that day, and a potential loss of £15,000. It is the appellant's case that he was only the front man, acting on the instruction of others, he taking the risk by reason of the prevalence of CCTV cameras. It was inevitable that he and not others would be brought to justice. His position has been likened to the mule in drug importation cases.'

Author: MH


April 2006

B6.24 Forgery and Kindred Offences: Falsity as to Authorship

More [1987] 1 WLR 1578 was distinguished in Atunwa [2006] EWCA Crim 673, in which the appellant was found in possession of cheques purporting to have been signed on behalf of registered companies, but bearing the signatures of unknown individuals who (if they existed at all) had no connection with those companies. His convictions for possessing false instruments with intent (see B6.43) were upheld. Dyson LJ said at [8]:

"If A signs a cheque on behalf of X Limited in the name of B, and B is authorised to sign cheques on behalf of X Limited, A commits the offence; he purports to make an instrument "in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms" . . . But the offence may also be committed if A purports to sign a cheque on behalf of X Limited in his own name where he is not an authorised signatory. In this situation too, A purports to make an instrument in the terms in which it is made on the authority of a person who did not in fact authorise its making in those terms. In both cases the cheque tells a lie about itself, namely that it is a cheque duly signed by a person authorised to sign the cheque on behalf of the company."

Author: MH


May 2006

B6.43 Offences Relating to Passports etc

The Forgery and Counterfeiting Act 1981, s 5(5)(f) (knowingly and with intent etc having custody or control etc of false passports or documents which can be used instead of passports) and (fa) (knowingly and with intent etc having custody or control etc of false immigration documents) have been repealed (along with the accompanying definitions in subss (9) - (11)) by the Identity Cards Act 2006, s 44 and sch 2. The repeals came into force at Royal Assent. But as the learned author of Criminal Law Week has recently pointed out, the repeals are premature, because the provisions that are intended to supplant the repealed ones (notably ss 25 and 26 of the 2006 Act) have not yet been brought into force.

A forged passport or immigration document remains a 'false instrument' and it therefore remains an offence for any person to make, copy, use or use a copy of such an instrument with the requisite intent under the Forgery and Counterfeiting Act 1981, ss 1 to 4.

Author: MH


June 2006

B6.43 Offences Relating to Passports etc

As noted in last month's update, the Forgery and Counterfeiting Act 1981, s 5(5)(f) (knowingly and with intent etc having custody or control etc of false passports or documents which can be used instead of passports) and (fa) (knowingly and with intent etc having custody or control etc of false immigration documents) have been repealed (along with the accompanying definitions in s 5(9) to (11)) by the Identity Cards Act 2006, s 44 and sch 2. The repeals appear to have come into force at Royal Assent (ie on 30 March 2006). At that time, the provisions intended to supplant the repealed ones (notably ss 25 and 26 of the 2006 Act) had not yet been brought into force. Following criticism of this oversight, the Home Office has acted quickly to remedy it.

By the Identity Cards Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No 1439), the following provisions were brought into force on 7 June 2006:

  • s 25 (possession of false identity documents etc.);
  • s 26 (identity documents for the purposes of s 25);
  • s 30 (amendments relating to offences), except for the purposes of the references to ss 27 and 28 of the Identity Cards Act 2006 in the amendment made by subsection (4) which inserts a new paragraph (q) into Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12)).
  • s 40 (orders and regulations); and
  • ss 1(5) to (8) (definition of registrable fact) and 42 (interpretation) so far as necessary for the interpretation of the provisions specified above.

The s 25 offence is a group A offence for jurisdiction purposes under the Criminal Justice Act 1993, part 1 (see Blackstone's Criminal Practice, A8.4).

The Order also purports to bring into force sch 2 (repeals) but this appears to contradict the wording of the Act itself, because s 44 of that Act applies as from Royal Assent and sch 2 has effect by virtue of s 44(2).

See further: Home Office Circular 15/2006

Author: MH


August 2006

B6.43 Offences Relating to Passports etc

As noted in the June update, the Forgery and Counterfeiting Act 1981, s. 5(5)(f) (knowingly and with intent etc having custody or control etc of false passports or documents which can be used instead of passports) and (fa) (knowingly and with intent etc having custody or control etc of false immigration documents) were repealed (along with the accompanying definitions in s. 5(9) to (11)) by the Identity Cards Act 2006, s. 44 and sch. 2. The repeals appeared to have come into force at Royal Assent (ie on 30 March 2006); but the provisions intended to supplant the repealed ones (notably ss. 25 and 26 of the 2006 Act) were not brought into force until 7 June 2006 (Identity Cards Act 2006 (Commencement No 1) Order 2006 (SI 2006 No 1439).

In R (CPS) v Bow Street Magistrates' Court [2006] EWHC 1763 (Admin) it was held that this was obviously a draftsman's error and did not reflect the true intention of Parliament. In order to give effect to that intention, the repeals would therefore be regarded as coming into force on 7 June. Giving the judgment of the court, Forbes J cited Inco Europe Ltd and Others v First Choice Distribution and Others [2000] 1 WLR 586 and said:

41 . . . Parliament clearly intended that the repeal of the relevant provisions of section 5 of the 1981 Act should be consequential upon the coming into force of the new provisions contained in sections 25 and 26 of the 2006 Act. Section 44(3) was intended by Parliament to achieve that purpose.

42. I am also satisfied that, as a result of an error and inadvertence on the part of the draftsman and Parliament, the terms of section 44(3) of the 2006 Act failed to give effect to that intended purpose because section 44(2) was not excluded from the list of excepted provisions specified in brackets in section 44(3) and the exclusion of Schedule 2 from the bracketed list of exceptions was insufficient to achieve the intended purpose, particularly having regard to the terms of section 44(2) itself. In my view, this is a plain case of a drafting mistake.

43. For those reasons I am satisfied that the first two conditions identified by Lord Nicholls in Inco Europe are clearly satisfied in this case.

44. So far as concerns Lord Nicholls' third condition, I am satisfied that the substance of the provision that Parliament would have made, had the error in the Bill been noticed, would have been to exclude section 44(2) from the excepted provisions specified in section 44(3). In other words the expression "(apart from this section and sections 36 and 38)" in section 44(3) is to be read as meaning "(apart from this section, other than subsection (2) hereof, and sections 36 and 38)". Subject to what follows, I am therefore satisfied that Lord Nicholls' three conditions are satisfied in this case and that it would be open to this court to exercise its interpretative function in this way perfectly properly in order to correct the drafting error in section 44(3) of the 2006 Act and achieve the purpose clearly intended by Parliament.

Author: MH


14 October 2004

B8.5; D1.4 Arrest and Criminal Damage

Fiak [2005] EWCA Crim 2381 represents a pragmatic approach to the meaning of arrest under s. 4(6) of the Road Traffic Act 1988. It also restates a broad definition of damage for the purposes of the Criminal Damage Act 1971.

In Fiak the defendant was seen sitting in his car, close to his home, leaning from the door and vomiting into the street. Police officers, understandably, thought that he was under the influence of alcohol. Mr. Fiak asserted, however, that had not driven his car, that he had been home all night, and that, having consumed alcohol at home, he went for a walk to clear his head. PC Smith sought to check his story by speaking to Mr. Fiak's wife. Mr. Fiak, despite being told to stay where he was, sought to enter his home where he believed that he would be immune from arrest. Mr. Fiak's wife said that she had not seen him that night. Mr. Fiak, after a struggle in which he assaulted P.C. Smith, was subdued and was then formally arrested and told in suitable language why he had been arrested. Later, in cells, Mr. Fiak jammed the cell toilet with a clean blanket with which he had been issued so causing the water to overflow and flood his and other cells.

Mr. Fiak's contention that he was unlawfully arrested was dismissed by the Court of Appeal. Judge LJ suggested that Mr. Fiak might have been considered to be arrested when he was told, for reasons of which he was aware, that the police proposed to check his story. He was at any rate properly arrested when, having been subdued, it became practicable to pronounce formal words of arrest. Arrest can thus be considered to have been a continuous process from the moment of detainer to the pronunciation of the formal words of arrest.

This appears to make pragmatic good sense. It enables police to verify a story whilst retaining control of a difficult situation. From the perspective of an innocent person it may be thought preferable to verify his story before formally arresting him. Even if there is no legal foundation for the initial detention of the defendant, the actual arrest would seem to be lawful for the purposes of the RTA. For the purposes of the offence of assault with intent to avoid or prevent a lawful arrest, the analysis is more difficult. Unless the initial detainer was part of a process of lawful arrest, the detainer would not be legal. The Court adopts an expedient which is not necessary since an initial arrest does not preclude the verification of a story, nor need it be persisted with if the arrested person's explanation is found to be true. There is a danger that expansive doctrines of the sort adopted by the Court here may lead a blurring of doctrine and to slackness in police procedure on the part of police officers who may conclude that what they think to be reasonable is for that reason lawful.

In respect of criminal damage the Court follows authorities which hold that damage need not be permanent. It followed that soaking the blanket and flooding cells so that it and they could not immediately be used amounted to criminal damage following Morphitis [1990] Crim LR 48 and Whiteley (1991) 93 Cr App R 25.

Click here for the full text of the judgment in Fiak.

Author: LL

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February 2006

B8.8 Mens Rea

One might suppose that, following the subjective test established in G [2003] UKHL 50, if a pedestrian rashly dashes into the road, he will be reckless, if at all, only as to his own safety. In Booth v Crown Prosecution Service [2006] All ER (D) 225 (Jan), 30 January 2006, DC however, the court upheld the defendant's conviction on a charge of recklessly damaging the vehicle that hit him. If indeed a pedestrian does consider the possibility of such damage, the ruling is clearly right, but with respect there may be some force in the defence argument that, if the defendant stopped to consider any risks at all, it would surely have been confined to the risk of his own injury.

Author: MH


October 2005

B8.11 Arson: Indictment

Booth [1999] Crim LR144 was distinguished by the Court of Appeal in Drayton [2005] EWCA Crim 2013. The appellant in this case was sentenced to a total of three years' imprisonment after being committed to the Crown Court for sentence on pleas of guilty to one charge of burglary and one of causing criminal damage to property by fire. The word, 'arson' had not been used in respect of the later charge, but his appeal against conviction was nevertheless dismissed. Giving the judgment of the court, Hedley J said (at [10]):

'Clearly on indictment where the rules require both a statement of offence and particulars of offence it is desirable that the word "arson' should continue to be used in the statement of offence. Whether the absence of that word "arson' from a count that plainly alleges damage by fire and nothing else invalidates the count must await decision as and when that point arises.'

In this case, however, there was no possible basis for invalidating the conviction. As Hedley J explained at [15] :

'A requirement to charge as arson means a requirement to charge as damage by fire, rather than damage by any other means as that can materially affect penalty. To charge causing damage by fire is to charge arson because that is exactly what arson means, no more and no less. Damage by fire and arson are exactly synonymous concepts. We hold that this charge was, in the context of a charge in the Magistrates' Court, a valid charge under the Criminal Damage Act 1971 s 1(3), to which the applicant could lawfully plead and on which he could be lawfully committed. We do not believe for a moment that the purpose of the statutory provision was to invalidate any charge that did not use the word arson. The mandatory substance of that provision is that damage by fire, as opposed to anything else, had to be identified before anyone could be exposed to the penalties of arson.'

Author: MH


March 2006

B9.88 Unlawful Interception of Communications

The extent of the defence provided under the Regulation of Investigatory Powers Act 2000, s. 1(6), was examined in Stanford [2006] EWCA Crim 258. The appellant in this case was charged, inter alia, with the unlawful interception of electronic mail communications to a public company, contrary to s. 1(2) of the Act. He had been deputy chairman of the company. After his resignation, he was found to have intercepted electronic mail communications to and from certain persons in that company. His defence was that the interceptions had been made at his request by the company's computer system administrator (X), who it was argued was excluded from criminal liability because X was a person who had a right to control the operation or use of the system (s. 1 (6)(a)) or [alternatively] because X had the express or implied consent of such a person to make the interception (s. 1(6)(b)).

Rejecting this argument, the Court of Appeal held that to 'control' in the context of s. 1(6) meant to 'authorise and forbid'. It did not cover X's mere ability physically to use and operate the system. The objective of s. 1 of the Act was to protect the privacy of private communications. It would undermine the object of that section if anyone with unrestricted ability to operate and use a telecommunications system were exempt from criminal liability for intercepting communications.

Author: MH


February 2006

B10.1 Terrorism: General

The President of the Queen's Bench Division has issued a protocol which applies to all terrorism cases and is essentially a required procedure for the management of all such cases. A pdf version of the protocol is available here.

Author: MH


May 2006

B10.1 Terrorism: General

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought into force on 13 April 2006:

  1. ss. 1 to 22, together with sch. 1;
  2. ss. 26 to 36, together with sch. 2;
  3. ss. 37(1) to (4) and 38;
  4. s. 37(5) insofar as it relates to all of the entries in sch. 3 except those relating to para. 36(1) of sch. 8 to the Terrorism Act 2000 and s. 306(2) and (3) of the Criminal Justice Act 2003.

Sections 1 to 11 create a number of new and serious criminal offences in respect of things done in the course of or in connection with the commission of an act of terrorism or for the purposes of terrorism, notably:

  • encouragement of terrorism (s 1);
  • dissemination of terrorist publications (s 2);
  • preparation of terrorist acts (s 5);
  • training for terrorism (s 6);
  • attendance at a place used for terrorist training (s 8);
  • making and possession of radioactive devices or materials (s 9);
  • misuse of radioactive devices or material and misuse and damage of facilities (s 10);
  • making demands or threats relating to devices, materials or facilities (s 11).

Author: MH


May 2006

B10.2 Definition of Terrorism

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought most of the provisions of the Act into force on 13 April 2006. Section 34 amends the Terrorism Act 2000, s. 1(1)(b) so as to add the words 'or an international governmental organisation' to follow the reference therein to 'government'.

Author: MH

Author: MH


November 2005

B10.7 Membership of a Proscribed Organisation

By virtue of the Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2005 (SI 2005 No. 2892), the following 15 organisations are added at the end of the Terrorism Act 2000, sch. 2 and thus are classified as proscribed organisations:: Al Ittihad Al Islamia; Ansar Al Islam; Ansar Al Sunna; Groupe Islamique Combattant Marocain; Harakat-ul-Jihad-ul-Islami; Harakat-ul-Jihad-ul-Islami (Bangladesh); Harakat-ul-Mujahideen/Alami; Hezb-e Islami Gulbuddin; Islamic Jihad Union; Jamaat ul-Furquan; Jundallah; Khuddam ul-Islam; Lashkar-e Jhangvi; Libyan Islamic Fighting Group; Sipah-e Sahaba Pakistan.

Author: MH


August 2006

B10.7 Membership of a Proscribed Organisation: Elements of the Offence

The Proscribed Organisations (Name Changes) Order 2006 (SI 2006 No. 1919) provides that certain names are to be treated as other names for the Kurdistan Workers' Party (Partiya Karkeren Kurdistan)(PKK), namely Kongra Gele Kurdistan and KADEK.

The Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2006 (SI 2006 No. 2016) provides that certain further organisations will become proscribed organisations for the purposes of the Terrorism Act 2000, sch. 2. The organisations are Al-Ghurabaa, The Saved Sect, the Baluchistan Liberation Army, and Teyrebaz Azadiye Kurdistan.

Author: MH


May 2006

B10.65 Possession of an Article for Terrorist Purposes: Sentence

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought most of the provisions of the Act into force on 13 April 2006. Section 13 increases the maximum penalty for an offence under the Terrorism Act 2000, s. 57 to 15 years' imprisonment.

Author: MH


May 2006

B10.82 Offences relating to Weapons of Mass Destruction

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought most of the provisions of the Act into force on 13 April 2006. Section 14 increases the maximum penalty for an offence under the Nuclear Material (Offences) Act 1983, s. 2 to 15 years' imprisonment.

Author: MH


May 2006

B10.83 Use of Noxious Substances or Things to Cause Harm and Intimidate

The Terrorism Act 2006 (Commencement No. 1) Order 2006 (SI 2006 No. 1013) brought most of the provisions of the Act into force on 13 April 2006. Section 34 amends the Anti-terrorism, Crime and Security Act 2001, s. 113(1)(c) so as to add the words 'or an international governmental organisation' to follow the reference therein to 'government'.

Author: MH


September 2006

B10.145 Control Orders and the ECHR

In Re MB [2006] EWHC 1000 (Admin), Sullivan J examined the procedures established by the Prevention of Terrorism Act 2005, s. 3, relating to the supervision by the High Court of control orders made by the Home Secretary under s. 2 of that Act. He held the s. 3 procedure to be 'conspicuously unfair' and incompatible with the right to a fair hearing that is guaranteed under the ECHR, Article 6(1). A declaration to that effect was made pursuant to the Human Rights Act 1998, s. 4.

This ruling was reversed by the Court of Appeal (Civil Division) in Secretary of State for the Home Department v MB [2006] EWCA Civ 1140. When read in conjunction with the Prevention of Terrorism Act 2005, s. 11(2) (which was overlooked at first instance) the provisions for review by a court of the making of a non-derogating control order by the Secretary of State did indeed comply with the requirements of Article 6(1).

By way of contrast, the Court of Appeal in Secretary of State for the Home Department v JJ [2006] EWCA Civ 1141 upheld Sullivan J's ruling in In Re JJ (control orders) [2006] EWHC 1623 (Admin). This case concerned the content of orders imposed under s. 2 on asylum seekers who had been detained on national security grounds. The orders required the suspects to be confined for 18 hours per day in designated domestic residences, which would be subject to random searches at any time. They would be electronically tagged, and allowed only limited and controlled contact with other persons.

Sullivan J ruled that the cumulative impact of these orders were such as to deprive the persons in question of their liberty, contrary to the ECHR, Article 5(1). He also ruled that it was appropriate for him to quash the orders by virtue of s. 3(12) of the Act. The Court of Appeal agreed. Lord Phillips CJ concluded (at [27)):

We consider that the reasons given by Sullivan J for quashing the orders are compelling. There is a further reason. Paragraph 8 of the Schedule to the PTA gives the Secretary of State power, should he decide, in the absence of a derogation order, to make new control orders under section 2 to replace those that Sullivan J quashed. If the Secretary of State decides to exercise this power, he will have to devise a new package of obligations imposing controls on the respondents. This is an exercise that the Secretary of State is very much better placed to perform than the court.

Author: MH

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