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Blackstone's Criminal Practice 2013

Updates to Part B

Updates to Part B: Offences

B1 Homicide and Related Offences

B1.7 Unlawful Killing

The principles governing mercy killing as set out in Airedale NHS Trust v Bland [1993] AC 789 and Inglis [2011] 1 WLR 1110 were restated in R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961. The Court of Appeal (civil division) declined to recognise or create any common-law necessity defence that might have applied to doctors taking positive measures to end lives in such cases. For other aspects of this decision relating to assisted suicide, see this update at B1.158.

B1.12 Malice Aforethought

Nedrick [1986] 1 WLR 1025 and Woollin [1999] AC 82 were considered in Royle [2013] EWCA Crime 1461, in which D’s appeal against his conviction for murder was dismissed. It was accepted that he had caused the death of his elderly female victim by robbing her and inflicting head injuries, although the immediate cause of death was a heart attack two days later. The question was whether he was guilty of murder or only of manslaughter.
The judge’s direction to the jury on this issue was that, if D merely knew that he could cause her really serious harm while attacking her, that would not suffice; they had to be sure that D had not just realised that this could happen, but acted on the basis that it would, or had intended that it would.
Defence counsel had requested a direction involving reference to 'virtual certainty', but neither the trial judge nor the Court of Appeal considered this necessary. Indeed, it was held that the direction actually given set a higher threshold than that of 'virtual certainty' and was ‘more than sufficient in the circumstances’.

B1.18 Diminished Responsibility

In Foye [2013] EWCA Crim 475 the Court of Appeal was invited to reconsider the reverse burden of proof placed on defendants who seek to rely on a defence of diminished responsibility, on the basis that this reverse burden may offend against the presumption of innocence protected by the ECHR, Article 6; but the Court saw no reason (and nothing in later case law) to require any departure from the position previously adopted in respect of that defence in Lambert [2002] QB 1112 and in A-G’s Ref (No 1 of 2004) [2004] 1 WLR 2111.

B1.50 Loss of Control

Clinton [2012] 2 All ER 947 was applied in Dawes [2013] EWCA Crim 322, in which Lord Judge CJ said:

The circumstances in which the qualifying triggers will arise [under the new defence] [are] much more limited than the equivalent provisions in the former provocation defence. The result is that some of the more absurd trivia which nevertheless required the judge to leave the provocation defence to the jury will no longer fall within the ambit of the qualifying triggers defined in the new defence. This is unsurprising. For the individual with normal capacity of self-restraint and tolerance, unless the circumstances are extremely grave, normal irritation, and even serious anger do not often cross the threshold into loss of control.

The presence, or otherwise, of a qualifying trigger is not defined or decided by the defendant and any assertions he may make in evidence, or any account given in the investigative process. Section 55(3) directly engages the defendant’s fear of serious violence…. In this type of case s. 55(4) will almost inevitably arise for consideration. Unless the defendant has a sense of being seriously wronged s. 55(4) has no application. Even if it does, there are two distinctive further requirements. The circumstances must be extremely grave and the defendant’s sense of being seriously wronged by them must be justifiable. In our judgment these matters require objective assessment by the judge at the end of the evidence and, if the defence is left, by the jury considering their verdict. If it were otherwise it would mean that a qualifying trigger would be present if the defendant were to give an account to the effect that, “the circumstances were extremely grave to me and caused me to have what I believed was a justifiable sense that I had been seriously wronged”. If so, when it is clear that the availability of a defence based on the loss of control has been significantly narrowed, one would have to question the purpose of s. 55(3), (4) and (5).

B1.54 Loss of Control

Dowds [2012] 1 Cr App R 455 was considered in Asmelash [2013] EWCA Crim 157, in which the Court of Appeal confirmed that those who become voluntarily intoxicated have no better chance of succeeding with a plea of loss of control that they would have done under the old defence of provocation. In considering the question under the CAJA 2009, s. 54(1)(c) of whether ‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D’, the fact that the accused had voluntarily consumed alcohol was not to be included in D’s circumstances.

This does not mean that a self-intoxicated defendant cannot ever succeed with that defence, but only that his intoxication cannot be prayed in aid of it. As Lord Judge CJ explained:

If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint, might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence, just because he was not sober.

B1.68 Sentencing Guidelines: Constructive Manslaughter

A-G’s Ref (No. 60 of 2009) (Appleby) [2010] 2 Cr App R (S) 311 was considered in A-G’s Ref (No. 29 of 2012) (Vernarsky) [2012] EWCA Crim 2143. D attacked a female friend with whom he was sexually obsessed and killed her by strangulation. He then attempted to invent a false alibi, etc. He was charged with murder, but was somehow convicted only of manslaughter on the basis that he may have lacked the requisite intent for murder. The trial judge had no choice but to sentence him on that basis. He imposed a sentence of six years’ imprisonment, which the Court of Appeal declined to label unduly lenient, although they noted that it was based on findings as to D’s state of mind which were generous, given the defence conducted at trial.

B1.71 Sentencing Guidelines: Constructive Manslaughter: Weapons

In Haque [2012] EWCA Crim 1912, the Court of Appeal quoted a passage from Lord Judge’s judgment in Thornley [2011] 2 Cr App R (S) 361 (a provocation case considered in the main work at B1.66) in which he said:

It is clear to us...that the use of a knife...should now be regarded as a more significant feature of aggravation than it was when the [definitive sentencing] guideline was published. In the end everything depends upon the individual circumstances of each case: why and how the knife came to be picked up and eventually used.
The Court in Haque then added:
Public concerns, reflected in increased sentences, as to the use of a knife in threatening or in causing injury or death is not to be confined to the use of a knife (or carrying of a knife) in a public place or the use of a knife when taken to a scene. The very fact that a knife is used will always be an aggravating factor. The extent to which it is an aggravating factor will depend on the particular circumstances of the particular case.
The judge in this case was fully entitled to regard use of a knife as highly relevant and a significant aggravating factor in the unlawful killing of the deceased.

B1.74 Sentencing Guidelines: Gross Negligence Manslaughter

Sentencing principles in respect of ‘medical’ gross negligence manslaughter were considered in Garg [2012] EWCA Crim 2520. D was a consultant urologist who pleaded guilty to manslaughter following the death of a patient in his care. His medical negligence had been compounded by subsequent attempts to falsify relevant records. Upholding a sentence of two years’ imprisonment, Lord Judge CJ said:

Two clear principles which follow the implementation of the [CJA 2003] have been identified in the sentencing decisions of this court. First, s. 143(1) of the Act, focussing direct attention on the harm actually caused by the offence, always involves harm at the highest level. Second, the effect of sch. 21 to the 2003 Act has been to increase the punitive element in sentences for murder, and this has had an inevitable effect on sentences for manslaughter on the basis that the statutory intention was to underline that crimes which result in death should be treated more seriously and dealt with more severely than before.

In Reeves [2012] EWCA Crim 2613, a sentence of three years and nine months' imprisonment was upheld in a case where a mother had left her one-year-old child in the bath unsupervised for about 45 minutes and the child had died, with the causes of death being given as cerebral hypoxia, cardiac arrest and immersion. Whilst observing that this was a tragic case, the Court of Appeal remarked that it is now beyond argument that the effect of the CJA 2003 has been to lift the level of sentencing in such cases.

B1.74a Gross Negligence Manslaughter: Sentencing Guidelines

The much more severe approach sentencing for both unlawful act manslaughter and gross negligence manslaughter that has been adopted following A-G’s Ref (No. 60 of 2009); Appleby [2010] 2 Cr App R (S) 311 was noted in Philips [2013] EWCA Crim 358, where D pleaded guilty to gross negligence manslaughter following his failure to seek medical help for a friend who had clearly overdosed on heroin that D had supplied and later died. D was an experienced heroin user and well understood the symptoms of an overdose. A sentence of four years’ imprisonment (based on a starting point of six years) was upheld on appeal.

B1.74b Sentencing Guidelines: Gross Negligence Manslaughter

Holtom [2011] 1 Cr App R (S) 128was considered in Kovvali [2013] EWCA Crim 1056, in which the Court of Appeal upheld a sentence of 30 months’ imprisonment (based on a three year starting point) imposed on D, an out of hours’ doctor, for ‘appalling and gross’ negligence that led to the death of a patient. See also Garg [2012] EWCA Crim 2520, which was noted in the December 2012 update.

B1.75 Constructive Manslaughter

Church [1966] 1 QB 59, Dawson (1985) 81 Cr App R 150, and Carey [2006] EWCA Crim 17 were amongst the authorities considered in JM [2012] EWCA Crim 2293, where Lord Judge CJ said:

A requirement that the [reasonable] bystander must appreciate the ‘sort’ of injury which might occur undermines the ‘some’ harm principle explained in Church, and on close analysis, is not supported or suggested by Dawson or Carey….

In our judgment, certainly since Church and Newbury, it has never been a requirement that the defendant personally should foresee any specific harm at all, or that the reasonable bystander should recognise the precise form or ‘sort’ of harm which did ensue.  What matters is whether reasonable and sober people would recognise that the unlawful activities of the defendant inevitably subjected the deceased to the risk of some harm resulting from them.

B1.76 Constructive Manslaughter

In Meeking[2012] 1 WLR 3349, the Court of Appeal upheld a conviction for constructive manslaughter in which the ‘base offence’ was an act contrary to the RTA 1988, s. 22A(1)(b) (causing danger to road users: see C3.56 in the main work). In the course of a quarrel she had deliberately applied the handbrake whilst her husband was driving their car at 60 mph, resulting in an accident which caused his death.

All the elements of unlawful act manslaughter were clearly present in this case, but it is unusual for a manslaughter charge to be constructed on an offence such as the one under s. 22A which is potentially (but was not in this case) an offence of mere negligence. By the same logic, a motorist or cyclist who deliberately runs a red traffic light or ignores a ‘no entry’ sign and thereby causes a fatal accident must equally be guilty of manslaughter. Andrews [1937] AC 576 arguably precludes such a conviction only where the base offence is not proved to have been committed intentionally.

B1.158 Encouraging or Assisting Suicide

The judgment of the House of Lords in R (Purdy) v DPP [2010] 1 AC 345 and the policy on the discretion to prosecute issued by the DPP in 2010 pursuant to that case were considered by the civil division of the Court of Appeal in R (Nicklinson) v Ministry of Justice [2013] EWCA Civ 961. The Court held by a majority (Lord Judge dissenting on this point) that the published policy guidance was in some respects inadequate and that the ECHR, Article 8 requires more specific guidance to be made available to health care professionals in particular:

[140] In our judgment, the Policy is in certain respects not sufficiently clear to satisfy the requirements of Article 8(2) in relation to healthcare professionals. It is not surprising that they are reluctant to assist victims to commit suicide. Para 43(14) [of the Policy] is particularly problematic. How does it apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In our view, the Policy should give some indication of the weight that the DPP accords to the fact that the helper was acting in his or her capacity as a healthcare professional and the victim was in his or her care….

[150] We would now invite the parties to agree the terms of a declaration to give effect to our decision in relation to the Policy.


B2 Non-fatal Offences

B2.2 Assault and Battery Procedure

The Criminal Law Act 1967, s. 6(3A) was considered in Nelson [2013] EWCA Crim 30. The Court of Appeal ruled that, where a count for assault by beating is included in an indictment in the circumstances prescribed by the CJA 1988, s. 40, s. 6(3A) does not enable a jury to return an alternative verdict of common assault on that count. Such a verdict is possible on a charge of assault occasioning actual bodily harm; and if the jury concludes that D threw a punch that missed, a verdict of attempted battery may be returned on a charge of assault by beating; but common assault is not, said the Court, a permissible alternative on a charge of battery, because a battery can be inflicted on a victim who never saw the blow coming. The ingredients of the offence of common assault are not therefore necessarily included in the ingredients of an offence of assault by beating.

There is, with respect, much to dispute here. The Court erred in its obiter suggestion that attempted battery is an offence known to law and there is also a major problem with its attempt to distinguish between cases in which the count in question is one of assault occasioning actual bodily harm and cases in which the count is one of assault by beating. According to the House of Lords in Metropolitan Police Commissioner v Wilson [1984] AC 242, which was not referred to in Nelson, an allegation of the ‘alternative offence’ is impliedly included in a given count where commission of the offence alleged in that count may involve commission of the alternative offence, even if it is possible for the one to be committed without the other. See the main work at D19.48. An assault will ordinarily be committed both in the course of a battery and in the course of an assault occasioning actual bodily harm, even though it need not necessarily be committed in the course of either of those offences. It follows that Nelson must be seen as a decision per incuriam

B2.4 Assault and Battery: Sentencing Guidelines (Racially or Religiously Aggravated Form of Offence)

In Isitt[2013] EWCA Crim 265 a sentence of 14 months' imprisonment on a guilty plea (taking a starting point in the region of 18 months) was upheld on appeal. But for the racial aggravation, the offence would have been a category 2 offence, with a starting point of a medium-level community order but, in addition to the very unpleasant and explicit element of racial aggravation, there were numerous other aggravating factors: the offence was totally unprovoked and was committed in a doctor's surgery in the presence of the victim’s young daughter, by an offender with an appalling record, and in breach of previous orders.

B2.10 Assault and Battery: Lawful and Unlawful Force

If a person told another that he or she refused to be touched or struck in a particular way and the other carried on and did it, the fact that he had been motivated by misdirected affection would not save it from being an assault. On the facts, the forcible taking of the finger to make the victim eat the mixture had been the clearest possible assault. See Braham[2013] EWCA Crim 3.

B2.30 Assault Occasioning Actual Bodily Harm: Sentencing Guidelines

In Purnell [2012] EWCA Crim 2009, the injuries caused by D’s assault were relatively minor (a cut lip with bruising), but the assault was completely unprovoked. D had simply walked up to a complete stranger and punched him in the face without warning. D had drink and anger issues and a record of violent offending when drunk, but was not suffering from any diagnosed mental disorder. He pleaded guilty.

Because it was unprovoked, the judge placed the offence in Category 2 of the sentencing guidelines and then further increased the sentence to 15 months’ imprisonment because of D’s record for similar offences.

The Court of Appeal held this to be manifestly excessive, given the single blow, minor injury and guilty plea, but rejected submissions that it was only a category 3 offence, punishable by a fine or community order. A sentence of nine months’ imprisonment was substituted.

B2.39 Assault on Constable in Execution of Duty

Donnelly v Jackman [1970] 1 All ER 987 and Collins v Wilcock [1984] 3 All ER 374 were considered in Elkington v DPP[2012] EWHC 3398 (Admin), [2013] All ER (D) 198 (Jan).

B2.67 Sentencing Guidelines

The definitive sentencing guideline, Assault, was considered in respect of a s. 18 offence in A-G’s Ref (No 32 of 2012); Jenkins [2012] All ER (D) 265 (Oct). D, who had a long criminal record and was currently on licence, attacked a drug dealer in the latter’s own home, raining a series of blows on his face and head and causing multiple fractures to the mid face, including a broken upper jaw and fractured cheek bones. He concluded by stamping hard with his boot on his battered victim’s face, spattering blood over his own jeans as he did so. On his arrest he said, ‘that's what happens to drug dealers ... he won't give a statement'.

The trial judge treated this as a borderline category 1 or 2 offence, and imposed a sentence of seven years’ imprisonment, but the Court of Appeal agreed with the A-G’s submission that it fell squarely within category 1 and thought D lucky to have escaped imprisonment for public protection. Whilst the courts were no friends of drug dealers, for an offender to think that his victim was beyond the protection of the law was totally unacceptable. A sentence of 13 years' imprisonment was substituted.

B2.133 Child Cruelty: Sentencing Guidelines

In R [2012] EWCA Crim 2122 a sentence of 18 months’ imprisonment imposed on a mother who pleaded guilty to four counts of child cruelty (involving slaps to the head or face etc.) was reduced on appeal to one of five months that allowed for her immediate release. The incidents in question were said to be part of a pattern of behaviour over several years, but none of them involved any injury beyond minor bruising etc. and only one involved injury at all. As the Court of Appeal pointed out, offenders must be sentenced only for the crimes for which they have been found guilty. Elias LJ said:

She is not being sentenced for being a poor mother or an incompetent mother or because she is incapable of controlling her temper; she is being sentenced for specific incidents on specific occasions, two of which occurred some eight years ago, and only one of which in fact caused physical injury.

B2.147 Ill-treatment or Neglect of Persons who Lack Capacity

The offence of wilful neglect created by the Mental Capacity Act 2005, s. 44, was considered by the Court of Appeal in Nursing [2012] EWCA Crim 2521. The key issue was the extent to which a person of limited mental capacity might nevertheless have, or be believed to have, sufficient capacity to decide what care or treatment he should or should not receive. There was in other words an issue of respect for such a person’s autonomy. Lord Judge CJ said

Those who are in need of care are entitled to protection against ill-treatment or wilful neglect. The question whether they have been so neglected must be examined in the context of the statutory provisions which provide that, to the greatest extent possible, their autonomy should be respected. … On analysis, the offence created by s. 44 is not vague. It makes it an offence for an individual responsible for the care of someone who lacks the capacity to care for himself to ill-treat or wilfully to neglect that person. Those in care who still enjoy some level of capacity for making their own decisions are entitled to be protected from wilful neglect which impacts on the areas of their lives over which they lack capacity. However s. 44 did not create an absolute offence. Therefore, actions or omissions, or a combination of both, which reflect or are believed to reflect the protected autonomy of the individual needing care do not constitute wilful neglect.

B2.147a Ill-treatment or Neglect of Persons who Lack Capacity

The concept of ‘wilful’ neglect in the context of the offence under the Mental Capacity Act 2005, s. 44, was considered by the Court of Appeal in Patel [2013] EWCA Crim 965, in which D, a nurse, had improperly failed to provide CPR to an elderly patient who had stopped breathing while in her care. The Court noted that, in contrast to the offence under the CYPA 1933, as considered in Sheppard [1981] AC 394, the s. 44 offence does not include the qualifying words ‘in a manner likely to cause unnecessary suffering or injury to health’. It was therefore no defence to show that the patient would have died even if the proper treatment had been provided.

B2.149 Causing or Allowing a Child or Vulnerable Adult to Suffer Serious Physical Harm

Sheppard [1981] AC 394 and Patel [2013] All ER (D) 216 (May) were considered in Turbill [2013] EWCA Crim 1422.

B2.166 Offence of Stalking

In Hayes v Willoughby [2013] UKSC 17, the Supreme Court held that the Protection from Harassment Act 1997, s. 1(3)(a) may be relied upon (in civil or criminal cases) both by law enforcement agencies and by private individuals, and whether or not D can prove that his behaviour was objectively reasonable. Their lordships meanwhile rejected (obiter) the Court of Appeal’s view that such a purpose must be D’s sole purpose; but as Lord Sumption explained:

Before an alleged harasser can be said to have had the purpose of preventing or detecting crime, he must have sufficiently applied his mind to the matter. He must have thought rationally about the material suggesting the possibility of criminality and formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it.…

If, on the other hand, he has not engaged in these minimum mental processes necessary to acquire the relevant state of mind … two consequences will follow. The first is that the law will not regard him as having had the relevant purpose at all. He has simply not taken the necessary steps to form one. The second is that the causal connection which section 1(3)(a) posits between the purpose of the alleged harasser and the conduct constituting the harassment, will not exist.

B2.174 Putting People in Fear of Violence: Sentencing

In Rumbelow[2012] EWCA Crim 2888, [2013] All ER (D) 57 (Jan), D, a young woman who had conducted a campaign of stalking including threats of violence against an actress, appealed against her sentence of two and a half years' imprisonment, made up of 12 months for harassment under the Protection from Harassment Act, s. 4, 18 months consecutive for breach of an interim restraining order, and six months concurrent for another breach of the same order. She had served 11 months of that sentence.

D was of previous good character but suffered from Attention Deficit Hyperactivity Disorder and Asperger's Syndrome, which at least partially explained her bizarre pattern of offending. She was not charged with stalking under s. 4A (see main text at B2.180) as that offence was not then in force.

With a view to supporting her rehabilitation, the Court of Appeal substituted a community order together with a supervision requirement for 12 months and a mental health treatment requirement for 12 months. An indefinite restraining order that was made at the time of sentence would remain in force in the same terms.

B2.182 Offence of Stalking Involving Fear of Violence or Serious Alarm or Distress: Sentencing

See Rumbelow[2012] EWCA Crim 2888, [2013] All ER (D) 57 (Jan) as noted in this update at B2.174.

B2.190 Slavery, Servitude and Forced or Compulsory Labour: Sentence

In Connors [2013] EWCA Crim 324 the Court of Appeal declined to increase sentences of imprisonment passed on offenders from a traveller family who had kept vulnerable men as virtual slaves and prisoners. The offenders were each convicted of conspiracy to require a person to perform forced or compulsory labour and received sentences ranging from three to six and a half years. Some of those sentences were considered to be lenient, but not so lenient as to require interference.

B2.192 Slavery, Servitude and Forced or Compulsory Labour

The inadequacy of the old law in dealing with cases of slavery of servitude is revealed in CN v UK  [2012] ECHR 4239/08, [2012] All ER (D) 181 (Nov).


B3 Sexual Offences

B3.3 Sentencing under the Sexual Offences Act 2003 and Historic Cases: General

The much publicised child sexual abuse case involving the 83-year-old TV presenter Stuart Hallis reported as A-G’s Ref (No. 38 of 2013); Hall [2013] EWCA Crim 1450. The A-G submitted that a total sentence of 15 months’ imprisonment originally imposed on 14 counts of indecent assault on children and teenage girls was unduly lenient. The Court of Appeal agreed and effectively doubled it by making the sentence on one count consecutive rather than concurrent. Lord Judge CJ said:

We must keep the seriousness of the offences in proper perspective, as the Attorney General did. Some were more serious than others. Taken in isolation, some would not have required a custodial sentence. Some, as time went by and as the offender escaped detection, seem to us to have started to be marked with an increasing degree of thought and premeditation. The result of the offending taken as a whole is that a multiplicity of young girls were sexually molested over an 18 year period, some when they were very young, all when they were in one way or another vulnerable, and all when the offender was in a position to misbehave as he did just because he was who he was - trusted as a friend, trusted as somebody to whose home it was safe to send a child, or to invite into a home, or trusted as a public figure. All of the offences were real assaults. There was no question of any of the victims consenting to anything. These were not just technical assaults because the victims were too young to have, if they had, consented in law. There was no such question; they were all assaults - technically, legally and as a matter of fact.
The impact on the victims has been lifelong. They have resulted in different manifestations. Indeed, the breadth of the manifestations, as we have set out in the judgment, highlight that although it is possible to predict that this kind of sexual misbehaviour will always cause some permanent consequences, it is not always easy to predict precisely what they will be in the case of each individual victim. Difficulty in forming a lasting sexual relationship may be obvious in some cases of indecent assault; but a deep resentment of a father's reaction may sour what should be a natural, loving relationship of a quite different kind between father and daughter, to the disadvantage of both the father and the daughter.

Lord Judge noted that some of the victims had written to the court to the effect that they were content with the original sentence, but this could not determine the sentence that was appropriate (following Nunn[1996] 2 Cr App R (S) 136).

B3.9 Rape, Sentencing Guidelines

In A [2012] EWCA Crim 1646 the Court of Appeal emphatically rejected a submission that, since D was brought up abroad in a society in which marital rape was widely practised and condoned, that should be treated as a mitigating circumstance in respect of what was otherwise a ‘most grave’ case of rape committed against his wife in England.

B3.9 Rape, Sentencing Guidelines (2)

T [2012] EWCA Crim 1921 provides an example of offending falling within category 2 of the Sentencing Guidelines, but accompanied by so many aggravating features that a starting point far above the specified range was appropriate. As the Court of Appeal noted:

The offending had been appalling. There had been numerous and very, very serious aggravating factors: ejaculation; filming; the presence of the children; forced entry; significant force and threats; the production of the machete; and throttling. There had been two rapes and forced oral sex. It had been a sustained attack. The impact on the complainant had to have been absolutely dreadful.

A starting point of 16½ years (reduced to 14 years following D’s guilty plea on re-arraignment) was upheld as severe but not manifestly excessive.

See also (and to much the same effect) Zotkevicius [2012] EWCA Crim 384.

B3.16 Rape, Sentencing Guidelines

See Robertshaw[2013] All ER (D) 63 (Apr) (noted in this update at E4.22).

B3.23 Rape: Mens Rea

Beliefs in consent arising from conditions such as delusional psychotic or personality disorders had to be judged by objective standards of reasonableness and not by taking into account a mental disorder which induced a belief which could not reasonably have arisen without it. If an accused's delusional beliefs could have led him to believe that the complainant was consenting when she was not, such delusional beliefs could not in law render reasonable a belief that was otherwise completely unfounded. See Braham[2013] EWCA Crim 3.

B3.31 Conclusive Presumptions about Consent

Jheeta [2007] 2 Cr App R 477 was considered and Devonald [2008] EWCA Crim 527 was doubted in B [2013] EWCA Crim 823, in which D had assumed false Facebook identities and tricked his girlfriend into performing sexual acts online. But, in contrast to Devonald, where the complainant had been misled as to the offender’s true purpose, there was no real deception as to purpose in B. Hallett LJ said:

19. There is no definition of the word purpose in the [Sexual Offences] Act. It is a perfectly ordinary English word and one might have hoped it would not be necessary to provide a definition. … Those engaging in a sexual act may have a number of reasons or objectives and each party may have a different objective or reason. The Act does not specify whose purpose is under consideration. There is, therefore, a great danger in attempting any definition of the word purpose and in defining it too widely. A wide definition could bring within the remit of section 76 situations never contemplated by Parliament.
20. We shall, therefore, simply apply the normal rules of statutory construction and echo what was said in Jheeta. Where, as here, a statutory provision effectively removes from an accused his only line of defence to a serious criminal charge it must be strictly construed. We respectfully adopt the approach of the court in Jheeta. If there is any conflict between the decisions in Jheeta and Devonald, we would unhesitatingly follow Jheeta. Thus, it will be a rare case in which section 76 should be applied.

B3.33 Consent in Absence of Presumption

Assange v Swedish Prosecution Authority [2011] EWHC 2489 (Admin) was considered in R (F) v DPP [2013] EWHC 945 (Admin), where the DPP’s decision not to prosecute D for rape was successfully challenged in an application for judicial review. The case against D was that although the complainant (C) agreed to have intercourse, she did not consent to D ejaculating inside her, but having penetrated her, he had insisted on so doing. Such a case, said Lord Judge CJ, was quite different to one in which D intends to pull out but clumsily fails to do so in time. He said:

If before penetration began [D] had made up his mind that he would penetrate and ejaculate within [C’s] vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s. 79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed [C] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.

B3.33a Consent in Absence of Presumption

Assange v Swedish Prosecution Authority [2011] EWHC 2849 Admin, EB [2007] 1 WLR 1567 and R (F) v DPP [2013] EWHC 945 (Admin) were considered in McNally [2013] EWCA Crim 1051, in which D’s convictions on six counts of assault by penetration contrary to the SOA 2003, s. 2, were upheld on appeal. The case against D was that she had tricked the female complainant, M, into what M thought was sexual activity with a boy called Scott, whereas D was in fact a girl wearing a strap-on dildo. Some of the alleged acts of penetration were digital and some involved the use of the strap-on dildo; but in the view of the Court of Appeal, M’s apparent consent was vitiated if she had agreed only because of the deception. Leveson LJ said:

23. The case for the Crown was that M’s consent was obtained by fraudulent deception that the appellant was a male and that had she known the truth, she would not have consented to acts of vaginal penetration. Mr Wainwright argues that deception as to gender cannot vitiate consent; in the same way deception as to age, marital status, wealth or, following EB, HIV status being deceptions as to qualities or attributes cannot vitiate consent. Thus, he submits that Assange and R(F) can be distinguished, as the deceptions in those cases were not deceptions as to qualities or attributes but as to the features of the act itself.
24.  We reject this analysis. First and foremost, EB was not saying that HIV status could not vitiate consent if, for example, the complainant had been positively assured that the defendant was not HIV positive: it left the issue open. As Mr McGuinness for the Crown contends, the argument that in Assange and R(F) the deceptions were as to the features of the act is not sustainable: the wearing of a condom and ejaculation are irrelevant to the definition of rape and are not ‘features’ of the offence and no such rationale is suggested.  In the last two cases, it was alleged that the victim had consented on the basis of a premise that, at the time of the consent, was false (namely, in one case, that her partner would wear a condom and, in the second, that he would ejaculate outside her body).
25.  In reality, some deceptions (such as, for example, in relation to wealth) will obviously not be sufficient to vitiate consent. In our judgment, Lord Judge’s observation [in R(F) v DPP] that “the evidence relating to ‘choice’ and the ‘freedom’ to make any particular choice must be approached in a broad common-sense way” identifies the route through the dilemma. 
26.  Thus while, in a physical sense, the acts of assault by penetration of the vagina are the same whether perpetrated by a male or a female, the sexual nature of the acts is, on any common sense view, different where the complainant is deliberately deceived by a defendant into believing that the latter is a male. Assuming the facts to be proved as alleged, M chose to have sexual encounters with a boy and her preference (her freedom to choose whether or not to have a sexual encounter with a girl) was removed by the appellant’s deception. 

B3.74 Rape and Other Offences against Children aged under 13

The judgment of the Supreme Court in Brown [2013] UKSC 43 addresses issues of strict liability and possible defences under the law of Northern Ireland in respect of the offence of having unlawful carnal knowledge of a girl under the age of 14, contrary to the Criminal Law Amendment Acts (Northern Ireland) 1885-1923, s. 4, but it contains extensive reference to English case law on strict liability as to age (starting with Prince (1875) LR 2 CCR 154).
The Supreme Court in effect applied the same reasoning as the House of Lords in G [2009] AC 92, noting that the policy of protecting young females by ensuring that a defence of reasonable belief should not be available has been unswerving, and concluding that those who engage in sexual activity with young partners without being quite sure of that young person’s age do so entirely at their own risk.

B3.94 Sexual Activity with a Child: Sentencing

See B3.3 for A-G’s Ref (No. 38 of 2013); Hall [2013] EWCA Crim 1450 as to sentencing in the notorious Stuart Hall case.

B3.100 Causing or Inciting a Child to Engage in Sexual Activity: Sentencing

In Knight [2013] All ER (D) 138 (Aug) the Court of Appeal provided some useful guidance on sentencing in ‘cybersex’ abuse cases. D pleaded guilty to a large number of offences in which he had successfully incited under-aged boys to engage in sexual activities in front of a web camera. He did this by setting up false Facebook accounts in which he pretended to be a teenage girl or boy. He incited many more to perform in a similar way, but without success. After he was charged and released on bail he committed a further eight such offences.
A sentence of 16 months’ imprisonment was held to be unduly lenient and was replaced by one of four years (based on a six-year starting point, before the guilty plea). Cyber sex offences, although serious, were ordinarily less serious than physical contact offences, but the scale and sophistication of offending and the repeat offences when on bail were aggravating features and some of the offender’s victims might well suffer serious psychological effects.

B3.263 Trafficking People for Sexual Exploitation

The Protection of Freedoms Act 2012 (Commencement No. 5 and Saving and Transitional Provision) Order 2013 (SI 2013 No. 470) provides inter alia for s. 109 (trafficking people for sexual exploitation) to come into force on 6 April 2013.

B3.263a Trafficking People for Sexual Exploitation

The Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013 (SI 2013 No. 817), which have effect from 10 April 2013, inter alia make provision for the treatment of information society service providers in relation to the offence of trafficking people for sexual exploitation under the SOA 2003, s. 59A. They take account of the creation of that offence by the Protection of Freedoms Act 2012 and apply the protection for providers of such services, arising from the Electronic Commerce Directive, in that context.

B3.318 Indecent Photographs of Children: Indictment

Oliver [2002] EWCA 766 was considered in Dodd [2013] EWCA Crim 660, in which the court was highly critical of references in an indictment to the classification of the allegedly indecent images under the ‘COPINE scale’ (the scale developed by staff at the Combating Paedophile Information Networks in Europe Project). This scale (unlike the Oliver scale)has no legal status in English law and it is entirely wrong for a jury to be told (whether in the indictment or by opinion evidence from prosecution witnesses) where such images allegedly fall under it. Giving the judgment of the court, Hallett LJ said:

As far as the criminal justice system is concerned there is at present only one scale of indecency, the Oliver scale. If, therefore, the level referred to in the indictment was, as prosecuting counsel asserted, and the judge endorsed, level 1 of the COPINE scale, they were plainly wrong. In so far, therefore, as the prosecuting advocate the judge and possibly the defence advocate may have left the jury with the impression that they could get guidance on what constituted an indecent photograph from the COPINE scale, they were in significant error.

B3.321 Elements of the 1978 Act Offence

In Dodd [2013] EWCA Crim 660 (see B3.318 in this update) the Court of Appeal tantalizingly left a further issue unresolved, namely, ‘the interesting question of whether or not photographs which are on their face entirely innocuous can be rendered indecent by their context here, the surrounding indecent text’.
Hallett LJ said:

Had we had more time for argument, consideration and delivery of this judgment today, we should have liked to explore this ground further.  However, we did not and neither counsel invited us to do so.

B3.334 Extreme Pornographic Images: Sentencing

Livesey [2013] All ER (D) 179 (Aug) adds to the small body of case law on sentencing for offences involving extreme adult pornography. The summary report of an ex tempore judgment does not identify the exact nature of the material, but a sentence of 14 months’ imprisonment on a guilty plea was reduced on appeal to one of four months. D was of previous good character and was remorseful. There were no aggravating features other than the large number of images etc. that had been gathered. The Court of Appeal clearly considered that a suspended sentence might be appropriate in some such cases.

B3.340  Outraging Public Decency: Sentencing

Ferguson [2009] 2 Cr App R (S) 39 and Cosco [2005] 2 Cr App R (S) 405 were considered in Vaiciulevicius [2013] EWCA Crim 185, where D’s offence involved engaging in drunken sexual intercourse in a public park during the day. He had a poor criminal record, but in contrast to Ferguson and Cosco his previous convictions were for entirely different kinds of offence.

He appealed against a sentence of six months’ imprisonment following a prompt plea of guilty, arguing that an immediate custodial sentence was wrong in principle. The Court of Appeal disagreed, especially since young children had not been far away at the time. D’s intoxication was an aggravating factor as was his criminal record. But the judge’s starting point of nine months’ imprisonment was too high. The maximum penalty for the summary (s. 71) offence of sexual activity in a public lavatory was only six months. D’s sentence was reduced to one of three months.


B4 Theft, Handling Stolen Goods and Related Offences

B4.5 Sentencing Guidelines: Offences of Theft Generally

See Foulger [2012] EWCA Crim 1516, which is noted in this update at E2.4.

B4.5a Sentencing Guidelines: Offences of Theft Generally

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B4.5b Sentencing Guidelines: Offences of Theft Generally

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of theft when it is treated as a penalty offence from £80 to £90.

B4.5c Sentencing Guidelines: Offences of Theft Generally

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of theft when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.

B4.69 Robbery and Assault with Intent to Rob: Sentencing (1)

In Anderson [2012] EWCA Crim 2388, the Court of Appeal considered Blackshaw [2012] 1 WLR 1126 (see the main text at B11.20) when upholding consecutive sentences imposed for offences of robbery and burglary in the course of the London riots of August 2011. See also Shirley [2012] All ER (D) 195 (Nov).

B4.69 Robbery and Assault with Intent to Rob: Sentencing (2)

In A-G’s Refs (Nos 41, 42 and 43 of 2012); Jones [2012] EWCA Crim 2356, custodial sentences of between six years and nine months and six years and four months imposed for violent offences of robbery, burglary and aggravated vehicle taking committed ‘by thugs who had gone in with weapons mob handed, knowing who was there and that resistance would not be strong’ were quashed and replaced by sentences of eight to nine years’ youth custody / imprisonment.

The original sentences had taken proper account of late guilty pleas, but failed adequately to reflect the overall gravity and aggravating features of the case, in particular, the high level of violence, the extent of the premeditation and that one purpose of the raids had been to obtain firearms. Appropriate sentences after trial would have been in the region of ten to eleven years.

B4.79 Burglary: Sentencing Guidelines

The theft of items of obviously sentimental value may be considered an aggravating feature of a domestic burglary for the purposes of the definitive sentencing guideline, Burglary Offences: see Franks [2012] EWCA Crim 1491, where such a burglary was held to fall within category 1 of the guideline.

B4.80 Burglary: Sentencing Guidelines

Three concurrent sentences of five years’ imprisonment were upheld for a series of ‘distraction burglaries’ in Cash [2012] EWCA Crim 201. D targeted elderly people and gained their trust sufficiently to be let into their homes in order to ‘unblock drains’ etc., but then stole significant sums of cash. No violence was used or threatened, but the psychological effect on the elderly victims was often serious and likely to persist.

Further guidance on sentencing for distraction burglary is provided by Johnson [2012] EWCA Crim 2066, where concurrent sentences of three years and three months were imposed and upheld following guilty pleas made at the first opportunity. In this case, D was of previous good character, but was also guilty of a breach of trust by committing the two burglaries (and a third that was taken into consideration) while employed as a joiner and working at the victims’ sheltered accommodation.

B4.130 Aggravated Vehicle-taking: Sentence

In Bratu [2013] All ER (D) 105 (Jan) D pleaded guilty to aggravated vehicle-taking after taking his partner’s car without her consent and was sentenced to eight months’ imprisonment, which was upheld on appeal. There were many aggravating features to this offence, including the fact that he was found to be two and a half times over the legal alcohol limit, had been driving dangerously at speed, had run a red light and had made off instead of stopping at once when ordered to do so by the police.

B4.130a Aggravated Vehicle Taking

In Roberts [2013] EWCA Crim 785 D and his five friends, including a 13-year-old boy, C, took C’s mother’s car without her consent and one of them (G) crashed it at speed, killing C. The survivors were charged with and convicted of aggravated vehicle taking resulting in death. In the course of a sentencing appeal by D, the Court of Appeal expressed surprise that, given the evidence of dangerous driving, the charge was not one of causing death by dangerous driving, and were told that the CPS had reasoned that since the former offence would be easier to prove, and carried the same maximum penalty, it made sense to charge that instead.
The Court of Appeal disapproved of that approach:

Causing death by dangerous driving is, in sentencing terms, generally regarded as the more serious offence and it should be the norm for that to be charged where the evidence is there to support it…. In the instant case, on the information before us, there was on the face of it evidence to sustain such a charge, and that should be the norm.


B5 Fraud, Blackmail and Deception

B5.7 Sentencing Guidelines for Fraud Offences Generally

The definitive sentencing guideline, Sentencing for Fraud - Statutory Offences was considered in Pettigrew [2012] EWCA Crim 1998. The Court of Appeal warned that attempting slavishly to bring a combination of assorted fraud and deception offences within particular categories of the guidelines may not be particularly helpful. A broader view may need to be taken, in which the judge concludes by asking himself whether the total sentence appears to be a proper one.

B5.7a Sentencing Guidelines for Fraud Offences Generally

See Kallakis [2013] EWCA Crim 709, which is considered in this update at A5.63.

B5.7b Sentencing Guidelines for Fraud Offences Generally

The problems caused by false whiplash injury claims in motor insurance cases have been much in the news of late, as has the staging of road accidents to generate such claims. Only the former featured in McKenzie [2013] All ER (D) 167 (Aug), where D pleaded guilty to fraudulently claiming in respect of an accident that had never occurred. He received a sentence of 15 months’ imprisonment, which reflected the fact that it was part of a wider conspiracy involving many such cases and in which the ringleader received a seven-year sentence. He argued that he should have been sentenced in respect of a single fraudulent transaction with a starting point of 26 weeks’ imprisonment, but the Court of Appeal disagreed. Moreover, a deterrent sentence was justified on the facts. Such frauds cost the insurance industry millions and add £50 a year to each driver’s premium.
See also M [2013] EWCA Crim 206, which involved other parties to the wider conspiracy.

B5.12 Fraud by False Representation

In Gilbert [2012] EWCA Crim 2392, the Court of Appeal quashed D’s conviction on one count of fraud by false representation because the trial judge had failed to make it clear to the jury that D must not only make the false representation in question dishonestly, but must intend by making that representation to make a gain or cause loss to another; which in turn is defined as extending only to gain or loss in money or other property.

In Gilbert there was clear evidence of dishonesty and false representation relating to the opening of a bank account, but such an account is not of itself ‘money or other property’. The question was whether the offence could be committed, ‘on the basis of the possibility of a gain arising from future legitimate property development, rather than a gain arising directly from any representation made at the meeting at the bank, or directly from the opening of the bank account.’ In the Court of Appeal’s view, it could not:

This, and the direction to the jury that it was open to them to find that a gain could be inferred if they concluded that the opening of the bank account was simply to enable development or the sale of the company, left the case on too vague a basis. The link … between any representation and such a possible future gain, is too tenuous.

B5.40 Making off without Payment

Aziz [1993] Crim LR 708 was considered in Morris[2013] EWCA Crim 436. In Aziz it was held that if D hires a taxi, the relevant ‘spot’ where payment may be required is the place where the taxi is standing and that ‘payment might be made while sitting in the taxi or standing by the window’. That indeed must usually be the case, but in Morris Leveson LJ said:

To apply [those] words too literally would be to misunderstand the legislation. Thus, if a passenger were to explain (honestly) to the taxi driver that he had to enter his house in order to obtain the fare, the moment for payment would be deferred for him to do so.  A decision not to return to the taxi would mean that, from that moment, the passenger is making off without payment. 

With respect, the scenario posed by Leveson LJ looks (arguably at least) more like one of fraud by false representation than of making off. Can the passenger be said to have ‘made off’ if he left with the taxi-driver’s fraudulently-induced consent? He can hardly be said to ‘make off’ merely by not coming back to the taxi as promised. As to the use of force (mistakenly or otherwise) to prevent making off in such cases, see this update at A3.54.

B4.130 Aggravated Vehicle-taking: Sentence

In Bratu [2013] All ER (D) 105 (Jan) D pleaded guilty to aggravated vehicle-taking after taking his partner’s car without her consent and was sentenced to eight months’ imprisonment, which was upheld on appeal. There were many aggravating features to this offence, including the fact that he was found to be two and a half times over the legal alcohol limit, had been driving dangerously at speed, had run a red light and had made off instead of stopping at once when ordered to do so by the police.


B6 Falsification, Forgery and Counterfeiting

B6.62 Offences Relating to Identity Documents: Sentence

Applying general principles relating to sentencing where D is convicted of the lesser of two related offences, the Court of Appeal in Goodings [2012] EWCA Crim 2586 quashed a sentence of six months' imprisonment imposed on D for an offence under the Identity Documents Act 2010, s. 6, and substituted a sentence of two months’ imprisonment. There was ample evidence to suggest that D had been guilty of a more serious offence under s. 4 of the Act and this appeared to have been taken into account by the judge in sentencing, but it was improper to do so because this was not the offence to which D had pleaded guilty. The Court of Appeal observed:

On the facts as the judge found them, and if the case had been charged under s. 4, no possible complaint could have been made against the sentence. However, the message which follows from this is that the prosecution ought not to accept a plea of guilty to a charge which does not properly reflect the evidence or enable them properly to place before the court the facts which go to show the true gravity of the conduct. No criticism could be made of the judge in this regard, because the matters referred to were not drawn to his attention. On the contrary, he was positively led to approach the matter on a wrong basis by the manner in which the prosecution presented the case, notwithstanding the plea of not guilty to s. 4 which they had accepted.

B6.108 False Application or Use of Trade Marks

As to the use of confiscation orders in cases involving trademark offences, see the observations of the Court of Appeal in Beazley [2013] EWCA Crim 567.

B6.110 Unfair Commercial Practices, Misleading Advertisements etc.

The definition of a ‘commercial practice’ for the purposes of the Consumer Protection from Unfair Trading Regulations was considered by the Court of Appeal in X Ltd [2013] EWCA Crim 818, where it was held that an unfair commercial practice could take the form of an isolated act and was not confined to courses of repeated malpractice. 'A commercial practice' said Leveson LJ, 'can be derived from a single incident. It will depend on the circumstances.' Moreover, there need be no actual sale or transaction, as the words, 'if any' make clear. If there has been such a transaction the unfair practice may come later, as where a trader misleads a customer as to his rights or duties under that transaction.

B6.116 Property Misdescriptions and Holiday Accommodation Contracts

The Property Misdescriptions Act 1991 (Repeal) Order 2013 (SI 2013 No. 1575) repeals the 1991 Act with effect on 1 October 2013.


B7 Company, Commercial and Insolvency Offences

B7.24 Offences under the Financial Services and Markets Act 2000

The Financial Services Act 2012 received Royal Assent on 19 December 2012; its main provisions are yet to be brought into force but are expected to be implemented in April 2013. It includes substantial amendments to the Financial Services and Markets Act 2000, including new provision as to regulation (inter alia changing the name of the Financial Services Authority to the Financial Conduct Authority) and as to ‘financial crime’.

B7.24a  Offences under the Financial Services and Markets Act 2000

The Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2013 (SI 2013 No. 655) amends the principal Order of 2001 (SI 2001 No. 544) with effect from 2 April 2013 so as to specify the setting of benchmarks as a new regulated activity for the purposes of the Act.


B8 Damage to Property

B8.42 Sentencing Guidelines (Basic Offence)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B8.42a Sentencing Guidelines (Basic Offence)

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of a basic offence of criminal damage when it is treated as a penalty offence from £80 to £90.

B8.42b Sentencing Guidelines (Basic Offence)

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of a basic offence of criminal damage when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.


B9 Offences Affecting Security

B9.52 Damaging Disclosure: ‘Without Lawful Authority’

The Official Secrets Act 1989 (Prescription) (Amendment) Order 2012 (SI 2012 No. 2900) amends the principal Order of 1990 (SI 1990 No. 200) so as to add police and crime commissioners, and similar posts involving the supervision of policing, to the list of offices whose occupants are prescribed as Crown servants for the purposes of s. 12(1)(g) of the 1989 Act.

B9.89 Unlawful Interception of Communications by Public and Private System

The RIPA 2000, s. 2, and in particular s. 2(7) was considered on an appeal against a pre-trial ruling in Edmondson [2013] EWCA Crim 1026, a conspiracy case involving alleged misconduct by editors and journalists of the News of the World. The Court of Appeal held that s. 2(7) extends the concept of ‘the course of transmission’ (and thus the application of s. 1 of the Act) so as to include a situation where a voicemail message has been saved by the recipient on the voicemail facility of a public telecommunications system.
R (NTL) v Ipswich Crown Court [2003] QB 131 was distinguished on the basis that the court in that case was concerned only with things done in the period before the communication in question (an email) was made available to the intended recipient.
As to any possible effect of this ruling on the admissibility of evidence, Lord Judge CJ said:

[Counsel] draws attention to s. 17 RIPA, which excludes material from legal proceedings and submits that the wider reading of s. 2(7) … could have far-reaching implications for law enforcement agencies and criminal procedure.  However, while s. 17 excludes from evidence intercept material obtained under warrant or obtained unlawfully, stored communications are admissible in evidence if obtained by means of a production order under s. 1(5)(c) RIPA or with consent.  Accordingly, the wider reading of s. 2(7), which we find to be its intended meaning, need have no damaging consequences so far as the admissibility of evidence is concerned.

The Court declined to certify that the case raises a point of law of general public importance, thereby precluding any appeal to the Supreme Court.


B10 Terrorism, Piracy and Hijacking

B10.13 Disclosure of and Interference with Information Offences

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B10.27 Port and Border Controls

Port and border controls exercisable under s. 53(1) of, and sch. 7 to, the Terrorism Act 2000 were examined by the courts in two prominent cases. In R (Miranda) v Secretary of State for the Home Department [2013] EWHC 2609 (Admin), the claimant was the partner of a journalist who had been investigating and writing about mass surveillance programmes allegedly conducted by US and British security agencies, and had assisted his partner is some of this work. He was detained for several hours at Heathrow while in transit from Germany to Brazil and his laptop, telephone and memory sticks were taken and retained. He sought judicial review of this action and (by way of interim relief) sought an order prohibiting the police or security agencies from inspecting, sharing or examining those items in the eight days pending a full interim relief hearing. He argued that the defendants would otherwise secure the confidential information even if they then lost at the hearing. The defendants argued that there were grounds to believe that the seized material included highly classified UK intelligence documents, the disclosure of which would threaten national security, and put lives at risk.
The claimant’s application was allowed only in part. Pending the full hearing, the police and security agencies could continue to examine the seized material for the protection of national security and for the purpose of determining whether the claimant had been concerned with the commission, preparation or instigation of acts of terrorism.

Schedule 7 to the 2000 Act was also examined in Beghal v DPP [2013] EWHC 2573 (Admin). D’s husband had been arrested in France on suspicion of terrorist offences. After travelling to France to visit him in custody, she was detained at the UK Border Agency desk on her return, but refused to answer their questions. She was accordingly charged with wilfully refusing to answer questions that she was legally obliged to answer under sch. 7. The Divisional Court was asked to consider whether this charge was compatible with the ECHR, Articles 6 and 8 and whether the prosecution amounted to an abuse of process.
The Court held that the sch. 7 powers in question were aspects of port and border control and not of a criminal investigation. Insofar as they interfered with with D's rights under Article 8 of the Convention this could be justified under Article 8.2. And since her detention and questioning had been in connection with an inquiry relating to border controls, her rights under Article 6 had not been engaged by her examination.

B10.34 Membership of a Proscribed Organisation: Elements

The Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2012 (SI 2012 No. 2937) amends the Terrorism Act 2000, sch. 2 so as to insert a further entry, namely Ansarul Muslimina Fi Biladis Sudan (Vanguard for the protection of Muslims in Black Africa) (Ansaru).

B10.34a Membership of a Proscribed Organisation: Elements

The Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2013 (SI 2013 No. 1746) adds Jama’atu Ahli Sunna Lidda Awati Wal Jihad (Boko Haram) and Minbar Ansar Deen (Ansar Al Sharia UK) to the list of proscribed organisations in the Terrorism Act 2000, sch. 2 with effect from 12 July 2013.
The Proscribed Organisation (Name Changes) Order 2013 (SI 2013 No. 1795), which came into force on 19 July 2013, provides that the organisation names al-Nusrah Front and Jabhat al-Nusrah li-ahl al Sham are to be treated as additional names for one of the organisations listed as a proscribed organisation in sch. 2, namely Al-Qa’ida.

B10.93 Dissemination of Terrorist Publication

In determining whether a given publication amounts to a terrorist publication within the meaning of the Terrorism Act 2006, s. 2(3), evidence of its possession by known terrorists is admissible, if at all, only for the ‘extremely limited purpose’ of demonstrating that such persons may be amongst those who read it. It cannot prove that they were encouraged by it to commit or instigate terrorist offences; but there is an obvious risk that a jury may be prejudiced into condemning the publication purely by reason of its association with known terrorists, and if such evidence is properly admitted at all there must be a clear warning to the jury as to what it can and cannot be used to prove. See Faraz[2012] EWCA Crim 2820, [2013] All ER (D) 11 (Jan).

B10.109 Sentencing Offences Committed in a Terrorist Context

Some guidance on sentencing in terrorist cases involving acts of preparation and possession of articles for terrorist purposes was provided by the Court of Appeal in Khan[2013] EWCA Crim 468. In the course of his judgment, Leveson LJ pointed out that such offences may take many different forms but:

75. A number of principles … can properly be emphasised. First, as with any criminal offence, s. 143 of the Criminal Justice Act 2003 directs the sentence to consider culpability and harm: in most cases of terrorist offences, the former will be extremely high. Second, the purpose of sentence for the most serious terrorist offences is to punish, deter and incapacitate. Rehabilitation will play little, if any part: see Martin [1999] 1 Cr App R (S) 477. Third, the starting point for sentence for an inchoate offence is the sentence that would have been imposed if the objective had been achieved with an attempt to commit the offence being more serious than a conspiracy: see Barot [2008] 1 Cr App R(S) 31. Fourth, sentences that can be derived from Martin – or, indeed, any cases before the impact or effect of Schedule 21 of the Criminal Justice Act 2003 identifying minimum terms for murder – are of historical interest only and do not provide any assistance as to the approach which should now be adopted: for the impact of Schedule 21 in uplifting determinate sentences, see AG’s Reference Nos 85-87 of 2007 [2008] 2 Cr App R (S) 45 and, in relation to terrorism, Jalil [2009] 2 Cr App R (S) 40.

76. Finally, because of the enormous breadth of potential offences (and, consequently, the differing potential assessment of culpability and harm depending on the precise facts), we do not consider it appropriate to seek to provide guidelines based on these cases alone (or a combination of these cases and those in Jalil). If guidelines are needed, a better course would be for the offences to be considered by the Sentencing Council for England and Wales although we readily accept that the breadth of s. 5 of the Terrorism Act 2006 would make the task of providing guidelines extremely difficult.

B10.139 Failure to Comply with a Duty of Disclosure: General Duty of Disclosure

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B10.144 Failure to Comply with a Duty of Disclosure: Regulated Sector

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B10.149 Failure to Comply with a Duty of Disclosure: Tipping-off

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.


B11 Offences Affecting Public Order

B11.42 Harassment, Alarm or Distress: Sentencing Guidelines (Basic Offence)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B11.72 Sentencing Guidelines (Basic Offence)

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of a basic offence of causing harassment, alarm or distress when it is treated as a penalty offence from £80 to £90.

B11.72a Harassment, Alarm and Distress: Sentencing Guidelines (Basic Offence)

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of causing harassment, alarm or distress when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.

B11.101 Related Offence: False Alarm of Fire

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B11.101a Related Offence: False Alarm of Fire

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of giving a false alarm of fire when it is treated as a penalty offence from £80 to £90.

B11.101b False Alarm of Fire

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of giving a false alarm of fire when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.

B11.133 Offences under the Football Spectators Act 1989

The Football Spectators (Prescription) (Amendment) Order 2013 (SI 2013 No. 1709), which has effect from 2 August 2013, amends the principal Order of 2004 (SI 2004 No. 2409) inter alia so as to take account of the creation of the Scottish Professional Football League.

B11.200 Drunk and Disorderly

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of being drunk and disorderly when it is treated as a penalty offence from £80 to £90.

B11.200a Drunk and Disorderly

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of being drunk and disorderly when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.


B12 Offences Relating to Weapons

B12.24 Offences Relating to Imitation Firearms

The ‘open question’ referred to in the main text was answered in Williams [2012] EWCA Crim 2162, in which it was held (distinguishing Lambert [2002] 2 AC 545) that the burden of proof placed on the defence by the Firearms Act 1982, s. 1(5) is a full, legal or persuasive burden.

B12.53 Possessing or Distributing Prohibited Weapons or Ammunition

Flack v Baldry [1988] 1 WLR 393 was considered in Hurley [2013] EWCA Crim 1008, where the weapon in question was a stun gun of a design capable of discharging 50,000 volts. Even if the stun gun found in D’s possession had not been working properly at the time of the alleged offence, it was a prohibited weapon for the purposes of the 1968 Act.

B12.53a Fireworks Offences

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence under the Fireworks Act 2003, s. 11 when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.

B12.127 Sentencing Guidelines for Firearms Offences

In Kay [2012] EWCA Crim 2070 D pleaded guilty to possessing an imitation firearm with Intent to cause fear of violence. He had been drunk and depressive and had pointed an imitation revolver at the police with a view to provoking them into shooting him. A sentence of 30 months’ imprisonment was upheld; and the Court of Appeal stated that it might well have been higher but for the presence of significant personal mitigation.

B12.127a Sentencing Guidelines for Firearms Offences

The much-publicised case of Nightingale [2012] EWCA Crim 2734 was exceptional in several ways, but shows how truly exceptional circumstances may justify a sentence much lower than the five year statutory minimum that must ordinarily be imposed for illicit possession of firearms.

B12.127b Sentencing Guidelines for Firearms Offences

Boateng [2011] 2 Cr App R (S) 597 was consideredin Dixon [2013] All ER (D) 251 (Feb) and in Khan [2013] All ER (D) 253 (Feb).

In Dixon, D was found in possession of a bag containing a gun that a friend had left with her following a shooting incident. She pleaded guilty to possession of a prohibited firearm on the basis that she did not know the gun was in the bag.

The Court of Appeal refused to interfere with the imposition of a statutory minimum term of five years’ imprisonment. She had received a package from a man of violence, without enquiring as to the content of that package. These were not exceptional circumstances. To call them so would subvert the policy behind the minimum term.

In Khan, D1 had been involved in a feud with persons who had made violent threats against him and his family. In response to this threat he decided to acquire an arsenal of firearms, including a sub-machine gun with silencer, a pump action shotgun and a rifle with telescopic sight, all in working order with matching ammunition. D2 agreed to help collect them and was arrested with the weapons in his van. Both eventually pleaded guilty to firearms offences, including in D1’s case conspiracy to possess firearms with intent to endanger life and in D2’s case possession of a prohibited weapon

One of the issues was the extent to which the background of threats provided mitigation. The Court of Appeal felt that insufficient credit had been given at sentencing. Sentences of 12 years and three months for D1 and five years and three months for D2 (each reflecting a 12.5% discount for the plea) were reduced to 10 years and three months and five years respectively.

B12.151 Threatening with Weapon in Public

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012 No. 2770) brings s. 142 of the Act (offences of threatening with article with blade or point or offensive weapon in public or on school premises) into force on 3 December 2012.

B12.169 Threatening with Article with Blade or Point

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012 No. 2770) brings s. 142 of the Act (offences of threatening with article with blade or point or offensive weapon in public or on school premises) into force on 3 December 2012.

B12.229 Fireworks Offences

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence under the Fireworks Act 2003, s. 11 when it is treated as a penalty offence from £80 to £90.


B13 Offences Affecting Enjoyment of Premises

B13.47 Aggravated Trespass

Peppersharp v DPP [2012] EWHC 474 (Admin) was considered in Bauer v DPP [2013] EWHC 634 (Admin), in which it was held that a mass demonstration in the course of which the defendants targeted and forced their way into a famous department store could properly be regarded as an act distinct from the act of trespass for the purposes of the CJPOA 1994, s. 68(1)(3). Moreover, although some protesters were identified as committing further acts inside the store and some were not, all were principal offenders as far as the offence of aggravated trespass was concerned.

B13.81 Trespass on a Protected Site: Elements

The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment No. 2) Order 2012 (SI 2012 No. 2709) makes a minor amendment to the principal Order of 2007 (SI 2007 No. 930) relating to Kensington Palace.

B13.81a Trespass on a Protected Site: Elements

The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2013 (SI 2013 No. 1562) amends the principal Order of 2007 (SI 2007 No. 930) inter alia so as to add Anmer Hall to the list of designated sites.

B13.90 Trespassing on a Railway

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B13.90a Trespassing on a Railway

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence under the British Transport Commission Act 1949, s. 55 when it is treated as a penalty offence from £50 to £60.

B13.90b Trespassing on a Railway

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence under the British Transport Commission Act 1949, s. 55 when it is treated as a penalty offence from £50 to £60. It also revokes and replaces SI 2013 No. 1165, which was defective.


B14 Offences Against the Administration of Justice

B14.32 Perverting the Course of Justice: Sentencing Guidelines

In Evans-Keady [2013] All ER (D) 160 (Aug) the Court of Appeal held that in sentencing for perverting or conspiracy to pervert the course of justice a court must always consider: (i) the seriousness of the underlying offence; (ii) the degree to which the conspiracy or offence persisted; and (iii) the effect it had upon the course of justice. Where (as in this case) the defendant was a police officer, that must be an aggravating feature. But this case was unusual in that D first arrested a woman on suspicion of drug dealing and then (together with his co-accused, a civilian police employee) falsified the positive basic drug-test result as negative because he felt sorry for her. He never sought to gain from this and acted spontaneously out of misplaced sympathy. A sentence of two years’ imprisonment on a late guilty plea was reduced to one of 12 months. The civilian employee had received a suspended sentence.

B14.32a Perverting the Course of Justice: Sentencing Guidelines

There are numerous reported cases involving the sentencing of former complainants for making false accusations rape or sexual assault cases, but in Shipman [2013] All ER (D) 105 (Aug) D, the partner of a recently convicted rapist, manufactured false evidence in an attempt to destroy the credibility of the two complainants who had testified against her partner. This involved creating false Facebook accounts in the names of the two complainants, from which she then ‘received’ admissions that their evidence had been false. Her deception initially led to the arrest of the two complainants, but was soon exposed, and she pleaded guilty at the first opportunity.

It was accepted that a custodial sentence was inevitable, but the Court of Appeal reduced this from 2½ years to 20 months. Various mitigating features were noted, including her age (22) and previous good character, the fact that she had been abused and manipulated by her partner and the inexplicably long delay (2½ years) in bringing her case to court. The sentencing judge had been aware of all this, but ‘had not correctly assessed’ the effect of the attempt to pervert the course of justice (see the note on Evans-Keady, above). This never had any real prospect of success, although it had of course caused distress and anxiety to the complainants.

B14.33 Perverting the Course of Justice: Sentencing

In Ngwata [2012] EWCA Crim 2015, the Court of Appeal once again considered the issue of sentencing for offences involving false allegations of rape. The Court followed McKenning [2008] EWCA Crim 2301, which was one of the many cases referred to in Day [2010] 2 Cr App R (S) 73.

These cases suggest a starting point of around three years’ imprisonment for false allegations resulting in the arrest of an innocent man, which is much higher than for most other cases of perverting the course of justice. But as Lord Judge explained in McKenning:

This was not...a case of a guilty man or woman seeking to avoid responsibility for...a relatively minor motoring offence. ... Sexual intercourse with a woman without her consent is a shameful crime. When proved it merits, and it receives, heavy punishment. The reality must, however, be faced that when rape has taken place it is frequently very difficult to prove. It is also the case that when the Defendant is truly innocent, a false allegation can be extremely difficult for him to refute...Currently this is a very serious problem. The consequences for an innocent man against whom the allegation is made are very serious. In this case there was enough independent evidence eventually to enable the investigators to discover that the potential Defendant was truly an innocent man. In the end he was fortunate. But for the meantime his entire life must have had a nightmarish quality.

In Ngwata there were some aggravating features, but even so the starting point taken by the judge of four years’ imprisonment was held to be too high. A starting point of three years, as in McKenning, was held to be more appropriate.

B14.35 Acts which May Amount to Perverting the Course of Justice

The elements of the offence of perverting the course of justice were reviewed by the Court of Appeal in Kenny [2013] EWCA Crim 1, [2013] All ER (D) 09 (Feb). Faced with the question whether a breach of a restraint order under the POCA 2002 (clearly amounting to contempt of court) could also amount to this offence, the Court said (at [35]-[36]):

For present purposes, the state of the law concerning the offence of perverting the course of justice may be summarised as follows:

  1. There is no closed list of acts which may give rise to the offence;
  2. That said, any expansion of the offence should only take place incrementally and with caution, reflecting both principles of common law reasoning and the requirements of Art 7, ECHR;
  3. So far as concerns the offence generally, neither authority nor principle supports confining the requisite acts to those giving rise to some other independent criminal wrongdoing;
  4. If there is no such limitation generally, then there is no basis for importing such a restriction – as a matter of law – into the elements of the offence where it arises in the context of a breach of a restraint order.

[But] in cases of breach of restraint orders, nothing we have said should encourage prosecutors to charge perverting the course of justice where it is unnecessary to do so; ordinarily the sanction of contempt of court will suffice.

In the instant case, prosecution for perverting the course of justice was not unreasonable. D’s actions formed part of a carefully orchestrated and planned series of measures, designed to frustrate the intended effect of the restraint order. It was determined and sophisticated criminal conduct. Condign punishment for contempt would undoubtedly have been available; but D could have no legitimate complaint that the Crown did not leave matters there and instead pursued the charge of perverting the course of justice.

B14.46 Intimidation of, or Retaliation against, Witnesses, Jurors and Others

The suggestion in Patrascu [2004] 4 All ER 1006 that in the CJPOA s. 51 offences the ‘other person’ in question does not have to be successfully deterred or intimidated, has now been disapproved in ZN [2013] EWCA Crim 989. A criminal attempt may however be committed where threats, etc., have been made with that purpose in mind (see the main work at A5.57).

B14.77 Wasting Police Time

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B14.77a Wasting Police Time

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of wasting police time when it is treated as a penalty offence from £80 to £90.

B14.77b Wasting Police Time

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence of wasting police time when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.

B14.94 Contempt of Court: Sentencing

In A-G v Harkins[2013] All ER (D) 215 (Apr) the defendants admitted using social networking sites (Facebook and Twitter) to publish numerous photographs of persons they alleged to be the notorious juvenile murderers, Thompson and Venables, in open defiance of an injunction against the world at large that was designed to enable those men to live safely following their release on licence.  Some of the photos showed innocent men, whose safety could have been endangered as a result.

The A-G sought the committal of the defendants for contempt, and one of the issues was whether prison sentences were appropriate.

The Divisional Court identified a number of serious aggravating factors, including the fact that the defendants had participated in a determined internet campaign on the twentieth anniversary of the murder, but also took into account the fact that they had made full apologies and admissions. Sentences of nine months’ imprisonment were suspended for 15 months, with a warning that person committing similar acts of contempt in the future should not expect similar leniency.

B14.101 Contempt Committed by Witnesses, Jurors or Defendants

A-G v Dallas [2012] 1 WLR 991 was considered in A-G v Davey [2013] EWHC 2317 (Admin), where once again jurors were found to be in contempt by conducting their own online research in defiance of the trial judge’s injunction against it.
Sir John Thomas P added a postscript to his judgment in Davey in which he concluded:

[59] Many judges have adopted the practice not only of warning the jury in terms similar to what the judges in these two cases did, but also handing the jury a notice setting out what they must and must not do and the penal consequences of any breach. They have done this so that no juror can subsequently claim that he or she did not understand what they should not do and what the consequences might be. It is to be noted that in civil proceedings, committal for contempt for breach of an injunction ordinarily requires not only proof of the breach of the terms of an injunction, but that the injunction contained a penal notice.
[60] In the case relating to Mr Davey, after he had been discharged as a juror, the judge told the jury in very sweeping terms that they should not use the internet. We can quite understand why he did this, but … what he said went beyond what would be permissible under Articles 8 and 10, quite apart from imposing restrictions on jurors properly carrying out day to day tasks which cannot be easily done without use of the internet.
[61] We propose to invite the Criminal Procedure Rules Committee in consultation with the Judicial College to review the terminology used in the material given to the jury and to consider whether to recommend that the practice to which we have referred in paragraph 59 should be universally followed.

B14.103 Conduct or Publication Scandalising the Court

The Crime and Courts Act 2013, s. 33, abolishes scandalising the judiciary (or court) as a form of contempt of court, with effect from 25 June 2013.

B14.108 Forms of Contempt: Photography, Sketching, Tweeting and Mobile Telephones

In A-G v Scarth [2013] EWHC 194 (Admin), D, who was aged 87, was found in contempt in relation to the deliberate recording, both audio and visual, of the proceedings in a magistrates’ court. He was also in contempt for placing the recording on You Tube. He had previously been imprisoned (but released on health grounds on appeal) for similar acts of contempt in respect of proceedings in the Crown Court. He was defiant and clearly unwilling to cooperate with any form of medical disposal. The Divisional Court felt it had no alternative but to commit him on each of the two counts for 28 days, to run concurrently, but suspended for a period of 12 months.


B15 Bribery and Corruption

B15.26 Misconduct in Public Office

The concept of ‘holding public office’ was further considered in In Cosford [2013] EWCA Crim 466, where it was held that prison nursing officers who (inter alia) smuggled mobile phones and chargers to prisoners could be guilty of misconduct in public office, whether they were publicly employed or employed by security firms contracted to run prisons. As Leveson LJ explained:

Whether the prison is run directly by the state or indirectly through a private company paid by the state to perform this function does not alter the public nature of the duties of those undertaking the work: the responsibilities to the public are identical.


B16 Revenue, Customs and Social Security Offences

B16.46 Fraudulent Evasion of Duty (‘Smuggling’)

On a charge of conspiracy to supply controlled drugs, the prosecution must prove that D either (i) knew that the agreement related to the particular drug mentioned in the indictment, or (ii) knew that it related to a drug of the same class, without having any knowledge or belief as to it involving any particular drug, or (iii) believed that it related to another particular drug of the same class, or of a class attracting a greater penalty, or (iv) believed that it related to a drug of a class attracting a greater maximum penalty, without having any belief as to any particular drug, or (v) did not care at all what particular drug was involved. D would escape liability only where he mistakenly believed that the conspiracy related to a controlled drug of a class attracting a lesser maximum penalty (Hanif [2012] EWCA Crim 1968 at [14], following Ayala [2003] EWCA Crim 2047).


B17 Offences Involving Misuse of Computers

B17.14 Sentencing for Offences under the Computer Misuse Act 1990

The Court of Appeal in Khan [2012] EWCA Crim 2032 upheld a sentence of eight months’ imprisonment on a young woman of previous good character who, while employed by a local authority in the social care team, made unauthorised access to confidential material which was of personal interest to her and her boyfriend. She pleaded guilty to six counts under s. 1(1) and (3) of the Computer Misuse Act 1990 and asked for a further 24 offences to be taken into consideration.


B18 Offences Involving Writing, Speech or Publication

B18.29 Improper Use of Public Telecommunications Network

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B18.29a Improper Use of Public Electronic Communications Network

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) Order 2013 (SI 2013 No. 1165) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence under the Communications Act 2003, s. 127 when it is treated as a penalty offence from £80 to £90.

B18.29b Improper Use of Public Electronic Communications Network

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 (SI 2002 No. 1837), with effect from 1 July 2013, inter alia so as to increase the amount payable in respect of an offence under the Communications Act 2003, s. 127 when it is treated as a penalty offence from £80 to £90. It also revokes and replaces SI 2013 No. 1165, which was defective.


B19 Offences Relating to Drugs

B19.3 Temporary Class Drugs

The Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2013 (SI 2013 No. 1294) provides that, with effect from 10 June 2013, additional substances, including the drugs commonly known as 25I-NBOMe, 5- and 6-APB, and 5- and 6-IT (as well as their stereoisomeric forms, esters and ethers, etc.), are drugs subject to temporary control.

B19.7 ‘Substances or Products’ Specified as Controlled Drugs in Class A, B or C

The Misuse of Drugs Act 1971 (Amendment) Order 2013 (SI 2013 No. 239) amends the Misuse of Drugs Act 1971, sch. 2, part 2 so as to control the following as Class B drugs with effect from 26 February 2013:

  • Synthetic cannabinoid receptor agonists (synthetic cannabinoids);
  • 2-(ethylamino)-2-(3-methoxyphenyl)cyclohexanone (commonly known as methoxetamine) and other compounds related to ketamine (Class C) and phencyclidine (Class A); and
  • 2-((dimethylamino)methyl)-1-(3-hydroxyphenyl)cyclohexanol (commonly known as “O-desmethyltramadol”, a metabolite of the prescription only medicine, tramadol).

B19.13 Regulations that Permit Actions with Respect to ‘Controlled Drugs’

The Misuse of Drugs (Designation) Order 2001 is further amended by the Misuse of Drugs (Designation) (Amendment) (England, Wales and Scotland) Order 2013 (SI 2013 No. 177).

B19.13a Regulations that Permit Actions with Respect to Controlled Drugs

The Misuse of Drugs (Designation) (Amendment No. 2) (England, Wales and Scotland) Order 2013 (SI 2013 No. 624) further amends the principal Order of 2001 (SI 2001 No. 3997) so as to add Sativex (a cannabis-based medicine) to part II of the schedule and to exclude it from part I thereof. The Order has effect from 10 April 2013.

The Misuse of Drugs (Amendment No. 2) (England, Wales and Scotland) Regulations 2013 (SI 2013 No. 625) amend the principal Regulations of 2001 (SI 2001 No. 3998) principally so as to add Sativex to sch. 4, part I and to exclude it from sch. 1. The Regulations have effect from 10 April 2013.

B19.16 Extracts from the 2001 Regulations, as amended

The Misuse of Drugs (Amendment No. 2) (England, Wales and Scotland) Regulations 2013 (SI 2013 No. 625) amend the principal Regulations of 2001 (SI 2001 No. 3998) principally so as to add Sativex (a cannabis-based medicine) to sch. 4, part I and to exclude it from sch. 1. The Regulations have effect from 10 April 2013.

B19.43 Supplying or Offering to Supply a Controlled Drug

Hughes (1985) 81 Cr App R 344 was considered in Akinsete [2012] EWCA Crim 2377. The Court of Appeal ruled that there is no rule of law requiring direct evidence of a supply of drugs in a case brought under the MDA 1971, s. 4(3)(b). Hughes is not authority for such a proposition and the court had been shown no such authority. The prosecution may properly rely on circumstantial evidence of supplying. The Court also said:

The words ‘concerned in’ relate to the participation of the particular defendant in the enterprise. It is not necessary in respect of an offence that is charged under section 4(3)(b) for the prosecution to prove that the defendant himself physically supplied the controlled drug to another. His participation in the enterprise could take other forms. He could set up a meeting, be a middle man, provide the finance, or arrange the contacts and so forth. If the defendant is involved in the actual supply itself he can be charged under section 4(3)(a).

B19.128 Sentencing Guidelines for Offences under the Misuse of Drugs Act 1971

Qazi [2011] 2 Cr App R (S) 32 was considered in Hall[2013] EWCA Crim 82. See this update at E1.20.

B19.128a Sentencing Guidelines for Offences under the Misuse of Drugs Act 1971

As to the application of the SGC guideline on drugs offences to cases of conspiracy to supply, see Khan [2013] EWCA Crim 800, where the Court of Appeal observed:

31. Often a judge using the guideline will be dealing with a single substantive offence. However, there will be situations in which the judge is sentencing in relation to more than one count. It may be appropriate for the judge to aggregate the quantity of drugs represented in individual counts so as to move to a higher category based on total indicative quantities of the drug involved, and thus truly reflecting the nature of the offending before the court.
32.  Many conspiracies will involve multiple supply transactions. In those circumstances the judge would be entitled to look at the aggregate quantity of the drug involved.
33.  Of course involvement in a conspiracy may vary for individual offenders within it. One core variant is culpability, which is demonstrated in the guideline by the role of the offender, and which is to be assessed by the non-exhaustive indicative factors set out in the guideline. That will enable the judge to assess the level of involvement of an individual within a conspiracy.
34.  However, a particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved only in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality.
35.  As a balancing factor, however, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability.

B19.128b Sentencing Guidelines

In Bush [2013] EWCA Crim 1164 D pleaded guilty to the possession of 55 bags of MDMA (ecstasy) with intent to supply at a summer music festival. He was aged 21, naïve and of previous good character. The agreed basis of his plea was that he was only looking after the drugs for a friend. In reducing D’s sentence of imprisonment from two years to 14 months, while refusing to suspend it, the Coulson J made this observation:

Summer music festivals … are an increasingly important part of the popular culture. Teenagers go to them in groups. Very often it is the first time that they have been away from direct parental control. They are particularly vulnerable to those trying to sell them drugs. Anyone who is involved in such an enterprise, even on a relatively low-level basis such as this appellant, must expect an immediate custodial sentence when they are involved in selling drugs at such a festival….


B20 Offences Relating to Dangerous Dogs and Animal Welfare

B20.7 Failing to Keep Dogs under Proper Control: Sentence

Cox [2004] 2 Cr App R (S) 287 and a draft version of the new sentencing guidelines (not then in force) were considered in Diedrick [2012] EWCA Crim 2242, where D let his two Rottweilers off their leads at a beach where dogs were not allowed, and then failed to intervene when they attacked a child, causing serious injuries. He later claimed to have had re-homed the dogs when in fact he had sold them and did not even warn the new owner of what they had done. At a Newton hearing he lied about his supposed role in dragging the dogs off their victim, when he had done no such thing.

A sentence of 16 months’ imprisonment was reduced on appeal to one of 11 months, in part because of personal mitigation, and in part because the dogs had had no previous history of such attacks. He had been wrong to let them loose at the beach, but this could not be categorised as a high degree of recklessness.

B20.9 Dangerous Dogs: Seizure, Destruction and Disqualification

In Kelleher v DPP [2012] EWHC 2978 (Admin) Collins J examined the Dangerous Dogs Act 1991, ss. 4 and 4A, with particular reference to the distinction between aggravated and non-aggravated offences under s. 3 of the Act, and the burden of proof governing destruction orders in each case. He said:

It is clear that s. 4A(4) applies both to aggravated and non-aggravated offences. The power to make a destruction order applies in both cases. … In the case of an aggravated offence the burden is on the defendant to show that the dog is not a danger to public safety, otherwise a destruction order is mandatory. It is, as it were, the other way around in the case of a non-aggravated offence: the court will not make a destruction order unless, on the material, the court takes the view that a destruction order is necessary.

B20.12 Offences under the Animal Welfare Act 2006: Unnecessary Suffering

There is no justification for interpreting the terms of the Animal Welfare Act 2006, s. 4, by reference to cases decided under the 1911 Act that it replaced. The language of the 1911 Act, and authorities as to its construction, are irrelevant to the construction of the 2006 provision. The language of the provisions is significantly different. 

In a s. 4 case the prosecution must prove that D knew or ought reasonably to have known both that his act or failure would cause an animal to suffer and that the suffering was unnecessary.  D would commit no offence if he acted in the honest and reasonable, albeit mistaken, belief that he was doing what was necessary for the animal’s welfare. See R (Gray) v Aylesbury Crown Court [2013] EWHC 500 (Admin).

B20.16 Offences under the Animal Welfare Act 2006

The Animal Welfare Act 2006, s. 34(2), was considered in R (RSPCA) v Guildford Crown Court [2012] All ER (D) 24 (Nov). It was held that when a court imposes disqualification under that subsection the order must ordinarily extend to all the activities listed therein. That is the natural meaning of the subsection as intended by Parliament.

B20.23 The Welfare Offence

The Divisional Court in R (Gray) v Aylesbury Crown Court [2013] EWHC 500 (Admin) (see this update at B20.12) also considered the meaning of the phrase, ‘such steps as are reasonable in all the circumstances’ as used in s. 9 of the Act.

Section 9(1), said the Court, sets a purely objective standard of care which a person responsible for an animal is required to provide.

As to the potential overlap between the s. 4 and s. 9 offences, there should be no conviction and certainly no penalty imposed under s. 9 where the facts relied upon for that conviction are essentially the same as those that gave rise to a conviction under s. 4; but that may not be the case where (as in Gray itself) the s. 9 conviction relates to different incidents and/or different or additional animals.


B21 Offences Relating to Money Laundering/Proceeds of Criminal Conduct

B21.6 Money Laundering and Criminal Property

The concept of criminal property was considered in William [2013] EWCA Crim 1262. The Court of Appeal held (applying K [2007] 1 WLR 2262) that, if D fraudulently conceals or under-declares his profits or income with the result that he derives a pecuniary advantage by cheating the public revenue of tax payable on it, the entirety of the undeclared turnover or profit then becomes criminal property and not merely the tax due because the benefit is represented in part by that sum.

B21.12 Procedure and Sentence

Griffiths [2007] 1 Cr App R (S) 581 and Greaves [2011] 1 Cr App R (S) 8 were amongst the authorities considered in Robinson [2012] EWCA Crim 1898, where D was convicted of nine counts of disguising criminal property or the proceeds of drug trafficking and three counts of transferring criminal property or the proceeds of drug trafficking and sentenced to a total of four years' imprisonment. The offences were committed with the aid of his mother while he was serving a sentence of imprisonment for earlier drug trafficking offences. He had lied about his assets at the confiscation hearing and committed the laundering offences to conceal or disguise his ill-gotten gains.

The Court of Appeal agreed that D’s money-laundering offences merited a substantial custodial sentence beyond that imposed for the drug offences, but held the four-year term imposed to be out of line with earlier authority. A sentence of three years was substituted.

B21.32 Failure to Disclose Possible Money Laundering

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2002 Act, sch. 9, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B21.32 Offences under the Money Laundering Regulations 2007

The Money Laundering (Amendment) Regulations 2012 (SI 2012 No. 2298) make a series of detailed amendments to the principal regulations of 2007 (SI 2007 No. 2157) with effect on 1 October 2012. Inter alia, reg 18 (directions where Financial Action Task Force applies counter measures) is revoked and consequential amendments are made to regs. 42 and 45.


B22 Immigration Offences

B22.7 Article 31 of the Convention Relating to the Status of Refugees 

The complicated burdens of proof that may arise under the Immigration and Asylum Act 1999, s. 31 were considered in Sadighpour [2012] EWCA Crim 2669, in which the Court of Appeal said:

15 As Makuwa [2006] EWCA Crim 175 shows, to avail himself of a s. 31 defence the appellant would need, initially, to satisfy an evidential burden that he was a refugee (i.e. ‘a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’). That wording appears in the Refugee Convention, Article 1.

16. If a defendant satisfies the evidential burden the Crown would have to prove that he was not a refugee.

18. If the Crown fails to disprove that the defendant was a refugee, it then falls to a defendant to prove on the balance of probabilities (a) that he did not stop in any country in transit to the United Kingdom or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so: (b) to prove that he presented himself to the authorities in the UK without delay; (c) to show good cause for his illegal entry or presence in the UK; and (d) to prove that he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

But the Court noted that the position must be different where the Secretary of State has already rejected a claim to asylum made by a person who claims a defence under s. 31(1) because, by s. 31(7), such a person is taken not to be a refugee unless he ‘shows’ that he is. That, said the Court, must mean that he has a full persuasive burden to discharge on a balance of probabilities.

The Court also held, following Asfaw [2008] 1 AC 1061, that a person who is genuinely in transit does not necessarily lose the protection of the Refugee Convention and s. 31.  The question of whether a person was genuinely in transit and/or acted promptly in presenting himself to the authorities and making a claim for asylum is a fact-sensitive one.

See also Jaddi [2012] EWCA Crim 2565.

B22.7a Defences: Article 31 of the Convention Relating to the Status of Refugees

Asfaw [2008] 3 All ER 775 and the defence under the Immigration and Asylum Act 1999, s. 31 were considered in SXH v CPS [2013] EWHC 71 (QB. The issue in that case was whether a decision to prosecute the claimant, a young Somali refugee, who entered the country using a stolen passport but was eventually found to have a defence under s. 31, amounted to a violation of her right to respect for privacy etc. under the ECHR, Article 8.

Irwin J found that Article 8 had not even been engaged. In presenting the false passport on arrival in England, the claimant had not been engaged in an activity which was even arguably a part of her private life. It was self-evidently a matter affecting the business of the state.

B22.8 Defences: Article 31 of the Convention Relating to the Status of Refugees

The Court of Appeal in Mateta [2013] EWCA Crim 1372 considered a series of cases in which defendants had wrongly pleaded guilty to offences under the Identity Cards Act 2006, s.25(1) or the Identity Documents Act 2010, s. 4, either without the benefit of legal advice or on the basis of erroneous advice that they could not avail themselves of any defence under the Immigration and Asylum Act 1999, s.31.
The Court held that lawyers representing defendants charged with such offences have a duty to advise them of any possible s31 defence and explain its parameters; and should properly note down the instructions received and the advice given. If however no such advice was given the Court of Appeal may assess whether such a defence would, or would ‘quite probably' have succeeded, if appropriate by reference to the findings of the First Tier Tribunal (Immigration and Asylum Chamber).
In each of the cases considered in Mateta the Court was satisfied that s. 31 defences had been available and therefore each of the convictions was quashed.

B22.34 Trafficking People for Exploitation

The Protection of Freedoms Act 2012 (Commencement No. 5 and Saving and Transitional Provision) Order 2013 (SI 2013 No. 470) provides inter alia for s. 110 (trafficking people for labour and other exploitation) to come into force on 6 April 2013.

The Trafficking People for Exploitation Regulations 2013 (SI 2013 No. 554) implement Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, which replaces Council Framework Decision 2002/629/JHA. They lay down certain requirements to be observed by the police during the investigation of trafficking offences with a view to providing protection for complainants, and enhanced protection for child complainants. They also provide for amendments to the special measures regime under the YJCEA 1999; these have the effect of affording similar protection to complainants in trafficking offences to that afforded to victims of sexual offences. They have effect from 6 April 2013.

B22.34a Trafficking People for Sexual Exploitation

The Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013 (SI 2013 No. 817), which have effect from 10 April 2013, inter alia make provision for the treatment of information society service providers in relation to the offence of trafficking people for exploitation under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. They take account of the changes made by the Protection of Freedoms Act 2012 and apply the protection for providers of such services, arising from the E-Commerce Directive, in that context.

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