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Blackstone's Criminal Practice 2013

July 2013 update

Updates to Blackstone's Criminal Practice 2013 are produced by Michael Hirst, Professor of Criminal Justice, Leicester De Montfort Law School, and Laurence Eastham, Editorial Co-ordinator, Blackstone’s Criminal Practice. This update primarily considers developments reported in June 2013.


Part A: General Principles of Criminal Law

A5 Inchoate Offences

A5.26 Encouraging or Assisting Offences Believing One or More Will Be Committed: Indictment

The guidance given by the Court of Appeal in S [2012] 2 All ER 793 as to the drafting of indictments for alleged offences under the Serious Crime Act 2007, s. 46, was reconsidered in Sadique [2013] EWCA Crim 1150. In particular, the Court accepted academic criticism of its original guidance, which called for separate counts for each allegedly contemplated offence to which s. 46 might apply.
The Court in Sadique considered that this guidance was obiter and not strictly binding upon them. Lord Judge CJ noted that s. 46 was intended to cover the kind of scenario that featured in DPP for Northern Ireland v Maxwell [1978] 1 WLR 1350 and added (at [34]):

In our judgment the ingredients of the s. 46 offence, and the ancillary provisions, and s. 58(4)-(7) in particular, underline that an indictment charging a s. 46 offence by reference to one or more offences is permissible, and covers the precise situation for which the legislation provides.

Such an indictment is not bad for duplicity, nor is it defective for uncertainty. It achieves the objective of every count in any indictment, that is, to give sufficient indication to the defendant of the criminal conduct alleged against him (see Sadique at [36]). But where there is an issue as to whether D believed that only one of the specified offences would be committed (e.g., the less serious of the two) it may be helpful to combine a count under s. 46 with two or more counts under s. 45. See Sadique at [39].


Part B: Offences

B1 Homicide and Related Offences

B1.74 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.

B3 Sexual Offences

B3.33 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.

B3.318 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.

B4 Theft, Handling Stolen Goods and Related Offences

B4.5 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.

B4.130 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.

B6 Falsification, Forgery and Counterfeiting

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.

B6.116 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.

B8 Damage to Property

B8.42 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

B9.89 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.

B11 Offences Affecting Public Order

B11.72 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 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.

B11.200 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 in Relation to Weapons

B12.53 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.

B13 Offences affecting Enjoyment of Premises

B13.81 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 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

B14.46 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 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.

B18 Offences Involving Writing, Speech or Publication

B18.29 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 in Relation 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.

B19.128 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.


Part C: Road Traffic Offences

C3 Offences Relating to Driving Triable on Indictment

C3.7 Causing Death by Dangerous Driving

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 (see the main work  at B4.130). 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 (14 years)  it made sense to charge that instead.
The Court 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.

C6 Summary Traffic Offences

C6.11 Careless and Inconsiderate Driving: Punishment

The Fixed Penalty Offences Order 2013 (SI 2013 No. 1565) adds the offence of careless or inconsiderate driving under the RTA 1988, s. 3 to the list of fixed penalty offences in the RTOA 1988, sch. 3.
The Fixed Penalty (Amendment) Order 2013 (SI 2013 No. 1569) amends the principal Order of 2000 (SI 2000 No. 2792) inter alia so as to add a fixed penalty of £100 for careless or inconsiderate driving.

C6.46 Driving etc. Motor Vehicle without Insurance

The Fixed Penalty (Amendment) Order 2013 (SI 2013 No. 1569) amends the principal Order of 2000 (SI 2000 No. 2792) inter alia so as to increase the penalties for the existing offences there specified; the fixed penalty for driving without insurance is increased from £200 to £300.

C7 Sentencing

C7.3 Fixed Penalties

The Fixed Penalty (Amendment) Order 2013 (SI 2013 No. 1569) amends the principal Order of 2000 (SI 2000 No. 2792) inter alia so as to increase the penalties for the existing offences there specified and so as to add a fixed penalty of £100 for careless or inconsiderate driving.

C8 Schedules 2 and 3 to the Road Traffic Offenders Act 1988

C8.3 Road Traffic Offenders Act 1988, sch. 3

The Fixed Penalty Offences Order 2013 (SI 2013 No. 1565) adds the offence of careless or inconsiderate driving under the RTA 1988, s. 3 to the list of fixed penalty offences in the RTOA 1988, sch. 3.


Part D: Procedure

D1 Powers of Investigation

D1.3 Investigations by Non-Police Officers

The Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officers in England and Wales) Order 2013 (SI 2013 No. 1542), which has effect from 25 June 2013, applies provisions of the PACE 1984 to investigations carried out by immigration officers and customs officials, subject to specified modifications.

D1.102 Biometric Impressions and Samples

The Criminal Procedure Rules 2013 (SI 2013 No. 1554), which have effect from 7 October 2013, inter alia include new rules about the procedure on applications and appeals concerning the retention of fingerprints and DNA samples.

D1.144 Entry and Search under Warrant

The Criminal Procedure Rules 2013 (SI 2013 No. 1554), which have effect from 7 October 2013, inter alia include new rules about the procedure on applications for search warrants.

D2 The Decision to Prosecute and Diversion

D2.11 The Tests for Deciding Whether to Charge: Public Interest Stage

In L [2013] EWCA Crim 991, the Court of Appeal re-examined its previous decisions in M(L) [2011] 1 Cr App R 12 and N [2013] QB 379 in the light of the EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, which came into effect on 6 April 2013. Lord Judge CJ issued guidance as to how the interests of victims of human trafficking, and in particular child victims who become enmeshed in criminal activities in consequence, should be approached after criminal proceedings against them have begun. As to the role of the court in such cases:
Where it is necessary to do so, whether issues of trafficking or other questions arise, the court reviews the decision to prosecute through the exercise of the jurisdiction to stay.  The court protects the rights of a victim of trafficking by overseeing the decision of the prosecutor and refusing to countenance any prosecution which fails to acknowledge and address the victim’s subservient situation, and the international obligations to which the United Kingdom is a party.  The role of the court replicates its role in relation to agents provocateurs.  It stands between the prosecution andthe victim of trafficking where the crimes are committed as an aspect of the victim’s exploitation.

D2.23 Alternatives to Prosecution: Cautions

The need for an alleged offender to give informed consent to the administration of a police caution was emphasized by Sir John Thomas P in R (Stratton) v Chief Constable of Thames Valley Police [2013] EWHC 1561 (Admin). In the absence of such informed consent the claimant’s caution in that case (dating from 2008) was quashed; but Thomas P noted in his concluding observations that:

Provided that when each caution is administered, the offender is carefully taken through the implications now spelt out in the Ministry of Justice’s 2013 guidance entitled “Simple Cautions for Adult Offenders” at paras 53-64, he or she signs a form spelling all of this out and that person’s understanding of each of the consequences is appropriately evidenced, a case such as the present should not arise.  Furthermore in the light of the judgment of the Court of Appeal in T v the Chief Constable of Greater Manchester Police [2013] 1 Cr App R 27 (subject to a current appeal to the Supreme Court), new filtering rules came into effect on 29 May 2013 so that old and minor cautions and convictions no longer appear on certificates.
There is now a further safeguard.  … The bringing of proceedings such as this by way of judicial review is one way of ensuring that those operating the system of cautions established by a Chief Constable act in accordance with the law.
Another is the system now being adopted by magistrates to review in general the way in which cautions are properly administered.  The primary purpose of such a general review is to see if cautions are being used for the appropriate offences.  However it should extend also to the issues such as whether a simple caution (as opposed to an oral warning) is appropriate in all the circumstances (given the criminalising effects of a caution under current legislation and practice) and whether there are proper procedures in place to ensure that informed consent is given; this last is particularly important to those with educational impairments or those to whom the long term consequences can be so serious. 

D2.46 Fixed Penalty Notices under the CJPA 2001

The Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579) amends the principal Order of 2002 so as to increase the amount of penalties from £80 to £90 and from £50 to £60, as the case may be. It has effect from 1 July 2013 but not in relation to any offence committed before that date. It revokes and replaces SI 2013 No. 1165, which was defective.

D5 Preliminary Proceedings in Magistrates’ Court

D5.17 Disclosure of Initial Details of Prosecution

The Criminal Procedure Rules 2013 (SI 2013 No. 1554), which have effect from 7 October 2013, inter alia move the rules formerly found in part 21 to part 10.

D9 Disclosure

D9.34 Notification of Details of Defence Witnesses

In the Matter of Joseph Hill Solicitors (Wasted Costs Order) [2013] EWCA Crim 775 the Court of Appeal said that the statutory obligation to provide the details of the witness is triggered by the accused’s belief that the witness is able to assist; it is not necessary that the witness can give evidence or is willing to do so.

D10 Sending Cases from the Magistrates’ Court to the Crown Court

D10.25 Applications for Dismissal: Procedure

The Criminal Procedure Rules 2013 (SI 2013 No. 1554), which have effect from 7 October 2013, inter alia revoke the old rules in Part 13, consequent on the abolition of committals.

D10.45 Committal Proceedings for Either-way Offences

The Criminal Procedure Rules 2013 (SI 2013 No. 1554), which have effect from 7 October 2013, inter alia revoke the old rules in Part 10, consequent on the abolition of committals.

D26 Appeal to the Court of Appeal Following Trial on Indictment

D26.39 Partially Successful Appeal: Substituting Verdict

The CAA 1968, s. 3A was considered in Lawrence [2013] EWCA Crim 1054, where, in the course of a ‘streamlined’ process, D had mistakenly pleaded guilty to possessing a prohibited weapon when she had been at most guilty of possessing a firearm (a shotgun with a barrel 45.6 centimetres in length and an overall length of 68.4 centimetres) without the necessary certificate. The conviction clearly had to be quashed on appeal, but the issue of possible substitution arose. Giving the judgment of the Court of Appeal, HH Judge Cooke explained that no such substitution was appropriate:

The Crown [submits] that “the indictment” in s. 3A … should be construed as meaning “the indictment in a potentially amended form”. We do not consider that such an argument is sustainable. It is inconsistent with the approach taken in Graham [1997] 1 Cr App R 302. It also needs to be remembered that the ability to substitute a conviction under s. 3A … represents a limited exception to the fundamental rule that a defendant can only be convicted on his own plea or as a result of proof before a jury. Such a provision has to be construed strictly. In our view the operation of the provision must be confined to cases where the guilty plea inevitably involves an admission to the alternative offence, which was not the case here. Any other approach involves this court evaluating whether or not there might be a defence. That is not permissible given the importance of the right to a jury trial. Furthermore, on the particular facts of this case, at the time of the guilty plea, there could have been no amendment as required because no evidence had been served proving the want of a certificate. To proceed on the basis that that did not matter would tend towards reversing the burden of proof.

D27 Procedure on Appeal to the Court of Appeal (Criminal Division)

D27.25 Receipt of Evidence by the Court of Appeal

Cleobury [2012] EWCA Crim 17 was applied in Parker [2013] EWCA Crim 1191.

D29 Challenging Decisions of Magistrates’ Courts and of the Crown Court in its Appellate Capacity

D29.17 Appeal to Divisional Court by Way of Case Stated

Guidance as to the type of issues that may or may not properly be said to be the subject of the case stated procedure was given by the Divisional Court in K v CPS [2013] EWHC 1678 (Admin).

D31 Extradition

D31.1 Introduction

The Extradition Act 2003 (Amendment to Designations) Order 2013 (SI 2013 No. 1583), which has effect from 1 July 2013, inter alia designates Croatia as a category 1 territory instead of a category 2 territory on its accession to the EU.

D31.8 Arrest and Initial Hearing: Part 2

The Extradition Act 2003 (Amendment to Designations) Order 2013 (SI 2013 No. 1583), which has effect from 1 July 2013, inter alia designates the Republic of Korea for the purposes of the Extradition Act 2003, part 2 and India for the purposes of s. 74(11) of the 2003 Act.

D31.11 The Extradition Hearing

The Evidence Through Television Links (England and Wales) Order 2013 (SI 2013 No. 1598) applies the CJA 1988, s. 32(1A) so as to allow for evidence to be given through television link by witnesses who are outside the UK in extradition proceedings in England and Wales.

D31.36 Procedural Matters

The Criminal Procedure Rules 2013 (SI 2013 No. 1554), which have effect from 7 October 2013, inter alia include new rules on extradition procedure.

D33 Costs

D33.31 Costs Against Legal Representatives

In the Matter of Joseph Hill Solicitors (Wasted Costs Order) [2013] EWCA Crim 775 the Court of Appeal quashed a wasted costs order made against solicitors who had (on counsel’s advice) delayed disclosure of details of alibi witnesses. It was alleged that the solicitors, ‘did not comply with the rules as to alibi notices and the disclosure of the defence witness as a result of which a day of court time was wasted’ but the Court was not satisfied that the non-compliance (although misguided) was either wholly unreasonable (given doubts at the time as to the extent of the obligation) or indeed the cause of any significant delay at trial. The Court concluded:

There is an ever-pressing need to ensure efficiency in the courts; the judges, the parties and most particularly the practitioners all have a duty to reduce unnecessary delays. We do not doubt that the power to make a wasted costs order can be valuable but this case, and others recently before this Court, demonstrate that it should be reserved only for the clearest cases otherwise more time, effort and cost goes into making and challenging the order than was alleged to have been wasted in the first place.

As to the obligation to disclosure details of alibi defences (the extent of which was clarified in this case) see this update at D9.34.


Part E: Sentencing

E2 Custodial Sentences: General Provisions

E2.12 Crediting of Periods of Remand in Custody and Periods on Bail Subject to Curfew and Electronic Monitoring

Guidance on the process of calculating how many days spent on qualifying curfew and electronic monitoring conditions while on bail should count towards the service of a custodial sentence was provided by the Court of Appeal in Hoggard [2013] EWCA Crim 1024.

E4 Custodial Sentences for Dangerous Offenders under the Criminal Justice Act 2003

E4.22 Discretionary Life Sentences

Guidance on the imposition of non-mandatory life sentences following the changes effected by the LASPO 2012, ss. 122 to 124, has been given by the Court of Appeal in Saunders [2013] EWCA Crim 1027, where Lord Judge CJ said:

7.  Following conviction for a second listed offence under [the CJA 2003] s. 224A,  … inserted by s. 122 of LASPO, a sentence of imprisonment for life “must” be imposed, unless the particular circumstances would make it unjust. (see s. 224A(2)). In short, there is a discretionary power in the court to disapply what would otherwise be a provision requiring an obligatory sentence. It may nevertheless be convenient hereafter to distinguish between this new provision relating to life imprisonment (which we shall refer to as a statutory life sentence) and the existing and continuing discretionary life sentence. 
8.    The sentence of life imprisonment under s.225 of the 2003 Act following conviction for a “specified offence” continues in force; it has frequently been described as the discretionary life sentence. (See, for example, Wilkinson [2009] EWCA Crim 1245). As the court explained in A-G’s Ref (No. 55 of 2008) [2009] 2 Cr App R (S) 22:

‘The court must consider whether the seriousness of the offence, or the offence and one or more associated offences, justifies the sentence. If it does, however much judicial discretion (or more accurately, judgment) has been introduced into the assessment of dangerousness … a sentence of imprisonment for life “must” be imposed if conditions in s. 225(1) and (2) are established’. …

11. This leaves open the further question (addressed in the Criminal Law Review at (2013) Crim LR 508 in commentary on Cardwell [2012] EWCA Crim 3030) whether a sentence of life imprisonment may be imposed when the case does not fall within either the statutory life sentence or the discretionary life sentence analysed in the previous paragraphs. The jurisdiction to impose a life sentence in an appropriate case has survived the enactment of the 2003 Act and the changes to the sentencing regime affected by LASPO. If it had been intended to abolish it, the appropriate legislative change could readily have been made by provisions restricting the life sentence (other than the mandatory sentence) to the statutory sentence or the discretionary sentence under s. 225(1) and (2). As it is, neither the 2003 Act, nor LASPO, imposed any limit on the power of the court to impose a sentence of life imprisonment in such cases.  Some of these offences may involve a significant risk of serious harm to the public, but are not included within the list of “specified” offences in the dangerousness provisions in the 2003 Act. One obvious example is the offender who commits repeated offences of very serious drug supplying which justifies the imposition of the life sentence.  In circumstances like these, the court is not obliged to impose the sentence in accordance with s. 225(2), but its discretion to do so is unaffected. 

E15 Fines

E15.25 Surcharge

Further guidance as to circumstances in which a victim surcharge is or is not payable was provided by the Court of Appeal in Everall [2013] EWCA Crim 1220.

E19 Confiscation Orders

E19.7 General

The judgment of the Supreme Court in Waya [2013] 1 All ER 889 and that of the Court of Appeal in Shabir [2009] 1 Cr App R (S) 84 were considered in Beazley [2013] EWCA Crim 567.


Part F: Evidence

F1 General Principles of Evidence in Criminal Cases

F1.11 Relevance

Although evidence of a witness’s good character is not ordinarily admissible if adduced to boost his credibility, such evidence may be relevant to the facts of the case itself: thus in Lodge [2013] EWCA Crim 987, evidence of a prosecution witness’s lack of racial prejudice (including evidence relating to charity work he had undertaken and a photograph of him carrying a young black Tanzanian boy) was relevant and admissible in that it tended to contradict the (black) defendant’s story that the witness had racially abused him.

F7 Cross-examination and Re-examination

F7.41 Rule of Finality of Answers to Questions on Collateral Matters

In Lodge [2013] EWCA Crim 987, it was put to  prosecution witness in cross-examination that he had racially abused the (black) defendant. Evidence of that witness’s lack of racial prejudice (including evidence relating to charity work he had undertaken in Africa and a photograph of him carrying a young black Tanzanian boy) was relevant to the facts in issue and admissible in that it tended to contradict the (black) defendant’s story that the witness had racially abused him.  It was not in other words merely collateral evidence adduced as a form of ‘oath-helping’.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.28 Explanatory Evidence

In Sheikh [2013] EWCA Crim 907, D, a taxi driver, appealed against his conviction for breaching a SOPO, contrary to the SOA 2003, s. 113. The SOPO in question had been imposed following a previous conviction for rape, and the jury trying the s. 113 offence had been told of this conviction on the basis that it explained the SOPO and was accordingly ‘important explanatory evidence’ within the meaning of the CJA 2003, s. 101(1)(c).
The Court of Appeal disagreed. The SOPO could be understood without any reference to the offence that gave rise to it, and the disclosure of that offence was highly prejudicial. The other evidence supporting the conviction had however been overwhelming and the appeal was dismissed.

F16 Exceptions to the Rule Against Hearsay

F16.33 Hearsay, Loss of Right to Cross-examine and Fair Trial Provisions 

As expected, given the judgment of the ECtHR Grand Chamber in Al-Khawaja and Tahery v UK (2012) 54 EHRR 807, the Court of Appeal has now quashed Tahery’s original conviction: see Tahery (No. 2) [2013] EWCA Crim 1053.

F18 Evidence of Identification

F18.9 The Turnbull Guidelines

The Turnbull guidelines were considered by the Court of Appeal in Miah [2013] All ER (D) 169 (Jun). The Court reiterated the well established principle that a Turnbull direction is not required where there is no dispute that the accused was seen by the witness at the scene, even if there is some dispute as to what he saw the accused do.


New Legislation

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2013 (SI 2013 No. 1198)

This Order, which has effect from 29 May 2013, amends the 1975 Order (SI 1975 No. 1023) in relation to ‘service offences’ other than ’recordable service offences’, a ‘protected caution’ or a ‘protected conviction’ and where a question is asked to assess a person’s suitability for purposes concerning offices or employment in Jersey, Guernsey or the Isle of Man. A caution is a ‘protected caution’ if it was given otherwise than for an offence listed in the new art. 2A(5) of the 1975 Order and, where the person was aged 18 or over at the time the caution was given, six years or more have passed since the caution was given. A conviction is a ‘protected conviction’ if it was given otherwise than for an offence listed in the new art. 2A(5), a sentence other than custody or service detention was imposed, the person has not been convicted of any other offence at any time and, where the person was aged 18 or over at the time of the conviction, 11 years or more have passed since the date of conviction. (Shorter time periods apply in respect of a person aged under 18 at the time the caution was given or the date of conviction.)

Misuse of Drugs Act 1971 (Temporary Class Drug) Order 2013 (SI 2013 No. 1294)

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 specified by this Order as drugs subject to temporary control.

Police and Criminal Evidence Act 1984 (Application to immigration officers and designated customs officers in England and Wales) Order 2013 (SI 2013 No. 1542)

This Order, which has effect from 25 June 2013, applies provisions of the PACE 1984 to investigations carried out by immigration officers and customs officials, subject to specified modifications.

Criminal Procedure Rules 2013 (SI 2013 No. 1554)

These Rules revoke and replace the Criminal Procedure Rules 2012 (SI 2012 No. 1726), with effect on 7 October 2013. The 2013 Rules make the following changes:
(a) include rules about applications for search warrants, in Part 6;
(b) include rules about applications and appeals under new legislation governing the retention of fingerprints and DNA samples and profiles, also in Part 6;
(c) replace the existing rules about the dismissal of charges sent for trial with a new rule in Part 9;
(d) revoke the old rules in Parts 10, 11 and 13 which dealt with committal and transfer for trial and with the dismissal of charges sent or transferred for trial;
(e) move to Part 10 the rules about initial details of the prosecution case, formerly in Part 21;
(f) replace the existing rules in Part 17 about procedure in extradition cases;
(g) make changes to the rules about preparation for Crown Court trial (Part 3), access to information held by the court (Part 5), bail (Part 19), sentence review (Part 42) and sexual offences prevention orders (Part 50);
(h) clarify the type of obligations imposed by various rules, by substituting the word ‘must’ for the word ‘will’; and
(i) include up to date references to other legislation, and make some amendments in consequence of the changes listed above.

Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment) Order 2013 (SI 2013 No. 1562)

This Order amends the principal Order of 2007 (SI 2007 No. 930) inter alia so as to add Anmer Hall to the list of designated sites.

Fixed Penalty Offences Order 2013 (SI 2013 No. 1565)

This Order adds the offence of careless or inconsiderate driving under the RTA 1988, s. 3 to the list of fixed penalty offences in the RTOA 1988, sch. 3.

Fixed Penalty (Amendment) Order 2013 (SI 2013 No. 1569)

This Order amends the principal Order of 2000 (SI 2000 No. 2792) so as to increase the penalties for the existing offences there specified and to add a fixed penalty of £100 for careless or inconsiderate driving.

Property Misdescriptions Act 1991 (Repeal) Order 2013 (SI 2013 No. 1575)

This Order repeals the 1991 Act with effect on 1 October 2013.

Penalties for Disorderly Behaviour (Amount of Penalty) (Amendment) (No. 2) Order 2013 (SI 2013 No. 1579)

This Order amends the principal Order of 2002 so as to increase the amount of penalties from £80 to £90 and from £50 to £60, as the case may be. It has effect from 1 July 2013 but not in relation to any offence committed before that date. It revokes and replaces SI 2013 No. 1165, which was defective.

Extradition Act 2003 (Amendment to Designations) Order 2013 (SI 2013 No. 1583)

This Order, which has effect from 1 July 2013, designates Croatia as a category 1 territory instead of a category 2 territory on its accession to the EU. It also designates the Republic of Korea for the purposes of the Extradition Act 2003, part 2 and India for the purposes of s. 74(11) of the 2003 Act.

Evidence Through Television Links (England and Wales) Order 2013 (SI 2013 No. 1598)

This Order applies the CJA 1988, s. 32(1A) so as to allow for evidence to be given through television link by witnesses who are outside the UK in extradition proceedings in England and Wales.

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