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Blackstone's Criminal Practice 2019

Early May 2019

Welcome to the Blackstone’s Criminal Practice fortnightly updates. The following developments occurred between 1 – 30th April 2019.

Part A: Criminal Law Part B: Offences Part D: Procedure Part E: Sentencing Part F: Evidence

    Part A Criminal Law

    A4 Parties to Offences

    A4.13 - The Scope of the (Indented) Joint Venture; Impact of Jogee on Previous Convictions.

    R v Daley (Kyrone) [2019] EWCA Crim 627

    The Appellant applied for exceptional leave to appeal against his conviction for murder in 2013. It was argued that in accordance with the law set out in Jogee, he would not have been convicted of any offence beyond possession of a firearm (though it was later conceded that a conviction of manslaughter would also be safe). The CCRC maintained that his actions were consistent with someone who did not intend the victim to be shot but responded to the events by panicking, at [24]. Exceptional leave was not granted because the joint enterprise was formed significantly in advance of the shooting itself and was one which by its very nature involved the threat of very serious force.

    A7 Human Rights

    A7.98 Sentence: Preventative Measures

    R. (on the application of Walleed) v Secretary of State for Justice [2019] EWHC 984 (Admin)

    The Appellant applied for judicial review on the basis that the Parole Board’s decision to not move him to open conditions prison. His claim specifically centred on his Article 5(4) right to challenge the lawfulness of his detention. The Appellant, originally from Somalia, claimed asylum in Ireland under a false name, before coming to the UK. Whilst in the UK, following a previous conviction for robbery, Walleed was convicted of rape. He was given an IPP with a minimum term of 8 years. The Appellant argued that he could only be detained if he was a risk to the public, not if there was a risk of absconding.

    The Court held that there had been no breach of his Article 5(4) rights or his article 5(1) rights (arbitrary detention). The threshold for breaching Article 5(1) is very high. The delay in issuing a decision whilst causing disappointment and frustration was not sufficient to warrant damages.

    A9 European Union Law

    Criminal Justice (Amendment etc.) (EU Exit) Regulations 2019/780

    Regulations made in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the European Union.

    These Regulations revoke several pieces of retained EU law, including relating to compensation to crime victims, the European protection orders, European supervision orders and the application of the principle of mutual recognition to financial penalties. These Regulations also amend several pieces of retained EU law, including relating to taking account of convictions in the Member States of the European Union in the course of new criminal proceedings. Amendments are made to several pieces of domestic criminal justice legislation.

    Law Enforcement and Security (Amendment) (EU Exit) Regulations 2019/742

    Regulations made in order to address failures of retained EU law to operate effectively and other deficiencies arising from the withdrawal of the UK from the European Union.

    These Regulations address matters relating to co-operation agreements, reciprocal arrangements for carrying out cross-border surveillance and information exchange; the European Criminal Records Information System; security in connection with football matches; the Terrorism Act 2000; the Anti-terrorism, Crime and Security Act 2001; the Psychoactive Substances Act 2016; the Extradition Act 2003 and orders made under that Act; the Firearms Act 1968 and related firearms legislation; the Crime and Courts Act 2013; the Criminal Justice (European Investigation Order) Regulations 2017; Crime (International Co-operation) Act 2003; the Investigatory Powers Act 2016; the Proceeds of Crime Act 2002; the Serious Organised Crime and Police Act 2005; the Criminal Finances Act 2017; and the Serious Crime Act 2007.

    PART B Offences

    B2 Non-fatal Offences Against the Person

    B2.2 Assault and Battery: Procedure

    R v McGarrick [2019] EWCA Crim 530

    Considers an appeal against sentence under the newly enacted Assaults on Emergency Workers (Offences) Act 2018.

    The appellant was sentenced to four months’ imprisonment for one count of assault by beating of an emergency worker contrary the Assaults on Emergency Workers (Offences) Act 2018, s. 1(1) (consecutive to a nine-month sentence for fraud by false representation, which was not criticised on appeal). Submitting that the four-month sentence for assault was manifestly excessive, the appellant invited the Court to have regard to the Definitive Guideline for Assault. Dismissing the appeal, the Court stated that none of the existing guidelines provided a useful analogy when a court is sentencing under the Assaults on Emergency Workers (Offences) Act 2018, s. 1(1). Further, the Court bore in mind the clear legislative intent that assaults on public servants doing their work as part of the emergency services should be sentenced more severely than hitherto.

    B2.15 Assault and Battery: Lawful and Unlawful Force: Consent

    R v Melin [2019] EWCA Crim 557

    The Appellant was convicted of causing grievous bodily harm following the administration of Botox injections to two women who suffered really serious harm. The Appellant administered the Botox after lying to the women that he was medically qualified. The Crown’s case was that consent to the treatment was vitiated as each woman consented to injections being administered by a qualified doctor. The Appellant appealed on the grounds that a deception as to qualification is insufficient to vitiate consent and does not, as a matter of law, amount to a deception as to identity. The Court held that, depending upon the particular facts, deception as to a person’s identity as a doctor where that was integral to their identity could, as a matter of law, vitiate consent. R v Richardson [1999] QB 444 distinguished. One of the convictions was quashed, as the court held that the first victim’s consent was contingent on the defendant being medically qualified. The second conviction was upheld, as there was evidence that the victim knew the defendant was not medically qualified before she consented to the administration of the Botox.

    B2.178 Offences of Harassment: Elements: Course of Conduct

    Hilson v CPS [2019] 4 WLUK 233

    Considers whether the course of conduct pursued by a couple in respect of a judge hearing their long-running and contentious family proceedings amounted to harassment.

    The appellants appealed by way of case stated against their convictions for harassment contrary to the Protection from Harassment Act 1997, s. 2. The Court summarised the current law, observing the six elements of the offence of harassment that had to be proved. The Court then held that the couple had pursued a course of conduct that went beyond what was unattractive and unreasonable and amounted to harassment of a judge. The conduct included emailing the judge’s private email address, commenting in court on details of the judge's private life, and sending the judge a birthday card to her home address. The couple had intended to intimidate her and to prejudice the administration of justice. The Court also observed that the use of information in the public domain was capable of amounting to harassment. Further, in examining the nature of the conduct, the court could take into account the fact that the judge was performing an important public duty.

    B3 Sexual offences

    B3.123 Sex Offences Against Children Aged 13 to 15: Causing a Child to Watch a Sex Act: Elements

    R v B [2018] EWCA Crim 1439

    The phrase "for the purpose of obtaining sexual gratification" in the Sexual Offences Act 2003, s. 11(1)(c) was not superfluous: in relation to a charge under s. 11(1) of engaging in sexual activity in the presence of a child, the prosecution had to prove a link between that purpose and the presence or observation of the child.

    B7 Company, Commercial and Insolvency Offences

    Market Abuse (Amendment) (EU Exit) Regulations 2019/310 (SI 2019 No. 310): amends retained EU law and domestic legislation relating to market abuse to address deficiencies arising from the withdrawal of the UK from the EU.

    These Regulations amend the Criminal Justice Act 1993, Part 8 of the Financial Services and Markets Act 2000, the Financial Services and Markets Act 2000 (Market Abuse) Regulations 2016 and the Market Abuse Regulation (EU) 596/2014.

    B15 Bribery and misconduct in public office

    B15.31 Misconduct in Public Office: Sentence

    R v Leyzell [2019] EWCA Crim 385

    The Appellant pleaded guilty to two counts of misconduct in public office and was sentenced to 18 months’ imprisonment (14 and 4 months consecutive). The first count related to a course of conduct, namely contacting a woman on social media after responding to a crime report and then entering into a sexual relationship with her. The second count related to abusive phone calls directed at another woman with whom the appellant had entered into a sexual relationship and who had subsequently complained to the police. Substituting a sentence of 9 months’ imprisonment, the Court observed that this was not a situation in which a police officer engaged in sexual relationships while on duty and that greater weight ought to have been given to personal mitigation.

    B20 Offences Relating to Dangerous Dogs and Animal Welfare

    B20.23 Offences under the Animal Welfare Act 2006: Unnecessary Suffering

    Animal Welfare (Service Animals) Act 2019 comes into force on 8th June 2019.

    Animal Welfare Act 2006, s.4 is amended to make explicit reference to “service animals” used by police, prison officers and other authorities to be designated. The amendment gives effect to “Finn’s law” and is intended to protect, for example, police dogs from attack by defendants who might otherwise be in a position to assert that causing suffering was reasonable self-protection.

    B21 Offences Relating to Money Laundering and the Proceeds of Criminal Conduct

    B21.14 Offences Under the Proceeds of Crime Act 2002: Offences of Concealment etc.: Procedure and Sentence (Offences under ss. 327, 328, 329)

    R v Masters [2019] EWCA Crim 650

    Considers an appeal against sentence for an offence of converting criminal property contrary to the Proceeds of Crime Act 2002, s. 327(1)(c).

    The single judge gave leave to appeal the sentence on the grounds that the sentencing judge should not have concluded that the opening of the bank account by the appellant's daughter was such as to take the offending into the high culpability category. In the circumstances, the Court did not consider that the appellant involved his daughter in the offence of converting criminal property in such a way as to make this a high culpability case. Involving others who do not play any part in the commission of an offence, or play a part without the requisite mens rea to make them guilty of an offence, will amount to an aggravating feature. It may be evidence of planning or sophistication; it may involve blaming others; it may expose those others to the risk of prosecution and/or reputational harm. Irrespective of how serious an aggravating factor it is, it must be taken into account of at step 2, not at step 1 in the sentencing guideline process.

    PART D Procedure

    D1 Powers of Investigation

    D1.25 Arrest Without Warrant: Police Powers of Arrest: Necessity

    Commissioner of Police of the Metropolis v MR [2019] EWHC 888 (QB)

    Considers whether there had been objective necessity to arrest an individual who had voluntarily attended a police station. There had been no objective necessity to arrest an individual who had voluntarily attended a police station in respect of an allegation of harassment, notwithstanding the fact that the low threshold required for the arresting officer to have reasonable grounds to suspect the commission of an offence had been crossed. The judge had approached her task correctly. She recognised that the test of necessity was more than simply "desirable", "convenient" or "reasonable".

    D2 The Decision to Prosecute and Diversion

    D2.1 The Decision to Prosecute

    Mirza v Revenue and Customs Commissioners [2019] UKFTT 260

    The impact of the decision to prosecute on the tax tribunal was highlighted in this case. HMRC made an application to stay the appeal whist a decision was being made as to whether the case should be prosecuted. There was concern by HMRC that information disclosed in the appeal process may prejudice the criminal proceedings. The Court held that “All that is being alleged by HMRC is a hypothetical risk of prejudice and there is no evidence beyond what amounts to a simple averment. That is not evidence of serious risk”. In doing so the Court applied the Fang v NCA [2016] UKFTT 116 (TC); [2016] 2 WLUK 572 test of whether there was "a real risk of prejudice…in the criminal proceedings".

    D5 Preliminary Proceedings in Magistrates’ Courts

    D5.27 Adjournments and Remands: Power to Adjourn: Case Management and Adjournments

    Criminal Practice Directions 2015, Amendment No. 8 [2019] EWCA Crim 495

    From 1st April 2019, Crim PD 24C.1 to 24C.32 governs trial adjournments in the magistrates’ court.

    D8 Assets Recovery

    D8.7 High Court Civil Recovery Orders: Interim Orders

    Davies v National Crime Agency [2019] 4 WLUK 364

    The Applicants sought a variation to the property freezing order on the basis of living expenses. They also sought to remove a property from the being subject to the order, in order to allow them to live in it. This was because the property they were residing in was unfit for human habitation. The principles in SOCA v Azam [2014] 1 All ER 206 if the applicant has other assets to pay for their legal fees or living expenses the court should not allow the PFO assets to be used. In this case, notwithstanding the NCA’s suspicions that the Applicants were receiving funds from a grandmother, the court held that they did not have access to such funds and thus access should be given for funds to allow for legal representation at trial. However, the court did not vary the order to release one of the properties, and concluded that their living expenses were being met through universal credit and other benefits.

    D13 Juries

    D13.53 Discharge of Jurors or Entire Jury: Discharge of Individual Jurors: Judicial Discretion to Discharge a Juror

    R v Braithwaite (Ezekiel) [2019] EWCA Crim 597

    During a murder trial a judge failed to reduce to writing or notify counsel of a message he had received from a juror during his summing up. The judge did this because he categorised the note as a matter of ‘jury management’. However, this was held to offend the principles of open justice and determined to be a material irregularity. Despite this, it was held that the conviction was safe because there was nothing to suggest that the matter raised by the juror would have led to jury being discharged.

    D13.72 Discharge of Jurors or Entire Jury: Appellate review of the exercise of the discretion to discharge

    See D13.53 R v Braithwaite (Ezekiel)

    D21 Summary Trial: General and Preliminary Matters

    D21.18 Time-limit for Starting Proceedings for Summary Offences: General Rule

    Brown v DPP [2019] EWHC 798 (Admin)

    The case focused on the term “issuing”. The defence advanced, and the basis of the appeal by way of case stated, was that the written charge in the case was not "issued" within the six months period specified by s.127(1) MCA 1980. The Appellant argued that proceedings cannot be "issued" unless and until the relevant document (the written charge) "is in the public domain at least to the extent that it has left the relevant prosecutor's office". The alleged offence took place on 17 November 2017. A written charge was produced on 21 April 2018. The posting date of the Single Justice Procedure Notice and written charge was 23rd May 2018.

    The appeal was dismissed, as the written charge and Single Justice Procedure Notice were issued to the Defendant by the relevant prosecutor on 21 April 2018, and were therefore in time. The procedure of issue of written charge by a relevant prosecutor is “quite distinct” from the two-stage procedure which it replaced. “Issuing” of a written charge and service of it are discrete steps, as the Crim PR make clear. A requirement for the written charge to be in the public domain before issue could be held to be complete would reconstitute the former two-step procedure in a different form.

    At [20], Irwin LJ stated:

    In my view, the written charge can be regarded as issued only when the document comprising the written charge is completed, with all relevant details and in the form needed for service. Provided that is done within six months of the relevant offence, the written charge will have been issued in time.

    At [22] he concluded his judgment by saying:

    It should be noted that, if following issue in time, there is an inordinate or unwarranted or unjustified but significant delay before such a written charge is served, that should not and cannot go without remedy. The remedy is abuse of process. It would be wise for prosecutors, as a matter of practice, to ensure in every case that both the issue and service of Single Justice Procedure Notices are completed before six months from the relevant offences, so as to put paid to any suggestion of such unwarranted delay.

    D24 Trial of Juveniles

    D24.62 Committal for Sentence: Powers of Crown Court Following Committal for Sentence

    R v Bennett [2019] EWCA Crim 629

    Crown Court required to pass sentence on the basis of age at the date of conviction.

    The appellant sought to appeal his sentence for arson contrary to section 1(3) of the Criminal Damage Act 1971. It was argued that it is the person’s age at the date of the commission of the offence that is determinative in respect of sentence, not their age at the date of conviction. As the appellant was 17 years old when the offence was committed it was argued that the sentence ought to have been imposed under section 226 of the Criminal Justice Act 2003, as opposed to section 225.

    The appeal was dismissed. The relevant date for ascertaining the age of the offender for the purposes of the two sections is the date the offender was convicted. Robson [2006] EWCA Crim 1414 applied. Nevertheless, the Court voiced its concern over the appellant’s continued detention. Despite his tariff having expired many years ago, he remained in secure conditions 12 years after having been sentenced.

    D31 Extradition

    D31.31 Conviction in Absence

    Szatkowski v Poland [2019] EWHC 883 (Admin)

    The appellant was convicted of robbery and sentenced to a suspended prison sentence in Poland. He knew he could have appealed this decision, but decided not to do so. After this date he pleaded guilty to an assault. He received a further suspended sentence, but the earlier sentence was activated. He served just over three months in prison, but during a break in his sentence due to family illness he came to the UK. A conviction EAW was issued, and his extradition was ordered. The appellant argued on appeal that the fact that he chose not to exercise his known right of appeal or retrial within the time limited after the decision is irrelevant, notwithstanding the terms of Article 4a(1)(c) of the Framework Decision 2002/584/JHA on the European Arrest Warrant and Surrender Procedures between Member States.

    Appeal dismissed. The appellant received notice of the first trial decision, knew that he could appeal it, and chose not to do so. That placed him within the terms of art. 4a(1)(c) of the Framework Decision. The question was whether, in those circumstances, the English Court should refuse to order his extradition because of the terms of s.20 of the Extradition Act 2003. There was no direct prior authority on the point. Section 20, particularly s.20(5) and s.20(7), are not congruent with art. 4a(1). Section 20 must be interpreted in the light of the wording and purpose of the Framework Decision in order to attain the result which it pursues. Section 20(5) should be read as allowing extradition where a requested person "was or would be entitled to a retrial" if extradited. Vodafone 2 v Commissioners for HMRC [2009] EWCA Civ 446 followed.

    At [33]-[34], Irwin LJ stated:

    33 The clear intent s. 20 of the Act is to give proper protection to the appellant's Article 6 rights. That intent cannot reasonably be said to be "contradicted" by an interpretation which allows a person to be extradited, when the only reason that he will not have the opportunity of a retrial on his return is that he had such an opportunity previously and chose not to take it. Nor is any guidance on this point to be gained from the fact that Parliament has not seen fit to amend s.20 in the light of Article 4a. On the basis that our conforming interpretation is correct, there was no need for amendment and it would be idle and irrelevant to investigate whether and if so why a decision not to amend was taken. In our judgment, for the reasons we have set out, the intent of Article 4a and Section 20 are essentially the same, so that an interpretation which leads to extradition on the facts of the present case goes with the grain of the legislation and does not contradict it. Indeed, the contrary reading would involve the absurd proposition that a potential extraditee can be returned if he has a right of appeal which he might waive, but cannot be returned if he has already waived it.
    34 We recognise that our proposed interpretation involves departure from the strict, literal or narrow interpretation of the words that the legislature has elected to use; and that it involves the implication of words necessary to comply with Community law obligations. But these are not impediments to conforming interpretation, as Vodafone 2 makes clear …. The necessary sense can be achieved economically, … so that the subsection can be taken by implication to read '…whether the person was or would be entitled to a retrial..'

    At [36] he concluded:

    36 We therefore decide that s. 20(5) of the Act should be interpreted to cover the factual situations provided for by Article 4a(1)(c) and by Article 4a(1)(d).

    The Extradition Act 2003, s.20(5) should be read as allowing extradition where a requested person "[was or] would be entitled to a retrial" if extradited. That interpretation brought the Act in line with both exceptions in the Framework Decision 2002/584 art.4a(1)(c) and art.4a(1)(d), whereby the person could be extradited if they had a future right of retrial, or they had already been informed of such a right and had chosen not to exercise it.

    D31.34 Human Rights and Proportionality

    Szalai v Hungary [2019] EWHC 934 (Admin)

    Considers the circumstances in which a court might allow evidence of proven breaches of assurances given to the UK and other states.

    Limited evidence of Hungary breaching its assurances to the UK regarding prison conditions for extraditees should be seen in the context of clear improvements to Hungarian prisons, and did not demonstrate a systemic problem affecting Hungarian assurances to the UK generally. In exceptional circumstances the court might allow evidence of proven breaches of assurances given to other states, but only where it was manifestly credible and of real importance to the court's decision.

    Varga v Romania [2019] EWHC 890 (Admin)

    This appeal concerned two cases in which extradition was resisted on the ground of poor Romanian prison conditions. In both cases, Romania had provided assurances about prison conditions. In the first case, the assurance given was initially held to be inadequate for failure to guarantee that the appellant would have the minimum space if held in prisons other than the one contemplated. After the warrant had been discharged, Romania provided further assurances which it was conceded were adequate. In the second case, the assurance was accepted. The appellant then failed to serve his appeal notice on time due to technical errors. Romania initially argued that he could not rely on the errors of his legal representative to found an application for an extension of time, but later accepted the notice by consent. In the second case, the appellant also wished to introduce fresh evidence in the form of expert reports on prison conditions in Romania.

    Appeals dismissed. In the first case, the District Judge had not had the benefit of the decision of the CJEU in ML C-220/18 PPU [2019] 1 WLR 1052, in which the CJEU made it clear that it is not appropriate for an executing judicial authority to set out to review prison conditions in all the institutions to which it is theoretically possible the individual might be sent. The assessment should be "specific and precise", ML followed. Cases pre-dating ML were clear that where ambiguity or uncertainty arises from an assurance, the proper course is to seek clarification or further assurance, at least until it becomes clear that such clarification or assurance cannot be obtained within a reasonable time. In the second case, no adequate or reasonable explanation was provided as to why the evidence was not produced earlier. The Court refused to admit it for substantive consideration.

    In a postscript to the judgment, Irwin LJ considered that “three significant points for practice require emphasis”:

    50 First, as I have indicated in paragraphs 5 to 7 above, there is a requirement that an appellant should serve Notice of Appeal on a Respondent, in appeals to the High Court in extradition. That requirement stands. It must be absolutely clear that would-be appellants and their lawyers should not treat the staff of the Administrative Court as a post-box, or unofficial agents, to effect service. The court staff owe no duty to prospective appellants or their legal representatives, and must not be placed in such a false position.
    51 Secondly, this case exemplifies once more the obligation to consider carefully the obligation of appellants and their legal representatives to consider what grounds should be advanced before the District Justice, and what evidence must be deployed in that hearing. The Fenyvesi test for admission of fresh evidence will be actively applied by the Courts, and cannot be circumvented (as Sir Anthony May PQBD put it) by attaching "a human rights label" to the case: see Fenyvesi, paragraph 35. That is not to be understood as an encouragement to take worthless points or adduce flimsy evidence in the extradition hearing, as a misconceived precautionary measure. It is the responsibility of appellants and their representatives to advance the proper points and evidence available to them, and no more. Where there is an application to justify fresh evidence before the High Court, the Court will expect a witness statement explaining why the evidence was not available before. An explanation fed through counsel, to the effect that "we did not think of it" or "we did not consider it necessary then but we have changed our minds now" must and will get short shrift.
    52 The third point is to restate the obligation of a Requesting Judicial Authority seeking to introduce further information or assurances to supply at the same time the letter or letters requesting or stimulating the further information. Rarely, if ever, will this practice lead to infringement of legal professional privilege. Particularly in extradition cases, where important documents are generated in a whole range of languages, and where foreign legal processes are often in question, knowledge of the questions asked can be of great assistance in understanding the information or assurance proffered.

    D31.42 Appeals: Notice of Application for Leave to Appeal

    See D31.34 Varga v Romania

    D31.43 Appeals: Fresh Evidence

    See D31.34 Varga v Romania

    PART E Sentencing

    E1 Sentencing: General Provisions

    E1.12 Required Reductions in Sentence: Reduction in Sentence for Assistance by Offender: Extent of Discount

    R v S [2019] EWCA Crim 569

    Considers inter alia the operation of SOCPA 2005, s.71-75 when considering a reduction in sentence for assistance by an offender.

    The Court of Appeal made a series of observations regarding the operation of SOCPA 2005, s.71-75 (at [31]-[34]):

    ‘Third, it is clear that assistance to the prosecuting authorities and to the police or HM Revenue & Customs is treated as a matter that should be taken into account in a defendant's favour when it comes to consideration of sentence. The assistance may be in statutory form under sections 71-75 of SOCPA 2005, or outside the statutory regime in a form which is reflected in a 'text' put before a sentencing judge, see R v. P; and R v. Blackburn [2008] 2 Cr App R (S) 5 at [34].
    Fourth, no certain rules apply as to the extent to which the assistance will be reflected in the adjustment of sentence. As in so many aspects of the sentencing process, the decision will be fact specific, see R v. P (above) at [38] and R v. Bevens [2010] 2 Cr App R (S) 31 at [16] in the context of SOCPA 2005.
    Fifth, it will be necessary for the Court to form a view as to the quality and quantity of the material provided by a defendant in the investigation and subsequent prosecution of crime. In general, this will be assessed by reference to the value conferred to the administration of justice by the defendant's assistance. Particular value will be attached to those cases where a defendant provides evidence in the form of a witness statement, or is prepared to give evidence at a subsequent trial, and does so, with added force where the information either produces convictions for the most serious offences, including terrorism and murder, or prevents them, or which leads to disruption to or indeed the break-up of major criminal gangs. Considerations like these have to be put into the context of the nature and extent of the personal risks to and potential consequences faced by the defendant and the members of his family, see R v. P above at [39].
    However, sixth, the Court will take into account not only the nature of the assistance, but also the terms on which it has been given: whether, for example, the offender has been paid for such assistance and, if so, how much.’

    E1.21 Totality Principle

    R v Gorringe [2019] EWCA Crim 552

    Considers inter alia the issue of how to sentence for offences where an offender is already serving a sentence of imprisonment. The Court observed that, where an offender is already serving a sentence of imprisonment, an appropriate sentence for the instant offence may be one without any further reduction being necessary or desirable. It is because the means of achieving a just and proportionate sentence will vary according to the circumstances that the Courts have been wary of setting out overarching principles that will apply in every case. The Courts have, however, described some of the considerations which may guide a sentencing court in achieving a sentence that is both just and proportionate depending on the circumstances.

    R v Green [2019] EWCA Crim 196

    Provides guidance on the correct approach to sentencing an offender who has served a previous sentence for similar criminality. The Court considered that, in the present case, the Recorder, when sentencing for the instant offences, was wrong to refuse to take into account the previous custodial sentence simply on the basis of the gravity of the instant offences. The Court therefore provided guidance (at [18]) in respect of sentencing for new offences. The sentencing judge should consider all the circumstances in deciding what, if any, impact the previous sentence should have on the new sentence to be passed. Without seeking to lay down an exhaustive list, the court then set out a number of circumstances which the sentencing judge may take into account. The guidance has since been followed by the Court of Appeal in R v Wharam [2019] EWCA Crim 223.

    E3 Mandatory Life Sentences

    E3.7 Murder: Life Imprisonment: Court of Appeal Guidance

    R v Khalid [2019] EWCA Crim 701

    Considers several grounds of appeal against sentences for murder. The Court observed (at [32]), in a case of spontaneous unexpected violence, a lack of intention to kill is of less significance as a mitigating factor for the purposes of the Criminal Justice Act 2003, Sch. 21 than it might otherwise be.

    E4 Life Sentences, Extended Sentences and Custodial Sentences for Certain Offenders of ‘Particular Concern’

    E4.21 Assessment of Dangerousness

    R v Cela [2018] EWCA Crim 2954.

    Considers whether a judge had been entitled to make a finding of dangerousness thus justifying the imposition of an extended sentence.

    Dismissing an appeal against a finding of dangerousness, the Court held that while an offender could not be considered to be dangerous solely on the basis of the seriousness of the offence for which he fell to be sentenced, that did not mean that the absence of previous relevant convictions precluded the sentencing judge from reaching a conclusion that an offender was dangerous; that consideration of the conduct involved in the light of the applicable statutory provisions might unavoidably lead the judge to a conclusion that the offender was dangerous; that on the facts of the present case, even in the absence of a pre-sentence report, the judge had been entitled to make a finding of dangerousness thus justifying the imposition of an extended sentence.

    E19 Confiscation Orders

    E19.80 Enforcement, Reconsideration and Appeals: Reconsideration: Uplift

    R v S [2019] EWCA Crim 569.

    Considers inter alia whether a judge was correct to make an order under POCA 2002, s. 22 increasing the sum owed under a confiscation order.

    The Appellant was convicted of three counts charging him with possessing controlled drugs with intent to supply. A confiscation order made in the sum of £8,550. The court granted an order under POCA 2002, s. 22 increasing the sum owed to £108,642.81 after the authorities became aware of the acquisition of property. The Appellant appealed inter alia against the order varying the amount on the grounds that it was contrary to public policy to pursue the application against the appellant when he had given considerable assistance to the police since his release from prison. The Court of Appeal made a series of observations regarding the operation of s. 22 (at [29]-[30]):

    ‘First, when considering an application under s.22 of POCA 2002, the Court has a broad discretion. This is clear from the provisions of subsection (4) and the use of the word 'may' and the phrase, 'believes to be just'. Second, although, like the Recorder, we are not aware of any case in which assistance to the authorities after a proceeds of crime order has been relied on in answer to a prosecution application under s.22 of POCA 2002, we see no reason in principle why it should not be deployed where the facts justify it. However, the Court will bear in mind that a reduction in the amount ordered will have the effect of allowing the offender to benefit to that extent from his crime or crimes.’

    PART F Evidence

    F17 Exceptions to the Rule against Hearsay (Excluding Confessions)

    F17.11 Hearsay Exceptions: (1) Hearsay Admissible by Agreement, Unavailable Witnesses and Business Documents: Absence Caused by Party Tendering Statement

    R v C [2019] EWCA Crim 623

    Considers the operation of the Criminal Justice Act 2003, s. 116(5)(a), which renders otherwise admissible hearsay inadmissible where the witness’s absence (in this case, because of his death) was caused by the person who sought to rely upon the hearsay statement.

    In determining whether statements given by a deceased witness are admissible as hearsay evidence under the Criminal Justice Act 2003, s. 116(1)(2)(a), the proviso in s. 116(5) that such evidence will not be deemed to satisfy the condition in s. 116(2)(a) where the state of affairs has been brought about by the person in support of whose case hearsay evidence was sought to be admitted, or by a person acting on his behalf, was a reference to conduct of the defendant or somebody acting on his behalf. Accordingly, s. 116(5) was of no application to the evidence of a witness for the Crown who commits suicide prior to giving evidence at trial.

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