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Blackstone's Criminal Practice 2021

Early August 2021

Welcome to the Blackstone’s Criminal Practice fortnightly updates. The following developments occurred between 16th - 31st July 2021.

Part B: Offences Part D: Procedure

Part B Offences

B2 Non-fatal Offences Against the Person

B2.42 Assaults and Constables and Emergency Workers: Elements

DPP v Ahmed [2021] EWHC 2122 (Admin): considers the scope of the term "functions" in the Assaults on Emergency Workers (Offences) Act 2018, s. 1(1).

Following the decision in Campbell v CPS [2020] EWHC 3868 (Admin), there is a distinction between duty (Police Act 1996, 89(1)) and functions. Whether an emergency worker was exercising a function at the time of an alleged assault was a fact-specific and objective question. Without intending to provide comprehensive guidance, proportionate and good faith actions by the police to assist those who appeared to be in distress, or to be at risk of causing harm to themselves or others, would in principle likely be within the concept of police "functions", whether or not some form of touching or handling of a person took place in the course of such conduct.

B2.51 Resisting or Wilfully Obstructing a Constable, etc.: Elements

Neale v DPP [2021] EWHC 658 (Admin): appellant had not wilfully obstructed police officer by refusing to give name and address as under no express duty to do so under the Coronavirus regulations.

An individual who had refused to give his name and address to a police officer requesting that information in order to issue a fixed penalty notice under the Health Protection (Coronavirus) (Wales) Regulations 2020 had not wilfully obstructed a police officer contrary to the Police Act 1996, s. 89(2) as he had been under no duty to give his name and address under the Regulations and such a duty could not be implied.

B2.109 Kidnapping: Actus Reus

R v Dean [2021] EWCA Crim 1157: considers whether kidnapping is a continuing offence.

A judge had not erred in deciding that Reid [1973] QB 299 was not authority for the appellant's submission that the offence of kidnapping was not a continuing offence. Once it was accepted that kidnapping was an aggravated form of unlawful confinement, the conclusion that kidnapping was a continuing offence was virtually axiomatic.

Part D Procedure

D31 Extradition

D31.35 Human Rights and Proportionality

Barcelos v Portugal [2021] EWHC 2036 (Admin); [2021] 7 WLUK 319

The case concerned an extradition appeal on Article 8 ECHR grounds. The High Court rejected the appeal. The Appellant plead guilty at trial after he was found to be driving a motorbike with excess alcohol in the blood. The index offence is one of real seriousness when considered alongside previous convictions and a 12-month suspended sentence was passed by the Portuguese court. The conditions of the sentence were breached by the Appellant and the custodial element of the sentence were activated. There is, therefore, strong public interest considerations in favour of extradition.

The court held that whilst the passage of time is capable of diminishing the public interest consideration in favour of extradition in this case the passage of time was due to the fact that the Appellant had failed to comply and left Portugal without notifying the authorities of his whereabouts. The Appellant’s relationship with Ms Resende was entered into with knowledge of the failure to comply.

The court considered in respect of Article 8 the impact on those affected by the Appellant’s return to Portugal. There were no young children to consider. Ms Resende submitted that she would move back to Portugal with the Appellant. In doing so she would need to give up her specialist job in mammography. Were she able to obtain a job in Portugal it would be as a radiographer - a role where her specialist training would not be used. The Court held that even approaching the case in the way most beneficial to the Appellant, by effectively evaluating afresh the Article 8 balancing exercise – the impacts on the individuals affected, alongside the other features of the case which weigh against extradition, were not sufficiently powerful to outweigh the public interest considerations in favour of extraditing the Appellant.

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