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Blackstone's Criminal Practice 2021

Late July 2021

Welcome to the Blackstone’s Criminal Practice fortnightly updates. The following developments occurred between 1st – 15th July 2021.

Part B: Offences Part C: Road Traffic Offences Part F: Evidence

Part B Offences

B2 Non-fatal Offences Against the Person

B2.16 Assault and Battery: Invalid Consent

Domestic Abuse Act 2021, s. 71: restates in statute law the general proposition (established in the case of Brown [1993] 2 WLR 556) that a person may not consent to the infliction of serious harm and, by extension, is unable to consent to their own death. It also reflects the exception in relation to consent in cases involving the transmission of sexually transmitted infections.

B18 Offences Involving Writing, Speech or Publication

B18.31 Other Offences: Disclosing Private Sexual Photographs and Films with Intent to Cause Distress

Domestic Abuse Act 2021, s. 69: amend the offence under the Criminal Justice and Courts Act 2015, s. 33 of disclosing a private sexual photograph or film with intent to cause distress to an individual who appears in the photograph or film, so as to include threats to disclose private sexual photographs or films.

Part C Road Traffic Offences

C3 Offences Related to Driving Triable on Indictment

C3.19 Causing Death by Dangerous Driving: Sentencing

R v Fenton [2021] EWCA Crim 1027; [2021] 7 WLUK 127: Successful A-G Reference in a case of death by dangerous driving in which the judge had failed to properly account for the aggravating features in the case.

A sentence of 3 years and 8 months’ imprisonment was referred by the Attorney General as unduly lenient. The Defendant had pleaded guilty to the offence of causing death by dangerous driving. The driver was killed, his wife, one of the passengers, sustained life-changing injuries and the other passenger, their son, sustained minor injuries. An analysis of the Defendant’s blood showed that it contained three times the legal limit of cannabis at the time of the offence.

Held; the sentence was unduly lenient. The offence fell into category 2, rather than 3 of the Sentencing Guidelines. A starting point of five years imprisonment was therefore appropriate. The sentence was aggravated by the serious injuries suffered by the passenger. The judge had been wrong to reduce the seriousness in circumstances where it was unchallenged that the Defendant had consumed cannabis the night before the offence was committed. The only mitigation was that the Defendant himself had also suffered serious injury. The correct sentence after trial would have been around seven years' imprisonment. After 25% credit for the guilty plea, the appropriate sentence was five years and three months.

Part F Evidence

F13 Character Evidence: Bad Character of the Accused

F13.4 Evidence of Bad Character Under the CJA 2003: Bad Character

R v Stanton [2021] EWCA Crim 1075; [2021] 7 WLUK 162: Character evidence relevant to motive was admissible under s.98 of the Criminal Justice Act 2003.

The Defendant appealed against his conviction for murder. The facts, in short, were that the Defendant and his co-accused had killed a 61 year old man who had health problems in the course of a burglary gone wrong. On appeal it was submitted that evidence of reprehensible behaviour should not have been admitted and/or the judge had misdirected the jury as regards that evidence. Held; appeal dismissed. The evidence was properly before the jury concerning the Defendant’s motive. The material did not require justification through the statutory gateways as it was admissible under s.98. The judge had properly directed the jury as to the relevance of that evidence.

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