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Blackstone's Criminal Practice 2013

August 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 July 2013.


Part A: General Principles of Criminal Law

A1 Actus Reus

A1.28 Causation

In cases of causing death by driving when uninsured, etc. (RTA 1988, s. 3ZB), the Supreme Court in Hughes [2013] UKSC 56 has held, reversing the Court of Appeal’s ruling in H [2011] 4 All ER 761 and overruling Williams [2011] 1 WLR 588, that to be guilty of that offence D must be proved to have done something more than merely drive his vehicle on the road so that it was there to be involved in a fatal accident. It must be proved that D did or omitted to do something else that contributed in more than a minimal way to the death. There must in other words be something more than mere ‘but for’ causation. Lord Hughes said:

Juries should thus be directed that it is not necessary for the Crown to prove careless or inconsiderate driving, but that there must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributed in some more than minimal way to the death. How much this offence will in practice add to the other offences of causing death by driving will have to be worked out as factual scenarios present themselves; it may be that it will add relatively little.


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’.

B1.158 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

B2.149 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.

B10 Terrorism, Piracy and Hijacking

B10.34 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.

B11 Offences Affecting Public Order

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.

B14 Offences Against the Administration of Justice

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.

B19 Offences Related to Drugs

B19.128 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….

B21 Offences Relating to Money Laundering and the 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.

B22 Immigration Offences

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.


Part C: Road Traffic Offences

C3 Offences Relating to Driving Triable on Indictment

C3.47 Causing Death by Driving: Unlicensed, Disqualified or Uninsured Drivers

In cases of causing death by driving when uninsured, etc. (RTA 1988, s. 3ZB), the Supreme Court in Hughes [2013] UKSC 56 has held, reversing the Court of Appeal’s ruling in H [2011] 4 All ER 761 and overruling Williams [2011] 1 WLR 588, that to be guilty of that offence D must be proved to have done something more than merely drive his vehicle on the road so that it was there to be involved in a fatal accident. It must be proved that D did or omitted to do something else that contributed in more than a minimal way to the death. There must in other words be something more than mere ‘but for’ causation. Lord Hughes said:

Juries should thus be directed that it is not necessary for the Crown to prove careless or inconsiderate driving, but that there must be something open to proper criticism in the driving of the defendant, beyond the mere presence of the vehicle on the road, and which contributed in some more than minimal way to the death. How much this offence will in practice add to the other offences of causing death by driving will have to be worked out as factual scenarios present themselves; it may be that it will add relatively little.


Part D: Procedure

D1 Powers of Investigation

D1.3 Investigations by Non-Police Officers

The Crime and Courts Act 2013 (Commencement No. 2 and Saving Provision) Order 2013 (SI 2013 No. 1682) inter alia brings into force on 7 October, insofar as not already in force, ss. 1(3) to (12), 2, 4(1) and (10), 5, 6(1), (3) and (4), 7 to 13 and 15(1) and (2) and schs. 1 to 7 and sch. 8, paras. 6 to 10, 12 to 100 and 104 to 190 (most of which relate to the establishment of the National Crime Agency and the abolition of SOCA).

D1.114 Retention or Destruction of Biometric Data

The Protection of Freedoms Act 2012 (Commencement No. 7) Order 2013 (SI 2013 No. 1814) brings part 1 of the Act into force, subject to certain limited exceptions, on 31 October 2013. Part 1 relates to the destruction, retention and use of fingerprints, DNA profiles and footwear impressions.

D1.125 Visual Identification and Recognition Procedures

Forbes [2001] 1 AC 473 was applied in Cole [2013] EWCA Crim 1149.

D1.135 The Choice of Identification Procedure

Cole [2013] EWCA Crim 1149 contains judicial observations on the dangers, from the suspect’s viewpoint, of refusing to participate in an identification parade.

D1.144 Entry and Search under Warrant

A constable applying for a warrant must give full and frank disclosure if the warrant is to be valid. A warrant obtained for purposes not disclosed to the judge or justice issuing it may be quashed: R (S) v Chief Constable of the British Transport Police [2013] EWHC 2189 (Admin.
But in R (Pearce) v Metropolitan Commissioner of Police [2013] EWCA Civ 866 the Court of Appeal refused to hold that a search warrant had been executed unlawfully at a London squat in April 2011 merely because the timing of it had been influenced by concerns over security at the imminent Royal Wedding. The timing of the execution may indeed have been conditioned by a desire to maximise Royal Wedding security, but that did not mean that the dominant purpose of the search itself had been anything other than that which had been authorised by the lawfully obtained warrants. It would have been different, said the Court, if the police had taken no interest in stolen property for which the warrants were obtained but that was not the case here. If officers were not permitted to decide upon the timing for the execution of a lawfully obtained warrant with an eye on a collateral advantage, their operational freedom of manoeuvre would be unjustifiably inhibited.

D1.189 Investigatory Powers under the Serious Organised Crime and Police Act 2005

The Crime and Courts Act 2013 (Commencement No. 2 and Saving Provision) Order 2013 (SI 2013 No. 1682) inter alia brings into force on 7 October, insofar as not already in force, part 1 of the 2013 Act (most of which relates to the establishment of the National Crime Agency and the abolition of SOCA).

D3 Courts, Parties and Abuse of Process

D3.61 Serious Organised Crime Agency

The Crime and Courts Act 2013 (Commencement No. 2 and Saving Provision) Order 2013 (SI 2013 No. 1682) inter alia brings into force on 7 October, insofar as not already in force, part 1 of the 2013 Act (most of which relates to the establishment of the National Crime Agency and the abolition of SOCA).

D8 Assets Recovery

D8.1 General

The Crime and Courts Act 2013 (Commencement No. 2 and Saving Provision) Order 2013 (SI 2013 No. 1682) inter alia brings into force on 7 October, insofar as not already in force, part 1 of the 2013 Act (most of which relates to the establishment of the National Crime Agency and the abolition of SOCA).

D8.4 Civil Recovery Orders and Taxation

SOCA v Azam [2013] EWCA Civ 970 contains guidance as to the circumstances in which a court might properly refuse a defendant’s application to vary a property freezing order (PFO) made against him under the POCA 2002, s. 245A so as to permit him to apply some of his assets subject to that order in paying for his future legal representation in the proceedings against him. The Court held that he has no specific burden to prove that no other funds are available for that purpose. If there is nothing to indicate the existence of other unexplained or undisclosed and available assets then the fact that he has previously concealed relevant assets is not in itself sufficient to justify refusal of such an application.

D9 Disclosure

D9.61 Use of Special Advocates

Guidance as to the law relating to the appointment of special counsel in cases involving Public Interest Immunity was given in Austin [2013] EWCA Crim 1028. The Court of Appeal emphasized that, although it might sometimes in very exceptional circumstances be appropriate to make such an appointment, it was emphatically not a step to be taken every time there was a claim of abuse of process in a case where material was sought to be withheld on the ground of public interest immunity.

D13 Juries

D13.2 Eligibility for Jury Service

The Mental Health (Discrimination) Act 2013 (Commencement) Order 2013 (SI 2013 No. 1694) brought s. 2 of the Act into force on 15 July 2013. Section 2 amends the Juries Act 1974, sch. 1 so as to remove the blanket ban on ‘mentally disordered persons’ undertaking jury service and amend the disqualifications relating to mental health patients. A person who is liable to be detained under the Mental Health Act 1983 or who is resident in a hospital on account of mental disorder is disqualified. However, the former category for disqualification applying to a person suffering from or who has suffered from a mental disorder and who regularly attends for treatment on account of that condition is removed.

D13.21 Warning to the Jury on Empanelment

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.

D14 Special Measures and Anonymity Orders

D14.42 Intermediaries

A discussion of the role and duties of an intermediary can be found in the Court of Appeal’s judgment in IA [2013] EWCA Crim 1308, at [27] et seq. F, the intermediary in that case, acted for a child complainant (RB) who was profoundly deaf and without speech, and in the course of the trial and appeal attacks were made on his role, performance and professional integrity. Treacy LJ said:

[35] As s 29(2) of the [YJCEA 1999] makes clear, the function of the intermediary is to communicate (a) to the witness, questions put to the witness, and (b) to any person asking such questions, the answers given by the witness in reply to them. The intermediary must explain such questions or answers so far as is necessary to enable them to be understood by the witness or person in question.
[36]In the light of that we do not consider that a criticism that F had become [no] more than a relay interpreter carries any weight. He was acting as an intermediary as a result of the judge's decision after very detailed pre-trial argument. In performing his functions he was entitled to interject in order to ensure that RB could understand what she was being asked. We do not consider that his interjections have been shown to be intended to be disruptive, nor were they widespread. In the course of argument we were taken to certain examples, but we are unpersuaded that they had disruptive effect which resulted in an unfair handicap to the defence. If anything, the extremely lengthy cross-examinations of RB were permitted to go on far too long.

It is assumed that the reference to ‘no’ in the uncorrected judgment, shown above in square brackets, is an error.

D16 Trial on Indictment: The Prosecution Case

D16.63 Submission of No Case to Answer: Prima Facie Case against Two Accused

Lane (1985) 82 Cr App R 5 and Abbott [1955] 2 QB 497 were considered in Banfield [2013] EWCA Crim 1394, where V had disappeared and his wife (SB) and daughter (LB) were jointly charged with his murder. As in Onufrejczyk [1955] 1 QB 388, there was considerable circumstantial evidence to suggest that V was indeed dead (even though no body had ever been found) and indeed the appellants eventually conceeded that he had been murdered. There was also a good deal of evidence that either or both of the appellants had either committed or been implicated in that crime, or had at least been involved in disposing of the body and dealing fraudlently with V’s pension, etc after his death; but there was no evidence as to who killed him, or that both were present at his death. Since the prosecution case had been presented exclusively in those terms it could not be substantiated and the Court of Appeal held that submissions of No Case ought to have been accepted.
The Court observed that the proseuction case might have fared better had the appellants been charged with conspiracy to murder; but, with respect, if there was indeed an ongoing conspiracy by them to murder V then at his death both must also have become guilty of the substanitve offence of murder, even if one was only an accessory before the fact. The problem it seems was the narrow way in which the prosecution case was presented. The prosecution alleged a joint enterprise involving both women being present when V was murdered, and it was that which could not be proved.

D20 Trial on Indictment: Sentencing Procedure

D20.8 Newton Hearings

Where a Newton hearing is conducted without the attendance of witnesses it may be difficult or impossible to challenge the sentence imposed. In Sheard [2013] EWCA Crim 1161 the A-G challenged the sentence imposed on D for manslaughter following a Newton hearing as unduly lenient, but since no witnesses had been heard the Court of Appeal was unwilling to interfere. Rafferty LJ said:

[48] Hearing witnesses, called not only for the Crown but potentially also for [D], could so have affected the judge's findings as to inform his assessment of the appropriate loss of liberty. Equally, their tested evidence might have reinforced the view he took and led to the same or a yet more sympathetic sentencing outcome.

[50] Had the AG's contentions been supported by oral evidence during the Newton hearing the likelihood is that his appeal would have been allowed and the sentence quashed as unduly lenient. However, on the reasoning we have adopted [D] lost the opportunity to present himself sympathetically assuming he elected to give oral evidence. It would not be fair or right to penalise him at this stage.

D28 Reference to the Court of Appeal Following Trial on Indictment

D28.7 Reference for Review of Sentence

See Sheard [2013] EWCA Crim 1161, which is noted in this update at D20.8.

D31 Extradition

D31.4 Physical or Mental Condition

Any disputed issue as to whether D is fit to plead or stand trial is ordinarily one best conducted by the courts of the requesting state. See Edwards v Government of United States of America [2013] EWHC 1906 (Admin), which follows the pre-Extradition Act ruling in R (Warren) v Secretary of State for the Home Department [2003] All ER (D) 115 (Jun).

D31.30 Human Rights

The Crime and Courts Act 2013 (Commencement No. 2 and Saving Provision) Order 2013 (SI 2013 No. 1682) inter alia brings into force on 29 July 2013, sch. 20, paras. 10 to 15, which relate to human rights issues in the context of extradition to category 2 territories.

Part E: Sentencing

E3 Mandatory Life Sentences

E3.2 Murder: Life Imprisonment

In Vinter v UK [2013] ECHR 645, the ECtHR ruled that a whole life order excluding any possibility of subsequent review amounts to inhuman or degrading treatment or punishment in breach ofthe ECHR, Article 3. The Court said (at [119]):

Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

Moreover (at [122]):

… A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. Consequently, where domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.

E19 Confiscation Orders

E19.23 Making of Confiscation Order: Stage Two — Determination of Benefit from Criminal Conduct

The Supreme Court’s ruling in Waya [2012] UKSC 51 (see the December 2012 update) was applied in Sale [2013] EWCA Crim 1306, in which a confiscation order was made against a controlling company director based on profits from contracts he had corruptly obtained for his company. The order was justified on the basis that there was a close inter-relationship between D’s corrupt conduct and that of the company in advancing it. The reality was that their respective activities were so interlinked as to be indivisible. Both entities were acting together in the corruption. The Court of Appeal accordingly considered it appropriate to lift the corporate veil.
The original confiscation order imposed was in the sum of £1.9 million, this being the total sum corruptly obtained; but applying Waya it was reduced to a sum that more closely matched the improper pecuniary advantage actually obtained by corruptly and unfairly securing a market position at the expense of legitimate competitors.
Waya was also applied Morgan [2013] EWCA Crim 1307, in which D was held to have secured a pecuniary advantage of £156,000 by allowing the unlicensed tipping of landfill on his property, thereby evading landfill tax and licence fees and avoiding other expenses that he would have had to have paid if the operation had been conducted lawfully. A confiscation order in that sum was not disproportionate.
Waya was also applied in Chapman [2013] EWCA Crim 1370 and considered in Harvey [2013] EWCA Crim 1104, Taylor [2013] EWCA Crim 1151 and Bestel [2013] EWCA Crim 1305.


Part F: Evidence

F4 Competence and Compellability of Witnesses and Oaths and Affirmations

F4.22 Children and Persons with a Disorder or Disability of the Mind

Barker [2010] EWCA Crim 4 was considered in IA [2013] EWCA Crim 1308. Other aspects of that case relating the use and role of intermediaries are noted in this update at D14.42.

F12 Character Evidence: Evidence of Bad Character of Accused

F12.60 Multiple Charges and Accusations under the Criminal Justice Act 2003, s. 101(1)(d)

Freeman [2009] 1 WLR 2723 was applied in O'Leary [2013] EWCA Crim 1371. The appellant, a roofer, was convicted of offences of fraud and theft from two elderly victims from whom he had extracted money for repairs etc. that were never done. One of the issues on appeal concerned the cross-admissibility of evidence relating to the different victims. After citing Freeman on that point, Pitchford LJ said:

The evidence of the circumstances of the appellant's transactions with both Mrs Werner and Mr Knight was plainly admissible upon the jury's assessment whether the appellant acted dishonestly in respect of either of them. The evidence was relied upon not for its capacity to establish propensity to commit offences of fraud or theft but for its capacity to demonstrate that Mrs Werner and Mr Knight had been deliberately selected because they were vulnerable. Recognising the force of the respondent's argument, Ms Saimbhi fell back upon a submission that the admission of the evidence for this purpose was nonetheless unfairly prejudicial within the meaning ofthePolice and Criminal Evidence Act 1984, s. 78. We do not accept this submission. The Recorder was careful to direct the jury that coincidence was not enough. The jury had to be sure that there was a pattern of conduct which assisted their consideration of each of the counts that the appellant faced. The Recorder's direction may have revealed the weight of the prosecution case but it did not, in our view, render the admission of the evidence unfairly prejudicial.

F18 Evidence of Identification

F18.29 DNA Evidence

The difficulty of using DNA evidence to prove guilt in the absence of other incriminating evidence was noted in Ogden [2013] EWCA Crim 1294, although in that case the position was complicated by the fact that the scarf found at the scene of a burglary had mistakenly been destroyed following the obtaining of D’s DNA from one of two small blood stains found on it. This DNA was the only evidence linking D with the crime, but:

There were a number of admissions before the jury in relation to this forensic evidence. They included the fact that it was not possible to date the DNA. It was therefore possible that another person had carried the scarf to the scene of the burglary, the defendant's DNA already being on it. It was not possible either to say how the DNA came to be on the scarf, whether it was by direct contact with somebody or by airborne droplets. There was no independent evidence that the burglar had cut himself on the window. It was agreed that the remainder of the scarf had not been tested and nor … was the other patch of blood.

In those circumstances a submission of no case to answer ought to have been accepted. See also Grant [2008] EWCA Crim 1890.

New Legislation

Crime and Courts Act 2013 (Commencement No. 2 and Saving Provision) Order 2013 (SI 2013 No. 1682)

This Order brings the following provisions of the Act into force:

  • on 29 July 2013, sch. 20, paras. 10 to 29 (which relate to extradition)
  • on 7 October, insofar as not already in force, ss. 1(3) to (12), 2, 4(1) and (10), 5, 6(1), (3) and (4), 7 to 13 and 15(1) and (2) and schs. 1 to 7 and sch. 8, paras. 6 to 10, 12 to 100 and 104 to 190 (all of which relate to the establishment of the National Crime Agency and the abolition of SOCA and the National Policing Improvement Agency).

Mental Health (Discrimination) Act 2013 (Commencement) Order 2013 (SI 2013 No. 1694)

This Order brought s. 2 of the Act into force on 15 July 2013. Section 2 amends the Juries Act 1974 so as to remove the blanket ban on ‘mentally disordered persons’ undertaking jury service and amend the disqualifications relating to mental health patients. A person who is liable to be detained under the Mental Health Act 1983 or who is resident in a hospital on account of mental disorder is disqualified. However, the former category for disqualification applying to a person suffering from or who has suffered from a mental disorder and who regularly attends for treatment on account of that condition is removed.

Football Spectators (Prescription) (Amendment) Order 2013 (SI 2013 No. 1709)

This Order, 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.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) Order 2013 (SI 2013 No. 1746)

This Order 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.

Proscribed Organisation (Name Changes) Order 2013 (SI 2013 No. 1795)

This Order, 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 the Terrorism Act 2000, sch. 2, namely Al-Qa’ida.

Protection of Freedoms Act 2012 (Destruction, Retention and Use of Biometric Data) (Transitional, Transitory and Saving Provisions) Order 2013 (SI 2013 No. 1813)

This Order, which comes into force on 31 October 2013 (with the exception of art. 3 which has effect from 31 January 2014), makes provision in connection with the implementation of ss. 1 to 25 of the 2012 Act.

Protection of Freedoms Act 2012 (Commencement No. 7) Order 2013 (SI 2013 No. 1814)

This Order brings into force the main provisions of the 2012 Act relating to the destruction, retention and use of fingerprints, DNA profiles and footwear impressions, namely ss. 1 to 25 and sch. 1, on 31 October 2013, but subject to certain limited exceptions.

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