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Blackstone's Criminal Practice 2013

December 2012 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 November 2012.


Part B Offences

B1 Homicide and Related Offences

B1.74 Sentencing Guidelines: Gross Negligence Manslaughter

Sentencing principles in respect of ‘medical’ gross negligence manslaughter were considered in Garg [2012] EWCA Crim 2520. D was a consultant urologist who pleaded guilty to manslaughter following the death of a patient in his care. His medical negligence had been compounded by subsequent attempts to falsify relevant records. Upholding a sentence of two years’ imprisonment, Lord Judge CJ said:

Two clear principles which follow the implementation of the [CJA 2003] have been identified in the sentencing decisions of this court. First, s. 143(1) of the Act, focussing direct attention on the harm actually caused by the offence, always involves harm at the highest level. Second, the effect of sch. 21 to the 2003 Act has been to increase the punitive element in sentences for murder, and this has had an inevitable effect on sentences for manslaughter on the basis that the statutory intention was to underline that crimes which result in death should be treated more seriously and dealt with more severely than before.

In Reeves [2012] EWCA Crim 2613, a sentence of three years and nine months' imprisonment was upheld in a case where a mother had left her one-year-old child in the bath unsupervised for about 45 minutes and the child had died, with the causes of death being given as cerebral hypoxia, cardiac arrest and immersion. Whilst observing that this was a tragic case, the Court of Appeal remarked that it is now beyond argument that the effect of the CJA 2003 has been to lift the level of sentencing in such cases.

B1.75 Constructive Manslaughter

Church [1966] 1 QB 59, Dawson (1985) 81 Cr App R 150, and Carey [2006] EWCA Crim 17 were amongst the authorities considered in JM [2012] EWCA Crim 2293, where Lord Judge CJ said:

A requirement that the [reasonable] bystander must appreciate the ‘sort’ of injury which might occur undermines the ‘some’ harm principle explained in Church, and on close analysis, is not supported or suggested by Dawson or Carey….

In our judgment, certainly since Church and Newbury, it has never been a requirement that the defendant personally should foresee any specific harm at all, or that the reasonable bystander should recognise the precise form or ‘sort’ of harm which did ensue.  What matters is whether reasonable and sober people would recognise that the unlawful activities of the defendant inevitably subjected the deceased to the risk of some harm resulting from them.

B2 Non-fatal Offences

B2.147 Ill-treatment or Neglect of Persons who Lack Capacity

The offence of wilful neglect created by the Mental Capacity Act 2005, s. 44, was considered by the Court of Appeal in Nursing [2012] EWCA Crim 2521. The key issue was the extent to which a person of limited mental capacity might nevertheless have, or be believed to have, sufficient capacity to decide what care or treatment he should or should not receive. There was in other words an issue of respect for such a person’s autonomy. Lord Judge CJ said

Those who are in need of care are entitled to protection against ill-treatment or wilful neglect. The question whether they have been so neglected must be examined in the context of the statutory provisions which provide that, to the greatest extent possible, their autonomy should be respected. … On analysis, the offence created by s. 44 is not vague. It makes it an offence for an individual responsible for the care of someone who lacks the capacity to care for himself to ill-treat or wilfully to neglect that person. Those in care who still enjoy some level of capacity for making their own decisions are entitled to be protected from wilful neglect which impacts on the areas of their lives over which they lack capacity. However s. 44 did not create an absolute offence. Therefore, actions or omissions, or a combination of both, which reflect or are believed to reflect the protected autonomy of the individual needing care do not constitute wilful neglect.

B2.192 Slavery, Servitude and Forced or Compulsory Labour

The inadequacy of the old law in dealing with cases of slavery of servitude is revealed in CN v UK  [2012] ECHR 4239/08, [2012] All ER (D) 181 (Nov).

B4 Theft, Handling and Related Offences

B4.69 Robbery and Assault with Intent to Rob: Sentencing (1)

In Anderson [2012] EWCA Crim 2388, the Court of Appeal considered Blackshaw [2012] 1 WLR 1126 (see the main text at B11.20) when upholding consecutive sentences imposed for offences of robbery and burglary in the course of the London riots of August 2011. See also Shirley [2012] All ER (D) 195 (Nov).

B4.69 Robbery and Assault with Intent to Rob: Sentencing (2)

In A-G’s Refs (Nos 41, 42 and 43 of 2012); Jones [2012] EWCA Crim 2356, custodial sentences of between six years and nine months and six years and four months imposed for violent offences of robbery, burglary and aggravated vehicle taking committed ‘by thugs who had gone in with weapons mob handed, knowing who was there and that resistance would not be strong’ were quashed and replaced by sentences of eight to nine years’ youth custody / imprisonment.

The original sentences had taken proper account of late guilty pleas, but failed adequately to reflect the overall gravity and aggravating features of the case, in particular, the high level of violence, the extent of the premeditation and that one purpose of the raids had been to obtain firearms. Appropriate sentences after trial would have been in the region of ten to eleven years.

B5 Fraud, Blackmail and Deception

B5.12 Fraud by False Representation

In Gilbert [2012] EWCA Crim 2392, the Court of Appeal quashed D’s conviction on one count of fraud by false representation because the trial judge had failed to make it clear to the jury that D must not only make the false representation in question dishonestly, but must intend by making that representation to make a gain or cause loss to another; which in turn is defined as extending only to gain or loss in money or other property.

In Gilbert there was clear evidence of dishonesty and false representation relating to the opening of a bank account, but such an account is not of itself ‘money or other property’. The question was whether the offence could be committed, ‘on the basis of the possibility of a gain arising from future legitimate property development, rather than a gain arising directly from any representation made at the meeting at the bank, or directly from the opening of the bank account.’ In the Court of Appeal’s view, it could not:

This, and the direction to the jury that it was open to them to find that a gain could be inferred if they concluded that the opening of the bank account was simply to enable development or the sale of the company, left the case on too vague a basis. The link … between any representation and such a possible future gain, is too tenuous.

B9 Offences Affecting Security

B9.52 Damaging Disclosure: ‘Without Lawful Authority’

The Official Secrets Act 1989 (Prescription) (Amendment) Order 2012 (SI 2012 No. 2900) amends the principal Order of 1990 (SI 1990 No. 200) so as to add police and crime commissioners, and similar posts involving the supervision of policing, to the list of offices whose occupants are prescribed as Crown servants for the purposes of s. 12(1)(g) of the 1989 Act.

B10 Terrorism, Piracy and Hijacking

B10.34 Membership of a Proscribed Organisation: Elements

The Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 2) Order 2012 (SI 2012 No. 2937) amends the Terrorism Act 2000, sch. 2 so as to insert a further entry, namely Ansarul Muslimina Fi Biladis Sudan (Vanguard for the protection of Muslims in Black Africa) (Ansaru).

B12 Offences Relating to Weapons

B12.127 Sentencing Guidelines for Firearms Offences

The much-publicised case of Nightingale [2012] EWCA Crim 2734 was exceptional in several ways, but shows how truly exceptional circumstances may justify a sentence much lower than the five year statutory minimum that must ordinarily be imposed for illicit possession of firearms.

B19 Offences Relating to Drugs

B19.43 Supplying or Offering to Supply a Controlled Drug

Hughes (1985) 81 Cr App R 344 was considered in Akinsete [2012] EWCA Crim 2377. The Court of Appeal ruled that there is no rule of law requiring direct evidence of a supply of drugs in a case brought under the MDA 1971, s. 4(3)(b). Hughes is not authority for such a proposition and the court had been shown no such authority. The prosecution may properly rely on circumstantial evidence of supplying. The Court also said:

The words ‘concerned in’ relate to the participation of the particular defendant in the enterprise. It is not necessary in respect of an offence that is charged under section 4(3)(b) for the prosecution to prove that the defendant himself physically supplied the controlled drug to another. His participation in the enterprise could take other forms. He could set up a meeting, be a middle man, provide the finance, or arrange the contacts and so forth. If the defendant is involved in the actual supply itself he can be charged under section 4(3)(a).

B20 Offences Relating to Dangerous Dogs and Animal Welfare

B20.16 Offences under the Animal Welfare Act 2006

The Animal Welfare Act 2006, s. 34(2), was considered in R (RSPCA) v Guildford Crown Court [2012] All ER (D) 24 (Nov). It was held that when a court imposes disqualification under that subsection the order must ordinarily extend to all the activities listed therein. That is the natural meaning of the subsection as intended by Parliament.


Part C Road Traffic Offences

C7 Sentencing

C7.15 Reduced Disqualification following Course

The Road Safety Act 2006 (Commencement No.9 and Transitional Provisions) Order 2012 (SI 2012 No. 2938) brings into force s. 35 of the Act 2006 together with related repeals. Section 35 substitutes new provisions for the current ss. 34A to 34C of the Road Traffic Offenders Act 1988, which provide for a reduced period of disqualification for offenders who successfully complete a drink-drive rehabilitation course under a court order. Section 35 is brought into force only insofar as ss. 34A to 34C have application where a person is convicted of a drink-related offence and also in two stages; namely on 21 December 2012 regarding applications for approval of DDR courses, the approval process and related appeals and on 24 June 2013 for all other purposes.


Part D Procedure

D1 Powers of Investigation

D1.151 Conditions for Issuing a Warrant

As to the duties of full and frank disclosure on person applying to a court for a search or arrest warrant, see Zinga [2012] EWCA Crim 2357, in which the Court of Appeal was highly critical of the Metropolitan Police for failing to disclose to the justices that the warrant was sought in relation to a possible private prosecution. They were helping Virgin Media to acquire evidence of fraud committed through the illegal sale of devices giving access to Virgin media subscription services. The Court nevertheless declined to interfere with D’s conviction either on grounds of abuse of process or under the PACE 1984, s. 78. There was nothing to suggest that the warrants would have been refused if the full facts had been disclosed.

D2 The Decision to Prosecute and Diversion

D2.58 Detention of Juveniles after Charge

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Children Act 1989) (Children Remanded to Youth Detention Accommodation) Regulations 2012 (SI 2012 No. 2813) inter alia amend the Children (Secure Accommodation) Regulations 1991 (SI 1991 No. 1505) so as to provide that the restrictions on the use by a local authority of secure accommodation (under the Children Act 1989, s. 25 and the 1991 Regulations) do not apply to persons remanded to youth detention accommodation under LASPO 2012, s. 104.

D3 Courts, Parties and Abuse of Process

D3.55 Prosecutions by Other Persons

DPP, ex parte Duckenfield [2000] 1 WLR 55 was considered in R (Gujra) v CPS [2012] UKSC 52, in which (by a bare majority) the Supreme Court upheld the power of the DPP /CPS to take over and discontinue a private prosecution in circumstances where, although there may be a case for D to answer, it considers that the prosecution would be unlikely to succeed, and where accordingly a public prosecution would not have been instituted.

In the view of the majority, many of the factors which can be said to justify the ‘better than evens’ standard in public prosecutions apply equally to private prosecutions. But any private prosecution which is found to have a better than evens chance of success and is not contrary to the public interest will be permitted to continue as a private prosecution save where there is ‘a particular need’ for it to be taken over by the DPP.

D3.125 Freedom of the Media to Report Court Proceedings

The power of a court to order the name of a convicted offender to be kept undisclosed was considered in R (Press Association) v Cambridge Crown Court [2012] EWCA Crim 2434.

Following D’s conviction in open court on several counts of rape, the judge made an order under the Contempt of Court Act 1981, s. 4(2), imposing an indefinite prohibition on the publication of 'anything relating to the name of the defendant which could lead to the identification of the complainant which could have serious consequences for the course of justice.'

The Press Association challenged this order and the Court of Appeal upheld that challenge. The Sexual Offences (Amendment) Act 1992 provides for the anonymity of complainants, but there is no such power to forbid the naming of offenders, even where the purpose is to preserve the complainant’s anonymity. Lord Judge CJ said:

It was for the press to decide how appropriately to report the case so as to ensure the anonymity of the complainant: it was not for the court to instruct the press how to do so by making an order which in effect imposed a blanket prohibition against publication of the defendant’s name.

D7 Bail

D7.14 Risk of Absconding, Further Offences or Interference with Witnesses: Application of para. 2

The LASPO 2012, sch. 11, paras. 13 and 14, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.26 Absconded in the Present Proceedings

The LASPO 2012, sch. 11, paras. 15 and 17, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.29 Presumption in Favour of Bail for Offences Committed Whilst on Bail

The LASPO 2012, sch. 11, para. 16, was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.32 Refusing Bail: Imprisonable Summary Offences

The LASPO 2012, sch. 11, paras. 25 and 26, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.33 Refusing Bail: Non-imprisonable Offences

The LASPO 2012, sch. 11, paras. 28 to 29, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.47 Conditions of Bail: Electronic Monitoring

The LASPO 2012, sch. 11, was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.54 Parent Standing Surety for Juvenile

The LASPO 2012, sch. 11, para. 3, was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.87 Prosecution Applications: Procedure

The LASPO 2012, sch. 11, para. 32, was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.98 Breach of Bail Conditions: Approach where the Accused is Brought before the Court under s. 7

The LASPO 2012, sch. 11, para. 8, was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.126 Detention when Bail is Refused: Legal Aid, Sentencing and Punishment of Offenders Act 2012

The LASPO 2012, ss. 91 to 107 and sch. 11, para. 2, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

D7.127 Remands to Local Authority Accommodation

The LASPO 2012, sch. 11, ss. 92 to 97, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906). Note that the reference in the main work to s. 912 should be to s. 91.

D7.128 Remands to Youth Detention Accommodation

The LASPO 2012, ss. 91, 98, 99 and 102 and 104, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Children Act 1989) (Children Remanded to Youth Detention Accommodation) Regulations 2012 (SI 2012 No. 2813) inter alia disapply certain duties of local authorities in relation to persons remanded to youth detention accommodation under LASPO 2012, s. 91(3) or 104.

D13 Juries

D13.50 Discharge of Jurors or Entire Jury

As to jury irregularities, see now Jury Irregularities in the Crown Court: a Protocol issued by the President of the Queen's Bench Division; available for download at www.judiciary.gov.uk/publications-and-reports/protocols/criminal-protocols .

D13.66 Misconduct by a Juror

As to the proper approach to cases in which evidence of jury misconduct or irregularity, etc. arises only after verdicts have been returned, see now the second part of Jury Irregularities in the Crown Court: a Protocol issued by the President of the Queen's Bench Division; available for download at www.judiciary.gov.uk/publications-and-reports/protocols/criminal-protocols .

D14 Special Measures and Anonymity Orders

D14.31 Video-recorded Evidence-in-chief: Admissibility of the Video Interview

See C [2012] EWCA Crim 2380, in which the fairness of a trial was found to have been fatally undermined by (inter alia) the admission of flawed and prejudicial ABE interview evidence.

D15 Trial on Indictment: General Matters

D15.87 Voluntary Absence of the Accused

In Rebihi [2012] All ER (D) 89 (Nov) the defendants absented themselves for unknown reasons once the jury had retired to consider its verdict. The judge told the jury to continue their deliberations, saying that he did not know why the defendants were not in court. He further stated that the fact of their absence was of no moment or weight, but did not use the words suggested by the 2010 Benchbook. The jury convicted.

The Court of Appeal rejected claims that this amounted to a misdirection. What the judge had said was better tailored to the circumstances than the JSB model.

D23 Sentencing in the Magistrates’ Court

D23.48 Committal under the Powers of Criminal Courts (Sentencing) Act 2000, s. 6

Qayum [2010] EWCA Crim 2237 and Ayhan [2012] 1 WLR 1775 were considered in Bateman [2012] EWCA Crim 2158, in which the issue before the Court of Appeal was whether, on the committal of an offender to the Crown Court to be dealt with in respect of the commission of an offence during the operational period of a suspended sentence imposed by that court, the Crown Court's powers of sentencing under the PCC(S)A, s. 7, in relation to other offences in respect of which the offender had been committed under s. 6(2) were limited to those of the magistrates' court.

The Court of Appeal answered this question in the affirmative: s. 7(2) implemented the overall legislative purposes of ss. 6 and 7 by ensuring that, on committal to the Crown Court under s. 6, an offender was not exposed to a more severe penalty than could have been imposed on him by the magistrates' court itself.

D26 Appeal to the Court of Appeal (Criminal Division) following trial on indictment

D26.17 The Safety Test

The ‘lurking doubt’ principle set out in Cooper [1969] 1 QB 267 was considered once again in Pope [2012] EWCA Crim 2241, in which Lord Judge CJ explained (at [14]) why it is such a  difficult basis on which to win an appeal against conviction:

When there is trial by jury, the constitutional primacy and public responsibility for the verdict rests not with the judge, nor indeed with this court, but with the jury. If therefore there is a case to answer and, after proper directions, the jury has convicted, it is not open to the court to set aside the verdict on the basis of some collective, subjective judicial hunch that the conviction is or maybe unsafe. Where it arises for consideration at all, the application of the ‘lurking doubt’ concept requires reasoned analysis of the evidence or the trial process, or both, which leads to the inexorable conclusion that the conviction is unsafe. It can therefore only be in the most exceptional circumstances that a conviction will be quashed on this ground alone, and even more exceptional if the attention of the court is confined to a re-examination of the material before the jury.

D26.21 Wrongful Admission or Exclusion of Evidence

In T [2012] EWCA Crim 2358, [2012] All ER (D) 71 (Nov) (as to which see also this update at F7.22) the Court of Appeal hesitated to dispose of an appeal against the trial judge’s exclusion, in a rape case, of a line of defence cross-examination and evidence. There were concerns as to the real provenance of Facebook messages and images which the defence sought to adduce and failure to give advance notice of that evidence had left the prosecution in difficulty. Adjourning the appeal, Moses LJ said (at [24] – [25]):

Normally when a judge refuses to admit relevant evidence there will be no difficulty in deciding whether it affords any ground for allowing the appeal. But in this case the very concerns which drove the judge to refuse to allow the evidence to be adduced cause us similar anxiety. It is not possible for us to say that the verdict is unsafe unless the prosecution have had the opportunity to question the defendant as to the provenance of the photograph and adduce any evidence it wishes to adduce as to how easy it might be to have obtained the photograph from another source….

For those reasons, we shall adjourn the appeal for a further hearing, at which both appellant and prosecution will have the opportunity to adduce any relevant evidence they wish.


Part E Sentencing

E1 Sentencing: General Provisions

E1.17 Increase in Sentences for Aggravation Related to Disability Sexual Orientation or Transgender Identity

The LASPO 2012, s. 65 (aggravation relating to transgender identity) was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E1.23 Duty to Give Reasons for, and to Explain the Effect of, Sentence

The LASPO 2012, s. 64, which substitutes the CJA 2003, s. 174, was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E2 Custodial Sentences: General Provisions

E2.12-14 Crediting of Periods of Remand in Custody and Periods on Bail Subject to Curfew and Electronic Monitoring

The LASPO 2012, ss. 108 and 109, which replace the CJA 2003, s. 240 with s. 240ZA and amend s. 240A, were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E3 Mandatory Life Sentences

E3.4 Murder: Life Imprisonment - Schedule 21 Principles

The LASPO 2012, s. 65(9), which amends the CJA 2003, sch. 21, para. 5(2)(g), was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

In Oakes [2012] EWCA Crim 2435, sentences following very grave crimes on five unrelated appellants were considered by a special constitution of the Court of Appeal. Three of the appellants were convicted of murder, and two of rape and associated sexual crime. For those convicted of murder the mandatory sentence of life imprisonment was imposed: for those convicted of rape and sexual crime discretionary life sentences were imposed. The appeals were concerned with the judicial assessment of the minimum term to be served by the appellants for the purposes of punishment and retribution before the possibility of their release may be considered. In four of these appeals (two of murder and two of rape), whole life terms were ordered, and in the fifth case (another case of murder), the minimum term was assessed at 30 years.

The principal question for the court was whether the jurisprudence of the ECtHR prohibited the imposition of such sentences. There was also the question of whether, in the cases of the appeals where the offences did not include murder, a whole life term was appropriate. Lord Judge CJ, after examining the various relevant cases, emphasised (at [24]) that, as regards murder, the CJA 2003, sch. 21 was not prescriptive. Provided the court has acted properly in taking relevant mitigation into account, a whole life order would not be contrary to the ECHR, Article 3. But the Court was not convinced that the sentences were correct in the case of the two appellants who had not committed murder. Lord Judge CJ stated (at [102]):

It is regrettably possible to envisage, and there have been cases, where dreadful sexual assaults have been followed by murderous violence. The whole life order is reserved for the most exceptional cases. Without suggesting that the court is prohibited from making a whole life order unless the defendant is convicted of at least one murder, such an order will, inevitably be a very rare event indeed.

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

E4.8 Imprisonment or Detention for Public Protection

A problem that initially affected many prisoners serving sentences of IPP and gave rise to issues under the ECHR, Article 5 was the failure of the Secretary of State to provide the systems and resources that prisoners serving such sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. Measures were taken to rectify the situation, and in R (James) v Secretary of State for Justice [2009] UKHL 22, [2009] 4 All ER 255 the House of Lords held that Article 5(1) would be breached only in cases where there had been a very lengthy period without any effective review of the case.

In James v United Kingdom [2012] All ER (D) 109 (Sep), however, the ECtHR awarded monetary compensation to applicants who had been unsuccessful before the House of Lords and issued a declaration that there had been a violation of Article 5(1) in respect of their detention following the expiry of their tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses.

E4.11 Extended Sentence: Persons 18 or over

The LASPO 2012, part 1, chapter 5 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E4.15 Life Sentence for Second Listed Offence

The LASPO 2012, part 1, chapter 5 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E6 Suspended Sentences under the Criminal Justice Act 2003

E6.3 Power to Impose Suspended Sentences

The LASPO 2012, s. 68 (changes to powers to make suspended sentence order) was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E6.5 Suspended Sentence: Consecutive Terms

The LASPO 2012, s. 68 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E6.12 Powers Available to Deal with Breach

The LASPO 2012, s. 69 (fine for breach of suspended sentence order) was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E7 Custodial Sentences: Detention and Custody of Offenders under 21

E7.25 Breach of Order

The LASPO 2012, s. 80 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906). It reverses the decision in H v Doncaster Youth Court (2009) 173 JP 162. The ‘remainder of the term’ is taken to be the period from the date of the actual breach (rather than the date upon which the breach was dealt with in court) until the end of the term of the order.

E8 Community Orders under the Criminal Justice Act 2003

E8.10 Community Order Requirements

The LASPO 2012, s. 66 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.14 Programme Requirement

The LASPO 2012, s. 70 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.16 Curfew Requirement

The LASPO 2012, s. 71 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.19 Foreign Travel Prohibition Requirement

The LASPO 2012, s. 72 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.20 Mental Health Treatment Requirement

The LASPO 2012, s. 73 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.21 Drug Rehabilitation Requirement

The LASPO 2012, s. 74 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.24 Alcohol Treatment Requirement

The LASPO 2012, ss. 75 and 76 were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E8.30 Breach of Community Order

The LASPO 2012, ss. 66 and 67 were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E9 Youth Rehabilitation Orders

E9.3 Nature of Order

The LASPO 2012, s. 83 (YRO: duration) was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E9.11 Curfew Requirement

The LASPO 2012, s. 81 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E9.15 Mental Health Treatment Requirement

The LASPO 2012, s. 82 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E9.24 Breach, Revocation and Amendment of Order

The LASPO 2012, ss. 83 (YRO: duration) and 84 (YRO: fine for breach) were brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E10 Referral Orders

E10.2-4 Requirement to Refer, and Power to Refer, Young Offender to a Youth Offender Panel

The LASPO 2012, s. 79(1) and (2) was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E16 Compensation Orders

E16.1 Power to Make Compensation Orders

The LASPO 2012, s. 63 was brought into force on 3 December by the Legal Aid, Sentencing and Punishment of Offenders Act (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906).

E19 Confiscation Orders

E19.6 Protocol 1, Article 1

The Supreme Court has now given its long awaited judgment in Waya [2012] UKSC 51 (on appeal from [2010] EWCA Crim 412). The nine-judge court recognised the need (under Protocol 1, Art 1) for any confiscation order imposed following conviction to be proportionate, bearing in mind that the aim of the POCA 2002 is to deprive criminals of their profits, rather than to act as a deterrent or further punishment. 

See also E19.23 in this update.

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

The Supreme Court has now given its long awaited judgment in Waya [2012] UKSC 51 (on appeal from [2010] EWCA Crim 412). The nine-judge court recognised the need (under Protocol 1, Art 1 to the ECHR [‘A1P1’]) for any confiscation order imposed following conviction to be proportionate, bearing in mind that the aim of the POCA 2002 is to deprive criminals of their profits, rather than to act as a deterrent or further punishment.

Where an offender has already restored any losses his crime caused to the victim and has gained no benefit, it would be disproportionate for the court to impose any confiscation order on top of this. In Waya, D had repaid the 60% mortgage loan that he had fraudulently obtained on better terms than he had been entitled to, but had meanwhile made a significant capital gain from the increase in London property values, and it was appropriate for this benefit to be valued for the purposes of a confiscation order. His benefit was accordingly valued at 60% of any increase in the property’s market value over its acquisition price.

The Supreme Court did not in terms overrule Smith (David) [2002] 1 WLR 54, which was held to be distinguishable from cases in which D has restored property to the rightful owner. But Lord Walker and Sir Anthony Hughes (with whom five other Justices agreed) said:

The true analysis of tax or excise avoidance cases did not arise in this appeal and ought to await full argument when it does. It is, however, to be observed that in such a case HM Revenue and Customs does not as a matter of practice seek double recovery by way of both the payment of the unpaid duty and a confiscation order in the same sum: see Edwards [2004] EWCA Crim 2923 … where the existence of this practice was the reason why no breach of A1P1 was argued. This practice is followed … because such double recovery is recognised to be disproportionate and wrong. … The argument may need in the future to be considered that a disproportionate result should not be left to be achieved by way of Executive concession but rather should be the responsibility of the court to which an application for a confiscation order is made.

E21 Exclusions and Disqualifications

E21.27 Sexual Offences Prevention Orders

Guidance on sentencing for serious breaches of a SOPO was given in Bell [2012] EWCA Crim 2362. D, posing as a woman, attempted to engage a ‘13 year old girl’ called Amy in sexual conversations on an internet chat room, but neither D nor ‘Amy’ were what they purported to be. Amy was a police officer and D, a man with several convictions for child sex offences, was prohibited by the terms of a SOPO from entering any internet site for the purpose of viewing any female child under the age of 16 years; and from speaking to, approaching, communicating or attempting to do so, directly or indirectly, any female under the age of 16 years.

The Court of Appeal suggested a starting point of 18 months’ imprisonment as appropriate in such cases, where multiple breaches of a SOPO  are a part of the same incident and where D has not previously been in breach of the SOPO.

E21.28 Restraining Orders under the Protection from Harassment Act 1997

In Smith [2012] EWCA Crim 2566, [2012] All ER (D) 359 (Nov) D had been found not guilty by reason of insanity and  granted an absolute discharge pursuant to s 5(2)(c) of the Criminal Procedure (Insanity) Act 1964, after suffering a psychotic delusional attack on an airliner in flight and attempting to open the exit doors, to the alarm of his fellow passengers.

One can perhaps see why the judge thought it appropriate to impose an order under the Protection from Harassment Act 1997, s. 5A, prohibiting D from travelling on any domestic or international commercial airline for a period of three years, but the Court of Appeal was having none of it: the judge, they said, had used s. 5A as a means of protecting the public against the possible effects of a possible recurrence of a mental illness. That was not a permissible function of s. 5A. The effect of the restraining order had been to impose an unlawful and unjustifiable restraint on D’s ability to live a normal part of his life. The order was quashed.

E22 Mentally Disordered Offenders

E22.13 Hospital and Limitation Directions

An ‘hybrid’ hospital and imprisonment order under the Mental Health Act 1983, s. 45A, was imposed in Jenkin [2012] EWCA Crim 2557, where D, who had a long history of serious violence and a delusional psychotic disorder, gouged out his girlfriend’s eyes following a quarrel. The Court of Appeal upheld a sentence of life imprisonment coupled with a hospital order under s. 45A. In addition the Court upheld a restriction order, pursuant to s. 41 of the 1983 Act. The minimum term to be served was six years. His delusional disorder was amenable to treatment, but the risk he posed to the public from causes other than mental problems, the nature of the offence and his antecedents required that he would only be released if the parole board found that it was safe to do so.


Part F Evidence

F1 General Principles of Evidence in Criminal Cases

F1.21 Circumstantial Evidence: Lies

Burge [1996] 1 Cr App R 163 was considered in Williams [2012] EWCA Crim 2516.

F7 Cross-examination

F7.22 Protection of Complainants in Proceedings for Sexual Offence

The potential relevance of explicit Facebook messages with images allegedly sent by a rape complainant (C) to a slightly older defendant (D) prior to the alleged offence was explored in T [2012] EWCA Crim 2358.

The position was complicated by the fact that proper notice of the defence’s intention to adduce such evidence had not been given to the prosecution as required by the CrimPR. The trial judge had refused the defence leave to cross-examine C about them for that reason.  There were also concerns as to the real provenance of the messages. Were they even genuine? That aspect of the case is considered in this update at D26.14.

As to issues that arose under the YJCEA 1999, s. 41, it was held that questions concerning the messages and images concerned C’s ‘sexual behaviour’ within the meaning of s. 41 and that, since D denied ever having had sex with C, neither s 41(2)(b) nor 41(2)(c) applied. Moses LJ said:

Since the defendant denied that he had had sexual intercourse with the complainant the issue was not an issue of consent (section 41(3)(a)). The question for the judge was whether the photograph went to a relevant issue. In our view, it did go to a relevant issue since it was an issue falling to be proved by the defence in the trial of the accused, namely, that the complainant was interested in him. He was not interested in the complainant and the motive for her false allegation was her affront at his lack of interest. Once that relevance had been established, the judge had no discretion to refuse to allow the matter to be put to the complainant.

With respect, it was not that simple because, even under s. 41(3)(a), admissibility remains subject both to s. 41(2)(b) and (where applicable) to s. 41(4) and (6). The two latter subsections may not have been applicable on these facts, but the judge certainly did have a call to make (arguably more one of judgement than discretion) under s. 41(2)(b), to which Moses LJ makes no reference.  Relevance is not enough, even where consent is not in issue.

F12 Evidence of Bad Character of Accused

F12.20 Powers of Exclusion

Lord Woolf CJ’s observations in Highton [2005] 1 WLR 3472 concerning the possible relevance of the PACE 1984, s. 78 in cases involving bad character under the CJA 2003 were considered and endorsed in Dixon [2012] EWCA Crim 2163, although it was held that the evidence in that case was rightly and fairly admitted under both gateway (f) and gateway (g) of s. 101.

F12.70  Distinguishing the Criminal Justice Act 2003, s. 101(1)(e), from the Common-law Position

Phillips [2012] 1 Cr App R 332 was considered in Walsh [2012] EWCA Crim 2728, which involved the CJA, s. 100, but is relevant by analogy to s. 101. There was cogent evidence that D had attacked and wounded V in his prison cell, and against that background the trial judge had been justified in excluding evidence of an allegedly false accusation made by V against his mother many years before. The previous allegation had been made under very different circumstances, when V was much younger and had not necessarily been untrue. The evidence thus fell short of what was required in terms of ‘substantial’ probative value under the CJA 2003, s. 100.

F14 Evidence of Bad Character of Persons Other than the Accused

F14.6 Background to the Criminal Justice Act 2003, s. 100

Phillips [2012] 1 Cr App R 332 was considered in Walsh [2012] EWCA Crim 2728, in which there was cogent evidence that D had attacked and wounded V in his prison cell, and against that background the trial judge had been justified in excluding evidence of an allegedly false accusation made by V against his mother many years before. The previous allegation had been made under very different circumstances, when V was much younger and had not necessarily been untrue. The evidence thus fell short of what was required in terms of ‘substantial’ probative value under the CJA 2003, s. 100.

F16 Exceptions to the Rule Against Hearsay

F16.19 Unavailable Witnesses: Leave in ‘Fear’ Cases

Horncastle [2010] 2 AC 373 was considered in Shabir [2012] EWCA Crim 2564. See also F16.33 in this update.

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

Horncastle [2010] 2 AC 373, Ibrahim [2012] EWCA Crim 837 and Riat [2012] EWCA Crim 1509 were considered in Shabir [2012] EWCA Crim 2564.

A summary of ten relevant principles derived from those cases is provided by Aikens LJ at [64] to [65] of the judgment. In this case the judge at a retrial had admitted hearsay evidence in the form of a s. 116 statement from a witness at the first trial, R, who was currently in prison and suffering from paranoid schizophrenia with ‘persecutory and paranoid delusions’. There was some independent support for parts of the evidence in his statement but, overall, it could not be shown ‘that the untested hearsay evidence … on the central issue of the identity of the appellant as the gunman …was potentially safely reliable’. A retrial was ordered.

F18 Evidence of Identification

F18.4 Dealing at Trial with Breaches of PACE Code D

As to the dangers of contaminated visual identification, see C [2012] EWCA Crim 2380, although this was not strictly speaking a Code D case.


Appendices

Appendix 2 Attorney-General’s Guidelines

The Attorney-General has published revised guidelines on the exercise by the Crown of its right of stand by and on jury checks. The new guidelines can be accessed at http://www.attorneygeneral.gov.uk/Publications/Documents/Jury%20Vetting%20Guidelines%20-%20Final.pdf.


New Legislation

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Children Act 1989) (Children Remanded to Youth Detention Accommodation) Regulations 2012 (SI 2012 No. 2813)

These Regulations inter alia disapply certain duties of local authorities in relation to persons remanded to youth detention accommodation under LASPO 2012, s. 91(3) or 104 and also amend the Children (Secure Accommodation) Regulations 1991 (SI 1919 No. 1505) so as to provide that the restrictions on the use by a local authority of secure accommodation (under the Children Act 1989, s. 25 and the 1991 Regulations) do not apply to persons remanded to youth detention accommodation under LASPO 2012, s. 104.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential and Saving Provisions) Regulations 2012 (SI 2012 No. 2824)

These Regulations make consequential amendments in light of the implementation of the provisions of LASPO 2012 relating to bail and sentencing by SI 2012 No. 2906.

Police Reform and Social Responsibility Act 2011 (Commencement No. 7 and Transitional Provisions and Commencement No. 3 and Transitional Provisions) (Amendment) Order 2012 (SI 2012 No. 2892)

This Order brings most of Part 1 of the Act (police reform) into force on 22 November 2012 and amends the transitional provision in the earlier Order (SI 2011 No. 3019).

Official Secrets Act 1989 (Prescription) (Amendment) Order 2012 (SI 2012 No. 2900)

This Order amends the principal Order of 1990 (SI 1990 No. 200) so as to add police and crime commissioners, and similar posts involving the supervision of policing, to the list of offices whose occupants are prescribed as Crown servants.

Crime (Sentences) Act 1997 (Commencement No. 5) Order (SI 2012 No. 2901)

This Order brings the repeal of the CJA 1967, s 67 into force on 3 December 2012.

Criminal Justice Act 2003 (Commencement No. 30 and Consequential Amendment) Order 2012 (SI 2012 No. 2905)

This Order brings further provisions of the Act which relate to sentencing into force (or fully into force) on 3 December 2012.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906)

This Order brings the following provisions of the Act into force on 3 December 2012:

Part 3, chapter 1 (sentencing) except—

  1. s. 67(2)(a) and (5)(a) (court’s powers in relation to an offender following a finding that the offender has breached a community order);
  2. ss. 76 and 77 (alcohol abstinence and monitoring requirement etc – s. 77 is already in force);
  3. s. 78(3) so far as it relates to alcohol abstinence and monitoring requirements; and
  4. ss. 85 to 88 (fines);
    1. Part 3, chapter 2 (bail);
    2. Part 3, chapter 3 (remands of children otherwise than on bail);
    3. Part 3, chapter 4 (release on licence etc), except s. 119 (which is already in force);
    4. Part 3, chapter 5 (dangerous offenders);
    5. Part 3, chapter 6 (prisoners etc), except s. 129;

It also makes saving provision in relation to offences, breaches or failures to comply prior to the implementation date.

Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No.2) Order 2012 (SI 2012 No. 2937)

This Order amends the Terrorism Act 2000, sch. 2 (proscribed organisations) so as to insert a further entry, namely Ansarul Muslimina Fi Biladis Sudan (Vanguard for the protection of Muslims in Black Africa) (Ansaru).

Road Safety Act 2006 (Commencement No.9 and Transitional Provisions) Order 2012 (SI 2012 No. 2938)

This Order brings into force s. 35 of the Road Safety Act 2006 together with related repeals. Section 35 substitutes new provisions for the current ss. 34A to 34C of the Road Traffic Offenders Act 1988, which provide for a reduced period of disqualification for offenders who successfully complete a drink-drive rehabilitation course under a court order. Section 35 is brought into force only insofar as ss. 34A to 34C have application where a person is convicted of a drink-related offence and also in two stages; namely on 21 December 2012 regarding applications for approval of DDR courses, the approval process and related appeals and on 21 December 2012 regarding applications for approval of DDR courses, the approval process and related appeals and on 24 June 2013 for all other purposes.

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