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Blackstone's Criminal Practice 2013

January 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 December 2012.


Part B Offences

B6 Falsification, Forgery and Counterfeiting

B6.62 Offences Relating to Identity Documents: Sentence

Applying general principles relating to sentencing where D is convicted of the lesser of two related offences, the Court of Appeal in Goodings [2012] EWCA Crim 2586 quashed a sentence of six months' imprisonment imposed on D for an offence under the Identity Documents Act 2010, s. 6, and substituted a sentence of two months’ imprisonment. There was ample evidence to suggest that D had been guilty of a more serious offence under s. 4 of the Act and this appeared to have been taken into account by the judge in sentencing, but it was improper to do so because this was not the offence to which D had pleaded guilty. The Court of Appeal observed:

On the facts as the judge found them, and if the case had been charged under s. 4, no possible complaint could have been made against the sentence. However, the message which follows from this is that the prosecution ought not to accept a plea of guilty to a charge which does not properly reflect the evidence or enable them properly to place before the court the facts which go to show the true gravity of the conduct. No criticism could be made of the judge in this regard, because the matters referred to were not drawn to his attention. On the contrary, he was positively led to approach the matter on a wrong basis by the manner in which the prosecution presented the case, notwithstanding the plea of not guilty to s. 4 which they had accepted.

B7 Company, Commercial and Insolvency Offences

B7.24 Offences under the Financial Services and Markets Act 2000

The Financial Services Act 2012 received Royal Assent on 19 December 2012; its main provisions are yet to be brought into force but are expected to be implemented in April 2013. It includes substantial amendments to the Financial Services and Markets Act 2000, including new provision as to regulation (inter alia changing the name of the Financial Services Authority to the Financial Conduct Authority) and as to ‘financial crime’.

B22 Immigration Offences

B22.7 Article 31 of the Convention Relating to the Status of Refugees 

The complicated burdens of proof that may arise under the Immigration and Asylum Act 1999, s. 31 were considered in Sadighpour [2012] EWCA Crim 2669, in which the Court of Appeal said:

15 As Makuwa [2006] EWCA Crim 175 shows, to avail himself of a s. 31 defence the appellant would need, initially, to satisfy an evidential burden that he was a refugee (i.e. ‘a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’). That wording appears in the Refugee Convention, Article 1.

16. If a defendant satisfies the evidential burden the Crown would have to prove that he was not a refugee.

18. If the Crown fails to disprove that the defendant was a refugee, it then falls to a defendant to prove on the balance of probabilities (a) that he did not stop in any country in transit to the United Kingdom or, alternatively, that he could not reasonably have expected to be given protection under the Refugee Convention in countries outside the United Kingdom in which he stopped; and, if so: (b) to prove that he presented himself to the authorities in the UK without delay; (c) to show good cause for his illegal entry or presence in the UK; and (d) to prove that he made a claim for asylum as soon as was reasonably practicable after his arrival in the United Kingdom.

But the Court noted that the position must be different where the Secretary of State has already rejected a claim to asylum made by a person who claims a defence under s. 31(1) because, by s. 31(7), such a person is taken not to be a refugee unless he ‘shows’ that he is. That, said the Court, must mean that he has a full persuasive burden to discharge on a balance of probabilities.

The Court also held, following Asfaw [2008] 1 AC 1061, that a person who is genuinely in transit does not necessarily lose the protection of the Refugee Convention and s. 31.  The question of whether a person was genuinely in transit and/or acted promptly in presenting himself to the authorities and making a claim for asylum is a fact-sensitive one.

See also Jaddi [2012] EWCA Crim 2565.


Part C Road Traffic Offences

C7 Sentencing

C7.15 Reduced Disqualification following Course

The Rehabilitation Courses (Relevant Drink Offences) Regulations 2012 (SI 2012 No. 2939) make provision about drink-drive rehabilitation courses. These are courses which may be the subject of a court order under which a period of disqualification for drink-drive offences may be reduced if the offender successfully completes an approved course. The Road Traffic (Courses for Drink-Drive Offenders) Regulations 1992 (SI 1992 No. 3013) are revoked. The Regulations have effect in part from 21 December 2012 and are fully in force from 24 June 2013; in essence, they are in force as regards course providers from the December date and as regards course attendees from the June date.


Part D Procedure

D2 The Decision to Prosecute and Diversion

D2.58 Detention of Juveniles after Charge

The Children (Secure Accommodation) (Amendment) (England) Regulations 2012 (SI 2012 No. 3134) amend the Children (Secure Accommodation) Regulations 1991, reg. 6, with effect from 11 January 2013. The effect is to restrict the modification of the PACE 1984, s. 38 to children aged 12 or over but under 17.

D5 Preliminary Proceedings in Magistrates’ Courts

D5.17 Disclosure of Initial Details of Prosecution Case

The Criminal Procedure (Amendment) Rules 2012 (SI 2012 No. 3089) inter alia substitute the CrimPR, r. 21.2, with effect on 1 April 2013. From that date, it will read as follows:

(1) The prosecutor must serve initial details of the prosecution case on the court officer—

(a) as soon as practicable; and

(b) in any event, no later than the beginning of the day of the first hearing.

(2) Where a defendant requests those details, the prosecutor must serve them on the defendant—

(a) as soon as practicable; and

(b) in any event, no later than the beginning of the day of the first hearing.

(3) Where a defendant does not request those details, the prosecutor must make them available to the defendant at, or before, the beginning of the day of the first hearing.

D14 Special Measures and Anonymity Orders

D14.49 Witness Anonymity Orders

Mayers [2009] 1 WLR 1915 was considered in Donovan [2012] EWCA Crim 2749, in which the Court of Appeal concluded that D’s trial had been prejudiced because the provision of witness anonymity had prevented the defence from exploring various matters which would have provided a source of significant cross-examination as to the credibility of the witnesses. The jury may have assumed that those witnesses were dispassionate and objective, and were prevented from hearing admissible and substantive material relevant to the question whether they were lying, or might have had a motive for lying. The trial judge may not have been aware of some of these matters but the upshot was that D’s trial had been unfair.

D16 Trial on Indictment: the Prosecution Case

D16.54 Submission of No Case to Answer

Galbraith [1981] 1 WLR 1039 was considered in Boota v Gwent Magistrates' Court [2012] EWHC 3550 (Admin) in which the Divisional Court recognised that D might have a case to answer based on circumstantial evidence alone, although in this particular case the circumstantial evidence was deficient in certain key respects.

D22 Summary Trial: The Course of the Trial

D22.69 The Role of the Justices’ Clerk/Legal Adviser

The Criminal Procedure (Amendment) Rules 2012 (SI 2012 No. 3089) inter alia amend the CrimPR, r. 37.14(2), with effect on 1 April 2013, so as to set out the duties of the justices’ legal adviser in greater detail.

D23 Sentencing in the Magistrates’ Court

D23.5 Presenting the Facts, Character and Antecedents

The Criminal Procedure (Amendment) Rules 2012 (SI 2012 No. 3089) inter alia amend the CrimPR, r. 37.10(3), with effect on 1 April 2013, so as to add ‘any statement of the effect of the offence on the victim, the victim’s family or others’ to the information which the prosecutor must draw to the court’s attention. Rule 37.10(4) is also amended, removing the general duty it expresses for the offender to provide information relevant to sentence and specifying the procedure by which details of financial circumstances must be given.

D23.7 Adjudication on and Pronouncement of Sentence

The Criminal Procedure (Amendment) Rules 2012 (SI 2012 No. 3089) inter alia amend the CrimPR, r. 37.10(9), with effect on 1 April 2013, so as to relieve the court of its obligation to explain its reasons for deciding on its sentence if neither the offender nor any member of the public is present. The amendment also relieves the court of its duty to explain the effect of the sentence where the offender is absent or his ill-health or disorderly conduct make such an explanation impracticable.

D33 Costs

D33.31 Costs against Legal Representatives

The Prosecution of Offences Act 1985, s. 19, and the Costs in Criminal Cases (General) Regulations 1986, reg. 3 do not permit wasted costs orders to be made in favour of defence advocates even where errors on the part of the prosecution have caused those advocates to waste their time and effort attending abortive hearings that have to be adjourned but will not then give rise to additional remuneration from the Legal Services Commission under the Advocates' Graduated Fee Scheme.  This is because such advocates are not parties to the proceedings. See R (Crown Prosecution Service) v Bolton Crown Court [2012] EWHC 3570 (Admin).


Part E Sentencing

E1 Sentencing: General Provisions

E1.10 Reduction in Sentence for Guilty Plea

Sentencing practice in guilty plea cases and the definitive sentencing guideline, Reduction in Sentence for a Guilty Plea (see Supplement, SG-1) were considered once again in an important guideline judgment of the Court of Appeal: Caley [2012] EWCA Crim 2821.

The Court offers guidance on what should be regarded as a ‘first reasonable opportunity’ so as to secure the maximum discount (largely endorsing what was said in Chaytors [2012] EWCA Crim 1810, as to which see the September update)) but the Court also considers other matters, including discounts in ‘overwhelming evidence’ cases and the use of Newton hearings.

E2 Custodial Sentences: General Provisions

E2.19 Concurrent and Consecutive Custodial Sentences

A-G’s Ref (No. 64 of 2012); M [2012] All ER (D) 128 (Dec) provides an example of the use of consecutive sentences to ensure that a prolonged course of the gravest familial child-sex abuse, including rape and multiple victims, was sufficiently punished.

The Court of Appeal considered the initial sentences imposed (amounting to no more than 12 years) for numerous serious sexual offences to be unduly lenient. A number of the sentences were therefore ordered to be served consecutively, in order to achieve a total sentence of 21 years' imprisonment.

E18 Deprivation and Forfeiture Orders

E18.4 Deprivation Orders: Sentencing Principles

The principles governing the making of deprivation orders under the PCC(S)A 2000, s. 143, were considered in Lee [2012] EWCA Crim 2658, where D had used his work van in connection with a kidnapping in which his accomplices abducted and severely beat the victim while D himself did the driving. In addition to a sentence of 12 months’ imprisonment for the kidnapping, the Crown Court judge imposed a deprivation order in respect of the van, which was worth £1,500 and was said to be essential to D’s work.

Upholding the order, the Court of Appeal said:

The judge made no legal error; it was open to him to conclude that, given the gravity of the offence, the role of the van in the offending, the worth of the van and its assumed value in incrementing the appellant's earning power, against an apparent background of low disposable income and welfare benefits, deprivation did not add to the punishment in this case in a way that was unjustly disproportionate. This was not a case where the judge manifestly "overdid the punishment" (to use the language of this court in Buddo [1982] Crim LR 837). 

E20 Recommendation for Deportation

E20.4 Recommendation for Deportation: Sentencing Principles

Nazari [1980] 1 WLR 1366 and Benabbas [2006] 1 Cr App R (S) 550 were considered in Junab [2012] EWCA Crim 2660, where the Court of Appeal reiterated the principle that that using false identification documents is an offence of such seriousness, in the sense of the detrimental effect D’s continued presence will have on our society, that it can merit recommending deportation; although in this case D did not use the false documents to enter or leave the country or to claim benefits, the underlying criminality was the same, namely her use of those documents to hide her true identity, obtain employment and avoid immigration controls.

E21 Exclusions and Disqualifications

E21.21 Barring Offenders from Regulated Activity Relating to Children and Vulnerable Adults

The Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012 (SI 2012 No. 3006) provides that, subject to certain exceptions, the functions of the Independent Safeguarding Authority are transferred to the Disclosure and Barring Service. It has effect from 1 December 2012.


Part F Evidence

F6 Examination-in-chief

F6.42 Statements in Rebuttal of Allegations of Recent Fabrication

Athwal [2009] 1 WLR 2430 was applied in MH [2012] EWCA Crim 2725.

F11 Admissibility of Previous Verdicts

F11.19 Convictions as Evidence of Facts on which Based: Convictions of the Accused

The PACE 1984, s. 74(3) and C [2011] 1 WLR 1942 were considered by the Court of Appeal in Clift [2012] EWCA Crim 2750. The Court examined two cases in which appellants had been convicted of causing GBH to victims who subsequently died. The issue in each case was whether, at their trials for murder, the juries had rightly been directed to presume that the GBH convictions were correct, unless the contrary was proved. The Court took an entirely orthodox view of s. 74(3) before going on to examine the possible application of s. 78 to the use of such evidence. Lord Judge CJ said:

There is, in addition, the separate safeguard under s. 78, which permits the judge to exclude the evidence. Fairness, of course, runs both ways: the exclusion of admissible evidence may well be unfair to the prosecution. Without seeking to curtail the valuable judicial weapon against unfairness in the criminal justice system embodied in and exemplified by s. 78, it would be something of a novel proposition for the exercise of this discretion to enable the court to exclude evidence when its admissibility stems from the enactment of a statutory provision deliberately designed to permit the evidence to be adduced. Accordingly, the evidence of the earlier convictions cannot be excluded on the basis of some nebulous sense of unfairness. If s. 78 were used to circumvent a clear statutory provision for no better reason than judicial or academic distaste for it, the discretion would be improperly exercised.

In these trials neither judge could see any specific feature of the case, or the evidence, or the circumstances, to lead him to exercise the s.78 jurisdiction. In our judgment they were right.

F18 Evidence of Identification

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

Selwyn [2012] All ER (D) 150 (Dec) provides an illustration of the kind of minor technical breach of PACE Code D that would not justify the exclusion of the evidence in question. The complaint here was that, following the 2011 riots, a PCSO had identified D while viewing CCTV footage in the company of another officer, and that no reason for that had been given in the written record of the identification. The initial failure to explain why the second officer had been present had been addressed during cross-examination of the first officer at trial.


Supplement

Criminal Procedure Rules

The Criminal Procedure (Amendment) Rules 2012 (SI 2012 No. 3089) amend the CrimPR, with effect on 1 April 2013, in the following ways:

  • r. 2.4 is amended to make clear who may initiate proceedings on a prosecutor’s behalf, and who may speak and act for a company;
  • r. 3.8 is amended to require the court to take every reasonable step to facilitate the participation at trial of all those involved, including the defendant;
  • rr. 18.3, 18.4 and 19.2 are amended to take account of new statutory provisions for the remand of young defendants otherwise than on bail;
  • r. 21.2 is amended to provide for service of initial details of the prosecution case in response to a defendant’s request;
  • r. 37.10 is amended to provide for the supply to the court of particular information relevant to sentence; and to relieve the court of the obligation to explain its sentence if neither the defendant nor any member of the public is present and rr. 37.12 and 37.14 are amended to specify the documents and information that must be supplied;
  • r. 42.1 is amended to refer to the explanation of sentence required where a reduced sentence is passed because of assistance given or offered by the defendant and r. 42.11 is added to provide for an application to review a sentence in consequence of such assistance;
  • r. 61.16 is amended in consequence of the new legal aid regime created by the LASPO 2012;
  • rr. 76.1, 76.2, 76.4 to 76.6 and 76.8 to 76.10 are amended in consequence of the new provisions for defendants’ costs orders and the new legal aid regime in the LASPO 2012.

New Legislation

Civil Aviation Act 2012

Most of this Act has no impact on the application of the criminal law but, when brought fully into force, it will make some minor and consequential amendments to the Civil Aviation Act 1982, s. 99 (offences) and the offence of dangerous flying under s. 81 of the 1982 Act will be repealed.

Prosecutions for endangerment may still be brought by the Civil Aviation Authority (CAA) under the Air Navigation Order 2009 No. 3015. The power of the CAA to bring prosecutions is further addressed in s. 101 of the new Act.

Financial Services Act 2012

This Act received Royal Assent on 19 December but its main provisions are yet to be brought into force. It includes substantial amendments to the Financial Services and Markets Act 2000, including new provision as to regulation (inter alia changing the name of the Financial Services Authority to the Financial Conduct Authority) and as to ‘financial crime’.

Police Complaints and Conduct Act 2012

This is a short Act to ‘make provision about interviews held during certain investigations under the Police Reform Act 2002, sch. 3; and about the application of Part 2 of that Act to matters occurring before 1 April 2004’.

It came into force on Royal Assent (19 December 2012).

Rehabilitation Courses (Relevant Drink Offences) Regulations 2012 (SI 2012 No. 2939)

These Regulations make provision about drink-drive rehabilitation courses. These are courses which may be the subject of an order of a court under which a period of disqualification for drink-drive offences may be reduced if the offender successfully completes an approved course. The Road Traffic (Courses for Drink-Drive Offenders) Regulations 1992 (SI 1992 No. 3013) are revoked. The Regulations have effect in part from 21 December 2012 and are fully in force from 24 June 2013; in essence, they are in force as regards course providers from the December date and as regards course attendees from the June date.

Protection of Freedoms Act 2012 (Disclosure and Barring Service Transfer of Functions) Order 2012 (SI 2012 No. 3006)

Subject to certain exceptions, this Order transfers the functions of the Independent Safeguarding Authority to the Disclosure and Barring Service. It has effect from 1 December 2012.

Criminal Procedure (Amendment) Rules 2012 (SI 2012 No. 3089)

These Rules amend the CrimPR, with effect on 1 April 2013, in the following ways:

  • r. 2.4 is amended to make clear who may initiate proceedings on a prosecutor’s behalf, and who may speak and act for a company;
  • r. 3.8 is amended to require the court to take every reasonable step to facilitate the participation at trial of all those involved, including the defendant;
  • rr. 18.3, 18.4 and 19.2 are amended to take account of new statutory provisions for the remand of young defendants otherwise than on bail;
  • r. 21.2 is amended to provide for service of initial details of the prosecution case in response to a defendant’s request;
  • r. 37.10 is amended to provide for the supply to the court of particular information relevant to sentence; and to relieve the court of the obligation to explain its sentence if neither the defendant nor any member of the public is present and rr. 37.12 and 37.14 are amended to specify the documents and information that must be supplied;
  • r. 42.1 is amended to refer to the explanation of sentence required where a reduced sentence is passed because of assistance given or offered by the defendant and r. 42.11 is added to provide for an application to review a sentence in consequence of such assistance;
  • r. 61.16 is amended in consequence of the new legal aid regime created by the LASPO 2012;
  • rr. 76.1, 76.2, 76.4 to 76.6 and 76.8 to 76.10 are amended in consequence of the new provisions for defendants’ costs orders and the new legal aid regime in the LASPO 2012.

Children (Secure Accommodation) (Amendment) (England) Regulations 2012 (SI 2012 No. 3134)

These Regulations amend the Children (Secure Accommodation) Regulations 1991, reg. 6, with effect from 11 January 2013. The effect is to restrict the modification of the PACE 1984, s. 38 to children aged 12 or over but under 17.

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