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Blackstone's Criminal Practice 2013

May 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 April 2013.


Part A: General Principles of Criminal Law

A3 General Defences

A3.54 Self-defence, Prevention of Crime and Related Defences

In Morris [2013] EWCA Crim 436, D, a taxi-driver, mistakenly believed his passengers were making off without payment. He failed to notice that one of them was still in the cab, ready to pay, and drove his taxi onto the pavement to prevent the others from getting away, allegedly injuring one of them in the process. An issue arose as to whether he could claim to have mistakenly used reasonable force in an attempt to prevent what he honestly believed to be the commission of an ongoing offence. The Court of Appeal considered that this should have been left to the jury. Leveson LJ said:

The use of reasonable force in self-defence or in defence of another person is lawful. The essence of these defences is the honestly held belief of the defendant as to the facts (but not the law: see Jones [2007] AC 137).  In relation to use of force in the prevention of crime… the defence is afforded by s. 3 of the Criminal Justice Act 1967.  If honest belief affords a defence under s. 3 in those circumstances, it must equally do so [for] a person who claims to have used reasonable force to prevent the commission of a crime other than a crime of violence against another.

Accordingly, if, as the appellant contended in this case, he honestly believed that the men were making off without payment, he was entitled to use reasonable force in order to prevent the commission of that offence; the jury would thus be required to consider whether driving onto the pavement … was the reasonable exercise of the use of force. 

The trial judge in Morris had directed the jury to consider whether D had used reasonable force in the course of making a lawful arrest under the PACE 1984, s. 24A, but that required D to have reasonable grounds to believe they had indeed committed the offence (which would be difficult, given that one of them was still sitting in the cab).

Arguably, the offence of making off should be considered complete when the offender first makes off, but not finished until he is either caught or gets clean away. If he is pursued (as in Morris) it may reasonably be considered an ongoing offence for as long as the pursuit lasts. That analysis might be implicit in the decision, but was not stated in so many words. See this update at B5.40.

A3.54 (2) Self-defence, Prevention of Crime and Related Defences

The Crime and Courts Act 2013, s. 43 amends the Criminal Justice and Immigration Act 2008, s. 76 with effect from Royal Assent (25 April 2013) by (inter alia) adding a new s. 76(5A):

In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.

Thus, a householder or anyone else lawfully present in that household would be guilty of unlawful violence against a burglar or intruder (or someone he honestly believed to be a burglar or intruder) only if that force was not just excessive or disproportionate, but ‘grossly disproportionate’ in the circumstances as they appeared to him at the time.

A ‘householder case’ is defined in the new s. 76 (8A) as a case where:

(a) the defence concerned is the common law defence of self-defence,

(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),

(c) D is not a trespasser at the time the force is used, and

(d) at that time D believed V to be in, or entering, the building or part as a trespasser.

Further provisions added to s. 76 address the position of shared and mixed use accommodation. As in burglary cases, vehicles or vessels used as dwellings (e.g., caravans) are treated as buildings for this purpose.

The amendments to s. 76 have no retrospective effect (see s. 43(6) of the 2013 Act).

A7 Human Rights

A7.89 The Burden of Proof and the Presumption of Innocence

In Foye [2013] EWCA Crim 475 the Court of Appeal was invited to reconsider the reverse burden of proof placed on defendants who seek to rely on a defence of diminished responsibility, on the basis that this reverse burden may offend against the presumption of innocence protected by the ECHR, Article 6; but the Court saw no reason (and nothing in later case law) to require any departure from the position previously adopted in respect of that defence in Lambert [2002] QB 1112 and in A-G’s Ref (No. 1 of 2004) [2004] 1 WLR 2111.


Part B: Offences

B1 Homicide and Related Offences

B1.18 Diminished Responsibility

In Foye [2013] EWCA Crim 475 the Court of Appeal was invited to reconsider the reverse burden of proof placed on defendants who seek to rely on a defence of diminished responsibility, on the basis that this reverse burden may offend against the presumption of innocence protected by the ECHR, Article 6; but the Court saw no reason (and nothing in later case law) to require any departure from the position previously adopted in respect of that defence in Lambert [2002] QB 1112 and in A-G’s Ref (No 1 of 2004) [2004] 1 WLR 2111.

B1.74 Gross Negligence Manslaughter: Sentencing Guidelines

The much more severe approach sentencing for both unlawful act manslaughter and gross negligence manslaughter that has been adopted following A-G’s Ref (No. 60 of 2009); Appleby [2010] 2 Cr App R (S) 311 was noted in Philips [2013] EWCA Crim 358, where D pleaded guilty to gross negligence manslaughter following his failure to seek medical help for a friend who had clearly overdosed on heroin that D had supplied and later died. D was an experienced heroin user and well understood the symptoms of an overdose. A sentence of four years’ imprisonment (based on a starting point of six years) was upheld on appeal.

B3 Sexual Offences

B3.16 Rape, Sentencing Guidelines

See Robertshaw [2013] All ER (D) 63 (Apr) (noted in this update at E4.22).

B3.33 Consent in Absence of Presumption

Assange v Swedish Prosecution Authority [2011] EWHC 2489 (Admin) was considered in R (F) v DPP [2013] EWHC 945 (Admin), where the DPP’s decision not to prosecute D for rape was successfully challenged in an application for judicial review. The case against D was that although the complainant (C) agreed to have intercourse, she did not consent to D ejaculating inside her, but having penetrated her, he had insisted on so doing. Such a case, said Lord Judge CJ, was quite different to one in which D intends to pull out but clumsily fails to do so in time. He said:

If before penetration began [D] had made up his mind that he would penetrate and ejaculate within [C’s] vagina, or even, because “penetration is a continuing act from entry to withdrawal” (see s. 79(2) of the 2003 Act) he decided that he would not withdraw at all, just because he deemed [C] subservient to his control, she was deprived of choice relating to the crucial feature on which her original consent to sexual intercourse was based. Accordingly her consent was negated. Contrary to her wishes, and knowing that she would not have consented, and did not consent to penetration or the continuation of penetration if she had any inkling of his intention, he deliberately ejaculated within her vagina. In law, this combination of circumstances falls within the statutory definition of rape.

B3.263 Trafficking People for Sexual Exploitation

The Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013 (SI 2013 No. 817), which have effect from 10 April 2013, inter alia make provision for the treatment of information society service providers in relation to the offence of trafficking people for sexual exploitation under the SOA 2003, s. 59A. They take account of the creation of that offence by the Protection of Freedoms Act 2012 and apply the protection for providers of such services, arising from the Electronic Commerce Directive, in that context.

B4 Theft, Handling and Related Offences

B4.5 Sentencing Guidelines: Offences of Theft Generally

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B4.79 Burglary: Sentencing Guidelines

The theft of items of obviously sentimental value may be considered an aggravating feature of a domestic burglary for the purposes of the definitive sentencing guideline, Burglary Offences: see Franks [2012] EWCA Crim 1491, where such a burglary was held to fall within category 1 of the guideline.

B5 Fraud, Blackmail and Deception

B5.40 Making off without Payment

Aziz [1993] Crim LR 708 was considered in Morris [2013] EWCA Crim 436. In Aziz it was held that if D hires a taxi, the relevant ‘spot’ where payment may be required is the place where the taxi is standing and that ‘payment might be made while sitting in the taxi or standing by the window’. That indeed must usually be the case, but in Morris Leveson LJ said:

To apply [those] words too literally would be to misunderstand the legislation. Thus, if a passenger were to explain (honestly) to the taxi driver that he had to enter his house in order to obtain the fare, the moment for payment would be deferred for him to do so.  A decision not to return to the taxi would mean that, from that moment, the passenger is making off without payment. 

With respect, the scenario posed by Leveson LJ looks (arguably at least) more like one of fraud by false representation than of making off. Can the passenger be said to have ‘made off’ if he left with the taxi-driver’s fraudulently-induced consent? He can hardly be said to ‘make off’ merely by not coming back to the taxi as promised. As to the use of force (mistakenly or otherwise) to prevent making off in such cases, see this update at A3.54.

B8 Damage to Property

B8.42 Sentencing Guidelines (Basic Offence)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B10 Terrorism, Piracy and Hijacking

B10.109 Sentencing Offences Committed in a Terrorist Context

Some guidance on sentencing in terrorist cases involving acts of preparation and possession of articles for terrorist purposes was provided by the Court of Appeal in Khan [2013] EWCA Crim 468. In the course of his judgment, Leveson LJ pointed out that such offences may take many different forms but:

75. A number of principles … can properly be emphasised. First, as with any criminal offence, s. 143 of the Criminal Justice Act 2003 directs the sentence to consider culpability and harm: in most cases of terrorist offences, the former will be extremely high. Second, the purpose of sentence for the most serious terrorist offences is to punish, deter and incapacitate. Rehabilitation will play little, if any part: see Martin [1999] 1 Cr App R (S) 477. Third, the starting point for sentence for an inchoate offence is the sentence that would have been imposed if the objective had been achieved with an attempt to commit the offence being more serious than a conspiracy: see Barot [2008] 1 Cr App R(S) 31. Fourth, sentences that can be derived from Martin – or, indeed, any cases before the impact or effect of Schedule 21 of the Criminal Justice Act 2003 identifying minimum terms for murder – are of historical interest only and do not provide any assistance as to the approach which should now be adopted: for the impact of Schedule 21 in uplifting determinate sentences, see AG’s Reference Nos 85-87 of 2007 [2008] 2 Cr App R (S) 45 and, in relation to terrorism, Jalil [2009] 2 Cr App R (S) 40.

76. Finally, because of the enormous breadth of potential offences (and, consequently, the differing potential assessment of culpability and harm depending on the precise facts), we do not consider it appropriate to seek to provide guidelines based on these cases alone (or a combination of these cases and those in Jalil). If guidelines are needed, a better course would be for the offences to be considered by the Sentencing Council for England and Wales although we readily accept that the breadth of s. 5 of the Terrorism Act 2006 would make the task of providing guidelines extremely difficult.

B11 Offences Affecting Public Order

B11.42 Harassment, Alarm or Distress: Sentencing Guidelines (Basic Offence)

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B11.101 Related Offence: False Alarm of Fire

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B11.200 Drunk and Disorderly

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B13 Offences Affecting Enjoyment of Premises

B13.90 Trespassing on a Railway

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B14 Offences Against the Administration of Justice

B14.77 Wasting Police Time

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B14.94 Contempt of Court: Sentencing

In A-G v Harkins [2013] All ER (D) 215 (Apr) the defendants admitted using social networking sites (Facebook and Twitter) to publish numerous photographs of persons they alleged to be the notorious juvenile murderers, Thompson and Venables, in open defiance of an injunction against the world at large that was designed to enable those men to live safely following their release on licence.  Some of the photos showed innocent men, whose safety could have been endangered as a result.

The A-G sought the committal of the defendants for contempt, and one of the issues was whether prison sentences were appropriate.

The Divisional Court identified a number of serious aggravating factors, including the fact that the defendants had participated in a determined internet campaign on the twentieth anniversary of the murder, but also took into account the fact that they had made full apologies and admissions. Sentences of nine months’ imprisonment were suspended for 15 months, with a warning that person committing similar acts of contempt in the future should not expect similar leniency.

B14.103 Conduct or Publication Scandalising the Court

The Crime and Courts Act 2013, s. 33, abolishes scandalising the judiciary (or court) as a form of contempt of court, with effect from 25 June 2013

B15 Bribery and Corruption

B15.26 Misconduct in Public Office

The concept of ‘holding public office’ was further considered in In Cosford [2013] EWCA Crim 466, where it was held that prison nursing officers who (inter alia) smuggled mobile phones and chargers to prisoners could be guilty of misconduct in public office, whether they were publicly employed or employed by security firms contracted to run prisons. As Leveson LJ explained:

Whether the prison is run directly by the state or indirectly through a private company paid by the state to perform this function does not alter the public nature of the duties of those undertaking the work: the responsibilities to the public are identical.

B18 Offences Involving Writing, Speech or Publication

B18.29 Improper Use of Public Telecommunications Network

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18 since, in light of the amendments made by the LASPO 2012, penalty notices can no longer be given to a person under that age.

B22 Immigration Offences

B22.34 Trafficking People for Sexual Exploitation

The Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013 (SI 2013 No. 817), which have effect from 10 April 2013, inter alia make provision for the treatment of information society service providers in relation to the offence of trafficking people for exploitation under the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. They take account of the changes made by the Protection of Freedoms Act 2012 and apply the protection for providers of such services, arising from the E-Commerce Directive, in that context.


Part C: Road Traffic Offences

C3 Offences Relating to Driving Triable on Indictment

C3.45 Dangerous Driving: Sentencing

In Townley [2013] EWCA Crim 432, D, who had a poor record for motoring and other offences, was convicted at trial of dangerous driving, on the basis that he had driven off while a police officer’s arm was inside his vehicle. The officer had been attempting to remove the keys, but was not injured. A sentence of 12 months’ imprisonment was upheld on appeal. The deliberate endangerment of the officer as he attempted to do his duty was a grave aggravating factor.


Part D: Procedure

D2 The Decision to Prosecute and Diversion

D2.32 Conditional Cautions

The Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013 (SI 2013 No. 801) brings into force a revised code of practice in relation to conditional cautions, with effect from 8 April 2013.

D2.45 Fixed Penalty Notices under the CJPA 2001

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903), which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18. Regulation 3 amends the provisions in the Schedule to the Railway Safety Accreditation Scheme Regulations 2004 to omit references to a constable being in uniform and a reference to authorised constables.

D8 Assets Recovery

D8.4 Civil Recovery Orders and Taxation

The precedent set in Perry v SOCA [2012] UKSC 35, has largely been superseded by the Crime and Courts Act 2013, s. 48, which adds a new s. 282A (and a new sch. 7A) to the POCA 2002 with effect from 25 April 2013. As the Explanatory Notes to the Act point out:

Perry v SOCA effectively meant that orders made under Chapter 2 of Part 5 of the POCA did not extend to property outside the jurisdiction of the court, and that disclosure orders could not be made against persons who were not within the jurisdiction of the court. The Supreme Court also cast doubt on whether a disclosure order made under Part 8 of the POCA could go beyond property already known, although these comments were not a formal part of the judgment. The original policy intention behind the POCA was always that orders made under Chapter 2 of Part 5 of the POCA should reach beyond the jurisdiction of the court, as the proceeds of unlawful conduct are rarely held in one country and are often placed in jurisdictions where recovery is difficult. However, it was intended that the courts should only deal with cases which had some connection to the United Kingdom. Section 48 and 49, and accompanying schedules 18, 19 and 25 seek to put this intention beyond doubt.

Schedule 18, part 2 came into force alongside s. 48, but s. 49 and sch. 19 are not yet in force and provision for their commencement may not be made unless the Secretary of State has consulted the Scottish Ministers. Schedule 25 (in force) deals with Northern Ireland.

D12 Arraignment and Pleas

D12.12 Unfitness to Plead and Other Reasons for Failing to Plead: The ECHR Perspective

In Dixon [2013] EWCA Crim 465, the Court of Appeal noted that the wider provision of intermediaries to assist defendants with learning difficulties etc. may help to ensure that such defendants are able to participate effectively in the trial process so as to ensure compliance with the ECHR, Article 6(3)(c). But Article 6(3)(c) does not in any case require that a defendant must understand or be capable of understanding every point of law or evidential detail in the case. Many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which occur in the courtroom. That is why the right to legal representation is important in this context.

D12.22 Autrefois Acquit and Autrefois Convict

Connelly v DPP [1964] AC 1254 and Beedie [1998] QB 356 were considered in JFJ [2013] EWCA Crim 569, where one of the questions posed by the court was, “What was the actual decision in Connelly v DPP?” Sir John Thomas P noted the differences between the approach taken by Lord Morris in Connelly and that taken by Lord Devlin, and concluded (as did the court in Beedie) that Lord Devlin’s narrower interpretation of autrefois was the correct one.

As explained in the main work at D12.24, in cases where the narrow application of autrefois would result in apparent injustice to a defendant a remedy may lie in the wider concept of abuse of process.

See also Bayode [2013] EWCA Crim 356, per Hughles LJ at [17].

D13 Juries

D13.50 Discharge of Jurors or Entire Jury

Mirza [2004] 1 AC 1118 was considered in JC [2013] EWCA Crim 368, in which a single member of the jury trying a case of alleged false imprisonment and forced labour, in which the defendants were members of the travelling community, wrote a note to the judge complaining of anti-traveller bias by other members of that jury. All other indicators (then and subsequently) suggested that the jury was approaching its task diligently and in strict accordance with its duty, and so the judge allowed the trial to proceed without challenging or discharging any jurors, although he did give explicit warnings against bias in his summing-up.

The Court of Appeal wholly agreed with the judge’s approach. As Lord Judge CJ explained:

He was not bound to discharge the jury because of the letter, however troublesome its contents signed by one juror. Equally it would have been inappropriate for him to try and conduct an investigation into what had been happening in the jury room, not least because the juror expressing her concern had done so after the allegation of prejudice had been raised in the course of what was no doubt a powerful opening speech to the jury at the start of the defence case … The judge's alternative was to let the trial proceed, first, by using the most unequivocal language to address issues raised by the complaint (which he did) and, second, by reminding every juror who was unhappy with the way proceedings were being conducted in their room, of their entitlement, indeed obligation, to draw his attention to any inappropriate jury observations or behaviour. This is what he did. … His assessment of the integrity of this particular jury was amply justified.

D14 Special Measures and Anonymity Orders

D14.20 Child and Other Vulnerable Defendants

In Dixon [2013] EWCA Crim 465, the Court of Appeal noted that the wider provision of intermediaries to assist defendants with learning difficulties etc. may help to ensure that such defendants are able to participate effectively in the trial process so as to ensure compliance with the ECHR, Article 6(3)(c). But Article 6(3)(c) does not in any case require that a defendant must understand or be capable of understanding every point of law or evidential detail in the case. Many adults of normal intelligence are unable fully to comprehend all the intricacies and exchanges which occur in the courtroom. That is why the right to legal representation is important in this context.

D18 Trial on Indictment: Procedure between Close of Defence Evidence and Retirement of Jury

D18.41 Summing-up Amounting to Direction

DPP v Stonehouse [1978] AC 55 and Wang [2005] 1 WLR 661 were considered in Asmeron [2013] EWCA Crim 435, where Toulson LJ was critical of a passage in Clancy [2012] EWCA Crim 8 suggesting that a trial judge may properly rule that facts are incapable of constituting a good reason ‘if a finding that a good reason existed would be perverse’.  He said:

That suggestion must, with respect, be treated as per incuriam, because it is contrary to Wang, which was not cited in Clancy.  The fact that a defence might be considered hopeless on the merits is not a good reason for a judge to withdraw it from the jury.  The court can only rule that the explanation advanced by a defendant is incapable in law of amounting to a good reason or a reasonable excuse if it can properly be said, on the true construction of the Act, that it would be inconsistent with the essential nature and purpose of the offence for the defendant’s explanation to be capable of amounting to a defence.    In the present case it could not be said that it would be contrary to the manifest purpose of the statute for the appellant’s explanation to be regarded by the jury as a reasonable excuse.

D20 Trial on Indictment: Sentencing Procedure

D20.8 Disputes about the Facts Following a Plea of Guilty

Newton (1982) 77 Cr App R 13 and Tolera [1999] 1 Cr App R 29 were applied in Cairns [2013] EWCA Crim 467, in which a series of conjoined appeals were heard against the backdrop that ‘far too many’ appeals against sentence were being mounted on the basis that a judge had failed to have any, or sufficient, regard to the basis on which the plea of guilty had been entered.

The Court of Appeal also considered circumstances in which a Newton hearing might be appropriate even after a contested trial (as to which see also Finch (1993) 14 Cr App R (S) 226).

D26 Appeal to the Court of Appeal (Criminal Division) Following Trial on Indictment

D26.18 The Safety Test

The safety test was applied by the Court of Appeal in Foran [2013] EWCA Crim 437, where the safety of D’s conviction for robbery was thrown into serious doubt by new evidence that tended to discredit the police officers who had testified against him.

D28 Reference to the Court of Appeal (Criminal Division)

D28.11 Reviewable Sentences and Procedure: Statutory Provisions

The Protection of Freedoms Act 2012 (Consequential Amendments) Order 2013 (SI 2013 No. 862), which has effect from 13 May 2013, amends inter alia the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 (SI 2006 No. 1116) to take account of the implementation of s. 109 of the 2012 Act (trafficking people for sexual exploitation) so as to add the SOA 2003, s. 59A to the list of offences which may be referred by the A-G.

D31 Extradition

D31.17 Extradition Offence

The principle of double or dual criminality fell to be considered in Davis v Public Prosecutor of Landshut, Germany [2013] EWHC 710 (Admin), where the offence for which the German authorities sought D’s extradition under a EAW was one of dishonesty and knowledge or intent under English law, but only recklessness (in what appears to have been the looser Caldwell sense) was alleged (i.e. it was alleged that D ought to have known what his colleagues in Germany were doing). Collins J accordingly held that dual criminality had not been established.

D31.32 Human Rights

Lack of proportionality(ECHR, Article 8)was invoked as a reason for refusing extradition under an EAW in Neuman v Circuit Court of Katowice, Poland [2013] EWHC 605 (Admin). D had served the greater part of his sentence in Poland and his extradition was sought only because he had not been in contact with his probation officer. The crucial factor under the ECHR, Article 8, was that the Polish authorities had delayed for five years before seeking his extradition. Collins J held that ‘the lapse of time makes all the difference when one couples that with the short period that remains to be served’.


Part E: Sentencing

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

E4.22 Discretionary Life Sentences

A-G’s Ref (No 32 of 1996); Whittaker [1997] 1 Cr App R (S) 261 was applied in Robertshaw [2013] All ER (D) 63 (Apr), where a life sentence was upheld in respect of violent and sadistic sexual attack on a 71-year-old woman in her own home, committed by an offender with previous convictions for rape and grievous bodily harm. The Court of Appeal agreed with the trial judge’s conclusion that the offence was grave and that the offender presented a grave risk such that it was not safe for him to be in the community.


Part F: Evidence

F3 Burden and Standard of Proof

F3.9 Incidence of Legal Burden: Express Statutory Exceptions

In Foye [2013] EWCA Crim 475 the Court of Appeal was invited to reconsider the reverse burden of proof placed on defendants who seek to rely on a defence of diminished responsibility, on the basis that this reverse burden may offend against the presumption of innocence protected by the ECHR, Article 6; but the Court saw no reason (and nothing in later case law) to require any departure from the position previously adopted in respect of that defence in Lambert [2002] QB 1112 and in A-G’s Ref (No. 1 of 2004) [2004] 1 WLR 2111.

F3.36 Incidence of the Evidential Burden: General Rule

See Asmeron [2013] EWCA Crim 435, noted in this update at D18.41.

F16 Exceptions to the Rule Against Hearsay (Excluding Confessions)

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

Horncastle [2010] 2 AC 373, Ibrahim [2012] EWCA Crim 837 Fagan [2012] EWCA Crim 2248 and Riat [2012] EWCA Crim 1509 were considered in Claridge [2013] EWCA Crim 203, in which hearsay was admitted under the CJA 2003, s. 116(2)(e).

F19 Inferences from Silence and the Non-production of Evidence

F19.50 Failure of Accused to Testify

Tabbakh (2009) 173 JP 201 and Ensor [2010] 1 Cr App R 255 were applied and Cowan [1996] QB 373 was  considered in Dixon [2013] EWCA Crim 465, where the jury had been permitted to draw inferences under the CJPOA 1994, s. 35, from D’s failure to testify at his trial for murder.

D, who had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), and dyslexia, along with a very low IQ, low non-verbal abilities and a limited vocabulary and semantic knowledge (and had been given the assistance of an intermediary at trial), appealed on the basis, inter alia, that all this made the drawing of such an inference improper.

The Court of Appeal agreed with the trial judge’s reasoning that, whilst D’s difficulties should be taken into account in assessing the weight of his evidence, they did not justify a comprehensive failure to give evidence.


New Legislation

Crime and Courts Act 2013

This Act is described in its long title as ‘An Act to establish, and make provision about, the National Crime Agency; to abolish the Serious Organised Crime Agency and the National Policing Improvement Agency; to make provision about the judiciary and the structure, administration, proceedings and powers of courts and tribunals; to make provision about deferred prosecution agreements; to make provision about border control; to make provision about drugs and driving; and for connected purposes’.

It received Royal Assent on 25 April but most of the operative parts of the Act will be brought into force on as yet unspecified dates in the future.

An important exception is s. 43, which deals with the use of force in self-defence at place of residence, and came into force immediately. See this update at A3.54 (2).

Another significant provision that came immediately into force is s. 48, which amends the POCA 2002 in response to the Supreme Court’s ruling in Perry v SOCA. See this update at D8.4.

Section 26(2) (which will add a new s 36A to the Courts Act 2003, allowing the functions of fines officers to be contracted out) will come into force at the end of the period of two months beginning with the day on which the Act was passed (i.e. on 25 June), as will s. 33, which abolishes scandalising the judiciary (or court) as a form of contempt of court. See this update at B14.103.

Also coming into force on 25 June will be s. 31, which amends the Contempt of Court Act 1981, s. 9, by providing that in the case of a recording of Supreme Court proceedings, subs. (1)(b) will no longer apply to its publication or disposal with the leave of the Court.

Criminal Justice Act 2003 (Conditional Cautions: Code of Practice) Order 2013 (SI 2013 No. 801)

This Order brings into force a revised code of practice in relation to conditional cautions, with effect from 8 April 2013.

Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013 (SI 2013 No. 817)

These Regulations, which have effect from 10 April 2013, make provision for the treatment of information society service providers in relation to the offences of trafficking under the SOA 2003, s. 59A and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. They take account of the changes to those Acts made by the Protection of Freedoms Act 2012 and apply the protection for providers of such services, arising from the E-Commerce Directive, in that context.

Protection of Freedoms Act 2012 (Consequential Amendments) Order 2013 (SI 2013 No. 862)

This Order, which has effect from 13 May 2013, amends legislation to take account of the implementation of s. 109 of the 2012 Act (trafficking people for sexual exploitation). In particular, the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 (SI 2006 No. 1116) and the Criminal Legal Aid (Remuneration) Regulations 2013 (SI 2013 No. 435) are amended.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential Amendments) Regulations 2013 (SI 2013 No. 903)

These Regulations, which have effect from 20 May 2013, make amendments which are consequential on the LASPO 2012, s. 132 and sch. 23 (penalty notices for disorderly behaviour). Regulation 2 amends the Penalties for Disorderly Behaviour (Amount of Penalty) Order 2002 (SI 2002 No. 1837) by removing references to persons aged below 18. Regulation 3 amends the provisions in the Schedule to the Railway Safety Accreditation Scheme Regulations 2004 to omit references to a constable being in uniform and a reference to authorised constables.

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