We use cookies to enhance your experience on our website. By continuing to use our website, you are agreeing to our use of cookies. You can change your cookie settings at any time. Find out more
Oxford University Press
  OUP Worldwide
Search:
Advanced Search
Printer-Friendly View

Companion Website

Blackstone's Criminal Practice 2013

November 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 October 2012.


Part B Offences

B2 Non-fatal Offences

B2.67 Sentencing Guidelines

The definitive sentencing guideline, Assault, was considered in respect of a s. 18 offence in A-G’s Ref (No 32 of 2012); Jenkins [2012] All ER (D) 265 (Oct). D, who had a long criminal record and was currently on licence, attacked a drug dealer in the latter’s own home, raining a series of blows on his face and head and causing multiple fractures to the mid face, including a broken upper jaw and fractured cheek bones. He concluded by stamping hard with his boot on his battered victim’s face, spattering blood over his own jeans as he did so. On his arrest he said, ‘that's what happens to drug dealers ... he won't give a statement'.

The trial judge treated this as a borderline category 1 or 2 offence, and imposed a sentence of seven years’ imprisonment, but the Court of Appeal agreed with the A-G’s submission that it fell squarely within category 1 and thought D lucky to have escaped imprisonment for public protection. Whilst the courts were no friends of drug dealers, for an offender to think that his victim was beyond the protection of the law was totally unacceptable. A sentence of 13 years' imprisonment was substituted.

B2.133 Child Cruelty: Sentencing Guidelines

In R [2012] EWCA Crim 2122 a sentence of 18 months’ imprisonment imposed on a mother who pleaded guilty to four counts of child cruelty (involving slaps to the head or face etc.) was reduced on appeal to one of five months that allowed for her immediate release. The incidents in question were said to be part of a pattern of behaviour over several years, but none of them involved any injury beyond minor bruising etc. and only one involved injury at all. As the Court of Appeal pointed out, offenders must be sentenced only for the crimes for which they have been found guilty. Elias LJ said:

She is not being sentenced for being a poor mother or an incompetent mother or because she is incapable of controlling her temper; she is being sentenced for specific incidents on specific occasions, two of which occurred some eight years ago, and only one of which in fact caused physical injury.

B5 Fraud, Blackmail and Deception

B5.7 Sentencing Guidelines for Fraud Offences Generally

The definitive sentencing guideline, Sentencing for Fraud - Statutory Offences was considered in Pettigrew [2012] EWCA Crim 1998. The Court of Appeal warned that attempting slavishly to bring a combination of assorted fraud and deception offences within particular categories of the guidelines may not be particularly helpful. A broader view may need to be taken, in which the judge concludes by asking himself whether the total sentence appears to be a proper one.

B12 Offences Relating to Weapons

B12.24 Offences Relating to Imitation Firearms

The ‘open question’ referred to in the main text was answered in Williams [2012] EWCA Crim 2162, in which it was held (distinguishing Lambert [2002] 2 AC 545) that the burden of proof placed on the defence by the Firearms Act 1982, s. 1(5) is a full, legal or persuasive burden.

B12.127 Sentencing Guidelines for Firearms Offences

In Kay [2012] EWCA Crim 2070 D pleaded guilty to possessing an imitation firearm with Intent to cause fear of violence. He had been drunk and depressive and had pointed an imitation revolver at the police with a view to provoking them into shooting him. A sentence of 30 months’ imprisonment was upheld; and the Court of Appeal stated that it might well have been higher but for the presence of significant personal mitigation.

B12.151 Threatening with Weapon in Public

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012 No. 2770) brings s. 142 of the Act (offences of threatening with article with blade or point or offensive weapon in public or on school premises) into force on 3 December 2012.

B12.169 Threatening with Article with Blade or Point

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012 No. 2770) brings s. 142 of the Act (offences of threatening with article with blade or point or offensive weapon in public or on school premises) into force on 3 December 2012.

B13 Offences Affecting Enjoyment of Premises

B13.81 Trespass on a Protected Site: Elements

The Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment No. 2) Order 2012 (SI 2012 No. 2709) makes a minor amendment to the principal Order of 2007 (SI 2007 No. 930) relating to Kensington Palace.

B16 Revenue, Customs and Social Security Offences

B16.46 Fraudulent Evasion of Duty (‘Smuggling’)

On a charge of conspiracy to supply controlled drugs, the prosecution must prove that D either (i) knew that the agreement related to the particular drug mentioned in the indictment, or (ii) knew that it related to a drug of the same class, without having any knowledge or belief as to it involving any particular drug, or (iii) believed that it related to another particular drug of the same class, or of a class attracting a greater penalty, or (iv) believed that it related to a drug of a class attracting a greater maximum penalty, without having any belief as to any particular drug, or (v) did not care at all what particular drug was involved. D would escape liability only where he mistakenly believed that the conspiracy related to a controlled drug of a class attracting a lesser maximum penalty (Hanif [2012] EWCA Crim 1968 at [14], following Ayala [2003] EWCA Crim 2047).

B17 Offences Involving Misuse of Computers

B17.14 Sentencing for Offences under the Computer Misuse Act 1990

The Court of Appeal in Khan [2012] EWCA Crim 2032 upheld a sentence of eight months’ imprisonment on a young woman of previous good character who, while employed by a local authority in the social care team, made unauthorised access to confidential material which was of personal interest to her and her boyfriend. She pleaded guilty to six counts under s. 1(1) and (3) of the Computer Misuse Act 1990 and asked for a further 24 offences to be taken into consideration.

B20 Offences Relating to Dangerous Dogs and Animal Welfare

B20.9 Dangerous Dogs: Seizure, Destruction and Disqualification

In Kelleher v DPP [2012] EWHC 2978 (Admin) Collins J examined the Dangerous Dogs Act 1991, ss. 4 and 4A, with particular reference to the distinction between aggravated and non-aggravated offences under s. 3 of the Act, and the burden of proof governing destruction orders in each case. He said:

It is clear that s. 4A(4) applies both to aggravated and non-aggravated offences. The power to make a destruction order applies in both cases. … In the case of an aggravated offence the burden is on the defendant to show that the dog is not a danger to public safety, otherwise a destruction order is mandatory. It is, as it were, the other way around in the case of a non-aggravated offence: the court will not make a destruction order unless, on the material, the court takes the view that a destruction order is necessary.


Part C Road Traffic Offences

C3 Offences Relating to Driving Triable on Indictment

C3.19 Causing Death by Dangerous Driving: Sentencing

In Salem [2012] EWCA Crim 2264, D who was speeding in a busy built up area, lost control of his car and mounted the kerb, killing one pedestrian and seriously injuring another before crashing into a shop front. He then got out of the car and ran away. He had a history of road traffic offending and had previously served a period of disqualification for drink-driving. The Court of Appeal upheld a sentence of six years’ imprisonment and ten years’ disqualification from driving.

C3.29 Causing Death by Careless or Inconsiderate Driving: Elements

In R (Wilkinson) v HM Coroner for the Greater Manchester District [2012] EWHC 2755 (Admin), the Divisional Court ruled that the offence contrary to the RTA 1988, s. 2B, may not be treated as ‘unlawful killing’ for the purposes of an inquest, whatever conclusion might be reached in other contexts.

C3.32 Causing Death by Careless or Inconsiderate Driving Sentencing

In Forster [2012] EWCA Crim 2142, even with strong personal mitigation on a first-ever offence, a sentence of 12 months’ imprisonment for a significant lapse of concentration with serious consequences additional to the fatality was not regarded as manifestly excessive. See also Blenkiron [2012] EWCA 2098.

C3.33 Causing Serious Injury by Dangerous Driving

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012 No. 2770) brings s. 143 of the Act (offence of causing serious injury by dangerous driving) into force on 3 December 2012.

C6 Summary Traffic Offences

C6.11 Careless and Inconsiderate Driving: Punishment

In Kruger [2012] EWCA Crim 2166, the Court of Appeal confirmed that, because the offence under the RTA 1988, s. 3, does not carry obligatory disqualification, if disqualification pending passing of a driving test is ordered under the RTOA 1988, s. 36 (see C7.32), the appropriate driving test cannot be an extended one.


Part D Procedure

D1 Powers of Investigation

D1.164 Entry and Search under Warrant: Procedural Requirements and Safeguards

In R (Anand) v Revenue & Customs Commissioners [2012] EWHC 2989 (Admin), a search warrant was quashed on the grounds that it failed to comply with the requirement under the PACE 1984, s. 15(6)(b), in that it failed to specify the articles sought. The requirements under s. 15, which relate to the contents of the warrant, are quite separate from those under the PACE 1984, s. 8, which relate to the grounds on which a warrant may be issued.

D3 Courts, Parties and Abuse of Process

D3.47 Director of Public Prosecutions

The Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment No. 3) Order 2012 (SI 2012 No. 2681) further amends the principal Order of 1999 (SI 1999 No. 904), with effect from 19 November 2012, so as (i) to provide that proceedings are not specified if instituted by way of charge under the PACE 1984, s. 37(7)(d), if the accused is aged under 16 or if a magistrates’ court indicates that it is considering a custodial sentence and (ii) adds a number of offences to the list of specified offences, including offences under the Public Order Act 1986, s. 5 and the Criminal Damage Act 1971, s. 1(1) where the damage does not exceed £5,000.

D10 Sending Cases from the Magistrates’ Court to the Crown Court

D10.1 Introduction

The Criminal Justice Act 2003 (Commencement No. 29 and Savings Provisions) Order 2012 (SI 2012 No. 2574) brings into force on 5 November, in the specified local justice areas, sch. 3 of the Act (insofar as not already in force there) other than-

  • para. 19(1) (restrictions on reporting of allocation or sending proceedings), so far as it would insert s. 52B(4) of the Crime and Disorder Act 1998;
  • para. 19(2)(b);
  • para. 57(2) (amendment of s. 7A of the Prosecution of Offences Act 1985);
  • para. 66(4), so far as it would omit the modified s. 3(8)(a) of the Criminal Procedure and Investigations Act 1996 (initial duty of prosecutor to disclose);
  • paras. 70 and 71(d) (extending to Northern Ireland reporting restrictions for applications for dismissal).
It also brings into force related repeals.

The local justice areas specified in the Order are Birmingham, Bolton, Buckinghamshire, Burnley, Pendle and Rossendale, Bury and Rochdale, Carmarthenshire, Ceredigion and Pembrokeshire, Chorley, Coventry District, Dudley and Halesowen, East Lancashire, Furness and District, Fylde Coast, Gloucestershire, Halton, Lancaster, Macclesfield, Manchester and Salford, Mansfield and Worksop, Neath Port Talbot, North Cumbria, North East Derbyshire and Dales, North West Wiltshire, Nottingham and Newark, Oldham, Oxfordshire, Preston, Sandwell, Solihull, South Cheshire, South East Wiltshire, South Lakeland, South Ribble, South Somerset and Mendip, Southern Derbyshire, Stockport, Swansea County, Swindon, Tameside, Taunton Deane, West Somerset and Sedgemoor, Trafford, Walsall and Aldridge, Warrington, Warwickshire, West Cheshire, West Cumbria, West Hampshire, Wolverhampton.

The Order also brings the provisions into force in relation to the Crown Court where it deals with a person sent for trial by a magistrates’ court in a relevant local justice area or a person committed for sentence by a magistrates’ court in a relevant local justice area.

There are savings provisions which inter alia ensure that the amendments have no effect in relation to an offence where the first appearance in respect of it preceded the implementation date and provide for local justice areas that are to combine after that date.

The Criminal Justice Act 2003 (Commencement No. 29 and Savings Provisions) (Amendment) Order 2012 ( SI 2012 No. 2761) amends the above Order so as to add High Peak to the list of local justice areas in which the provisions are brought into force.

D16 Trial on Indictment: The Prosecution Case

D16.54 Submission of No Case to Answer

See C [2012] EWCA Crim 2034. Other aspects of this case are discussed in this update at F12.29.

D19 Trial on Indictment: Procedure Relating to Retirement of the Jury and Verdict

D19.16 Retirement of the Jury: Repetition of Existing Evidence

In Asgodom [2012] EWCA Crim 2054 the jury was able to view a CCTV video more clearly in retirement than they had been possible originally in court, because a better machine had been provided in the jury room. The question that arose was whether that amounted to an irregularity in the trial process. The Court of Appeal was satisfied that it did not:

What happened in this case was ... no different from those cases where a jury was properly allowed to take, as they used to, magnifying glasses into the jury room to examine images on photographs.

D21 Summary Trial: General and Preliminary Matters

D21.36 Unfitness to Plead in the Context of Summary Trial

R (P) v Barking Youth Court [2002]) 2 Cr App R 294 and CPS v P [2008] 1 WLR 1005 were applied in G v DPP [2012] All ER (D) 189 (Oct).

D25 Civil Behaviour Orders: ASBOs, Closure Orders, SCPOs and VOOs

D25.2 Stand-alone ASBOS: Nature of Offending Behaviour

The kind of behaviour that might warrant the imposition of an ASBO was considered in Perry v Humberside Police Chief Constable [2012] All ER (D) 186 (Oct) in which D had used a community blog to make allegations against various residents in his village, including the local mayor. The allegations were often offensive, but were found not to amount to anti-social behaviour for the purposes of the legislation and a ten-year ASBO imposed on him was quashed.

D31 Extradition

D31.12 Validity of Part 1 Warrant

Whilst SOCA must certify that the foreign judicial authority issuing the EAW has the function of issuing EAWs in that category 1 territory, it is for the judge to determine whether the person or body which has issued the EAW has the quality of being a ‘judicial authority’ for the purposes of the Extradition Act 2003 (Ministry of Justice, Lithuania v Bucnys [2012] EWHC 2771 (Admin) at [85]).

A judicial authority must be sufficiently independent of the executive for the purpose of carrying out the function of making the judicial decision when issuing the EAW (at [97]).This could apply to a Ministry of Justice for conviction warrants but the judge will have to decide whether in fact there is sufficient independence for the particular Ministry of Justice which has issued the EAW. The Divisional Court carried out this analysis for two different Ministries of Justice in Ministry of Justice, Lithuania v Bucnys, finding that the Lithuanian Ministry was a judicial authority and the Estonian Ministry was not. In neither case had the request for the EAW come from the prison authorities without any court involvement and it seems that it may be harder to show that the Ministry of Justice is a judicial authority if this has happened (at [107]). This decision is to be the subject of an appeal to the Supreme Court.


Part E Sentencing

E3 Mandatory Life Sentences

E3.3 Murder: Life Imprisonment - Court of Appeal Guidance

The CJA 2003, sch. 21 and related case law (including Height [2009] 1 Cr App R (S) 656 and Kelly [2012] 1 Cr App R (S) 56) were considered in Khaleel [2012] EWCA Crim 2035.

E19 Confiscation Orders

E19.55 Making of Confiscation Order: Third-party Interests

In Re Ali [2012] EWHC 2302 (Admin) Dobbs J summarised the key principles of property and trust law relating to third-party interests in property that may be subject to confiscation proceedings. See in particular paras [96] - [101].


Part F Evidence

F3 Burden and Standard of Proof and Presumptions

F3.18 Incidence of the Legal Burden: the Human Rights Act 1998

As to the burden of proof under the Firearms Act 1982, s. 1(5), see Williams [2012] EWCA Crim 2162, in which it was held (distinguishing Lambert [2002] 2 AC 545) that the burden placed on the defence is a full, legal or persuasive burden.

F12 Evidence of Bad Character of Accused

F12.21 Weight of Character Evidence and Judicial Direction

Hanson [2005] 1 WLR 3169 and Campbell [2007] All ER (D) 309 (Jun) were applied in X [2012] EWCA Crim 2276, in which convictions were quashed because of inadequate judicial directions as to the proper use of bad character evidence by a jury. In particular, the jury had not been warned against placing undue reliance on previous convictions, nor that they should not conclude that a defendant was guilty simply because of her previous convictions. The defects had not stopped there. The judge failed to leave to the jury the question whether the previous convictions demonstrated propensity, but instead assumed that they did, and did not remind the jury that, if they found that D had a propensity relevant to the instant case, that would be just one relevant factor for them to consider.

Contrast Bullas [2012] All ER (D) 21 (Nov) in which D was charged with sexually assaulting boys aged under 13 but denied having any homosexual tendencies. To rebut this claim, the prosecution was allowed to adduce evidence from W, who stated, that he had had a consensual homosexual relationship with D and that he once found D at home dressed only in a towel in the presence of four or five 12-13 year old boys.

The trial judge gave a conventional lies direction as to D’s denial of homosexuality and warned them that, even if, following the evidence of W, they were sure D had lied in relation to his sexuality, that was not, of itself, evidence of guilt. He also directed them that this went not to propensity, but to D’s credibility.

On appeal it was argued that the judge had erred in not specifically warning the jury that this could not be treated as evidence of D’s propensity to commit sexual offences against the complainants, but the Court of Appeal was satisfied that there had been no room for any such misunderstanding; the evidence had been admitted in order to rebut the D’s denial of homosexual tendencies and the jury would have known that.

F12.29 Explanatory Evidence

In C [2012] EWCA Crim 2034 the complainant was sexually abused over a period of about 20 years, from the age of five. Evidence connected with counts relating to the years when the complainant was a child, where the issue was whether the abuse had happened at all, was held to be relevant to the counts concerning events taking place when she was 16 or over, where D alleged that the relationship was consensual. The evidence went to show that, having been abused and sexually controlled as a child, that domination had continued, as she contended, after her sixteenth birthday. This in turn explained that evidence of her apparent compliance did not go to show consent. The reality was said to be that the case ‘could not be understood without reference to the long years of the complainant’s childhood’.

F18 Evidence of Identification

F18.9 The Turnbull Guidelines

A particularly robust Turnbull direction may be needed where for one reason of another the prosecution adduces hearsay evidence of identification in the form of a statement from a witness who is not available to testify at trial. See Vasco [2012] All ER (D) 254 (Oct), also noted in this supplement at F18.17.

F18.17 The Quality of the Witness

Vasco [2012] All ER (D) 254 (Oct) emphasises that it may be dangerous for a judge when directing a jury to refer to the honesty or integrity of an identifying witness when the real issue is whether his evidence might be mistaken.

F19 Inferences from Silence and the Non-production of Evidence

F19.16 Facts Relied on

Webber [2004] 1 WLR 404 and Wheeler [2008] EWCA Crim 688 were applied in Zeinden [2012] All ER (D) 65 (Oct).


New Legislation

Protection of Freedoms Act 2012 (Commencement No. 4) Order 2012 (SI 2012 No. 2521)

This Order brings into force further provisions of the Act relating to the establishment of the Disclosure and Barring Service, namely, on 15 October 2012, s. 87(1) and (2), sch. 8, paras. 1 to 11 and sch. 9, part 8 and, on 1 December 2012, s. 87(3) and the remainder of sch. 8.

Criminal Justice Act 2003 (Commencement No. 29 and Savings Provisions) Order 2012 (SI 2012 No. 2574)

This Order brings into force on 5 November, in the specified local justice areas, sch. 3 of the Act (insofar as not already in force there) other than-

  • para. 19(1) (restrictions on reporting of allocation or sending proceedings), so far as it would insert s. 52B(4) of the Crime and Disorder Act 1998;
  • para. 19(2)(b);
  • para. 57(2) (amendment of s. 7A of the Prosecution of Offences Act 1985);
  • para. 66(4), so far as it would omit the modified s. 3(8)(a) of the Criminal Procedure and Investigations Act 1996 (initial duty of prosecutor to disclose);
  • paras. 70 and 71(d) (extending to Northern Ireland reporting restrictions for applications for dismissal).
It also brings into force related repeals.

The local justice areas specified in the Order are Birmingham, Bolton, Buckinghamshire, Burnley, Pendle and Rossendale, Bury and Rochdale, Carmarthenshire, Ceredigion and Pembrokeshire, Chorley, Coventry District, Dudley and Halesowen, East Lancashire, Furness and District, Fylde Coast, Gloucestershire, Halton, Lancaster, Macclesfield, Manchester and Salford, Mansfield and Worksop, Neath Port Talbot, North Cumbria, North East Derbyshire and Dales, North West Wiltshire, Nottingham and Newark, Oldham, Oxfordshire, Preston, Sandwell, Solihull, South Cheshire, South East Wiltshire, South Lakeland, South Ribble, South Somerset and Mendip, Southern Derbyshire, Stockport, Swansea County, Swindon, Tameside, Taunton Deane, West Somerset and Sedgemoor, Trafford, Walsall and Aldridge, Warrington, Warwickshire, West Cheshire, West Cumbria, West Hampshire, Wolverhampton.

The Order also brings the provisions into force in relation to the Crown Court where it deals with a person sent for trial by a magistrates’ court in a relevant local justice area or a person committed for sentence by a magistrates’ court in a relevant local justice area.

There are savings provisions which inter alia ensure that the amendments have no effect in relation to an offence where the first appearance in respect of it preceded the implementation date and provide for local justice areas that are to combine after that date.

Police Reform and Social Responsibility Act 2011 (Commencement No. 6) Order 2012 (SI 2012 No. 2670)

This Order brings ss. 119 and 125 to 140 into force on 31 October 2012. These provisions relate to early morning alcohol restriction orders, a late night alcohol levy and the repeal of provision relating to alcohol disorder zones.

Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment No. 3) Order 2012 (SI 2012 No. 2681)

This Order further amends the principal Order of 1999 (SI 1999 No. 904), with effect on 19 November 2012, so as (i) to provide that proceedings are not specified if instituted by way of charge under the PACE 1984, s. 37(7)(d), if the accused is aged under 16 or if a magistrates’ court indicates that it is considering a custodial sentence and (ii) adds a number of offences to the list of specified offences, including offences under the Public Order Act 1986, s. 5 and the Criminal Damage Act 1971, s. 1(1) where the damage does not exceed £5,000.

Serious Organised Crime and Police Act 2005 (Designated Sites under Section 128) (Amendment No. 2) Order 2012 (SI 2012 No. 2709)

This Order makes a minor amendment to the principal Order of 2007 (SI 2007 No. 930) in relation to Kensington Palace.

Criminal Justice Act 2003 (Commencement No. 29 and Savings Provisions) (Amendment) Order 2012 (SI 2012 No. 2761)

This Order amends SI 2012 No. 2574 (see above) so as to add High Peak to the list of local justice areas in which the provisions to which it applies are brought into force.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 3 and Saving Provision) Order 2012 (SI 2012 No. 2770)

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

  • s. 142 (offences of threatening with article with blade or point or offensive weapon in public or on school premises);
  • s. 143 (offence of causing serious injury by dangerous driving);
  • s. 145 (scrap metal dealing: increase in penalties for existing offences), subject certain transitional provisions;
  • s. 146 (offence of buying scrap metal for cash etc);
  • s. 147 (review of offence of buying scrap metal for cash etc);
  • sch. 26 (knives and offensive weapons: minor and consequential amendments), except para. 19; and
  • sch. 27 (causing serious injury by dangerous driving: minor and consequential amendments).

^ Return to the top

About this book
Price, bibliographic details, and more information on the book