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Blackstone's Criminal Practice 2013

October 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 September 2012.


Part A General Principles of Criminal Law

A5 Inchoate Offences

A5.73 Attempt

Geddes [1996] Crim LR 894 was considered in Ferriter [2012] EWCA Crim 2211, where the appellant had accosted and struggled with the complainant and put his hand inside her trousers when she was on the ground. He was charged with attempted rape but denied having any sexual motive. A submission of no case to answer was rejected and he was convicted.

On appeal, it was held that the evidence did not support anything more than a conviction for sexual assault and a conviction for that offence was substituted. This was not a case of mere preparation: the problem was that there was no evidence which could be used to prove intent to commit rape rather than some other form of sexual molestation. See also Beaney [2010] EWCA Crim 2551.

A7 Human Rights

A7.109 Preventative Sentences

See James v United Kingdom [2012] All ER (D) 109 (Sep), which is noted in this update at E4.8.


Part B Offences

B1 Homicide and Related Offences

B1.68 Sentencing Guidelines: Constructive Manslaughter

A-G’s Ref (No. 60 of 2009) (Appleby) [2010] 2 Cr App R (S) 311 was considered in A-G’s Ref (No. 29 of 2012) (Vernarsky) [2012] EWCA Crim 2143. D attacked a female friend with whom he was sexually obsessed and killed her by strangulation. He then attempted to invent a false alibi, etc. He was charged with murder, but was somehow convicted only of manslaughter on the basis that he may have lacked the requisite intent for murder. The trial judge had no choice but to sentence him on that basis. He imposed a sentence of six years’ imprisonment, which the Court of Appeal declined to label unduly lenient, although they noted that it was based on findings as to D’s state of mind which were generous, given the defence conducted at trial.

B1.71 Sentencing Guidelines: Constructive Manslaughter: Weapons

In Haque [2012] EWCA Crim 1912, the Court of Appeal quoted a passage from Lord Judge’s judgment in Thornley [2011] 2 Cr App R (S) 361 (a provocation case considered in the main work at B1.66) in which he said:

It is clear to us...that the use of a knife...should now be regarded as a more significant feature of aggravation than it was when the [definitive sentencing] guideline was published. In the end everything depends upon the individual circumstances of each case: why and how the knife came to be picked up and eventually used.
The Court in Haque then added:
Public concerns, reflected in increased sentences, as to the use of a knife in threatening or in causing injury or death is not to be confined to the use of a knife (or carrying of a knife) in a public place or the use of a knife when taken to a scene. The very fact that a knife is used will always be an aggravating factor. The extent to which it is an aggravating factor will depend on the particular circumstances of the particular case.
The judge in this case was fully entitled to regard use of a knife as highly relevant and a significant aggravating factor in the unlawful killing of the deceased.

B2 Non-fatal Offences

B2.30 Assault Occasioning Actual Bodily Harm: Sentencing Guidelines

In Purnell [2012] EWCA Crim 2009, the injuries caused by D’s assault were relatively minor (a cut lip with bruising), but the assault was completely unprovoked. D had simply walked up to a complete stranger and punched him in the face without warning. D had drink and anger issues and a record of violent offending when drunk, but was not suffering from any diagnosed mental disorder. He pleaded guilty.

Because it was unprovoked, the judge placed the offence in Category 2 of the sentencing guidelines and then further increased the sentence to 15 months’ imprisonment because of D’s record for similar offences.

The Court of Appeal held this to be manifestly excessive, given the single blow, minor injury and guilty plea, but rejected submissions that it was only a category 3 offence, punishable by a fine or community order. A sentence of nine months’ imprisonment was substituted.

B3 Sexual Offences

B3.9 Rape, Sentencing Guidelines

In A [2012] EWCA Crim 1646 the Court of Appeal emphatically rejected a submission that, since D was brought up abroad in a society in which marital rape was widely practised and condoned, that should be treated as a mitigating circumstance in respect of what was otherwise a ‘most grave’ case of rape committed against his wife in England.

B3.9 Rape, Sentencing Guidelines (2)

T [2012] EWCA Crim 1921 provides an example of offending falling within category 2 of the Sentencing Guidelines, but accompanied by so many aggravating features that a starting point far above the specified range was appropriate. As the Court of Appeal noted:

The offending had been appalling. There had been numerous and very, very serious aggravating factors: ejaculation; filming; the presence of the children; forced entry; significant force and threats; the production of the machete; and throttling. There had been two rapes and forced oral sex. It had been a sustained attack. The impact on the complainant had to have been absolutely dreadful.
A starting point of 16½ years (reduced to 14 years following D’s guilty plea on re-arraignment) was upheld as severe but not manifestly excessive.

See also (and to much the same effect) Zotkevicius [2012] EWCA Crim 384.

B4 Theft, Handling Stolen Goods and Related Offences

B4.5 Sentencing Guidelines: Offences of Theft Generally

See Foulger [2012] EWCA Crim 1516, which is noted in this update at E2.4.

B4.80 Burglary: Sentencing Guidelines

Three concurrent sentences of five years’ imprisonment were upheld for a series of ‘distraction burglaries’ in Cash [2012] EWCA Crim 201. D targeted elderly people and gained their trust sufficiently to be let into their homes in order to ‘unblock drains’ etc., but then stole significant sums of cash. No violence was used or threatened, but the psychological effect on the elderly victims was often serious and likely to persist.

Further guidance on sentencing for distraction burglary is provided by Johnson [2012] EWCA Crim 2066, where concurrent sentences of three years and three months were imposed and upheld following guilty pleas made at the first opportunity. In this case, D was of previous good character, but was also guilty of a breach of trust by committing the two burglaries (and a third that was taken into consideration) while employed as a joiner and working at the victims’ sheltered accommodation.

B10 Terrorism, Piracy and Hijacking

B10.13 Disclosure of and Interference with Information Offences

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B10.139 Failure to Comply with a Duty of Disclosure: General Duty of Disclosure

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B10.144 Failure to Comply with a Duty of Disclosure: Regulated Sector

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B10.149 Failure to Comply with a Duty of Disclosure: Tipping-off

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2000 Act, sch. 3A, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B14 Offences Against the Administration of Justice

B14.33 Perverting the Course of Justice: Sentencing

In Ngwata [2012] EWCA Crim 2015, the Court of Appeal once again considered the issue of sentencing for offences involving false allegations of rape. The Court followed McKenning [2008] EWCA Crim 2301, which was one of the many cases referred to in Day [2010] 2 Cr App R (S) 73.

These cases suggest a starting point of around three years’ imprisonment for false allegations resulting in the arrest of an innocent man, which is much higher than for most other cases of perverting the course of justice. But as Lord Judge explained in McKenning:

This was not...a case of a guilty man or woman seeking to avoid responsibility for...a relatively minor motoring offence. ... Sexual intercourse with a woman without her consent is a shameful crime. When proved it merits, and it receives, heavy punishment. The reality must, however, be faced that when rape has taken place it is frequently very difficult to prove. It is also the case that when the Defendant is truly innocent, a false allegation can be extremely difficult for him to refute...Currently this is a very serious problem. The consequences for an innocent man against whom the allegation is made are very serious. In this case there was enough independent evidence eventually to enable the investigators to discover that the potential Defendant was truly an innocent man. In the end he was fortunate. But for the meantime his entire life must have had a nightmarish quality.
In Ngwata there were some aggravating features, but even so the starting point taken by the judge of four years’ imprisonment was held to be too high. A starting point of three years, as in McKenning, was held to be more appropriate.

B20 Offences Relating to Dangerous Dogs and Animal Welfare

B20.7 Failing to Keep Dogs under Proper Control: Sentence

Cox [2004] 2 Cr App R (S) 287 and a draft version of the new sentencing guidelines (not then in force) were considered in Diedrick [2012] EWCA Crim 2242, where D let his two Rottweilers off their leads at a beach where dogs were not allowed, and then failed to intervene when they attacked a child, causing serious injuries. He later claimed to have had re-homed the dogs when in fact he had sold them and did not even warn the new owner of what they had done. At a Newton hearing he lied about his supposed role in dragging the dogs off their victim, when he had done no such thing.

A sentence of 16 months’ imprisonment was reduced on appeal to one of 11 months, in part because of personal mitigation, and in part because the dogs had had no previous history of such attacks. He had been wrong to let them loose at the beach, but this could not be categorised as a high degree of recklessness.

B21 Offences Relating to Money Laundering/Proceeds of Criminal Conduct

B21.12 Procedure and Sentence

Griffiths [2007] 1 Cr App R (S) 581 and Greaves [2011] 1 Cr App R (S) 8 were amongst the authorities considered in Robinson [2012] EWCA Crim 1898, where D was convicted of nine counts of disguising criminal property or the proceeds of drug trafficking and three counts of transferring criminal property or the proceeds of drug trafficking and sentenced to a total of four years' imprisonment. The offences were committed with the aid of his mother while he was serving a sentence of imprisonment for earlier drug trafficking offences. He had lied about his assets at the confiscation hearing and committed the laundering offences to conceal or disguise his ill-gotten gains.

The Court of Appeal agreed that D’s money-laundering offences merited a substantial custodial sentence beyond that imposed for the drug offences, but held the four-year term imposed to be out of line with earlier authority. A sentence of three years was substituted.

B21.27 Failure to Disclose Possible Money Laundering

The Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299) inter alia amends the 2002 Act, sch. 9, with effect from 1 October 2012, so as to add estate agents selling property outside the UK as businesses in the regulated sector.

B21.32 Offences under the Money Laundering Regulations 2007

The Money Laundering (Amendment) Regulations 2012 (SI 2012 No. 2298) make a series of detailed amendments to the principal regulations of 2007 (SI 2007 No. 2157) with effect on 1 October 2012. Inter alia, reg 18 (directions where Financial Action Task Force applies counter measures) is revoked and consequential amendments are made to regs. 42 and 45.


Part D Procedure

D1 Powers of Investigation

D1.3 Investigations by Non-Police Officers

The Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012 (SI 2012 No. 2505) amends the principal Order of 2009 (SI 2009 No. 1922) so as to extend the period prior to destruction of a fingerprint, footwear impression or bodily sample where a person has not been convicted of a service offence.

D5 Preliminary Proceedings in the Magistrates’ Courts

D5.40 Accused at Police Station

The Coroners and Justice Act 2009 (Commencement No. 10) Order 2012 (SI 2012 No. 2374) brings into force, on 8 October 2012, inter alia ss. 106 to 108 of the Act (directions to attend through live link and live link bail) insofar as not already in force.

D12 Arraignment and Pleas

D12.73 Effect of Plea of Guilty

In Padellec [2012] EWCA Crim 1956 D refused to disclose the encryption key to a computer on which it was alleged that images of child pornography were stored, but pleaded guilty to an offence of non-disclosure contrary to the RIPA 2000, s. 53, on the basis that, ‘he had accessed a small amount of images during internet browsing, and that they did not contain images of very young children or scenes of sexual or any other type of violence to children.’

One might of course suspect that if that is all that was there then D would not have been so anxious to keep the encryption key secret. The Court of Appeal therefore warned that in such cases courts and prosecutors ought never to accept a plea of guilty on such a basis. Doing so enables a defendant to get the benefit of a lesser sentence than otherwise might be appropriate.

D15 Trial on Indictment: General Matters and Pre-trial Procedure

D15.40 Presence of the Accused at Preliminary Hearings

The Police and Justice Act 2006 (Commencement No. 15) Order 2012 (SI 2012 No. 2373) brings into force, on 8 October 2012, ss. 45 and 46 of the Act (live links) insofar as not already in force.

The Coroners and Justice Act 2009 (Commencement No. 10) Order 2012 (SI 2012 No. 2374) brings into force, on 8 October 2012, inter alia ss. 106 to 108 of the Act (directions to attend through live link and live link bail) insofar as not already in force.

D23 Sentencing in the Magistrates’ Court

D23.40 Committal for Sentence under the Powers of Criminal Courts (Sentencing) Act 2000, s. 4

The PCC(S)A 2000, ss. 4 and 5, were considered in Street [2012] EWCA Crim 2031. Having set out the terms of those sections the Court of Appeal made enquiries but found no evidence that the magistrates’ court had made the statement required by s. 4(4). It followed that the sentencing powers of the Crown Court had been inadvertently fettered - an error that is specifically warned against in the main text.

D27 Procedure on Appeal to the Court of Appeal (Criminal Division)

D27.23 Hearing of an Appeal: Practice in the Usual Case

The Registrar of Criminal Appeals has issued a note as to the practice on citation of authorities. From 1 October 2012, the Registrar will require advocates to provide a list of authorities upon which they wish to rely in their written or oral submissions before the Court. This list should be annexed to but not form part of the grounds of appeal/appeal notice or respondent’s notice. If, exceptionally, it has not been annexed to the appeal notice or respondent’s notice, it should be annexed to any skeleton argument.

D31 Extradition

D31.21 Double Jeopardy

Double jeopardy was successfully raised as a bar to extradition in Osaikhwuwuomwan v Court of Ancona, Italy [2012] All ER (D) 25 (Oct), where a verdict of the Dutch Supreme Court in respect of human trafficking offences was a final verdict, and thus a bar to D’s extradition to Italy on similar charges. The term 'double jeopardy', as used in the Extradition Act, was to be taken to include both the pleas in bar and the long established jurisdiction of the court to stay proceedings as an abuse of process. Either could be a means of protecting a defendant from double jeopardy.

Contrast Purcell v High Court in Dublin [2012] All ER (D) 41 (Oct) in which the dropping of a charge of murder against D did not preclude her extradition on a charge (arising from the same facts) of unlawfully concealing the victim’s body.

D33 Costs

D33.2 Defendant’s Costs Orders

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 2 and Specification of Commencement Date) Order 2012 (SI 2012 No. 2412) brings into force, on 1 October 2012, inter alia s. 62 and schs. 7 and 8 (costs in criminal cases).


Part E Sentencing

E2 Custodial Sentences: General Provisions

E2.4 Abiding by the Maximum

Bright [2008] 2 Cr App R (S) 102 was applied in Foulger [2012] EWCA Crim 1516. The Court of Appeal in Foulger accepted the Lord Chief Justice’s advice in Bright that that maximum permissible sentences should not necessarily be reserved for cases where it is impossible to conceive of a worse example. Maximum sentences should however be reserved for cases of the utmost gravity.

In this case, the Court described D1 as a professional criminal who took little or no notice of previous sentences for similar offences, but appeared determined to carry on with these offences no matter what the courts may do. Upholding a maximum sentence of seven years’ imprisonment in his case, the Court said:

It would be wrong for defendants who continue to commit this sort of serious offence to think that they will not receive the maximum sentence simply because it is possible to envisage cases with more serious facts.

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.

E7 Custodial Sentences: Detention and Custody of Offenders under 21

Detention under the PCC(S)A 2000, s. 91: Sentencing Principles

AM [1998] 1 WLR 363 was applied in B [2012] EWCA Crim 2005.

E12 Absolute and Conditional Discharges

E12.4 Combining Discharge with Other Sentences or Orders

Having been criticised but reluctantly followed in Magro [2011] QB 398, Clarke [2010] 1 WLR 223 has now been overruled by the Supreme Court in Varma [2012] UKSC 42. This ruling also reverses Magro, being the same case reported under the name of another appellant.

It is now clear that the making of an order of absolute or conditional discharge is no bar, after all, to the making of a confiscation order.

E21 Exclusions and Disqualifications

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

The Safeguarding Vulnerable Groups Act 2006 (Commencement No. 8 and Saving) Order 2012 (SI 2012 No. 2231) brings into force further provisions of the Act and makes a saving provision in relation to the repeal of certain provisions in the Criminal Justice and Court Services Act 2000. The following provisions are brought into force:

  • on 10 September 2012, ss. 43(6) and (7), 47(1) to (4) and (7) and 50 (so far not already in force)), which relate to the provision of information from the Independent Safeguarding Authority to keepers of relevant registers and the ability for supervisory authorities to request information and be provided with information by the Authority;
  • on the day s. 72(1) of the Protection of Freedoms Act 2012 is brought into force for the purpose of inserting s. 30A into the 2006 Act, sch. 7 (vetting information);
  • on the day s. 83 of the 2012 Act is brought into force, sch. 10 (subject to certain exceptions).
Article 5 makes a saving provision to ensure that anyone subject to a disqualification order at the time the repeal is fully commenced may still appeal against their disqualification order or request a review of their disqualification order.

The Protection of Freedoms Act 2012 (Commencement No. 3) Order 2012 ( SI 2012 No. 2234) brings into force inter alia, on 10 September 2012, immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (SI 2012 No. 2231), a series of amendments to the Safeguarding Vulnerable Groups Act 2006 contained in part 5, chapter 1 of the 2012 Act (ss. 64 to 78 being largely brought into force).


Part F Evidence

F2 The Discretion to Exclude Evidence; Evidence Unlawfully, Improperly or Unfairly Obtained

F2.36 Prosecutions Founded on Entrapment

Loosely [2001] 1 WLR 2060 was considered in East Riding of Yorkshire Council v Dearlove [2012] EWHC 278 (Admin), where the council had conducted a ‘test purchase’ in order to prove that D was operating a private hire taxi business without the requisite licence and that he sold alcohol from that vehicle without the requisite authority under the Licensing Act 2003. He had previously been warned by the council of his licensing obligations and of the possibility that test purchases might be conducted, but when he was prosecuted the magistrates had stayed the proceedings as an abuse of process. The council’s appeal against that ruling was allowed by the Divisional Court. It was not reasonably open to the justices to find on those facts that the council's officers had acted in such a way as to make it unfair or an abuse of process for the prosecution to be brought.

F10 Opinion Evidence

F10.1 General Rule

Guidance as to the difference between an expert witness and a skilled or professional witness called to give essentially factual evidence is provided in Foulger [2012] EWCA Crim 1516. The Court of Appeal agreed with the trial judge’s ruling that an intelligence analyst called as a prosecution witness was not called as an expert so could not be objected to as lacking such expertise. As the judge explained:

Her task has simply been to put the otherwise complicated, or relatively complicated, telephone data into a more user-friendly format. ... She does not purport to express an opinion of any of this data; she has simply produced by way of example a PowerPoint presentation and other graphic illustrations of the information which has already been sourced as the raw telephone data."
He went on to point out that if the defence wished they could, if they suggested the material was lacking sufficient detail or misleading, call an expert witness to correct or clarify the position, but they did not attempt to do so.

F12 Evidence of Bad Character of Accused

F12.8 Evidence of Substantial Probative Value in Relation to Matter in Issue

Renda [2006] 2 All ER 553 was applied in Montakhab [2012] EWCA Crim 2012, where D’s seven previous convictions for sexual offences (six of which were for offences strikingly similar to the instant charge) were held to have been rightly admitted in evidence, even though the trial judge had omitted to articulate his reasons for so ruling.

In contrast, a single previous conviction for rape was held to have been wrongly admitted to support charges of sexual assault in Benabbou [2012] EWCA Crim 1256. As counsel submitted on appeal,

It was a single offence committed eight years before the first of the two offences now to be tried. The circumstances...were markedly different. On the earlier occasion the appellant had not been acting alone but as one of three offenders. The victim on the earlier occasion had been a complete stranger. Unlike in the present alleged offences, the victim on the earlier occasion had been encountered in the street and then taken in a vehicle to a place in which she had been raped not once but twice and with the co operation of a third party. The only truly common feature...was that the earlier rape constituted an assault of a sexual nature.
The Court of Appeal held that the conviction was technically admissible but ought nevertheless to have been excluded, because whereas its probative value in establishing a relevant propensity was only limited, it must have had a highly prejudicial effect on the fairness of the trial and may have blinded the jury to the issues in the case.

F12.58 Multiple Charges and Accusations under the Criminal Justice Act 2003, s. 101(1)(d)

The joinder and cross-admissibility of multiple charges was considered in Benabbou [2012] EWCA Crim 1256. Other aspects of this case are discussed in this update at F12.8.

F16 Exceptions to the Rule Against Hearsay (Excluding Confessions)

F16.9 Leave in Fear Cases

Horncastle [2010] 2 AC 373 and Doherty (2007) 171 JP 79 were considered in Fagan [2012] EWCA Crim 2248, as was Ibrahim [2012] EWCA 837 (see main text at F16.32).

The trial judge in Fagan had allowed hearsay evidence to be given in the form of a hearsay statement by a potential witness [W] under the CJA 2003, s. 116(2)(e), even though W (allegedly the victim of a kidnapping) had not be summoned to testify. The judge was satisfied on the evidence that W (who had originally agreed to testify) had been intimidated by one of the defendants or by someone associated with them with their knowledge or approval and that he was absent because he had been put into a state of extreme fear.

The Court of Appeal suggested that the prosecution ought perhaps to have brought W to court as there was a good chance that, once there, he would have testified after all. But that was ‘nowhere near fatal’ to the judge's ruling allowing his statement to be put in evidence under s. 116.

F18 Evidence of Identification

F18.9 The Turnbull Guidelines

Turnbull [1977] QB 224 was applied in Younas [2012] EWCA Crim 2022, in which the key issue was whether the evidence of witnesses in respect of two alleged sexual offences could be regarded as supportive of much weaker identification evidence concerning a second pair of such offences allegedly committed by the same defendant at the same festival and on the same evening. On the facts, the Court of Appeal was not satisfied that they could be so regarded. The first two counts were mutually supportive, but the evidence concerning them could not safely be relied upon to support the third and fourth counts.

F18.21 Facial Mapping and Walking Gait Analysis

In Barnes [2012] EWCA Crim 1605, the Court of Appeal considered whether ‘reverse projection evidence’ had properly been admitted for the purpose of showing that CCTV images of an armed robber were those of a man of 5’7” approx. (the height of the appellant) rather than one of 6’ (the height of another man named by the appellant as the robber). As Pitchford LJ explained, reverse projection was much the same kind of evidence as facial mapping:

Far from being new science, it employed photographic techniques well-known to criminal courts; for example, facial mapping is routinely demonstrated by preparing images, one of which can be overlaid on the other. The technique requires that the two images are properly aligned, comparable, clear and undistorted.
It did not matter that the expert witness (Coxon) had not provided any details to the court of any literature or other information on which he had relied in making his report, pursuant to the CrimPR, r. 33:
Mr Coxon was not relying upon any technical papers produced by others; he was applying known photographic techniques with which he was familiar. All that was required was the production of film, which could provide a fair and reasonably accurate comparison with the crime scene recording...

There was no attempt either at trial, or in this appeal, to adduce the evidence of any consultant to cast doubt upon the accuracy of Mr Coxon's work.

Supplement

Sentencing Guidelines

The Sentencing Council has issued updates to the Magistrates’ Courts Sentencing Guidelines that take account of the changes to the victim surcharge scheme and unimplemented changes to sentencing in the Legal Aid, Sentencing and Punishment of Offenders Act 2012.


New Legislation

Safeguarding Vulnerable Groups Act 2006 (Commencement No. 8 and Saving) Order 2012 (SI 2012 No. 2231)

This Order brings into force further provisions of the Act and makes a saving provision in relation to the repeal of certain provisions in the Criminal Justice and Court Services Act 2000. The following provisions are brought into force:

  • on 10 September 2012, ss. 43(6) and (7), 47(1) to (4) and (7) and 50 (so far not already in force)), which relate to the provision of information from the Independent Safeguarding Authority to keepers of relevant registers and the ability for supervisory authorities to request information and be provided with information by the Authority;
  • on the day s. 72(1) of the Protection of Freedoms Act 2012 is brought into force for the purpose of inserting s. 30A into the 2006 Act, sch. 7 (vetting information);
  • on the day s. 83 of the 2012 Act is brought into force, sch. 10 (subject to certain exceptions).
Article 5 makes a saving provision to ensure that anyone subject to a disqualification order at the time the repeal is fully commenced may still appeal against their disqualification order or request a review of their disqualification order.

Protection of Freedoms Act 2012 (Commencement No. 3) Order 2012 (SI 2012 No. 2234)

This Order brings into force:

on 10 September 2012, immediately after the coming into force of the Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (SI 2012 No. 2231), (i) a series of amendments to the Safeguarding Vulnerable Groups Act 2006 contained in part 5, chapter 1 of the 2012 Act (ss. 64 to 78 being largely brought into force), (ii) the amendments of various Acts (principally the Police Act 1997) in relation to criminal records in part 5, chapter 2 and (iii) related repeals;

on 1 October 2012, (i) ss. 20(1), (10) and (11) and 22 (which relate to the Commissioner for the Retention and Use of Biometric Material), (ii) ss. 92 to 101 (which relate to the disregarding of certain convictions for buggery; (iii) s. 114 (removal of restrictions on times for marriage or civil partnership) and (iv) related repeals.

Policing and Crime Act 2009 (Commencement No. 8) Order 2012 (SI 2012 No. 2235)

This Order brings into force, on 10 September 2012, s. 96 of, and part 10 of sch. 7 to, the Act. These provisions concern criminal records.

Protection of Freedoms Act 2012 (Consequential Amendments) Order 2012 (SI 2012 No. 2278)

This Order amends the Functions of Traffic Wardens Order 1970 and the Removal and Disposal of Vehicles (Traffic Officers) (England) Regulations 2008 (SI 2008 No. 2367) to take account of the amendments made by s. 55 of the 2012 Act (extension of powers to remove vehicles from land).

Money Laundering (Amendment) Regulations 2012 (SI 2012 No. 2298)

These Regulations make a series of detailed amendments to the principal regulations of 2007 (SI 2007 No. 2157) with effect on 1 October 2012. Inter alia, reg 18 (directions where Financial Action Task Force applies counter measures) is revoked and consequential amendments are made to regs. 42 and 45.

Terrorism Act 2000 and Proceeds of Crime Act 2002 (Business in the Regulated Sector) (No. 2) Order 2012 (SI 2012 No. 2299)

This Order amends the 2000 Act, sch. 3A and the 2002 Act, sch. 9 so as to add estate agents selling property outside the UK as businesses in the regulated sector.

Police and Justice Act 2006 (Commencement No. 15) Order 2012 (SI 2012 No. 2373)

This Order brings into force, on 8 October 2012, ss. 45 and 46 of the Act (live links) insofar as not already in force.

Coroners and Justice Act 2009 (Commencement No. 10) Order 2012 (SI 2012 No. 2374)

This Order brings into force, on 8 October 2012, inter alia ss. 106 to 108 of the Act (directions to attend through live link and live link bail) insofar as not already in force.

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 2 and Specification of Commencement Date) Order 2012 (SI 2012 No. 2412)

This Order brings into force, on 1 October 2012, inter alia s. 62 and schs. 7 and 8 (costs in criminal cases).

Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2012 (SI 2012 No. 2505)

This Order amends the principal Order of 2009 (SI 2009 No. 1922) so as to extend the period prior to destruction of a fingerprint, footwear impression or bodily sample where a person has not been convicted of a service offence.

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