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Blackstone's Criminal Practice 2013

September 2013

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 August 2013.

Part A: General Principles of Criminal Law

A4 Parties

A4.22 Scope of the Joint Venture: Fundamentally Different Acts

Rahman [2009] 1 AC 129 and Carpenter [2012] 1 Cr App R 141 were applied in Jogee [2013] EWCA Crim 1433, where it was held that the same principles apply to cases of complicity through encouragement as apply to cases of actual participation.

Part B: Offences

B3 Sexual Offences

B3.3 Sentencing under the Sexual Offences Act 2003 and Historic Cases: General

The much publicised child sexual abuse case involving the 83-year-old TV presenter Stuart Hall is reported as A-G’s Ref (No. 38 of 2013); Hall [2013] EWCA Crim 1450. The A-G submitted that a total sentence of 15 months’ imprisonment originally imposed on 14 counts of indecent assault on children and teenage girls was unduly lenient. The Court of Appeal agreed and effectively doubled it by making the sentence on one count consecutive rather than concurrent. Lord Judge CJ said:

We must keep the seriousness of the offences in proper perspective, as the Attorney General did. Some were more serious than others. Taken in isolation, some would not have required a custodial sentence. Some, as time went by and as the offender escaped detection, seem to us to have started to be marked with an increasing degree of thought and premeditation. The result of the offending taken as a whole is that a multiplicity of young girls were sexually molested over an 18 year period, some when they were very young, all when they were in one way or another vulnerable, and all when the offender was in a position to misbehave as he did just because he was who he was - trusted as a friend, trusted as somebody to whose home it was safe to send a child, or to invite into a home, or trusted as a public figure. All of the offences were real assaults. There was no question of any of the victims consenting to anything. These were not just technical assaults because the victims were too young to have, if they had, consented in law. There was no such question; they were all assaults - technically, legally and as a matter of fact.
The impact on the victims has been lifelong. They have resulted in different manifestations. Indeed, the breadth of the manifestations, as we have set out in the judgment, highlight that although it is possible to predict that this kind of sexual misbehaviour will always cause some permanent consequences, it is not always easy to predict precisely what they will be in the case of each individual victim. Difficulty in forming a lasting sexual relationship may be obvious in some cases of indecent assault; but a deep resentment of a father's reaction may sour what should be a natural, loving relationship of a quite different kind between father and daughter, to the disadvantage of both the father and the daughter.

Lord Judge noted that some of the victims had written to the court to the effect that they were content with the original sentence, but this could not determine the sentence that was appropriate (following Nunn[1996] 2 Cr App R (S) 136).

B3.94 Sexual Activity with a Child: Sentencing

See B3.3 for A-G’s Ref (No. 38 of 2013); Hall [2013] EWCA Crim 1450 as to sentencing in the notorious Stuart Hall case.

B3.100 Causing or Inciting a Child to Engage in Sexual Activity: Sentencing

In Knight [2013] All ER (D) 138 (Aug) the Court of Appeal provided some useful guidance on sentencing in ‘cybersex’ abuse cases. D pleaded guilty to a large number of offences in which he had successfully incited under-aged boys to engage in sexual activities in front of a web camera. He did this by setting up false Facebook accounts in which he pretended to be a teenage girl or boy. He incited many more to perform in a similar way, but without success. After he was charged and released on bail he committed a further eight such offences.
A sentence of 16 months’ imprisonment was held to be unduly lenient and was replaced by one of four years (based on a six-year starting point, before the guilty plea). Cyber sex offences, although serious, were ordinarily less serious than physical contact offences, but the scale and sophistication of offending and the repeat offences when on bail were aggravating features and some of the offender’s victims might well suffer serious psychological effects.

B3.334 Extreme Pornographic Images: Sentencing

Livesey [2013] All ER (D) 179 (Aug) adds to the small body of case law on sentencing for offences involving extreme adult pornography. The summary report of an ex tempore judgment does not identify the exact nature of the material, but a sentence of 14 months’ imprisonment on a guilty plea was reduced on appeal to one of four months. D was of previous good character and was remorseful. There were no aggravating features other than the large number of images etc. that had been gathered. The Court of Appeal clearly considered that a suspended sentence might be appropriate in some such cases.

B5 Fraud, Blackmail and Deception

B5.7 Sentencing Guidelines for Fraud Offences Generally

The problems caused by false whiplash injury claims in motor insurance cases have been much in the news of late, as has the staging of road accidents to generate such claims. Only the former featured in McKenzie [2013] All ER (D) 167 (Aug), where D pleaded guilty to fraudulently claiming in respect of an accident that had never occurred. He received a sentence of 15 months’ imprisonment, which reflected the fact that it was part of a wider conspiracy involving many such cases and in which the ringleader received a seven-year sentence. He argued that he should have been sentenced in respect of a single fraudulent transaction with a starting point of 26 weeks’ imprisonment, but the Court of Appeal disagreed. Moreover, a deterrent sentence was justified on the facts. Such frauds cost the insurance industry millions and add £50 a year to each driver’s premium.
See also M [2013] EWCA Crim 206, which involved other parties to the wider conspiracy.

B10 Terrorism, Piracy and Hijacking

B10.27 Port and Border Controls

Port and border controls exercisable under s. 53(1) of, and sch. 7 to, the Terrorism Act 2000 were examined by the courts in two prominent cases. In R (Miranda) v Secretary of State for the Home Department [2013] EWHC 2609 (Admin), the claimant was the partner of a journalist who had been investigating and writing about mass surveillance programmes allegedly conducted by US and British security agencies, and had assisted his partner is some of this work. He was detained for several hours at Heathrow while in transit from Germany to Brazil and his laptop, telephone and memory sticks were taken and retained. He sought judicial review of this action and (by way of interim relief) sought an order prohibiting the police or security agencies from inspecting, sharing or examining those items in the eight days pending a full interim relief hearing. He argued that the defendants would otherwise secure the confidential information even if they then lost at the hearing. The defendants argued that there were grounds to believe that the seized material included highly classified UK intelligence documents, the disclosure of which would threaten national security, and put lives at risk.
The claimant’s application was allowed only in part. Pending the full hearing, the police and security agencies could continue to examine the seized material for the protection of national security and for the purpose of determining whether the claimant had been concerned with the commission, preparation or instigation of acts of terrorism.

Schedule 7 to the 2000 Act was also examined in Beghal v DPP [2013] EWHC 2573 (Admin). D’s husband had been arrested in France on suspicion of terrorist offences. After travelling to France to visit him in custody, she was detained at the UK Border Agency desk on her return, but refused to answer their questions. She was accordingly charged with wilfully refusing to answer questions that she was legally obliged to answer under sch. 7. The Divisional Court was asked to consider whether this charge was compatible with the ECHR, Articles 6 and 8 and whether the prosecution amounted to an abuse of process.
The Court held that the sch. 7 powers in question were aspects of port and border control and not of a criminal investigation. Insofar as they interfered with with D's rights under Article 8 of the Convention this could be justified under Article 8.2. And since her detention and questioning had been in connection with an inquiry relating to border controls, her rights under Article 6 had not been engaged by her examination.

B14 Offences Against the Administration of Justice

B14.32 Perverting the Course of Justice: Sentencing Guidelines

In Evans-Keady [2013] All ER (D) 160 (Aug) the Court of Appeal held that in sentencing for perverting or conspiracy to pervert the course of justice a court must always consider: (i) the seriousness of the underlying offence; (ii) the degree to which the conspiracy or offence persisted; and (iii) the effect it had upon the course of justice. Where (as in this case) the defendant was a police officer, that must be an aggravating feature. But this case was unusual in that D first arrested a woman on suspicion of drug dealing and then (together with his co-accused, a civilian police employee) falsified the positive basic drug-test result as negative because he felt sorry for her. He never sought to gain from this and acted spontaneously out of misplaced sympathy. A sentence of two years’ imprisonment on a late guilty plea was reduced to one of 12 months. The civilian employee had received a suspended sentence.

B14.32 Perverting the Course of Justice: Sentencing Guidelines (2)

There are numerous reported cases involving the sentencing of former complainants for making false accusations rape or sexual assault cases, but in Shipman [2013] All ER (D) 105 (Aug) D, the partner of a recently convicted rapist, manufactured false evidence in an attempt to destroy the credibility of the two complainants who had testified against her partner. This involved creating false Facebook accounts in the names of the two complainants, from which she then ‘received’ admissions that their evidence had been false. Her deception initially led to the arrest of the two complainants, but was soon exposed, and she pleaded guilty at the first opportunity.

It was accepted that a custodial sentence was inevitable, but the Court of Appeal reduced this from 2½ years to 20 months. Various mitigating features were noted, including her age (22) and previous good character, the fact that she had been abused and manipulated by her partner and the inexplicably long delay (2½ years) in bringing her case to court. The sentencing judge had been aware of all this, but ‘had not correctly assessed’ the effect of the attempt to pervert the course of justice (see the note on Evans-Keady, above). This never had any real prospect of success, although it had of course caused distress and anxiety to the complainants.

Part D: Procedure

D1 Powers of Investigation

D1.2 Investigations in Connection with Terrorism

See R (Miranda) v Secretary of State for the Home Department [2013] EWHC 2609 (Admin), [2013] EWHC 2609 (Admin) (noted in this update at B10.27).

D3 Courts, Parties and Abuse of Process

D3.68 Abuse of Process: The Power to Stay Proceedings

In Fawcett [2013] EWCA Crim 1399 D was charged initially with handling stolen goods from a burglary but, when further evidence came to light showing him to be the actual burglar, a fresh indictment was prepared in which he was charged instead with burglary of a dwelling.
Owing to a prosecution error, he was still able to plead guilty a few days later to the original counts of handling, and, when the burglary charges came to court for a preliminary hearing, he sought to have them dismissed as an abuse of process. The judge rejected this and the prosecution were instead allowed to vacate the original guilty pleas. The Court of Appeal agreed:

The reality is that this appellant faces no risk whatever of being proceeded against twice for the same offending. The basis of the abuse jurisdiction is the protection of criminal defendants from unfairness and oppression. This appellant will not remotely be at risk of either if the handling pleas are vacated and the court proceeds to sentence him for the burglaries. That is what should happen. For these reasons this appeal is dismissed.

D12 Arraignment and Pleas

D12.93 Change of Plea

Drew [1985] 1 WLR 914 was considered in Fawcett [2013] EWCA Crim 1399 (see this update at D3.68). The case differed from Drew in that here it was the prosecution who sought to vacate D’s plea of guilty to handling stolen goods, so that a charge of burglary could be pursued. The Court of Appeal said:

We reject entirely the suggestion that the court lacks the power to vacate the plea to handling. It is well-established, and indeed commonplace, that the court may do so on a defendant's application (see, for example,Drew). The jurisdiction is inherent or implied. There is no rule to restrict jurisdiction to cases where the defendant makes an application. The limits of the court's power at common law to regulate and manage its own procedure (seeMunro[1997] Cr App R 183) may not be clearly fixed, but are plainly broad enough to allow the vacation of this appellant's plea to handling in these circumstances.

D26 Appeal to the Court of Appeal (Criminal Division)

D26.27 Inconsistent Verdicts

Gilmartin [2013] All ER (D) 102 (Aug) provides yet more evidence of the reluctance of the Court of Appeal to accept submissions that jury verdicts are inconsistent. Here the two defendants had been charged with affray and with the possession of offensive weapons. The case against them involved evidence of frightening and violent things (threats and criminal damage) allegedly done by them with a baseball bat and a sword, but the jury somehow managed to convict them of affray while acquitting them of possessing weapons.
The Court of Appeal found nothing ‘inconsistent or troubling’ in this: the acquittals on the offensive weapons counts were explicable given that the incident had been fast-moving and each of the victims had been concentrating on the faces of the offenders. One of the witnesses had initially described the alleged sword as a bayonet, and the jury could also have been troubled by which offender had wielded which weapon.

Part E: Sentencing

E19 Confiscation Orders

E19.66 Enforcement, Reconsideration and Appeals

The mechanism for calculating terms of imprisonment or detention for default in payment of confiscation orders was considered by HHJ Gosnell (sitting as a Deputy Judge of the High Court) in R (Gibson) v Secretary of State for Justice [2013] EWHC 2481 (Admin). The case in question concerned the old confiscation regime, but consideration was also given to the proper interpretation of the current POCA 2002 regime, which in many (but not all) respects is similar. The case focused specifically on the calculation of accrued interest and the impact of part payments upon the length of the default term of imprisonment.
Judge Gosnell said (at [28] –[29]):

The terms of section 12(4) of POCA 2002 in my view are very clear:
“(4) In applying this Part the amount of the interest must be treated as part of the amount to be paid under the confiscation order.”
Section 12(4) is in Part 2 of the Act as are sections 35-39 which deal with enforcement of confiscation orders as fines. It seems to me that when section 37(10) which is the equivalent of section 79(2) of MCA 1980 speaks of “the amount remaining to be paid” it is referring to the amount originally ordered to be paid plus interest, less any previous payments made. To read the section in any other way would mean that it was intended only to apply to civil recovery and not to enforcement by a default term of imprisonment. The wording of section 12(4) suggests it was intended to apply to other provisions in the same part of the Act.
I accept that a consequence of this finding would be that POCA 2002 is even more draconian or unfair (as the Claimant would submit) than its predecessor. If the Director of Asset Recovery is instructed and section 37 of POCA 2002 applies then it would appear that interest continues to run throughout the term of both the original and default term of imprisonment and there is no cut-off so far as interest is concerned at the point of imposition of the default term. …The Claimant contends that Parliament cannot have intended section 37 to be more unfair than its predecessor without publicising such an intention but that is to assume that all adverse consequences of legislation are intended. Often unintended consequences arise which do not become evident until the issue is raised because someone is prejudiced. Parliament can then decide whether the consequence is acceptable or whether it needs to be changed. This may be such a situation.

New Legislation

Crime and Courts Act 2013 (Commencement No. 4) Order 2013 (SI 2013 No. 2200)

Crime and Courts Act 2013 (Commencement No. 4) Order 2013 (SI 2013 No. 2200)
This Order brings into force various provisions of the Act relating to the administration of justice and the deployment of the judiciary on various dates (4 September, 1 October and 1 November 2013) and amends the (Commencement No. 3) Order 2013 (SI 2013 No. 1725). Section 30 of the Act (Supreme Court security officers) is brought into force on 1 October 2013 and includes an amendment to the Constitutional Reform Act 2005 granting Supreme Court security officers powers of search, exclusion removal and restraint and power to seize knives and other articles and creates the summary offences of assaulting such an officer in the execution of his duty or resisting or wilfully obstructing such an officer in the execution of his duty (s. 51E of the 2005 Act).

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