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Blackstone's Criminal Practice 2013

September 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 August 2012.


Part A General Principles of Criminal Law

A3 General Defences

A3.36 Duress by Threats: The Type of Threat Required

The proper scope of the defence of duress by threats was examined in Dao [2012] EWCA Crim 1717, where it was said that a threat of false imprisonment, without an accompanying threat of death or serious injury, was insufficient to found that defence.


Part B Offences

B1 Homicide and Related Offences

B1.7 Unlawful Killing

In R (Nicklinson) v Ministry of Justice [2012] EWHC 2381 (Admin), the Divisional Court refused to interfere with the long established rule that mercy killing is unlawful even if done at the request of the deceased, and however desperate the deceased’s position may have become. Rejecting arguments invoking the ECHR, Article 8 (but not supported by UK or Strasbourg case law), Toulson LJ said:

A decision by the court to alter the common law so as to create a defence to murder in the case of active voluntary euthanasia would be to introduce a major change in an area where there are strongly held conflicting views, where Parliament has rejected attempts to introduce such a change, and where the result would be to create uncertainty rather than certainty. To do so would be to usurp the role of Parliament.

B12 Offences Relating to Weapons

B12.129 Sentencing Guidelines for Firearms Offences

Attempting to commit suicide may not be an offence under English law, but possession of an illegal firearm used in that attempt most certainly is. In Burton [2012] EWCA Crim 1781 D used a sawn off shotgun (‘found in his attic’) in an attempted suicide. He was depressed and in poor health. But this provided only limited mitigation and the only exceptional circumstances justifying a sentence of less than five years were his depression and state of health. A sentence of four years’ imprisonment was upheld on appeal.


Part C Road Traffic Offences

C5 Drink-driving Offences

C5.45 Admissibility of Specimens

In Afolayan v CPS [2012] EWHC 1322 (Admin), D was convicted of an offence of driving with excess alcohol on the basis of a blood specimen taken in accordance with the RTA 1988, s. 8(2) in substitution for a specimen of breath. D conceded that the specimen had been divided and one part given to him, as required by the Act, but claimed that the correct procedure had not been followed in that the specimens had not been sealed in his presence.

The police insisted that all procedures had been followed, save that form MG DD/A had not fully been completed, and the Divisional Court held that the magistrates were fully entitled to accept that evidence (and that of the analyst) in preference to D’s. D had not bothered to have his own part of the specimen analysed. Had he done so, and had his analyst’s report differed from the prosecution’s, the case would have been more difficult to resolve.


Part D Procedure

D1 Powers of Investigation

D1.133 Identification: Procedures Where the Suspect is Known

Popat [1998] 2 Cr App R 208 was applied in France v R [2012] UKPC 28.

D3 Courts, Parties and Abuse of Process

D3.54 Prosecutions by Other Persons

In Media Protection Services v Crawford [2012] EWHC 2373 (Admin) it was held that the laying of an information is a reserved legal activity within the meaning of the Legal Services Act 2007 (amounting to the commencement of proceedings) and that an unauthorised litigator who commenced such proceedings in the magistrates’ court (other than as a litigant acting on his own behalf) would be guilty of acting as a solicitor.

It followed that an information laid against the respondents by an officer of Media Protection Services on behalf of the Premier League was invalid.

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

D10.33 Procedural Irregularities

Haye [2002] EWCA Crim 2746 and Thwaites [2006] EWCA Crim 3235 were considered in Gul [2012] EWCA Crim 1761.

D12 Arraignment and Pleas

D12.48 Retrial Provisions of the Criminal Justice Act 2003: Relevant Statutory Extracts

The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (SI 2012 No. 1809) makes numerous amendments to legislation, making minor changes to terminology and references to Treaty article numbers. In particular, the Criminal Justice Act 2003, s. 76 is amended so as to update the references to the Articles of the Treaty on European Union.

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

D25.78 Serious Crime Prevention Orders: Criminal Offences

In Koli [2012] EWCA Crim 1869 the Court of Appeal issued some guidance on sentencing for breaches of SCPOs.

D, who had been released on licence from a sentence imposed for money laundering, failed to notify SOCA that he possessed communications devices and a car, as required by the terms of a SCPO (and by the terms of his licence, which mirrored that order) and was sentenced to two years’ imprisonment, in addition to having his licence revoked, but there was no evidence that he had possessed the items for any criminal purpose. He had merely failed to take the order seriously. It was argued that the revocation of the licence was punishment enough, but the Court of Appeal disagreed. Moses LJ said:

The correct approach was to have regard to the reality and significance of the breaches in the particular circumstances of this case. We do not think that there is merit in the argument that having been recalled for breach of licence conditions identical to those imposed under the order no further punishment was warranted. The whole point was the necessity, as the original judge saw it, of not merely leaving it to those responsible for the sentence in the Ministry of Justice to decide whether the licence conditions should contain obligations of notification, but that more was required, namely the imposition of the order we have identified. In those circumstances should there, as there was in this case, be a failure to notify the consequences had to be twofold: not only recall, but also punishment.
The two year sentence was quashed and one of 12 months was substituted: the practical effect would be that D would serve about four months beyond the point at which he would otherwise have been released.

D31 Extradition

D31.3 Human Rights

In Krolik and others v Judicial Authorities of Poland [2012] EWHC 2357 (Admin), the Divisional Court rejected each of a series of extradition appeals relating to the conditions allegedly found in Polish jails. In giving the judgment of the Court, Sir John Thomas P warned that:

As the law is clear, it cannot be and is not in the interests of justice and the proper conduct of the business of this court, that appeals raising the issue of Polish prison conditions in relation to Article 3 are dealt with in the ordinary way.
For the future therefore:
i) Any appeal raising the issue must (1) clearly identify any new factual issues not considered in this appeal or earlier cases which are said to give rise to a breach of Article 3 by reason of the conditions in Polish prisons, (2) set out a summary of the evidence relied on in support and (3) explain how it meets the criteria for evidence of the type to which we have referred at paras 6 and 7.

ii) Any such appeal will be listed within days of it being lodged at the court. If there are no new factual issues and the evidence is not of the type identified, the court will consider whether it should be heard then and there and, if appropriate, dismissed.

iii) As it is highly unlikely that new factual issues will arise or that the type of evidence required will be provided, it is anticipated that there will be few, if any, further appeals which raise the issue.

iv) District Judges should require a requested person or the advocate representing the requested person who seeks to raise an Article 3 issue relying on Polish prison conditions to identify any new factual issues not considered in this appeal or earlier cases and whether the evidence in support is of the type to which we have referred. If the requested person or his advocate fails to do so, then the District Judge should ordinarily be entitled to deal with the claim briefly by relying on the decisions of this court.

D31.33 Physical or Mental Condition

Government of the USA v Tollman [2008] 3 All ER 150 was considered in Turner v Government of the USA [2012] EWHC 2426 (Admin), in which the appellant adduced evidence on appeal of a recurrent depressive illness which was said to make her a suicide risk. She had made an apparent suicide attempt when facing extradition, but the Divisional Court was not convinced it was a serious or irrational attempt. This evidence had not been available to the District Judge who ordered extradition but would not inevitably have led him to reach a different decision. In rejecting the appeal, the Court also noted that the appellant would be under supervised custody, and that if she did indeed attempt suicide again it would be ‘a matter of choice and not because her mental condition was such as to remove her capacity to resist the impulse’.


Part E Sentencing

E1 Sentencing: General Provisions

E1.10 Reduction in Sentence for Guilty Plea

The issue of how promptly a guilty plea must be given in order to attract the maximum one-third discount was considered once more in Chaytors [2012] EWCA Crim 1810, where D had received only a 25% discount because he entered his plea at a PCMH, rather than at the police station, as his co-accused had done. Allowing his appeal and substituting a one-third discount, the Court of Appeal noted that:

In our experience [it] is often the case that judges make it clear that there should be no assumption that a plea at the plea and case management hearing will attract a one-third discount and they apply within the guideline a lesser discount on the basis that the first reasonable opportunity was earlier. That is an entirely proper approach and it should encourage early indications of willingness to plead, with all the consequential savings of cost and time. However, in this case...the prosecution did not put the matter on that basis and the judge in sentencing expressly said in relation to this appellant that he had pleaded guilty at the first reasonable opportunity. He did not raise with counsel any issue about it.

We add this. In an increasing number of court centres now there is an early guilty plea scheme where early guilty plea hearings take place. In those centres there are practice guidance notes making it clear that there is a presumption that only a 25 per cent discount will be given if a guilty plea is entered at the plea and case management hearing rather than earlier. The Maidstone Court involved in this case is not, as yet, one of those centres. However, as this scheme develops around the country it will be increasingly difficult to maintain that a plea at the plea and case management hearing is the first reasonable opportunity.

E6 Suspended Sentences under the Criminal Justice Act 2003

E6.11 Breach, Commission of Further Offence, and Amendment

In Morgan [2012] EWCA Crim 1939 the Court of Appeal provided guidance in respect of difficulties that may arise where an offender in breach of a suspended sentence order is committed to the Crown Court for sentencing. Problems may arise because of the potential limits of sentencing powers arising from different committal routes, although such difficulties could be avoided, said the court, by use where applicable of the ‘clear route’ provided by the PCC(S)A 2000, s. 3, which gives the Crown Court full powers of sentence under s. 5 of the Act.

E19 Confiscation Orders

E19.7 The Process: A Summary

A defendant may be committed for sentence under the POCA 2002, s. 70, with a view to the making of a confiscation order, even in respect of a purely summary offence. See Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840.

E19.20 Obtaining

In Sumal & Sons (Properties) Ltd [2012] EWCA Crim 1840 it was held to be wrong to impose a confiscation order in respect of rents obtained from housing merely because the appellant company was not licensed under the Housing Act 2004. As Davis LJ explained:

Having regard to the provisions of the 2004 Act, the continued receipt of the rent was not the product of the appellant’s crime. To impose a confiscation order would in substance, in our view, be in the nature of a fine: and the provisions of s.76 of the 2002 Act, read with the provisions of the 2004 Act, do not permit it.

E21 Exclusions and Disqualifications

E21.12 Barring Offenders from Regulated Activity Relating to Children and Vulnerable Adults

The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2012 (SI 2012 No. 2112) make a number of changes to existing regulations under the Safeguarding Vulnerable Groups Act 2006 which are consequential upon the changes to the 2006 Act in the Protection of Freedoms Act 2012, chapter 1, part 5 and make entirely new provision in accordance with the need for regulations arising from the changes made by the 2012 Act.

The Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2012 (SI 2012 No. 2113), which comes into force on 10 September 2012, provides inter alia that:

  • the provision of ophthalmic health care by someone who is not a health care professional, but is providing the health care under the direction or supervision of a health care professional, will not be engaging in regulated activity relating to vulnerable adults when that health care is being provided in opticians’ practice premises or where such health care is provided as mobile services
  • provision to an adult of physical assistance in connection with the care of hair is not to be treated as a regulated activity relating to vulnerable adults where that assistance relates solely to the cutting of the adult’s hair.

The Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (SI 2012 No. 2157) inter alia amends the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2009 (SI 2009 No. 1797) by revoking the provisions in the 2009 Order which provided that certain people should not be treated as vulnerable adults or as providing regulated activity to children or to vulnerable adults, in light of the changes the definitions of vulnerable adults and regulated activity relating to children and regulated activity relating to vulnerable adults in the Protection of Freedoms Act 2012, ss. 64 to 66.

The Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012 (SI 2012 No. 2160), which came fully into force on 10 September 2012, revoke the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010 (SI 2010 No. 1146), regs. 2 to 8 and amend the tables in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009 No. 37).

E21.24 Sexual Offences Prevention Orders

In Pelletier [2012] EWCA Crim 1060 the Court of Appeal addressed problems caused by the drafting of a SOPO in terms significantly different from those announced by the judge, and suggested that such errors could be avoided in future if judges insisted that ancillary orders are put before them in draft. They then should either make them in the form which is tendered in draft or, if appropriate, amend them. The document bearing either their approving initial or the amended terms of the order plus such initial should then be placed with the papers by the court associate so that the order will be translated into proper form in the office afterwards. The offender should also be asked to sign for receipt.

E21.30 Travel Restriction Orders: Drug Trafficking Offenders

Whittle [2007] 2 Cr App R (S) 578 was followed in Boland [2012] EWCA Crim 1953. There is no power to impose a travel restriction order for an offence of possession with intent to supply, even where drug trafficking was clearly involved.

E21.35 Serious Crime Prevention Orders

See Koli [2012] EWCA Crim 1869, which is noted in this update at D25.49.


Part F Evidence

F10 Opinion Evidence

F10.8 Expert Evidence: Matters Calling for Expertise

Anderson [2012] EWCA Crim 1785 is the latest in a line of cases involving expert evidence of the reliability of an adult’s historic childhood memories. Such evidence was accepted in JH and TG (deceased) [2006] 1 Cr App R 10, but perhaps only because of the extreme youth of the complainant at the time of the alleged events. It seems that such evidence will rarely satisfy the Turner principle, and in this case there were also concerns at the methodology of the expert witness. In refusing to admit expert evidence in this case, the Court of Appeal also warned that:

Any lawyer attempting to obtain public money with which to instruct experts has a duty to reveal to the funding authority decisions of the Court of Appeal... which suggest such evidence may not be received.

F18 Evidence of Identification

F18.6 Dock Identification

The concept of ‘dock identification’ was considered by the Privy Council in France v R [2012] UKPC 28, where Lord Kerr explained:

There has been a tendency to apply the term "dock identification" to situations other than those where the witness identifies the person in the dock for the first time. This is not necessarily a misapplication of the expression but it should not be assumed that the dangers present when the identification takes place for the first time in court loom as large when what is involved is the confirmation of an identification already made before trial. Nor should it be assumed that the nature of the warning that should be given is the same in both instances. Where the so-called dock identification is the confirmation of an identification previously made, the witness is not saying for the first time, "This is the person who committed the crime". He is saying that "the person whom I have identified to police as the person who committed the crime is the person who stands in the dock”.


New Legislation

Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (SI 2012 No. 1809)

This Order makes numerous amendments to legislation, including some relevant to criminal law. It makes minor changes to terminology and references to Treaty article numbers. It has effect from 1 August 2012.

Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment No. 2) Order 2012 (SI 2012 No. 2067)

This Order, which has effect from 3 September 2012, corrects a drafting error in the Prosecution of Offences Act 1985 (Specified Proceedings) (Amendment) Order 2012 (SI 2012 No. 1635) so as to substitute a reference to the Magistrates’ Courts Act 1980, s. 11(1) for the reference to s. 11(3) which that Order mistakenly inserted in the principal Order of 1999 (SI 1999 No. 904), art. 3.

Protection of Freedoms Act 2012 (Commencement No. 2) Order 2012 (SI 2012 No. 2075 )

This Order brings into force inter alia the following provisions of the Act:

(a) on 1 October 2012, ss. 54 (offence of immobilising etc. vehicles) and 55 (extension of powers to remove vehicles from land) and, in relation to England, s. 56 (recovery of unpaid parking charges) and sch. 4, together with the consequential amendments in sch. 9, part 4 and the repeals in sch. 10, part 3;

(b) on 1 November 2012, ss. 37 (judicial approval for obtaining or disclosing communications data) and 38 (judicial approval for directed surveillance and covert human intelligence sources) and the consequential amendments in sch. 9, paras. 6 to 17 (but not para. 15 insofar as it inserts the words ‘or 32A’ into s. 77A(1) of the Regulation of Investigatory Powers Act 2000 and the heading preceding that section)

(c) on 25 November 2012, ss. 111 and 112 (stalking) and the consequential amendments in sch. 9, part 11.

Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2012 (SI 2012 No. 2112)

These Regulations make a number of changes to existing regulations under the Safeguarding Vulnerable Groups Act 2006 which are consequential upon the changes to the 2006 Act in the Protection of Freedoms Act 2012, chapter 1, part 5. They amend the Safeguarding Vulnerable Groups Act 2006 (Barred List Prescribed Information) Regulations 2008, the Safeguarding Vulnerable Groups Act 2006 (Prescribed Information) Regulations 2008 and the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Regulations 2009. The Regulations also make entirely new provision in accordance with the need for regulations arising from the changes made by the 2012 Act.

Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2012 (SI 2012 No. 2113)

This Order, which comes into force on 10 September 2012, provides inter alia that:

  • the lists maintained under the Protection of Vulnerable Groups (Scotland) Act 2007, s. 1 (the Scottish barred lists) and the Safeguarding Vulnerable Groups (Northern Ireland) Order 2007 (2007 No. 1351), art. 6 (the Northern Ireland barred lists) are lists corresponding to the children’s and adults’ barred lists for the purposes of the Safeguarding Vulnerable Groups Act 2006, ss. 43, 48 and 49;
  • the provision of ophthalmic health care by someone who is not a health care professional, but is providing the health care under the direction or supervision of a health care professional, will not be engaging in regulated activity relating to vulnerable adults when that health care is being provided in opticians’ practice premises or where such health care is provided as mobile services
  • provision to an adult of physical assistance in connection with the care of hair is not to be treated as a regulated activity relating to vulnerable adults where that assistance relates solely to the cutting of the adult’s hair.

Safeguarding Vulnerable Groups (Miscellaneous Amendments) Order 2012 (SI 2012 No. 2157)

This Order amends the Safeguarding Vulnerable Groups Act 2006 (Miscellaneous Provisions) Order 2009 (SI 2009 No. 1797) by revoking the provisions in the 2009 Order which provided that certain people should not be treated as vulnerable adults or as providing regulated activity to children or to vulnerable adults, in light of the changes the definitions of vulnerable adults and regulated activity relating to children and regulated activity relating to vulnerable adults in the Protection of Freedoms Act 2012, ss. 64 to 66. The Order also amends the Safeguarding Vulnerable Groups Act 2006 (Regulated Activity, Miscellaneous and Transitional Provisions and Commencement No. 5) Order 2009 in light of the changes to the 2006 Act and the consequent effect on transitional provision.

Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Prescribed Criteria) Regulations 2012 (SI 2012 No. 2160)

These Regulations, which came fully into force on 10 September 2012, revoke the Safeguarding Vulnerable Groups Act 2006 (Controlled Activity and Miscellaneous Provisions) Regulations 2010 (SI 2010 No. 1146), regs. 2 to 8 and amend the tables in the schedule to the Safeguarding Vulnerable Groups Act 2006 (Prescribed Criteria and Miscellaneous Provisions) Regulations 2009 (SI 2009 No. 37).

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