Blackstone’s CRIMINAL PRACTICE Issue 4 Summer 2012 QUARTERLYUPDATE Editors’ welcome

Welcome to Blackstone’s Criminal Practice and important explanatory as bad Quarterly Update. character. More detailed coverage is provided of Nero; Richardson v DPP on aggravated Ensuring that practitioners are kept fully up and R (Raeside) v Luton to date with recent developments in criminal on custody time-limits. The update also offers law, procedure and sentencing, this publication insights on practical considerations in a case enhances the comprehensive coverage provided requiring special measures from HHJ Johannah in Blackstone’s Criminal Practice 2012. Cutts QC and on sentencing changes in the Legal This latest issue digests recent cases across a Aid, Sentencing and Punishment of Offenders range of offences including extradition, and Act 2012 from Professor Martin Wasik. knowingly permitting drug-related activities as well as summarising procedural and evidential Lord Justice Hooper cases dealing with matters such as third party and Professor David Ormerod access to court documents, intermediaries, Issue 4 contents

2 Case Digest—In Brief Reduction in Sentence for Assistance Misuse of Drugs (Amendment No. 2) Criminal Law — Mutual Recognition by Offender (England, Wales and Scotland) Regulations 2012 Offences — Use of Violence for 6 Compensation Orders Purpose of Securing Entry to Premises Personal Mitigation Counter-Terrorism Act 2008 (Commencement No. 5) Order 2012 Procedure — Unfitness to Plead Reduction in Sentence for Guilty Plea Misuse of Drugs (Amendment No. 3) Evidence — Explanatory Evidence Confiscation Orders (England, Wales and Scotland) 3 Procedure — Open Justice Football Banning Orders Regulations 2012 Offences — Knowingly Permitting or 11 Criminal Justice Act 2003 Suffering Drug-related Activities 7 Case Digest—In Detail (Commencement No. 28 and Saving Offences — Animal Welfare Act 2006 Nero; Richardson v DPP Provisions) Order 2012 Offences — Fraud in Relation to Tax [2012] EWHC 1238 (Admin) Credits The Misuse of Drugs Act 1971 (Amendment) Order 2012 Procedure — Arrest R (Raeside) v Luton Crown Court [2012] EWHC 1064 (Admin) 4 Procedure — Intermediaries The Domestic Violence, Crime and 8 Chinn [2012] EWCA Crim 501 Victims (Amendment) Act 2012 Procedure — Citation of Authorities (Commencement) Order 2012 Procedure — Decision to Order a Retrial Newell [2012] EWCA Crim 650 Procedure —Power to Award Costs 11 Comment & Analysis Procedure — Extradition 9 Legislation Practical Considerations in a Case Legal Aid, Sentencing and Requiring Special Measures 5 Sentencing Punishment of Offenders Act 2012 HHJ Johannah Cutts QC 10 Protection of Freedoms Act 2012 14 Sentencing Changes in LASPO Criminal Justice Act 2003 Martin Wasik CBE Sentencing Guidelines (Commencement No. 27) Order 2012 Fraud 2 QUARTERLYUPDATE CASE DIGEST–IN BRIEF

Criminal Law — Procedure — Unfitness to Plead Mutual Recognition Burke Assange v Swedish Prosecution [2012] EWCA Crim 770 Authority D, who was autistic, was found unfit to plead on two related charges [2012] UKSC 22 of voyeurism. At the subsequent trial of the facts under the Criminal The Supreme Court held (by a 5:2 Procedure (Insanity) Act 1964, s. 4A, the judge directed the jury that the majority) that the term ‘judicial prosecution had to prove only that D committed the physical acts alleged authority’ had to be given the same (which in each case was looking into a cubicle in a sports centre where a meaning in the Extradition Act child was changing into his swimming costume); it was not necessary to 2003 as it bore in the Framework prove either that D had acted for the purpose of sexual gratification or Decision and thus included a that D knew the children had not consented to being observed for sexual public prosecutor of the kind gratification. In one of the two cases, the jury found the facts to be made that had issued the European out. The Court of Appeal quashed the verdict and directed an acquittal. Arrest Warrant in Assange’s case. In this case D’s state of mind was just as much a fact as his outward act. Consideration was given to the If he was not spying on the boys for sexual gratification he had not Vienna Convention on the Law of committed the act alleged. Treaties 1969. An application for rehearing, based on the contention See Blackstone’s Criminal Practice: D12.10 that issues surrounding the Vienna Convention were not argued before the Court, was refused. Evidence — Explanatory Evidence See Blackstone’s Criminal Lee Practice: A9.10 and D32.3 [2012] EWCA Crim 316 The need to distinguish properly between evidence of propensity and Offences — Use of ‘important explanatory evidence’ was emphasised yet again in this case. Even where evidence wrongly admitted as explanatory under gateway Violence for Purpose (c) might instead have been admitted as evidence of propensity under of Securing Entry to gateway (d), any conviction is likely to remain unsafe unless the jury has Premises been correctly directed and cautioned as to its use as propensity evidence. A case which is truly one of propensity cannot and must not be dressed up as a case of Wakolo v DPP important explanatory evidence. Moreover, whatever the basis upon which evidence [2012] EWHC 611 (Admin) has been admitted, it is essential that the analysis of the evidence and the use which A co-owner of a property who has can properly be made of it is considered before summing-up. … If prior to summing- been excluded from it by another up [the judge] had addressed with counsel, or counsel had addressed with her, the question of how the evidence could properly be used, we think it is very likely that at that co-owner may be guilty of an stage she might well have concluded that it could be used as evidence of propensity and offence under the Criminal Law if she had reached that conclusion and given a careful direction based upon it we doubt Act 1977, s. 6 if he uses force to very much if anybody could have complained. It is necessary to undertake that kind enter it while she is inside, and he of review at the end of the evidence because it does sometimes happen that evidence cannot then claim to be a ‘protected which is admitted through one gateway becomes admissible on another basis. … intending occupier’ within the The jury must have the help that it needs on how to deal with bad character evidence. meaning of s. 12A. See Blackstone’s Criminal Practice: F12.17 See Blackstone’s Criminal Practice: B13.22

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Procedure — Open Justice Offences — Fraud in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court Relation to Tax Credits [2012] EWCA Civ 420 Nolan The Court of Appeal (Civil Division) invoked the common-law principle [2012] EWCA Crim 671 of open justice in reversing the earlier decision of the Divisional Court The offence created by the Tax and directing that the appellant be granted access to court papers which Credits Act 2002, s. 35(1), requires had previously been denied. The documents, relating to a high profile that the fraudulent activity be US extradition case, included counsel’s skeleton arguments, affidavits undertaken with a view to tax and witness statements and correspondence between the Serious Fraud credits being obtained. It could Office and the US Department of Justice. There had been no suggestion not suffice for the prosecution to that disclosure would give rise to any risk of harm to any other party, nor allege and prove that the appellants would it have placed any great burden on the court. had dishonestly retained inflated tax credit payments to which they See Blackstone’s Criminal Practice: D3.83 knew they were not entitled or that by not notifying the authorities they had allowed those overpayments Offences — Knowingly Permitting or Suffering to continue. Drug-related Activities See Blackstone’s Criminal Practice: B16.5 McGee [2012] EWCA Crim 613 An accused cannot be convicted of knowingly permitting or suffering a Procedure — Arrest prohibited activity on given premises for the purpose of the Misuse of Drugs Act 1971, s. 8, unless it is proved that the activity in question has Austin v UK indeed been committed on those premises. So, in order for the appellant [2012] ECHR 459 to be found guilty of knowingly permitting or suffering cocaine to be The Grand Chamber of the supplied on her premises, the jury had to be satisfied not only that she ECtHR held that containment was prepared to allow this or turn a blind eye to it, but also that the within a police cordon during a supply of cocaine had actually taken place on the premises (not merely demonstration did not amount to from those premises). deprivation of liberty or a breach of the ECHR, Article 5. But ‘had it not See Blackstone’s Criminal Practice: B19.70 remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or Offences — Animal Welfare Act 2006 damage, the “type” of the measure would have been different, and Lamont-Perkins v RSPCA its coercive and restrictive nature [2012] EWHC 1002 (Admin) might have been sufficient to bring The Animal Welfare Act 2006, s. 31, which deals with the time for it within Article 5’. bringing prosecutions under the Act, was considered and explained by the Divisional Court. The Court rejected an argument that only prosecutors See Blackstone’s Criminal acting pursuant to a power conferred by some statutory provision could Practice: D1.9 take advantage of s. 31(2), which, said Wyn Williams J at [26], applies to anyone initiating a prosecution under the Act. The Court went on to hold that a challenge to a s. 31(2) certificate should be brought as a challenge to the jurisdiction of the court. A certificate could be challenged only on the basis that it constituted a fraud or on the basis that it was plainly wrong.

See Blackstone’s Criminal Practice: B20.14

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Procedure — Procedure — Decision to Order a Retrial Intermediaries Blackwood Cox [2012] EWCA Crim 390 [2012] EWCA Crim 549 D’s conviction was quashed and no immediate application was made for The Court of Appeal recognised a retrial, so he was released from custody by order of the court. Crown that the proper use of counsel subsequently learned that the CPS wanted her to seek a retrial but, intermediaries could make a by the time she could do so, the notifications clerk in the Criminal Appeal valuable contribution to the Office had already sent out the order recording the decision of the court to administration of justice, and allow the appeal and quash the conviction and it had been entered onto the that on occasions the provision of CREST database. Having considered authorities including Cross [1973] an intermediary would improve 1 QB 937, the Court of Appeal held that it was now too late to amend the the trial process. But it did not original order or order a retrial. Richards LJ said: follow that, whenever the trial there is in place a final order to which effect has been given at the court of trial by enter- process would be improved by the ing a verdict of acquittal. It cannot possibly be open to this court to order a retrial after provision of an intermediary to the appellant’s acquittal has been recorded in that way. … assist a defendant with learning It is highly desirable that prosecuting counsel appearing at the hearing of a conviction difficulties, etc., it was mandatory appeal should have clear instructions as to whether to apply for a retrial in the event of the appeal being allowed and the conviction or convictions being quashed. for such an intermediary to be made available. It would, in fact, be a most unusual case for a See Blackstone’s Criminal Practice: D26.32 defendant who was fit to plead to be found to be so disadvantaged by his condition that a prosecution Procedure — Power to Award Costs would have to be stayed in the Murphy v Media Protection Services Limited absence of an intermediary. [2012] EWHC 529 (Admin) See Blackstone’s Criminal This case involved a prosecution for an alleged offence under the Copyright, Practice: D14.22 Design and Patents Act 1988, s. 297(1), and was brought ‘in order to protect a very substantial profit stream for the Football Association Premier League’. The Divisional Court held that, in exceptional cases, notably where Procedure — a criminal prosecution is brought as a test case to establish and enforce Citation of Authorities commercial rights and interests, it may be appropriate for a criminal court to award costs according to the civil costs regime. This was such a case. Practice Direction: Citation of Authorities [2012] 1 WLR 780 See Blackstone’s Criminal Practice: D31.15 The Lord Chief Justice has issued a Practice Direction to clarify the practice and procedure governing Procedure — Extradition the citation of authorities. Republic of South Africa v Dewani The Direction is expressed to [2012] EWHC 842 (Admin) apply throughout the senior D’s extradition to South Africa should be adjourned on the basis of courts, including the Crown strong psychiatric and medical evidence as to his severe PTSD and Court, and in county courts and depression. Extradition presented a real and significant risk to his magistrates’ courts. life and would certainly jeopardise his treatment and his prospects of See Blackstone’s Criminal recovery. Adjourning extradition would thus increase the prospects of Practice: D27.15 him being fit to stand trial in the future, and that was what the interests of justice required.

See Blackstone’s Criminal Practice: D32.10

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Theft Fraud Maughan Clugston [2012] EWCA Crim 692 [2012] EWCA Crim 98 The offender, aged 30, who had a long record for crimes of , D was a ‘professional conman’ stole a case containing a violin and two bows from its owner as he sat with it with a long record of offences in a café. He did not know that the owner was a concert violinist or that the over many years and pleaded violin was a Stradivarius worth £1.2 million, but became aware of it later. guilty to defrauding 31 victims The violin was never recovered and was not insured for its full value. The of a total of £19,500. Despite his offender pleaded guilty to theft and was sentenced to four and a half years’ record, a sentence of five years’ imprisonment. Taking account of some personal mitigation, the Court of imprisonment was held to be too Appeal reduced this to three and a half years, but acknowledged that they high, given the need to reserve the ‘had not been assisted by any cases which are even remotely similar’. higher sentences for more serious frauds. A term of four years was See Blackstone’s Criminal Practice: B4.5 substituted.

See Blackstone’s Criminal Practice: B5.6 Forgery Mussa [2012] EWCA Crim 693 Reduction in Sentence A sentence of six and a half years’ imprisonment was upheld by the Court for Assistance by of Appeal where D pleaded guilty to two counts of to commit Offender sophisticated forgery on an industrial scale and had been near to the McGarry very top of the organisation which operated one of the largest factories [2012] EWCA Crim 255 producing false documents ever discovered. Moreover, the documents being forged were not just to enable people to obtain employment or to The issue arose in this case as to drive, but ‘could well have facilitated entry into this and other countries whether a discount of 10% (prior in breach of immigration control’. to the calculation of any further Per curiam: the key considerations in sentencing are the role of the discount for a guilty plea) was a offender in the operation, its scale and the sophistication of its products, sufficient reduction to reflect the the type of false documents being manufactured, the damage caused in fact that D had entered into an terms of the distribution of false documents and the income generated. agreement with the prosecution under the Serious Organised Crime and Police Act 2005. See Blackstone’s Criminal Practice: B6.36 On the facts of the case, the Court of Appeal took the view that the discount in the level of sentence Sentencing Guidelines should have been in the region of 20% and that one of merely 10% The Sentencing Council for England and Wales has issued definitive was wrong in principle. guidelines on Offences Taken Into Consideration, Totality and Allocation. All three guidelines have effect from 11 June 2012. The Allocation guideline See Blackstone’s Criminal applies only to magistrates’ court proceedings and is not applicable in Practice: E1.7 the youth court. See http://sentencingcouncil.judiciary.gov.uk/ guidelines/forthcoming-guidelines.htm.

See Blackstone’s Criminal Practice: E1.2

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Compensation Orders Reduction in Sentence for Guilty Plea Stapylton Wilson [2012] EWCA Crim 728 [2012] EWCA Crim 386 The principles governing the The definitive sentencing guideline Reduction in Sentence for a Guilty imposition of compensation orders Plea was considered by the Court of Appeal in Wilson [2012] EWCA Crim were reviewed by the Court of 386. In relation to some of the sexual offences to which D pleaded guilty, Appeal. The Court warned in the judge observed that D had no option but to plead guilty and that, in particular that orders should not those circumstances, no credit for his plea would be given. be made unless there is a realistic On appeal, the Court noted that, even in the context of an overwhelming possibility of compliance, and that prosecution case, there are benefits in a guilty plea, notably in saving complex cases involving disputes the victim from having to testify, and that the starting point in relation as to the real victims and true to the discount for a guilty plea is the full reduction. Where however a quantum of any loss ought instead lesser reduction is considered appropriate, the recommendation is a to be left to civil litigation. 20% reduction, assuming that the guilty plea has been indicated at the See Blackstone’s Criminal first reasonable opportunity. The sentences were varied accordingly, Practice: E16.8 although a sentence of custody for life was unaffected.

See Blackstone’s Criminal Practice: E1.6 Personal Mitigation Mullally [2012] EWCA Crim 687 Confiscation Orders This was a case involving Lambert limited violence where the [2012] EWCA Crim 421 offender’s mitigation included May [2008] 1 AC 1028 and Green [2008] AC 1053 were applied by the a claim that he was put under Court of Appeal in this case and were said to be of general application. pressure to commit the offence by The Court added (at [47]): those to whom he owed a drug debt. The Court of Appeal warned that: Confiscation orders are made to deprive drug dealers of the profits of their crime and also to deter them and others from drug dealing. It is legitimate that the entire realisable Increasingly the court see that those assets of a person who embarks on a joint drug dealing venture should be put at risk, who have allowed themselves through up to the sum of the joint benefit obtained, and not merely his assets up to the limit drug addiction to acquire a debt to of his share of that sum. While the present statutory scheme is in place, the refusal to criminals who should supply class A apportion is a legitimate part of it. The scheme does provide some protection to minor drugs in particular are brought under contributors who have no interest in the property obtained (May, paragraph 48). pressure to commit offences of one kind or another. Those who are in that position must realise that that kind See Blackstone’s Criminal Practice: E19.16 of excuse cannot radically affect the sentence to be passed on them if they offend, particularly if they offend in such a way as this. Offences … cannot Football Banning Orders be excused to any significant extent by Doyle the fact that the offender has permitted [2012] EWCA Crim 995 himself to fall into debt and chooses to pass on the pain in this kind of way. The Court of Appeal reviewed the powers under the Football Spectators Act 1989 to make football banning orders and quashed the orders made See Blackstone’s Criminal in a case where the extensive violence occurred on a train after a football Practice: E1.13 match. The Court took the view that the violence was not shown to be ‘related to football matches’.

See Blackstone’s Criminal Practice: E21.3

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Nero; Richardson v DPP As it seems to me, if the appellants are right it means -- … that the issue of Ahava’s complicity in war crimes committed, [2012] EWHC 1238 (Admin) presumably, on behalf of the state of Israel, would fall to be adjudicated in summary proceedings to which neither Ahava Two appeals by way of case stated, arising out of nor any Israeli authority is a party and in which the burden incidents at a shop, Ahava, in Covent Garden selling of proof would be reversed. The prosecution would have to products from the Dead Sea. Richardson and his disprove guilt in order to establish that the shop’s activity co-accused Wilkinson were convicted of the offence was lawful. Such a state of affairs would be so impractical and of aggravated trespass under the Criminal Justice unjust as to undermine the rule of law; and, I think, it would do no service to the cause of civil disobedience, on which the and Public Order Act 1994, s. 68. Nero and her appellants rightly set such store. I do not believe it was in the co-accused Osmand were convicted of an offence of legislature’s contemplation when section 68 was enacted. failing to leave the premises knowing that a direction to do so had been given by the senior officer present As regards Nero and Osmand, the Divisional Court under s. 69 of that Act. All the accused had been quashed the appellants’ convictions for failing to engaged in a protest about the company that owned leave the premises as soon as practicable when so the shop, which was itself owned by an Israeli parent directed by the police, because they were physically company, and the goods it sold, which included unable to move until they had been unchained, and products made in the Israeli occupied West Bank had left as soon as this was done. What they did was territories. They entered the shop and disrupted its designed to disrupt the shop’s trade, not to frustrate trade by chaining themselves to a concrete tube. the operation of the CJPOA 1994, s. 69: the fact that they had voluntarily (and deliberately) placed As regards Richardson and Wilkinson, the Divisional themselves in a situation in which they could not Court considered Tilly v DPP (2001) 166 JP 22 and leave when directed was held to be irrelevant. Jones [2007] 1 AC 136. The Court held that the assertions of the accused regarding the activities of the The courts have not always been so generous in cases company could only be litigated in proceedings properly of deliberate or self-induced incapacity. instituted for that purpose. Laws LJ said (at [22]):

See Blackstone’s Criminal Practice: A1.6, B13.41 and B13.42

R (Raeside) v Luton Crown Court 1999 is followed. If a case is fixed outside the CTL and there is no express to this, it is for the court itself to take the [2012] EWHC 1064 (Admin) initiative in seeing that an immediate application by the Crown is made and heard as soon as is practicable…. In this case, the Divisional Court quashed a ruling 33. This case demonstrates again the necessity of treating the extending the claimant’s custody time-limit (CTL) CTL in each case and any application to extend it in the very owing to the supposed unavailability of a court or serious manner required of the statutory provisions which judge to hear the case. Manchester Crown Court, ex Parliament, consistent with the long tradition of the common parte McDonald [1999] 1 WLR 841 was applied. The law, has enacted to ensure cases are tried speedily and those who purpose of a CTL would be undermined, said the Court, have not been convicted are not deprived of their liberty beyond if the courts granted extensions in anything other the time specified without good reason. A person should not to than unusual circumstances, and this was not such a be deprived of his liberty where the State cannot meet the duty to try him speedily and within the time limit specified without case. In particular, the case, though very serious, was detailed evidence that is not a complex case and could have been heard by any then subject to vigorous experienced circuit judge and insufficient enquiry as to and stringent examination the availability of judges in other areas was made. Sir to see if the State has John Thomas P concluded with this warning: established good and 31. We must emphasise that it is essential that where a case is sufficient cause to deprive fixed outside its CTL, the guidance given by this court in him of his liberty beyond that time limit.

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See also R (McAuley) v Coventry Crown Court Ministry of Justice concludes that it does not have sufficient [2012] EWHC 680 (Admin), where the Divisional funds for cases to be tried within CTL, then the Secretary of Court warned that: State must amend the Regulations and seek the approval of Parliament. If that is not done, the court has no option but to Lack of money provided by Parliament in circumstances apply the present CTL and HMCTS must find the necessary where the custody time limits are unchanged, will rarely, if money or face the prospect of a person who may represent a ever, provide any justification for the extension of a CTL. If the danger to the public being released pending trial.

See Blackstone’s Criminal Practice: D15.26

Chinn The Court of Appeal also considered whether the statement might have been admissible under [2012] EWCA Crim 501 s. 120(4) and (6). This possibility had not been The accused had been convicted on a count of unlawful examined at trial, but Aikens LJ said (at [65]): wounding under the OAPA 1861, s. 20. The incident Despite the lack of any specific rules in the [CrimPR] on the in question had arisen in a nightclub during the night point, we would suggest that the correct way to have dealt with the situation which arose in this case, where section 120(4) of 30 September/1 October 2010. The accused was and (6) might apply, is as follows: once the witness had said alleged to have thrown bottles which caused injury. she could not now remember whether it was the appellant who had thrown the glass bottle and that her statement did At the trial in November 2011, the witness could not not refresh her memory, counsel for the defence should have recall enough of the incident to swear in court that been asked whether he objected to the witness statement (or the accused was the person she had seen committing identified parts of it) being adduced as evidence of the relevant the offence, but after attempting to refresh her matter stated in it. If he said that he did object, then, in the memory from her original statement she said, ‘I can’t absence of the jury, the witness should have been asked why she did not now recall the matters that were in her statement. remember now, no. It was over a year ago. At the time Counsel for the defence could then have cross-examined on I stand by my statement. I would never have lied’. both the alleged failure of memory and the alleged reasons for It was held that in those circumstances parts of her it. If there were any further arguments about excluding the statement were admissible hearsay under the CJA evidence on grounds based on section 78 of the Police and Criminal Evidence Act 1984, (see section 126(2) of the CJA), 2003, s. 120(4) and (5). Specifically, Aikens LJ said then those should have been addressed then. The judge should (at [58]): then, in the absence of the jury, have ruled on those matters The parts that describe the appellant and identify him as being and, if he had accepted the submission that the witness the person who was in the nightclub and then threw a glass statement should be adduced (or a relevant part of it), it would bottle that hit [the victim] are, in our view, admissible under then have been adduced in the presence of the jury. Those s. 120(5). But other parts of the narrative in the witness matters would then have been evidence of the matters stated as if they had been adduced directly in oral evidence. statement that go beyond identifying or describing the appellant and the fact that it was him that threw the glass Note that in identification cases the statement, bottle, are not admissible under s. 120(4) and (5). if admitted, may require some form of Turnbull direction. See Aikens LJ at [72] to [73].

See Blackstone’s Criminal Practice: F6.11, F6.25 and F18.5

Newell ‘No possession’. The accused’s subsequent defence statement was ‘I accept possession of exhibit [2012] EWCA Crim 650 MLR/07 [the cocaine]. However I deny that I The issue in this appeal against the conviction for was in possession of the cocaine with intent to possession of cocaine with intent to supply was supply’. At the trial, prosecution counsel sought whether the judge was right to admit as evidence a to suggest in cross-examination that what was previous inconsistent statement that the appellant’s stated on the PCMH form was inconsistent with previous counsel wrote on a Plea and Case the appellant’s defence and his plea as to Management form (PCMH form) at the Plea and possession; the judge ruled that what was on the Case Management Hearing (PCMH). At that PCMH form was no different to a defence statement hearing, the main issue had been identified as signed on the appellant’s behalf by his

Follow us on twitter at www.twitter.com/blackstonescrim Issue 4 Summer 2012 9 in accordance with his instructions. The trial Procedure Rules, that information or a statement written on judge gave an adverse inference direction under a PCMH Form should in the exercise of the court’s discretion the Criminal Justice and Public Order Act 1994, s. under s.78 not be admitted in evidence as a statement that can be used against the defendant. The information 34 direction in relation to interviews, an adverse is provided to assist the court. Experience has shown that, inference direction in relation to the failure to deliver unless the position is clear, the proper administration of the defence statement until the morning of the trial justice is hampered. There may of course be cases where it and a Lucas direction in relation to the entry on the would be right not to exercise the discretion but to admit PCMH form. such statements. Those circumstances are fact-specific, but an example is a case where there was no defence statement, Turner (1975) 61 Cr App R 67 and R (Firth) v despite the judge asking for one to be provided, and an ambush attempted inconsistent with what was stated on the Epping Magistrates’ Court [2011] WLR 1818 were PCMH Form. In such a case it would not be appropriate to considered. The Court of Appeal ruled that such exercise the discretion to refuse to admit what was stated evidence is indeed admissible under rules preserved on the form, if an adjournment to enable the Crown to deal by the CJA 2003, s. 118, but: with the issue could be avoided. However, we think, provided the parties adhere to the letter and the spirit of the Criminal [T]he position should be, provided the case is conducted Procedure Rules and follow the practices we have outlined, in accordance with the letter and spirit of the Criminal such cases should be very, very rare.

See Blackstone’s Criminal Practice: D15.44 and F16.44

LEGISLATION

Legal Aid, Sentencing and Punishment that there are substantial grounds for believing of Offenders Act 2012 that, if released on bail, he would commit an offence while on bail by engaging in conduct that This Act received Royal Assent on 1 May. Very few would, or would be likely to, cause physical or of its 154 sections and 27 schedules came into force mental injury to an associated person (as defined on Royal Assent. The sentencing provisions are dealt by the Family Law Act 1996, s. 62), or cause an with by Professor Wasik in the Comment & Analysis associated person to fear physical or mental injury; section of this Update and the provisions of the Act which affect criminal legal aid (ss. 13 to 20) merely (c) the Bail (Amendment) Act 1993 is amended to create a structure which requires amplification by extend the prosecution right of appeal and the regulations. Other provisions of interest to criminal Criminal Justice and Public Order Act 1994, s. law practitioners include the following: 25 is amended so as to provide that the court need only be ‘of the opinion’ that exceptional (a) there are detailed and substantial amendments circumstances apply justifying the grant of bail to the Prosecution of Offences Act 1985 and other rather than being ‘satisfied’ (s. 90 and sch. 11, statutes restricting the recovery of costs in paras. 32 and 33); criminal cases (s. 62 and sch. 7); (d) there is a new regime for remands of children (b) the Bail Act 1976 is amended (s. 90 and sch. 11, otherwise than on bail (ss. 91 to 107); paras. 1 to 31), inter alia: (e) penalty notices for disorder will not be available • new provisions on electronic monitoring are for persons under the age of 18 and there inserted; is provision for a new educational course • sch. 1, para. 6, is substituted to provide that requirement (s. 132 and sch. 23); an accused need not be granted bail if, having previously been released on bail in connection with (f) provides for the involvement of prosecutors in the proceedings, he has been arrested under s. 7; the decision to offer a conditional caution and for conditional cautions to be given to certain foreign • a new sch. 1, para. 2ZA provides that an accused offenders which include conditions having the need not be granted bail if the court is satisfied object of bringing about the departure of that

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offender from the UK and ensuring that he does (g) the repeal of the CJA 2003, s. 43, which provided not return for a period of time (ss. 133 and 134); for applications for fraud trials to be conducted without a jury but which had never been brought (g) the repeal of the Crime and Disorder Act 1998, into force (s. 113, in force from 1 May 2012). ss. 65 and 66 (reprimands and warnings) and their replacement with youth cautions (ss. 135 to 138); Criminal Justice Act 2003 (h) the creation of new offences of threatening with (Commencement No. 27) Order 2012 offensive weapon in public (new Prevention of Crime Act 1953, s. 1A) and threatening with article (SI 2012 No. 825) with blade or point or offensive weapon (new CJA This Order brings ss. 29(1) to (3) and (5) and 30 1988, s. 139AA) (s. 142); of the Act into force on 19 March 2012 but only for (i) the creation of the new offence of causing serious the purposes of criminal proceedings instituted injury by dangerous driving under the Road by (a) the Director of the Serious Fraud Office or Traffic Act 1988, s. 1A (s. 143); a person authorised by the Director to institute criminal proceedings and (b) the Director of Public (j) the creation of the new offence of squatting in a Prosecutions or a person authorised by the Director residential building (s. 145). to institute criminal proceedings. Sections 29 and 30 concern the written charge and requisition procedure. Protection of Freedoms Act 2012 This large and complex statute also received Royal Misuse of Drugs (Amendment No. 2) Assent on 1 May 2012. Few of its 121 sections and 10 (England, Wales and Scotland) schedules came into force on 1 May. The following Regulations 2012 (SI 2012 No. 973) provisions are of particular interest to criminal law practitioners. These Regulations amend the Misuse of Drugs Regulations 2001 (SI 2001 No. 3998) principally (a) The new regime for the regulation of biometric to allow a nurse independent prescriber and a data which includes substantial revisions of the pharmacist independent prescriber to prescribe, Police and Criminal Evidence Act 1984 (ss. 1 to 25); possess, supply, offer to supply, administer and give (b) new safeguards for certain surveillance under directions for the administration of any controlled RIPA (ss. 37 and 38); drug specified in schs. 2 to 5 of the 2001 Regulations, but not in relation to cocaine, diamorphine or (c) amendment to counter-terrorism powers, providing dipipanone as regards persons addicted to these for a maximum detention period of 14 days (with emergency power for temporary extension) and the drugs otherwise than for the purpose of treating repeal and replacement of stop and search powers organic disease or injury suffered by such persons. in a terrorism context (ss. 57 to 63 and sch. 5, in force from 10 July 2012 – see SI 2012 No. 1205); Counter-Terrorism Act 2008 (d) substantial amendments of the Safeguarding (Commencement No. 5) Order 2012 Vulnerable Groups Act 1976 (ss. 64 to 78) and the (SI 2012 No. 1121) creation of a new Disclosure and Barring Service This Order brings s. 26 of the Act (issue and revision (s. 87); of code of practice) into force on 30 April 2012. (e) the substitution of the , ss. 57 to 59 with a new s. 59A (trafficking people Misuse of Drugs (Amendment No. 3) for sexual exploitation) and the amendment (England, Wales and Scotland) of the Asylum and Immigration (Treatment of Regulations 2012 (SI 2012 No. 1311) Claimants, etc) Act 2004, s. 4 so as to make further provision for the offence of trafficking people for These Regulations amend the Misuse of Drugs labour and other exploitation (ss. 109 and 110); Regulations 2001 (SI 2001 No. 3998) principally so as to insert references to Desoxypipradrol and other (f) the creation of new offences of stalking and Pipradrol-related compounds in sch. 1. stalking involving fear of violence or serious alarm and distress and the grant of related powers of entry (ss. 111 and 112);

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Criminal Justice Act 2003 Bath and Wansdyke, Berkshire, Bristol, Liverpool (Commencement No. 28 and Saving and Knowsley, North Avon, North Hampshire, Provisions) Order 2012 (SI 2012 No. 1320) North Somerset, Ormskirk, Sefton, St Helens, Wigan and Leigh, and Wirral. This Order brings into force the following provisions of the Act: The Misuse of Drugs Act 1971 • on 18 May 2012, sch 3, paras. 15 and 20(1) (Attorney (Amendment) Order 2012 General’s power to make regulations as to the service (SI 2012 No. 1390) of prosecution evidence where persons are sent for trial); This Order amends part 2 of sch. 2 to the Act (Class B drugs) so as to add Desoxypipradrol and other Pipradrol-related • on 18 June 2012, sch. 3, paras. 1, 14, 19(1) and (2)(a) compounds to the list therein. and 53 (repeal of the restriction on justices of the peace sitting after dealing with bail and changes affecting reporting restrictions on bail hearings), The Domestic Violence, Crime and together with related consequential amendments Victims (Amendment) Act 2012 and repeals (Commencement) Order 2012 • on 18 June 2012, the remaining provisions of sch. 3 (SI 2012 No. 1432) insofar as not in force (and subject to specified This Order brings the Act into force on 2 July 2012. exceptions) but only in the local justice areas of

COMMENT&ANALYSIS

Practical Considerations in a Case • If the child is very young or has learning or other Requiring Special Measures disabilities, consider using an intermediary for the ABE interview. Her Honour Judge Johannah Cutts QC • If the child is very young, issues of competence may Circuit Judge, Aylesbury and Amersham Crown Courts arise at trial. Obtain statements from those who Notwithstanding a number of years of experience of know the child — whether parent, carer or teacher the use of special measures, mistakes in approach and — as well as possible expert reports. implementation occur with distressing frequency. • In more complex cases there should be an early In the hope of assisting practitioners to reduce such special measures strategy meeting to discuss the mistakes, which can cause distress to witnesses (and needs of a particular child. Information should be distress judges too) and waste costs, I offer a checklist sought from those who know the child well (parent/ of considerations that you should keep firmly in mind carer/teachers etc.). when approaching a case where special measures may seem appropriate. • The primary rule presumes that the ABE will form evidence-in-chief and cross-examination should be Child witnesses by live link. In the case of very young children these • In more complex cases early consultations and/ are likely to be the special measures applied for. or investigative advice should be sought by the • Children and young people can now opt out of police, sometimes even before the ABE interview the primary rule. No assumptions should be is conducted, to identify areas to be covered in the made in advance as to how the child should give ABE so as to avoid the need for further interviews evidence. Special measures for each child should and to identify appropriate special measures for be approached on an individual basis. When the interview. considering the special measures to be applied for in a particular case:

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There should be full consultation with the young • Whilst recognising that things may change, counsel witness together with their parents or carers. should be in a position to address all these questions Exactly what each measure entails should be at the PCMH. explained to the witness. In more complex cases, • Make sure well in advance of the trial that the ABE counsel instructed in the case should hold a films are properly edited, able to be used onthe special measures meeting with the witness. Full equipment in that courtroom, and that arrangements notes must be made of what is discussed and have been made for the child to refresh his or her disclosed to the other party. No pressure to fit memory from the film prior to giving evidence. in with preconceived ideas of special measures (whether advantageous or disadvantageous) • Check on the day of trial that the witness is still should be exerted on the witness. happy with the measures granted. Ideally no application should be made before • Tailor questioning to the age and comprehension the witness has attended a court visit and seen of the witness taking into account any direction the measures in practice. In more complex given in an intermediary’s report. Consider cases, counsel instructed in the case should asking for assistance from the intermediary if consider being present. It is not always possible experiencing difficulty at trial in finding a way to conduct such a visit in the limited time before to ask necessary questions. an application has to be made. It may therefore be necessary to apply to vary a measure already Adult witnesses with physical or mental granted once the visit has taken place. impairment Consider other special measures that may be • In complex cases police should seek advice before necessary to maximise the quality of the child’s the ABE interview about areas to be covered evidence at trial. An intermediary should be and special measures used in the interview. If a considered for a very young child even if not witness suffers mental impairment, the use of an used in the ABE interview. If an intermediary is intermediary should be considered. used, a ground rules hearing will be necessary • If issues of competence are likely to arise, obtain all at court. This will address the child’s level of necessary reports and statements. cognitive and linguistic understanding, the way questions should be framed, and questions to be • In complex cases an early special measures strategy avoided. A procedure must also be put in place meeting should be held with counsel and those who for how an intermediary will interject if necessary know the witness well to assist with the difficulties and how and when the need for breaks to assist and how best to resolve them. concentration will be communicated. • The difficulties of each witness should be • If an intermediary is used, consider whether that considered on an individual basis. Reports are intermediary may assist the other party in advance of likely to be necessary identifying these and how cross-examination to identify areas which may cause they would diminish the quality of the evidence difficulty for the witness and to suggest ways in which he or she could give. The question is whether any necessary questions may be put to that witness. special measures, and if so which ones, would be likely to maximise the quality of the evidence that • Identify an individual child’s needs early to assist particular witness could give. Avoid preconceived the court in enabling that child to give best evidence ideas of how a theoretical witness suffering the – what time is best for the child to testify, how long physical or mental impairment of the actual witness concentration can be maintained and anything else should give evidence. Evidence-in-chief by the which concerns the welfare of that child. playing of the ABE interview may be the best way • If the ABE is to be played, consider editing irrelevant to maximise such a witness’ evidence, it may not. I material once the issues in the case are known. have experience of calling a witness of sound mind If there is no issue as to identity, there is no need with cerebral palsy who communicated through a for lengthy questioning of the child on what the voice machine operated by him pressing a pad at perpetrator looked like going before the jury. Such the back of his head. The ABE was of such poor questioning is a distraction from the issues in the case quality that the witness was consulted and agreed and cannot be part of a child giving best evidence. to give evidence-in-chief live in court. His evidence was slow but compelling.

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• Consult fully with the witness and those who in connection with testifying in the proceedings. know him or her about the measures available. Which special measures are likely to maximise the In complex cases instructed counsel should meet quality of the evidence of complainants of sexual with the witness to discuss special measures assault or intimidated witnesses are likely to vary before an application is made. Notes must be widely in practice. made of this meeting and disclosed. A court visit • Consider the needs of each witness and how should also be arranged for the witness to see the he or she can give his or her best evidence on an measures in practice. If special measures have individual basis. It may be that a already been granted, an application to vary them complainant can do so without the need for any may be necessary. special measures. Some complainants wish to see • Consider whether an intermediary would be of those they say assaulted them. It follows that, if a assistance to the witness at trial. Such can be complainant’s account was first taken by way of applied for even if not used for the ABE. If used, an ABE interview, this does not of itself mean that a ground rules hearing will be necessary before it should be played as evidence-in-chief. In R v the witness gives evidence. Consider if the Worboys, the case concerning a serial rapist black intermediary can assist all counsel in the case on cab driver, all witnesses were intelligent adult the difficulties faced by the witness and how to women. ABE interviews had been conducted when frame questions that need to be asked. the police were in ignorance of the issues in the case. They were long, boring and often fragmented. At • Identify the needs of the witness at an early stage. trial, save in two cases, identity was not in dispute. A Ensure there are reports and statements from decision was taken with each witness about the best carers/parents/experts to assist the judge in way for her to give evidence. No ABE interviews were ensuring that the witness can give his or her played. Each witness gave evidence from behind a best evidence. Are some times of day better for screen focussing on the issues in the case. the witness to give evidence? Is the witness on • Avoid preconceived ideas about whether a witness medication that affects concentration at certain times should give evidence in court. Some witnesses of day? What is the attention span of the witness? will give their best evidence in court from behind How can loss of concentration be recognised? a screen, whilst others need the protection of the • Counsel should be in a position to deal with all of video link room. A combination of measures may be these questions at the PCMH. possible, e.g., playing the ABE as evidence- in-chief and cross-examination with the witness in court • If the ABE is to be used consider editing at an early behind a screen. stage. Check whether all edits have been properly made and that the ABE can play on the equipment • The witness should be fully consulted about special in that courtroom. Make sure the witness has measures and told exactly what each measure an opportunity to refresh his or her memory in entails. Decisions should be made about which advance of the trial. measure(s) to apply for following a court visit by the witness. If an application is made within time • Check at trial that the witness is still content to but before the court visit has been granted, an proceed with the special measures granted. application to vary will have to be made. Tailor questioning at trial to take account of the • • If an ABE interview is to be played as evidence- difficulties of the witness. Follow guidance given in-chief consider editing to remove irrelevant in any intermediary report. Consider asking for material and repetition. The edited version should assistance from the intermediary during the trial if be checked before the trial as well as compatibility experiencing real difficulty in finding a way to ask with the court equipment. Arrangements should be necessary questions. made for the witness to refresh his or her memory prior to the trial. Other adult vulnerable witnesses • Check with the witness • Adult complainants of sexual assault are eligible on the day of trial as of right for special measures. Intimidated and to ensure that his or other special witnesses must satisfy a court that the her view on special quality of their evidence is likely to be diminished by measures remains the reason of fear or distress on the part of the witness same.

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Sentencing Changes in LASPO by which the court is to be required to consider the imposition of a life sentence. There are probably very Martin Wasik CBE few examples of offenders who would fall within the Barrister and Recorder of the Crown Court criteria set out above and not attract a discretionary Professor of Criminal Justice, Keele University life sentence for the new offence in any event. Schedule The Legal Aid, Sentencing and Punishment of 15B contains a list of very serious offences including Offenders Act 2012 (LASPO) received Royal Assent manslaughter, rape, wounding with intent, and on 1 May 2012. The only sentencing provision to have robbery where the offender had with him a firearm come into force to date is s. 77, which sets up pilot or imitation firearm. However, even if all the schemes to trial the alcohol abstinence and monitoring conditions in s. 224A do apply, the court may still requirement which, if adopted, will become a possible avoid passing the ‘life sentence for second listed requirement for a court to insert into a community offence’ if there are particular circumstances relating order or a suspended sentence. The key provisions in to either the current offence or the past offence, the Act which will be of importance to sentencers once or to the offender, which ‘would make it unjust to brought into force are the following. do so in all the circumstances’. Extended sentences are to be replaced by ‘new Dangerous offenders extended sentences’ (LASPO, s. 124, inserting a new The sentences of imprisonment for public protection s. 226A into the CJA 2003). These will be similar to (IPP) and detention for public protection (DPP) are what went before, save for the early release provisions. to be abolished. Instead, LASPO, s. 122 creates a Under the existing arrangements, release from an ‘life sentence for second listed offence’ (inserting a extended sentence is at the half-way point of the new s. 224A into the CJA 2003). That sentence (life custodial term. For the new extended sentence, imprisonment if the offender is aged 21 or over, custody however, release will normally be at the two-thirds for life if he is aged 18, 19 or 20) will be available where point of the custodial term, unless the custodial term of the extended sentence is 10 years or more, (i) a person aged 18 or over is convicted of an or the sentence is imposed for an offence listed in offence listed in part 1 of sch. 15B to the CJA 2003 sch. 15B, when the case must be referred at the two- (a new schedule inserted by LASPO, sch. 18), thirds point to the Parole Board, who will consider (ii) the offence is such that the court would have whether it is no longer necessary for the protection imposed a determinate sentence of 10 years or of the public for the offender to be detained. more, and In principle, the involvement of the Parole Board in making a risk assessment at this point is (iii) the offender has a previous conviction for an consistent with the rationale of the sentence – that offence listed in sch. 15B for which he received a the offender is dangerous, and should only be life sentence (with a minimum term of at least five released when it is safe to do so, and subject to a years) or a determinate sentence of 10 years or more. clear supervision plan on release. The difficulty is It is well known that the IPP sentence has caused the backlog of IPP cases which the Parole Board great problems for the criminal justice system. The already has, to which the new extended sentence original scheme in the CJA 2003 was both too broad will in due course add an additional burden. and too prescriptive and was amended (and greatly improved) in 2009, but Parliament has now decided Crediting periods of remand in custody that enough is enough. Many of those sentenced to and remand on bail IPP since 2003 are still in prison — according to the Parole Board Annual Report only a small proportion of The long-standing requirement that the court must, IPP prisoners have been released at the expiry of their under the CJA 2003, s. 240, normally direct that time served by the offender on remand should count minimum term, and less than 10% of Parole Board towards the sentence, is to be repealed. Section 240 hearings each year have resulted in IPP prisoners is to be replaced with a new s. 240ZA (inserted by being released. LASPO, s. 108(2)), which provides that the time served The replacement for IPP (with a name unfortunately will count automatically, subject to the usual caveats redolent of the earlier — and also ill-fated — ‘life for the about such time only counting once. The duty of the second serious offence’ in the PCC(S)A 2000, s. 109) is court under s. 240 has given rise to compendious essentially not a new sentence at all, but rather a route case law since 2003, and judges will not mourn its

Follow us on twitter at www.twitter.com/blackstonescrim Issue 4 Summer 2012 15 disappearance. The approved wording in Nnaji [2009] Other changes of special interest 2 Cr App R (S) 700 will no longer be required. More • Section 63 of LASPO amends the PCC(S)A 2000 recently, case law has been accumulating on when so as to impose a clear duty on the court, under a time served on remand should properly be taken into new s. 130(2A), to consider making a compensation account in respect of a suspended sentence. Section order in any case where s. 130 empowers the court 240ZA(7) states that, a suspended sentence ‘is to be to do so. This will be in addition to the long-standing treated as a sentence when it takes effect’, which is in requirement in s. 130(3) to ‘give reasons … if it does line with the case law which says that allowance for not make a compensation order in a case where this time spent on remand should be made in the event section empowers it to do so’. This change seems of breach not when passing the suspended sentence. unlikely to be of much practical import. Since, under the new provision the days spent on remand in custody will be deducted automatically • Section 174 of the CJA 2003 contains a lengthy and from the activated term, there will then presumably complex list of duties on judges to ‘give reasons for be no scope for a judge to say to an offender that the and explain the effect’ of various sentences. Section sentence is suspended because of the days spent on 174 is to be repealed and replaced by a new version remand, but that those days will not count in the event (in LASPO, s. 64), but it covers the same ground and of breach. The new law will not, however, affect the is only slightly shorter. principle that a suspended prison sentence of (say) six months should not be passed on an offender who • The CJA 2003, s. 146 provides for aggravation of has already spent three months (the equivalent of a sentences where the offence was motivated by the six month sentence) on remand (see Barrett [2010] victim’s sexual orientation or disability. LASPO, 2 Cr App R (S) 551). For that reason, if no other, a s. 65 adds a new category – transgender identity. sentencing court will still need to know how long the This will have its most striking impact in murder offender has spent on remand. Finally, repeal of s. 240 cases, where such cases will henceforth be included will not affect the requirement for a sentence to make in para. 5(2)(g) of sch. 21 to the 2003 Act, attracting specific deduction for time on remand in the case of a 30-year starting point (rather than 15 years). a detention and training order, where a different • Sections 70 to 76 of LASPO contain various statutory provision (PCC(S)A 2000, s.101(8)) applies. projected changes to the requirements which may By contrast, s. 240A (crediting periods of remand on be inserted into a community order or a suspended bail subject to qualifying curfew) is to be retained, but sentence. Some of these changes also apply to the amended by LASPO, s. 109. This means that the court youth community order. Put briefly, the relevant will still be required to receive information as to the maximum period for a curfew requirement will days spent under qualifying curfew, and will normally be increased from 12 to 16 hours in a day, and the take those into account. The mathematics involved in curfew may remain in place for 12 (rather than the doing so can be complex. The new version of s. 240A current six) months. The mental health treatment sets out the formula in a different form of words than requirement will be amended so as dispense with the the current s. 240A(3), but the substance appears to need for the evidence of a doctor. When ss. 74 and be the same. 75 are brought into force, the minimum duration of six months for a drug rehabilitation requirement, Suspended sentence and an alcohol treatment requirement, will be removed. There will be a new ‘foreign travel There are two changes affecting suspended sentences, prohibition requirement’. Section 76 introduces by LASPO, ss. 68 and 69. The first is to extend the a new ‘alcohol abstinence and monitoring length of the custodial term which may be suspended, requirement’, which requires the offender to from one year to two years. When suspended sentences abstain from, or strictly limit, his consumption of were introduced in the 1970s a term of up to two years alcohol, subject to monitoring and testing. could be suspended, but the maximum has been one year since the new-form suspended sentence arrived • A referral order is currently the appropriate sentence in the CJA 2003. Will there be much call to suspend to be imposed by a youth court on a first-time young these longer terms? The second change is to give a offender pleading guilty, provided that the youth court dealing with breach of a suspended sentence, court does not impose an absolute discharge or under para. 8 of sch. 12 to the 2003 Act, power to fine a custodial sentence. Section 79 will vary this, so the offender up to £2,500 for that breach, rather than that youth court magistrates will be able to pass a activating it in whole or in part. conditional discharge in such a case.

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