Archbold Review 4

Issue 4, May 13, 2010 Archbold Review Cases in brief Evidence—hearsay—Criminal Justice Act 2003 s.114(1) they in fact caused L to be paid benefit to which he was not (d)—defence that other committed offence—self-serving hear- entitled. R. v Passmore [2008] 1 Cr.App.R. 165, upon which say statements by the other—whether properly admitted L relied, was a case on Social Security Administration Act SETON [2010] EWCA Crim 450; March 12, 2010 1992 s.111A, not relevant to the proper construction of S’s defence on a charge of murder was that the killer was Theft Act 1968 s.17. Section 17 applied generally to the falsi- a third man, P, involved with him and the victim in a drug fication of accounting documents for the purpose of obtain- deal. P was serving a prison sentence for murder. Following ing financial gain or causing financial loss. It did not require a police interview at which S’s allegation was put to him (he that gain or loss should in fact result. In relation to what made no comment), P denied the offence in telephone calls was meant by “omits a material particular”, s.17(1)(b) re- to his son and his wife. As P would have known, the calls ferred to the production or use of a document which to the were recorded as a matter of course, as he was a category A defendant’s knowledge were or may be misleading, false or prisoner. Applying Z [2009] EWCA Crim 20, the judge had deceptive in a material particular. Section 17(2) identified not been wrong to admit the tape recordings in evidence two ways in which a document may be regarded as falsi- under Criminal Justice Act 2003 s.114(1)(d) without P hav- fied – either by an entry which was or may be misleading, ing been called, or an attempt to do so having been made. false or deceptive in a material particular, or by omission of As the judge made clear, P had indicated in the clearest a material particular. Although the words “misleading, false terms that he was not prepared to make a statement or give or deceptive” were contained in the first part of the sub- evidence. He could have been compelled to come to court, section (relating to misrepresentation), and not the second but the prospect of any evidence being given by him was, part (relating to non-disclosure), it was clear when read as a on any realistic view, nil. It was central to the appeal that whole and in its context that the subsection was concerned the judge expressly addressed himself to the matters set with documents which were or may be materially mislead- out in s.114(2), and (under s.114(2)(d) and (e) – the cir- ing either by reason of what they contained or by reason cumstances in which the statement was made and its reli- of what they should contain but failed to contain. So in a ability) considered S’s argument that they were self-serving non-disclosure case the omission would be material if it had statements by a serious criminal who knew he was being the effect that the document was liable to mislead in a way recorded. The Court recorded that it would in any event have upheld the conviction in the light of the overwhelming evidence against S. CONTENTS False accounting—Theft Act 1968 s.17(2)—“omits … a ma- Cases in brief ........................................................1 terial particular”—meaning LANCASTER [2010] EWCA Crim 370; March 2, Sentencing cases ..................................................3 2010 Case in detail .........................................................4 L was convicted of false accounting in respect of claims for housing benefit and council tax benefit, the counts alleg- Comments .............................................................4 ing falsification by omitting material particulars from the Feature ..................................................................7 relevant forms. The Court rejected L’s submission that the omissions should properly be regarded as material only if © Thomson Reuters (Legal) Limited 2010 1 Archbold Review Issue 4, May 13, 2010 which was significant (or, in the language of Mallett (1978) would be acquitted if the conditions in s.58(9) were satis- 67 Cr.App.Rep. 239, in a way which mattered). Whether fied. The significance of the acquittal agreement was spelt the omission was significant would depend on the nature out in CPS v C, M and H at [40], and the Court added that of the document and the context. The test was objective, s.58(12) (court to order acquittal if s.58(9) circumstances although it would not be helpful to the jury to use that term. come about) was itself dependent on the existence of the Rather, the jury should be told that it was for them to judge acquittal agreement. The requirement that the statutory for themselves, on the particular facts of the case, whether undertaking of the acquittal agreement be given, and the they regarded the omission as significant. Evidence may latest time for giving it, were pre-conditions to the appeal be admissible to explain significance, or it may be obvious process. Unless these mandatory pre-conditions were met, (Mallett). It was likely to be obvious where the document the Court was unable to vest itself with a jurisdiction it did was an application form, although not all incomplete or not have, or permit the prosecution to exercise a power incorrect answers would be material (for example, ethnic it had failed to exercise in accordance with the statutory monitoring in Government forms, or profiling questions in provisions. Failure to comply with s.58(8) deprived the commercial forms). There was therefore no hard and fast prosecution of the power to appeal the ruling. For the pur- rule that any omission to supply information required by an poses of the judgment, the Court considered R. v Clarke application form must necessarily amount to the omission [2008] 1 Cr.App.R. 33; R. v R [2008] EWCA Crim 370; R. v of a material particular. H [2008] EWCA Crim 483; R. v MT and MT [2009] EWCA Crim 668; CPS v C, M and H; R. v T [2009] EWCA Crim Prosecution appeals—Criminal Justice Act 2003 s.58— 1947; R. v Soneji [2006] A.C. 240; R v Clarke and McDaid whether requirements of s.58(4) and 58(8) mandatory—re- [2008] 1 W.L.R. 338 and R. v LSA. In the context of the prin- quirement of immediacy in s.58(4)—future use of case law ciples which applied to s. 58, the Court did not discern any NT [2010] EWCA Crim 711; March 31, 2010 relevant inconsistencies, and for the future, none of these The Crown sought to appeal a ruling by the judge stay- decisions needed to be referred to in the context of the leg- ing the indictment as an abuse of the process of the court. islation relating to acquittal agreements. At the time the ruling was made, Crown counsel told the judge he was instructed to appeal. The next day, counsel Possession of a false identity document—whether offence addressed the judge in open court, saying that, if there had made out where false document used to establish true identity been any ambiguity the day before, or if he had omitted it JAMALOV [2010] EWCA Crim 309; February 9, then, if leave were not granted or the appeal abandoned, 2010 NT would be acquitted. The case was listed before a five J was asked by a police officer to provide identification. judge court presided over by the Lord Chief Justice, on the He produced a false Czech driving licence which accu- basis that it had appeared to the Court at an earlier listing rately recorded his name. He pleaded guilty to the offence that there was a possible conflict of authorities between of possession of a false identity document under Identity R. v LSA [2008] EWCA Crim 1034 and CPS v C, M and H Cards Act 2006 s.25(1). His conviction was not unsafe, in [2009] EWCA Crim 2614 on the question of the effect of that he was capable of committing the offence in these cir- a failure to give the statutory warning in Criminal Justice cumstances. There was no doubt that the driving licence Act 2003 s.58(8). The question for the Court was wheth- was false and that he knew or believed it to be false. The er the omission by the prosecution to inform the court of “requisite intention” in respect of the offence included “the the “acquittal agreement” under s.58(8) until the following intention of using the document for establishing register- day deprived the Court of jurisdiction to hear the appeal, able facts about himself” (s.25(2)), and his identity was a or more accurately, disentitled the prosecution from exer- registerable fact (s.1). By his plea of guilty, he admitted his cising their right to appeal the ruling under s.58. It was a intention to use the false driving licence for the purposes of feature of the legislation that the Court had no inherent ju- establishing who he was, which would otherwise have had risdiction to hear a prosecution appeal. Jurisdiction did not to be proved by the prosecution. The Court noted that other arise unless the prosecution complied with the necessary charges were available in this situation, such as those under pre-conditions. In effect, s.58(8) required the prosecution Road Traffic Act 1988 s.173 and Forgery and Counterfeiting to undertake that if the conditions in s.58(9) (no leave to Act 1981 s.3.

Load more