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 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 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 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— 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

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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 ” 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 and Counterfeiting to undertake that if the conditions in s.58(9) (no leave to Act 1981 s.3. appeal or abandonment) were fulfilled, the defendant would be acquitted. There were many situations in which it was —single act of solicitation in vice area— open to the court to extend or abridge time in the interests whether capable of amounting to of justice. However, the legislative structure here was that DPP v FEARON [2010] EWHC 340 (Admin); s.58(2) limited the entitlement of the prosecution to appeal February 10, 2010 to the circumstances defined in the rest of the section. The The district judge had been right to rule that, where F so- first condition was that the prosecution must immediately licited an undercover police officer for sex in a recognised give notice of its intention to appeal, or request an adjourn- vice area, his conduct was incapable of amounting to the ment (s.58(4)). The requirement of immediacy was not offence of public nuisance. In Rimmington express, but was to be found in Rules [2006] 1 Cr.App.R. 17, the House of Lords had emphasised r.67(2), which clearly represented a correct interpretation the importance to the offence of a common injury to mem- of the legislation. Absent the satisfaction of s.58(4), the first bers of the public, by an interference with a right enjoyed pre-condition to an appeal was not fulfilled. The second pre- by them as such (the Court noted the overruling of Nor- condition was that found in s.58(8). The prosecution was bury [1978] Crim.L.R. 435, and Johnson [1997] 1 W.L.R. 367 prohibited from informing the court of its intention to ap- – multiple instances of similar harm suffered by individuals peal unless it indicated its agreement that the defendant did not amount to common injury). There was no conceiv-

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able basis for saying that any common injury was sustained police officers were “present together”, such that NW could simply by F approaching a single woman. It would not even be convicted of violent disorder ( s.2). be a common or public nuisance to approach lots of women The 1986 Act was based on a Law Commission report the (although such conduct could constitute the offence un- purpose of which was to replace the preceding common law der Sexual Offences Act 1985 s.2). The Court rejected the offences. The heart of the three new statutory offences of Crown’s submission that because F was in a recognised , violent disorder and lay in the use or threat of vice area, his was one act among many others committed unlawful violence of a kind that would cause a person of by other men, the consequence of which, taken together, reasonable firmness present at the scene to fear for his per- was to cause a nuisance to the public. A defendant was not criminally liable because of the acts of others. Single other- sonal safety. The mischief to which they were directed was wise lawful acts did not become criminal because a defend- public disorder, that is, conduct of a violent or threatening ant knew or ought to have known that others were carrying kind that would cause ordinary members of the public to out similar otherwise lawful activities. This was an attempt fear for their safety. The offences were carefully graduated, by the prosecution to have conduct which they considered both by reference to the number of persons who must be to be reprehensible declared criminal, by means of a highly present in order for the offence to be committed and by ref- artificial and unprincipled extension of established doctrine erence to the purposes for which violence is used or threat- (the Court noted, obiter, that the prosecution might also fail ened. In order properly to understand the phrase “present because of the principle in Rimmington that it would rarely together” in relation to violent disorder, it was necessary to be appropriate to prosecute where the conduct fell within have regard to that mischief. Section 2 was not concerned the terms of a statutory prohibition – it would be curious if with the origins of the violence or the intentions of those persistent solicitation attracted a limited penalty under Sex- who took part in it, other than the intention to use or threat- ual Offences Act 1985 s.2, but a single act would be tried on en violence. What was likely to cause people present at the indictment with sentence at large). scene to fear for their personal safety was the apprehension Violent disorder—Public Order Act 1986 s.2—“present to- that they may be caught up in the disturbance in one way gether”—meaning or another. The expression “present together” accordingly NW [2010] EWCA Crim 404; March 3, 2010 meant no more than being in the same place at the same The appeal turned on whether a group of young people who time. The phrase did not require any degree of co-operation had gathered around a violent incident involving NW and between those who were using or threatening violence.

Theft Act 1968 where, at some time during the commission SENTENCING CASES of the offence, the offender had in his possession a firearm or an imitation firearm within the meaning of the Firearms Act Confiscation order—Proceeds of Crime Act 2002 1968”, it must be established or admitted that the offender REVENUE AND CUSTOMS PROSECUTION OFFICE was a party to the which to his knowledge involved v IQBAL [2010] EWCA Crim 376; February 3, the possession of a firearm or imitation firearm by one or 2010 more of those involved in robbery. The words of para.10 are Where an application for confiscation was made by the wide enough to embrace joint possession in the course of a prosecution, but no proceedings were taken until after the joint enterprise robbery, even if the offender had not had ac- expiry of two years from the date of conviction, and no ap- tual possession of a firearm in course of the robbery. plication for an extension of the period of postponement was made before the end of the two years period, the Crown Default sentence Court had no jurisdiction to make a confiscation order un- PRICE [2009] EWCA Crim 2918; December 14, der the Proceeds of Crime Act 2002. 2009 Where an offender is sentenced to a long term of imprison- Adjournment of sentence ment together with a confiscation order with a long term of THORNTON v CPS [2010] EWHC (Admin) 346; imprisonment in default, the totality principle does not apply as January 28, 2010 between the sentence of imprisonment and the term in default. Where a magistrates’ court on adjourning sentence gave an indication to the defendant about the level at which he was Imprisonment for public protection—minimum term to be sentenced which was inconsistent with the Sentenc- DELUCCA; MURRAY; STUBBINGS [2010] EWCA ing Guidelines Council guidelines and gave no reason for Crim 710; March 31, 2010 departing from the guidelines, the defendant did not have Where a court passes a sentence of imprisonment for pub- a legitimate expectation that he would be sentenced in ac- lic protection on an offender guilty of a number of offences, cordance with the indication. some of which are not “specified offences” for the purposes of the Criminal Justice Act 2003 Sched.15, the court may Criminal Justice Act 2003 Sched.15A—robbery while in pos- take account of all of the offences before the court in de- session of firearm termining the notional determinate sentence for the pur- GORE [2010] EWCA Crim 369; March 1, 2010 pose of arriving at the minimum term to be imposed for the Where the question arises whether a robbery committed specified offence, and may arrive at a notional determinate by a defendant falls within the Criminal Justice Act 2003 sentence for the specified offence that exceeds the statu- Sched.15A, para.10, as an “offence of robbery under s.8 of the tory maximum for that offence.

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Case in detail

INNOSPEC LTD, March 26, 2010, Southwark the constitutional principle, that save in minor matters such as motoring offences, the imposition of a sentence is a matter for the judiciary…. It is in the public interest…that although … there may be decision and agreement (reported at www.judiciary.gov.uk/docs/judgments_guid- as to the basis of plea, a court must rigorously scrutinise in open court in ance/sentencing-remarks-thomas-lj-innospec.pdf) the interests of transparency and good governance the basis of that plea On March 18, 2010 Innospec Ltd, a UK company and a and to see whether it reflects the public interest (para.27). wholly owned subsidiary of a US company, pleaded guilty to to corrupt, contrary to s.1 of the Criminal In particular, since the SFO had a financial interest in decid- law Act 1977. It had conspired with its directors and others ing where a confiscation order should be imposed in prefer- to make corrupt payments, contrary to s.1 of the Preven- ence to a fine, there would be a clear conflict of interest. Of tion of Corruption Act 1906 to public officials of the Gov- a civil settlement order he said, ernment of Indonesia to secure for the supply of It is of the greatest public interest that the serious criminality of any, includ- Tetraethyl lead (TEL), a fuel now banned in the US and ing companies, who engage in the corruption of foreign governments, is Europe. made patent for all to see by the imposition of criminal and not civil sanc- Thomas L.J. summarised the facts, including the history of tions (para.38). the investigation and the plea agreements made between the company and prosectors in the US and the UK. The A major part of the purpose of the conspiracy was not mere- Serious Fraud Office and the US Department of Justice ly to procure contracts that benefited the company, but to agreed in 2008 that the parent company might be liable for delay the phasing out of TEL in Indonesia and therefore to fines which might exceed $400m in the US and $150m in prolong damage to the people of Indonesia and the environ- the UK for corruption in both Iraq and Indonesia. In De- ment. A fine of $12.7m was “wholly inadequate to reflect cember 2009 the American parent company offered to pay the criminality of the company”, but this was the fine he $25.8m, plus a further $14.4m subject to performance of imposed, given the indication he had given a week earlier. new contracts to sell TEL to Iraq. The offer was accepted, [Comment: It is encouraging to see Thomas L.J. putting subject to the approval of the courts in the US and the UK. the breaks on dubious sentence bargains. But the prob- By the time that the case reached Southwark Crown Court, lem of quantifying fines imposed on companies remains a joint sentencing submission and plea agreement had been as great as ever: what price the protection of jobs in Elles- agreed between the company and the SFO. Thomas L.J. mere Port? What is obviously needed to mark the serious- was clear that “agreements and submissions of the type put ness of the offence of corruption is the prosecution of in- forward in this case can have no effect”. He underlines dividuals]. Comments Farewell to the Surprise Witness By Professor John Spencer QC

As of May 1, the defendant is legally obliged to give ad- Interviews of Witnesses Notified by the Accused, made vance notice to the court and to the prosecutor not just by the Ministry of Justice under s.21A of the CPIA. Al- of the general lines of his defence, but also of the names though announced by the Criminal Procedure and Inves- and addresses of his intended witnesses. This obligation tigations Act 1996 (Code of Practice for Interviews of Wit- arises because s.6C of the Criminal Procedure and Inves- nesses Notified by Accused) Order 2010 (SI 2010/1223), tigations Act 1996, a “new” section theoretically added to the text of Code itself is not (of course!) attached to it. that Act by s.34 of the Criminal Justice Act 2003, finally But with effort, and the help of the invaluable Mr Google, came into force on May 1 by virtue of the Criminal Jus- it is possible to locate the text online. These two instru- tice Act 2003 (Commencement No. 24 and Transitional ments also came into force on May 1. Provisions) Order 2010 (SI 2010/1183). Together with The result of all this is that the decision in R. (Kelly) v War- this provision comes a further Statutory Instrument, the ley JJ [2007] EWHC 1836 (Admin); [2008] 1 W.L.R. 2001, in Criminal Procedure and Investigations Act 1996 (Noti- which the Divisional Court had ruled that the courts’ gen- fication of Intention to Call Defence Witnesses) (Time eral powers of case management do not extend to requiring Limits) Regulations 2010 (SI 2010/214), which provides the defence to identify their witnesses, has now been set that the defence must normally do this within 14 days aside. Though embedded in a suite of sections which apply of the prosecutor carrying out his obligation to disclose to the Crown Court, and designed with the Crown Court “unused material” under s.3. And a third part of the pack- primarily in mind, s.6C of the CPIA is not so limited, and age is the Code of Practice for Arranging and Conducting applies to proceedings all criminal courts.

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To similar effect, the Magistrates’ Courts (Amendment) the Criminal Justice Act 2003. For most of the last seven Rules 2009 (SI 2009/3362), has added – from April 5, years it has been a piece of “virtual law”, lurking in the 2010 – a new para.3A to the Magistrates’ Courts Rules, bulging limbo of legislation that Parliament has enacted giving magistrates’ courts new and more explicit powers but the executive has neglected to bring into force – a of case management. These include, by cl.17, the power ghostly state in which two of its brothers, ss.6B and 6D, to require a party to identify “which witnesses will give still remain. It was then brought into force, at just over oral evidence” and “what written evidence that party in- one month’s notice, by a Commencement Order issued tends to introduce”. Similar powers of case management by the Ministry of Justice: the twenty-fourth such Order were simultaneously given to the Crown Court by the issued in relation to the CJA 2003, and the one thousand, Crown Court (Amendment) Rules 2009 (SI 2009/3361). one hundred and eighty-third Statutory Instrument is- For those who find this puzzling, and are now saying sued by the government since the first of January of this themselves “What is all this about? I thought the Magis- year. When laws are made like this, how is anybody sup- trates’ Courts Rules and the Crown Court Rules had been posed to keep abreast of them? swallowed up in the new Criminal Procedure Rules!” the In most other countries, the task of keeping up with explanation is as follows. The Magistrates’ Courts Rules changes in criminal procedure is made much easier and the Crown Court Rules, though basically abolished, because the rules of criminal procedure are contained still apply in a residual form when those courts are seized within a single document – a Criminal Procedure Code, of civil business – apart, that is, from family cases in the of which consolidated versions are published in hard magistrates’ courts, for which yet a different set of rules copy at regular intervals (and, increasingly, up-to-date applies. And these amendments were required to expel versions are instantly accessible, free of charge, online). the surprise witness from the criminal courts when, as This country took a useful part-move in this direction they sometimes do, they are conducting civil business. when, in pursuance of s.69 of the Courts Act 2003, the For those who (like this commentator) believe the main Criminal Procedure Rule Committee came into exist- aim of criminal procedure should be the acquittal of the ence, and great tracts of the secondary legislation gov- factually innocent and the conviction of the factually erning criminal procedure were then rewritten in intelli- guilty, the disappearance of the “surprise witness”, like gible language, and reordered between one set of covers that of the “sprung defence” a few years earlier, is to be as a single set of Criminal Procedure Rules. But, as we welcomed rather than deplored. have seen, the highly significant changes mentioned in But the tortuous way in which this beneficial change has the preceding paragraphs involve, among other things, a come about is disturbing, and so too is the even messier new piece of secondary legislation which is independent state of the statutory sources that results from it. of the Criminal Procedure Rules – plus two others, for Section 6C of the CPIA 1996 was one of a supposedly in- use by the criminal courts when exercising civil jurisdic- tegrated set of four new sections added to that Act by tion.

Defining the terms “Employer/Employee” in the Context of the Health and Safety at Work Act 1974 By Simon Jackson QC, of Park Court Chambers, Leeds

In Pola [2009] EWCA Crim 655; [2009] 5 Archbold News 3; was raised by the Court as to whether an over restrictive [2009] Crim. L.R. 655 the Court of Appeal considered for the definition of the term “employer” was adopted at trial, in first time how the criminal courts are to approach the issue of that the term “employer” now has a wider definition, within who owes the “employer’s” duties under the Health and Safety the context of the Employment Rights Act 1996. However, at Work Act 1974. The Court also considered the making of sub- at the substantive hearing of the appeal, it was held that this stantial compensation orders as part of the sentencing process. was not an issue as the term is Act specific. Lord Justice In Pola there was no dispute that there were significant Moses, in dismissing the appeal, underlined the need for breaches of the Health and Safety at Work Act 1974. The trial judges to direct jurors carefully as to how they must defendant however denied that he was an “employer”, approach the issue of whether the “working relationship” within the meaning of the Act; and that the Slovakian mi- which was alleged to exist between the parties, could grant workers working on his site, were his “employees”. amount to one of “employer and employee”. He observed In s.53(1) of the Health and Safety at Work Act 1974 an “em- that: ployee” is defined as someone who works under a “ of employment” (which may be express or implied, and if This required evidence of what has been described as ‘mutual obligations’, express, it may be oral or in writing). The term “employer” in other words, evidence that both the defendant and a worker owed each other obligations. That would be sufficient only to establish a contract. is to be “construed accordingly”. Secondly, the prosecution had to prove that the nature of the contract was On the renewed application for leave to appeal, the question one of employment, in other words, that in return for payment the worker 1 The author was instructed by Addleshaw Goddard on behalf of the HSE, at the trial of Pola placed himself under an obligation to work. It is on that issue, that the ap- and in the Court of Appeal. peal is focussed (at para.5).

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As for the phrase “mutuality of obligation”, His Lordship This court also notes that since the time even of Briscoe the courts have developed expertise in financial assessment from experience in the now observed that: frequent confiscation proceedings under the Proceeds of Crime Act 2002 It is true that that was a phrase which readily springs to the lips of the Em- and its statutory predecessors. It may be that the very cautious approach ployment Appeal Tribunal and of the Court of Appeal (see e.g. the EAT in adopted in the early cases needs some modification and full weight to be McMeechan and the Court of Appeal in Clark v Oxfordshire Health Authority given to the words of Scarman LJ (at para.33). [1998] IRLR 125 at § 22). It is not however a phrase, we imagine, familiar to a Bradford jury (at para.18). We have considered with care both the reasoned ruling of the learned judge This chimes with recent comments from the Court of Appeal and the criticisms of it made on behalf of the appellant. We are satisfied that that juries trying cases which involve complex issues of law may the judge was not only entitled to make the order that he did, but was right need to be given written directions because of the difficulties ex- to do so. Our reasons are as follows. First, there was a clear causal link perienced by some jurors in retaining their grasp of complicated between the conviction and the injury. Secondly, the judge had available to him sufficient evidence of the gravity of the injury to demonstrate that it legal directions throughout their deliberation of the facts. was worth far in excess of anything that he was minded to award. Thirdly, His Lordship continued: the judge had satisfied himself that there was no more convenient or prac- As we have accepted, the jury had to be sure, before it convicted, that when ticable alternative route of which Mr. Dudi might avail himself. Fourthly, at work the worker was under an obligation to work during the day for the judge had satisfied himself that the appellant had the means to satisfy which he was paid. The jury had to be sure that a worker was not entitled to the order that he had in mind. Fifthly, the order was compliant with both leave work on a particular day as and when he chose (at para.23). with the policy of Section 130 of the 2002 Act and its practice in that he gave priority to the compensation order over any other financial order. Lastly, In dismissing the appeal, their Lordships had no difficulty and in our view importantly, the order was just and proper in the context of in finding that contracts of employment could arise in cir- the proven culpability of the appellant (at para.35). cumstances where workers were undertaking “day shift” work and that it was not necessary to establish an overarch- The powers of the Crown Court in relation to the making ing contract of employment as, for example, in Carmichael of Compensation Orders, in similar cases, have been the v National Power PLC [2000] I.R.L.R. 43. Rather the Court subject of review in the context of the newly published SGC cited, with approval, the approach adopted by Elias J. in Guideline on “Corporate Manslaughter and Health and Stephenson v Delphi Diesel Systems Ltd [2003] I.C.R. 471. Safety Offences causing Death”, which provide (at paras Pola thus involves an important statement of principle in un- 27–29): derlining that the legal duty owed by employers, under health and safety legislation, is owed to even the most “casual” of The assessment of compensation in cases of death will usually be com- plex, will involve payment of sums well beyond the powers of a criminal employees, provided the their working relationship satisfies court, and will ordinarily be covered by insurance. In the great majority the test set for the creation of “contracts of employment”. The of cases the court should conclude that compensation should be dealt decision also underlines the importance of properly investi- with in a civil court, and should say that no order is made for that reason. gating the employment status of workers [and in particular There may be occasional cases, for example if the defendant is uninsured migrants] who by reason of language difficulties, the nature and payment may not otherwise be made, when consideration should be of their working relationships, if this involve gang-masters, or given to a compensation order in respect of bereavement and/or funeral other difficulties in terms of patterns of working, are not best expenses. placed to protect or seek enforcement of their own contractual The defendant in Pola was uninsured and so the making of rights and legal protections. This needs to be undertaken right a substantial Compensation Order was plainly the victim’s at the outset and then reviewed thoroughly once a fully par- best chance of recovering any damages for his catastrophic ticularised Defence Case Statement has been served. injuries, and so the making of this order was in line with the Re: Compensation orders new SGC Guidelines. The case of Pola also raised an interesting point on the ex- (After the appeal, it became apparent that the defendant ercise of the Crown Court’s powers to order compensation had made only nominal payments from his available as- in circumstances where issues of liability and quantum, in sets towards the Crown Court’s Compensation Order. This relation to an injured employee, are said to be in dispute or failure resulted in enforcement proceedings in the Magis- at least unclear. When sentencing the defendant, who was trates’ Court and raised an interesting question as to the uninsured, the trial judge ordered that he pay £90,000 to stage at which a sentencing court can increase the puni- a migrant worker who had sustained catastrophic head in- tive sanctions which may follow from the non payment of a juries and resulting paraplegia, as a result of fall resulting compensation order. The trial judge declined an invitation, from the defendant’s breach of duty. The Court of Appeal from the lower court, to increase the Magistrates Court’s robustly upheld the trial judge’s award, Mr Justice Hedley, sentencing powers, from 12 months to two years, pursuant who delivered this part of the Court’s judgment, stating: to s.41 of the Administration of Justice Act 1970, finding that It was submitted to the judge, and repeated to this court, that he should not the power to do so could not be exercised retrospectively, have exercised his powers as he did. This submission is founded in a series of cases which emphasise that compensation orders should be confined in their and that an increase in the usual term of imprisonment in use to simple and straightforward cases where the amount of compensation default could only have been done at the time of original can be readily and easily ascertained – see Donovan [1981] 3 Cr.App. R (5) sentence or at the hearing of any appeal against sentence. 192, per Eveleigh LJ at 193. This approach has been adopted and followed in This underlines the need to consider at the time of the mak- Hyde v Emery [1984] 6 Cr.App R (5) 206, Briscoe [1994] 15 Cr. App. R. (5) 699 ing of the order, and at the hearing any appeal, whether the and Berwick [2008] 2 Cr.App R (5) 31. It is noteworthy that Berwick (by some way the most recent case) involved detailed and complex matters as well as defendant might need added “encouragement” to comply disputed oral evidence in a case of the revenue (at para.32). with the obligations of the order.)

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Issue 4, May 13, 2010

Feature Sentencing Guidelines – the new law By David Thomas QC The provisions of the Coroners and Justice Act 2009 relat- provides that the duty imposed on a court to follow any sen- ing to the Sentencing Council for England and Wales came tencing guidelines includes “in all cases a duty to impose into effect on April 6, 2010 (see the Coroners and the Jus- on P, in accordance with the offence specific guidelines a tice Act 2009 (Commencement No.4, Transitional and Sav- sentence which is within the offence range” and where the ing Provisions) Order 2010).1 Section 118 of the Act creates offence specific guidelines describes categories of case in a Sentencing Council for England and Wales, to replace the accordance with s.121(2), a duty to decide which of the Sentencing Guidelines Council and the Sentencing Advisory categories most resembles P’s case in order to identify the Panel which are abolished (s.135). The Sentencing Council is sentencing starting point in the offence range, but nothing placed under a duty to prepare sentencing guidelines about in s.121(3) imposes on the court a separate duty to impose the discharge of the court’s duty under s.144 of the Criminal a sentence which is within the category range. The duty to Justice Act 2003, which deals with reduction in sentences for identify the “category range” and the starting point within guilty pleas, and to prepare sentencing guidelines about the the category range does not apply where none of the cat- application of “any rule of law as to the totality of sentences”. egories sufficiently resembles P’s case. These obligations The Council is empowered to prepare sentencing guidelines are subject to numerous exceptions and qualifications set on “any other matter”. The Act provides for a process of pub- out in subss.(5), (6) and (7). lishing draft guidelines for consultation, similar to the pro- A further important change is the result of an amendment cedure followed by the Sentencing Guidelines Council, and to s.174 of the Criminal Justice Act 2003 (explanation of and the eventual publication of definitive guidelines. The Council reasons for sentence). The existing s.174(2)(a) is replaced may review guidelines and revise them. by a duty to “identify any definitive sentencing guidelines Section 121 of the Act contemplates that guidelines issued relevant to the offender’s case and explain how the court by the Sentencing Council will be different in form from has discharged any duty imposed on it by section 125 of those issued by the Sentencing Guidelines Council. In par- the Coroners and Justice Act 2009” and where the court did ticular, s.121(4) requires that the guidelines should specify not follow any such guidelines because it was of the opinion the range of sentences (“the offence range”) which in the that it would be contrary to the interest of justice to do so, opinion of the Council it may be appropriate for a court to state why it was of that opinion. impose on an offender convicted of that offence, and if the guidelines describe different categories of case within the Transitional provisions particular offence, specify for each category the range of Although the relevant sections came into force on April 6, sentences (“the category range”) within the offence range 2010, nothing in s.125 or 126 (which deals with minimum which it may be appropriate for a court to impose on an of- terms in connection with indeterminate or extended sen- fender whose case falls within that category. The guidelines tences), has effect in relation to the sentencing of persons are also required to list aggravating or mitigating factors for offences committed before that date (see Sched.22, which the court is required to take into account when con- para.27(1).) In other words, during the transitional period, sidering the seriousness of the offence and any other aggra- which will last for several decades, courts must distinguish vating or mitigating factors which the Council considers are between offences committed before April 6, 2010 and those relevant and in particular to “include criteria, and provide offences committed on or after that date. If the offence was guidance, for determining the weight to be given to previ- committed before April 6, 2010, none of the amendments ous convictions and such other aggravating or mitigating made by the Coroners and Justice Act 2009 apply. If the of- factors as the Council considers to be of particular signifi- fence straddles the date or is found to have been committed cance in relation to the offence or the offender”. Plainly the at some time during a period of two or more days, it must be statute envisages that guidelines issued by the Sentencing taken for this purpose to have been committed on the last Council will be more detailed in this respect than those is- of those days (Sched.22, para.27(2).) If the offender is con- sued by the Sentencing Guidelines Council. victed of an offence committed on a day unknown between the April 1, 2010 and April 10, 2010, s.125 and its satellite The duty to follow the guidelines provisions apply, not s.172 of the 2003 Act. Most significant for the sentencing judge or advocate is It is a mystery why it was thought necessary to limit the the duty imposed on the court by s.125 of the Act. Section application of s.125 and related provisions in this way. Pre- 125(1) provides that every court must in sentencing an of- sumably someone thought that there was a risk of violation fender follow any sentencing guidelines which are relevant of art.7 of the European Convention on Human Rights if to the offender’s case, and must in exercising any other s.125 was allowed to apply to offences committed before the function relating to the sentencing of offenders, follow any commencement date. The relationship between art.7 and sentencing guidelines which are relevant to the exercise of sentencing guidelines was fully considered by the Court of that function, “unless the court is satisfied that it would be Appeal Criminal Division in Bao [2008] 2 Cr.App.R.(S.) 10 contrary to the interest of justice to do so”. What appears (p.61) where it was argued that the appellants’ rights un- at first glance to be an onerous mandatory duty is diluted der art.7 of the Convention were breached when they were by s.121(3) to the point of meaninglessness. Subsection (3) sentenced for offences of managing a brothel committed before the publication of the Sentencing Guidelines Coun- 1 See www.sentencingcouncil.org.uk. This website includes all existing guidelines.

© Thomson Reuters (Legal) Limited 2010 7 Archbold Review

Issue 4, May 13, 2010

cil’s definitive guidelines, in a manner consistent with those ries of levels and suggested sentencing ranges and starting guidelines rather than with earlier case law which would points for each level. For example, the guideline for causing have suggested significantly shorter sentences. The Court death by dangerous driving at p.11, having indicated that the of Appeal held that in considering the guidelines the sen- maximum penalty for the offence is 14 years imprisonment, tencing judge was not acting in a way which was contrary to offers a set of three levels. Level 1, the most serious, has a art.7. The penalty for the offence at the time when the ap- starting point of eight years’ custody and a sentencing range pellant committed the offence in 2005 (before the publica- of seven to 14 years’ custody. Level 2 has a starting point of tion of the guidelines in 2007) had been set at a maximum of five years’ custody and a sentencing range of four to seven seven years’ imprisonment. The maximum penalty had not years’ custody. Level 3 has a starting point of three years’ been changed at any relevant time. The provisions of art.7 custody and a sentencing range of two to five years’ custody. were directed at the mischief of retroactive or retrospective On p.10 of the guideline, the application of the Levels is ex- changes of the law. In the present case there had been no plained in more detail. Below the boxes on p.11 are listed change in the law. The guideline published by the Sentenc- various additional aggravating or mitigating factors specific ing Guidelines Council were reflections of current sentenc- to the offence; none of these factors is given any particular ing policy and practice. They were not rules of law. This weight. The words “offence range” and “category range” are decision echoes the earlier judgment in Alden and Wright not found in this guideline. [2001] 2 Cr.App.R.(S.) 401 (p.359) dealing with a supposed What is the statutory duty of the court under s.125 when increase in the tariff or conventional level of sentences, and dealing with an offender convicted of causing death by dan- is plainly consistent with the decision of the House of Lords gerous driving where the offence was committed on or after in R.(Uttley) v Secretary of State [2005] 1 Cr.App.R.(S.) 91 April 6, 2010? Plainly s.125(1) requires the court to “follow” (p.500). It is difficult therefore to imagine that there was the guidelines unless the court is satisfied that it would be contrary to the interest of justice to do so. The question for any serious risk of a breach of art.7 if s.125 had been made decision is the application of s.125(2). That section provides to apply to any sentence imposed after the commencement that subss.125(3) and 125(4) apply where sentencing guide- date of the section, whether the offence was committed be- lines have been issued in relation to that offence which are fore or after the commencement date. If there was any dan- structured in the way described in s.121(2) to (5), and in ger of injustice in applying the new section to a particular particular s.121(4). Section 121(4) requires guidelines to case, the wide escape route provided by the final words of specify offence ranges and category ranges. Does the exist- s.125(1) would have provided a sufficient relief. ing guideline for causing death by dangerous driving “spec- Where s.125(1) of the 2009 Act does not apply, as the offence ify the range of sentences (‘the offence range’) which in the was committed before April 6, 2010, the existing duty of the opinion of the Council it may be appropriate for a court to sentencing court to “have regard to” sentencing guidelines impose on an offender convicted of that offence”? Do the under s.172 of the 2003 is preserved by para.7(2) of the guidelines describe “different categories of case within the Commencement Order, and the amendments to s.174, re- offence range”? Nowhere do the guidelines specify an “of- quiring the court to identify relevant guidelines and explain fence range”, although it is a simple task to work out what how the court has complied with the guideline do not apply the “offence range” would be if it had been specified. Pre- (Commencement order, para.7(3)). sumably the offence range would be the range from the low- est point to the highest point in the three Levels, in other Post commencement offences words in this case from two years’ custody (the lowest point It will obviously be some considerable time before the new in the sentencing range for Level 3) to 14 years’ custody Sentencing Council is able to do publish new guidelines in the (the highest point in the sentencing range for Level 1). form contemplated by s.121 of the Act. To meet the immedi- If s.125(3) and (4) do apply to an existing Sentencing Guide- ate need, Sched.22, para.28 (1) (b) empowers the Lord Chan- lines Council guideline, the duty imposed by s.125 on the cellor by order to provide for existing Sentencing Guidelines sentencing court is easily performed and will not restrict the Council guidelines to be treated as guidelines issued by the sentencing judge’s discretion to any significant extent. In the Sentencing Council. This has been done by para.7(1) of the case of causing death by dangerous driving, s.125(3) appears commencement order, which provides that all existing Sen- to require the sentencing judge to impose a sentence of be- tencing Guidelines Council guidelines which had effect im- tween two years and 14 years’ custody, subject to a discount mediately before the coming into force of s.125(1) of the 2009 for a guilty plea, unless the court is satisfied that it would be Act are to be treated as guidelines issued by the Sentencing contrary to the interest of justice to do so. If the judge consid- Council under s.120 of the Act. The provision is general, and ers that it would be contrary to the interests of justice to im- applies therefore to all existing guidelines, whether offence pose a sentence of at least two years’ custody, the final words specific or more general in nature. of s.121(1) allow him to impose a sentence of less than two The difficulty for sentencing judges will be how to deal with years, or a community order. The judge must identify the cat- offences committed on or after April 6, 2010, which are sub- egory of case which most resembles the offender’s case – pre- ject to a Sentencing Guidelines Council guideline, which is to sumably this means that the judge must identify which Level be treated as if it were a Sentencing Council Guideline in ac- within the guideline is relevant – and identify the sentencing cordance with Sched.22, para.28(1)(d). This issue involves a starting point within that Level, but the judge is not required number of questions of statutory interpretation. The Sentenc- by s.125(1) to impose a sentence within the sentencing range ing Guidelines Council’s guidelines do not expressly identify for that category (or Level). He must state in accordance with “offence ranges” and “category ranges”. Not surprisingly, the new version of s.174(2)(a) that the Sentencing Guidelines this language is not found in any of the existing guidelines as Council guideline for causing death by dangerous driving it had not been invented when the guidelines were written. applies, that the category which most resembles the defend- The guidelines were not written to be “followed” but to be ant’s case is Level 1, and that he has complied with the duty “had regard to”. A typical offence specific guideline sets out imposed by s.125(1) of the 2009 Act by imposing a sentence a number of a general considerations relating to the offence, of two years’ imprisonment, which is a sentence within the of- together with a scheme usually dividing the offence into a se- fence range but not within the category range.

8 © Thomson Reuters (Legal) Limited 2010 Archbold Review

Issue 4, May 13, 2010

What if existing guidelines produced by the Sentencing requires the sentencing judge to identify any sentencing Guidelines Council are not guidelines to which s.125 (3) ap- guideline which is relevant to any count on the indictment plies (that is, they are not structured in the way described and explain how the court has discharged the duty imposed in s.121(2) to (5) in that they do not specify an “offence by s.125(1) in respect of that count. This task may become range” and “category ranges”). In this event it seems that complicated, particularly where the offender does not con- the court is under the basic duty imposed by s.125(1) to fine himself to a particular type of offence. Imagine the case “follow” the guideline unless the court is satisfied that it of an 18-year-old who has pleaded guilty to counts charg- would be contrary to the interests of justice to do so, and ing robbery, maliciously inflicting , must make what sense it can of this obligation. The problem theft, and burglary of a building which is not a dwelling. in many cases will be that most guidelines are based on the There are four offence specific guidelines to be considered, assumption that the offender is a first-time offender aged 18 together with the guideline on taking account of a plea of or over. Different language is used in different guidelines to guilty. Section 174(2)(a) appears to require each to be dis- make this point. On p.10 of the guideline for causing death cussed in the sentencing remarks. by dangerous driving, paragraph one states “the following How does the duty to “follow” the guidelines affect the pow- guideline applies to a first-time offender”. Similarly in the er of the court to order sentences to run consecutively or guideline on assault and other offences against the person, concurrently? The Act imposes on the Sentencing Council the guideline for causing grievous bodily harm with intent an obligation to prepare “sentencing guidelines about the is subject to the qualification in para.2 on p.12 that the sug- application of any rule of law as to the totality of sentences” gested starting points and sentencing ranges are based (s.120(3)(b)), and provides that the duty to follow the guide- upon a first-time adult offender convicted after a trial. If, lines imposed on the court by s.125 is “subject to … any rule as may well be common, an offender convicted of causing of law as to the totality of sentences” (s.125(5)(b).) It seems grievous bodily harm with intent has a long list of previ- (pending the preparation of the new guideline on totality) ous convictions, for which the guidelines offer no process that a sentencing judge faced with a multiple count indict- of adjustment, it may be consistent with the statutory duty ment may adjust any or all of the individual sentences to imposed by s.125(1)(a) to hold that the sentencing guide- provide an appropriate total sentence, notwithstanding any line is not relevant and ignore it. Alternatively it may be that guidelines which are relevant to any particular count, but the route out of the difficulty is to take advantage of the must still comply with s.174(2)(a) of the 2003 Act and explain “contrary to the interests of justice” exception and impose how he has complied with the guideline relevant to each in- an appropriate sentence without the aid of the guideline. dividual count.

Guideline judgments The interests of justice Perhaps the strangest aspect of s.125 is its application to Given the problems discussed above, it may be that sentenc- guideline judgments of the Court of Appeal. This must be ing judges will frequently wish to have recourse to the final traced through the Schedules and the Commencement words of s.125(1), which exempts the court from the duty Order. Sched.22, para.28(1)(b), empowers the Lord Chan- to “follow” any sentencing guidelines if the court “is satis- cellor to provide by order that any “existing guideline” fied that it would be contrary to the interest of justice to do which had effect immediately before April 6, 2010, is to be so”. The interpretation and application of this part of the sec- “treated as guidelines issued by the Sentencing Council”. tion by the Court of Appeal will be a matter of great interest. This power has been exercised by para.7 of the Commence- There is nothing in the section to suggest that its application ment Order, which provides that “existing guidelines” are is limited to cases presenting unusual or exceptional circum- to be so treated. For this purpose, “existing guidelines” has stances. The wording of the section may be compared for the meaning given by Sched.22, para.28(2) of the Act. This instance with that of ss.110 and 111 of the Powers of Criminal definition includes all existing definitive guidelines issued Courts (Sentencing) Act 2000, providing prescribed mini- under s.170 of the 2003 Act by the Sentencing Guidelines mum sentences for persistent burglars or drug dealers, ex- Council, and “guidelines with respect to sentencing which cept where the court is of the opinion that there are “particu- were included in any judgment of the Court of Appeal given lar circumstances”, or s.51A of the Firearms Act 1968 which before 27 February 2004 and have not been superseded by requires a minimum sentence to be imposed unless there sentencing guidelines so issued”. are “exceptional circumstances”. The final words of s.125(1) The effect of these provisions seems the be that existing leave the sentencing judge a general discretion not to follow guideline judgments delivered before February 27, 2004 the guidelines if the judge is satisfied that it would be con- (yet another date to remember) must be treated as if they trary to the interests of justice to do. were Sentencing Council guidelines, and the duties imposed Whatever changes s.125 may make to the practice of sen- by s.125(1) of the 2009 Act, and the amended s.174(2)(a) (duty to identify guideline and explain how it has been com- tencing, the final words of s.125(1) preserve the principle plied with) must be performed. If the guideline judgment that has been at the core of sentencing in this country for was delivered after February 27, 2004, these statutory rules two hundred years – that the determination of the sentence do not apply. Section 125 plainly applies to Aramah (1982) 4 to be imposed in any particular case is ultimately a matter Cr.App.R.(S.) 407, but not to Saw [2009] 2 Cr.App.R.(S.) 54 for the judgment of the sentencing judge, in the exercise (p.367). The difficulty of applying this provision will be com- of a discretion informed by principle and judicial experi- pounded by the fact that it is not always easy to say whether ence. Whatever sentence may appear to be indicated by the a particular judgment is or is not a “guideline judgment”. guidelines, the final duty of the sentencing judge is to con- sider whether that sentence is compatible with what were Multiple counts recently described as “the ancient principles of justice and Relatively few offenders come before the Crown Court for mercy”.2 If it is not, it is the duty of the judge to ignore the sentence on a single count. Where an offender is to be sen- guideline and pass a sentence which is. tenced on a number of counts charging different offences, it appears that s.174(2)(a) of the 2003 Act (as amended) 2 Hussain and Hussain, January 20, 2010; [2010] EWCA Crim 94, per Lord Judge C.J.

© Thomson Reuters (Legal) Limited 2010 9 Archbold Review

Issue 4, May 13, 2010

Coverage of over 100 sentenCing topiCs in an easy to use a-Z format Dr. David thomas QC

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Issue 4, May 13, 2010

WILKINSON’S ROAD TRAFFIC OFFENCES ARE YOU UP TO SPEED WITH THE LATEST DEVELOPMENTS IN ROAD TRAFFIC LAW? General Editor: Kevin McCormac, Consultant Editor: Peter Wallis, Editors: Philip Brown, Howard Riddle, and Kathryn Swift

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Issue 4, May 13, 2010

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Editor: Nicola Padfield Cases in Brief: Richard Percival Sentencing cases: Dr David Thomas Q.C. Articles for submission for Archbold Review should be emailed to [email protected] The views expressed are those of the authors and not of the editors or publishers. Editorial inquiries: House Editor, Archbold Review. Sweet & Maxwell document delivery service: £9.45 plus VAT per article with an extra £1 per page if faxed. Tel. (01422) 886277 Archbold Review is published by Thomson Reuters (Legal) Limited (Registered in England & Wales, Company No 1679046. Registered Office and address for service: 100 Avenue Road, London, NW3 3PF) trading as Sweet & Maxwell. For further information on our products and services, visit www.sweetandmaxwell.co.uk ISSN 0961–4249 © 2010 Thomson Reuters (Legal) Limited Sweet & Maxwell ® is a registered trademark of Thomson Reuters (Legal) Limited. Typeset by EMS Print Design *332155* Printed by St Austell Printing Co

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