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Criminal Law—Hearsay Evidence Criminal newsletter January 2010.qxp 18/12/2009 11:57 Page 1 BLACKSTONE’S CRIMINAL PRACTICE BULLETIN Issue 2, January 2010 Welcome to Blackstone’s Criminal Practice Bulletin. The Bulletin is a quarterly newsletter designed to alert practitioners to key developments in criminal law and sentencing, and to place these changes in the context of the main work. They can be downloaded free of charge from <http://www.oup.com/blackstones/criminal>. We will publish further Bulletins in April and July 2010, and these will be available free of charge on the Blackstone’s Criminal Practice website at <http://www.oup.com/blackstones/criminal>. Website updates are set out on a chapter-by-chapter basis, with links to the full text of available judgments and to relevant legislation. By registering online you can be alerted to the posting of new material on the site and will receive news of all important changes by email. CASE DIGEST—IN BRIEF CRIMINAL LAW—HEARSAY EVIDENCE imperative that a trial must be fair and the interests of victims in particular and society in general that a crim- Horncastle inal should not be immune from conviction where a [2009] SC 14 witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be In considering the perceived conflict between the pro- called to give evidence for some other reason’. visions of the CJA 2003 on hearsay and the Strasbourg jurisprudence, the Supreme Court has supported the See Blackstone’s Criminal Practice:A7.74 and F16.18 ruling of the Court of Appeal ([2009] EWCA Crim 964). The Supreme Court reiterated the view that the Contents overall fairness of the proceedings is the key test and that the minimum right of the accused to examine wit- Case Digest—In Brief . .1 nesses against him (ECHR, Article 6(3)(d)) permitted Sentencing . .4 some exceptions. Lord Phillips questioned the ‘sole or Case Digest—In Detail . .6 decisive basis’ test for the admission of evidence where Legislation . .8 the accused has had no opportunity to examine the Comment and Analysis . 11 witness and expressed the view that the provisions of Publishing News . .15 the CJA 2003 ‘strike the right balance between the Visit www.oup.com/blackstones/criminal 1 Criminal newsletter January 2010.qxp 18/12/2009 11:57 Page 2 BLACKSTONE’S CRIMINAL PRACTICE BULLETIN Issue 2, January 2010 OFFENCES—CONSENT 1988 Act. It is not, however, for the courts to overcome the resulting inconvenience by distorting the clear language DPP v Shabbir which Parliament has adopted. [2009] EWHC 2754 (Admin) See Blackstone’s Criminal Practice: C2.1 Although consent may in some circumstances be a defence to a charge of common assault, the lack of ROAD TRAFFIC—DRINK-DRIVING consent may in appropriate cases be inferred from OFFENCES evidence other than that given by the alleged victim. Goldsmith v DPP See Blackstone’s Criminal Practice: B2.12 [2009] EWHC 3010 (Admin) OFFENCES—OFFENSIVE WEAPONS The ‘statutory assumption’ in the RTOA 1988, s. 15(2), applies only to trials and has no application McAuley where a defendant pleads guilty but contends that his [2009] EWCA Crim 2130 alcohol level was lower than in the specimen. A Newton hearing may therefore be appropriate in order to hear Bown [2004] 1 Cr App R 151 was considered by the evidence of back calculation and determine the correct Court of Appeal, which held that it could amount to a facts. The Divisional Court said that it would be an ‘good reason’ under the CJA 1988, s. 139(4), if D was affront to justice if a court was compelled because of a carrying the knife in question for his own protection statutory assumption to sentence on a basis that was and could show on the balance of probabilities that he false and adverse to the defendant. was in fear of an imminent attack. It remains for a jury See Blackstone’s Criminal Practice: C5.32 to determine ‘how imminent, how soon, how likely and how serious’ the anticipated attack has to be to constitute a good reason for possession of the bladed PROCEDURE—RETENTION OF SEIZED article. PROPERTY See Blackstone’s Criminal Practice: B12.130 Scopelight v Chief Constable of Northumbria [2009] EWCA Civ 1156 ROAD TRAFFIC—NOTICE OF INTENDED PROSECUTION Scopelight v Chief Constable of Northumbria [2009] EWHC 958 (QB) has been overruled by the Court of Gidden v Chief Constable of Humberside Appeal. The Court held that under the PACE 1984, [2009] EWHC 2924 (Admin) s. 22(1), powers of seizure applied for as long as neces- sary, and the decision of the CPS not to prosecute in A notice of intended prosecution sent by first class post this case did not prohibit continued retention for use in accordance with the rebuttable presumption in in a private prosecution by the Federation against the CrimPR, r. 4.10, so that it would ordinarily be Copyright Theft. If it was in the public interest to delivered within the 14-day time-limit but, as a result enable bodies other than the CPS to investigate and of a postal strike, proved to have been delivered after prosecute alleged offences then the private prosecutor the end of that period, was held not to be effectively should also be able to retain seized property for those served. The irrebuttable presumption in respect of purposes. service by means of registered post or recorded delivery See Blackstone’s Criminal Practice: D1.99 service in the RTOA 1988, s. 1(2) is incapable of being extended to cover such a situation. Elias LJ said: I appreciate that this construction of the legislation may PROCEDURE—BAIL create problems for the police and prosecuting authorities, particularly when the postal service is on strike with the R (F) v Southampton Crown Court inevitable delays in delivery. The authorities must then adopt [2009] EWHC 2206 (Admin) other means of warning, provided by section 1, if they are to avoid the risk of late delivery. Alternatively, the remedy lies in The Crown Court judge in this case had said that he the hands of Parliament by amending section 1(2) of the would not grant bail because he was ‘not sure’ that the 2 Visit www.oup.com/blackstones/criminal Criminal newsletter January 2010.qxp 18/12/2009 11:57 Page 3 Issue 2, January 2010 BLACKSTONE’S CRIMINAL PRACTICE BULLETIN accused would ‘turn up or stay out of trouble’. The PROCEDURE—EXTRADITION Divisional Court held that ‘the test is that contained in the Bail Act 1976, s. 4(4), applying sch. 1, and that Louca v A German Judicial Authority requires the judge to have substantial grounds for [2009] UKSC 4 believing that the defendant before him would fail to surrender, commit offences on bail, or transgress one Louca v Office of the Public Prosecutor in Bielefel [2008] of the other provisions in schedule 1’. The judge had EWHC 2907 (Admin), [2009] 2 All ER 719 has been therefore applied the wrong test. As Collins J pointed upheld by the Supreme Court. It is now clear that, in out (at [8]), ‘It is not a question of him not being sure order to comply with the requirements of the Extradi- that the defendant would turn up or stay out of trou- tion Act 2003, s. 2, a European Arrest Warrant must ble, but he was only entitled to refuse bail if there were refer to the requesting state’s domestic arrest warrant(s) substantial grounds for believing that he would on which it is based, but need not refer to any previous breach, he would fail to turn up or would commit fur- European Arrest Warrant, based on the same domestic ther offences’. The case was remitted to the judge for warrant, which had previously been issued and super- reconsideration. seded. See Blackstone’s Criminal Practice: D7.11 See Blackstone’s Criminal Practice: D31.3 PROCEDURE—JURY TAMPERING EVIDENCE—HOSTILE WITNESSES KS Greene [2009] EWCA Crim 2377 [2009] EWCA Crim 2282 T [2009] EWCA Crim 1035 was considered by the The Court of Appeal held that, save for some excep- Court of Appeal in the context of a difficult and excep- tional cases, once a witness has been declared hostile, tional case in which the jury at a major fraud trial had some warning should be given to the jury to the effect been discharged on evidence that significant tamper- that they should treat that witness’ evidence with cau- ing had taken place. The court accepted that the trial tion. This remains the general rule even in cases (such judge had considered other remedies, but had been left as Greene itself) where the witness in question eventu- with no real option but to discharge the jury. The prin- ally gives evidence that is in accordance with his origi- cipal issue was whether the trial could properly pro- nal witness statement, and is not therefore confined to ceed before the judge alone. Ordinarily, that might cases in which he has to be contradicted by his previous have been the correct option, but in this case the judge consistent statements. had already presided over a host of related fraud trials See Blackstone’s Criminal Practice: F6.29 at which the appellant’s activities had featured repeat- edly in the evidence, and in PII applications. As a result, the judge was: EVIDENCE—PRIVILEGE AGAINST SELF-INCRIMINATION …possessed of information which he could not and would not be able to exclude from his own deliberations, when con- JSC BTA Bank v Ablyazov sidering the verdict, but which the appellant had not addressed, because he was unaware of all the matters which [2009] EWCA Civ 1124 the judge had examined in the earlier trials and which had not been included in the evidence in the instant trial.
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