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
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
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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
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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. The issue in this case was whether the Fraud Act 2006, s. 13, applies so as to remove any privilege against self- There might also be an appearance of bias. The court incrimination in respect of money laundering offences concluded that none of these considerations, even under the Proceeds of Crime Act 2002, s. 328(1). Does taken together, prevented him from acting as the trial such an offence necessarily involve ‘any form of fraud- judge when the jury was vested with the responsibility ulent conduct or purpose’ within the meaning of the for the verdict, but he had been wrong to order the trial Fraud Act 2006, s. 13(4)? The court held that it did, to continue before him without the jury. and that any such privilege was thereby removed. See Blackstone’s Criminal Practice: D13.78 Moses LJ (with whom Sedley and Pill LJJ agreed) said:
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22. The important feature of the definition under s. 13(4)(b) notwithstanding that it has no fraudulent purpose. The effect is that it defines related offence by reference to the quality of of the arrangement is necessarily to conceal from public offi- the conduct brought within the scope of the charge and not cials and the public at large the criminal source of the proper- merely by reference to the intention of the alleged offender. ty. That, in my view, involves deception in the way described The conduct falling within s. 328(1) is entry into or becom- by Moore-Bick LJ in Kensington at [61] and [63]. ing concerned in an arrangement which facilitates (by what- 24. Nor does it seem to me to be relevant that the criminal ever means) the acquisition, retention, use or control of property might itself not be derived from fraud. Even if the criminal property by or on behalf of another person. Such an property is, for example, obtained as a result of dealing in arrangement enables one who has obtained the proceeds of drugs, the effect or potential effect of the arrangement into crime to retain the benefit of those proceeds whilst conceal- which the offender enters despite his knowledge or suspicion ing their true source. Whether the alleged offender knows or is to conceal the fact that the property is derived from drug- suspects that the arrangement will facilitate that consequence dealing. That element of concealment is, in my view, decep- is not to the point. He has deliberately chosen to enter into or tive and fraudulent, even if the offender was only suspicious become concerned with such an arrangement despite his when he entered into or became concerned with what I con- knowledge or suspicion. sider to be a deceptive arrangement. 23. Section 13(4)(b) is wide enough to include an offence which charges conduct which has a fraudulent quality, See Blackstone’s Criminal Practice: F9.26
SENTENCING
Inflicting Grievous Bodily Harm remain in hospital for ten days. He had to have a colostomy fitted; but after some months the colosto- King [2009] EWCA Crim 1990 my was reversed. The Court of Appeal considered the four categories of The wounds were held to be such as to bring the case s. 20 offence identified in the SGC’s Guideline, and within the most serious category of the relevant guide- the question of what amounts to a ‘particularly grave line, which involves the victim ‘suffering life-threaten- injury’ for the purpose of that Guideline. ing injury or particularly grave injury from a In light of previous authority, the court concluded that pre-meditated wounding or grievous bodily harm the fractured cheekbone suffered by the victim could involving the use of a weapon acquired prior to the not be described as meeting the high standard required offence and carried to the scene with specific intent to to fall within the Category 2 grouping of s. 20 offences, injure the victim…’ Such an injury did not need to be and in the absence of premeditation the offence permanent. belonged only in Category 4. Because of certain other See Blackstone’s Criminal Practice: B2.54 aggravating features, however, the original sentence of 18 months’ detention was reduced only to one of 12 months (which was still higher than would usually be Controlling Prostitution for Gain and appropriate for a category 4 offence). Trafficking into the UK See Blackstone’s Criminal Practice: B2.41 Pacan [2009] EWCA Crim 2436 Sentences of between 11 and 14 years’ imprisonment Wounding or Causing Grievous Bodily Harm were upheld in a case involving both the control of with Intent prostitutes and the trafficking of young and vulnerable girls whose submission was obtained by coercion. The Collins [2009] EWCA Crim 2534 Court of Appeal agreed with the trial judge that the age The victim had been shot twice at close range. One of and vulnerability of the victims, set against the coer- the wounds was to the abdomen, in which the bullet cion involved, significantly aggravated the case, taking had passed close to the liver and right kidney, one of the sentence outside the normal maximum of nine which was shaved slightly by the bullet. The bullet years’ imprisonment specified in the SGC’s guidelines. went on to perforate the victim’s colon in several See Blackstone’s Criminal Practice: B3.215 and B3.221 places. The other shot was to the groin, where the bul- let could not safely be removed. The victim had to
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Fraud and computers kept by the police for police purposes The Sentencing Guidelines Council has issued a final had to be deterred and deterrent sentences passed. Guideline in relation to fraud offences. The Guideline Moreover, the defendant had himself profited from the applies to all offences sentenced on or after 26 October bank frauds in which he had assisted. A sentence of 12 2009. A new update to the Magistrates’ Courts Sen- months’ immediate imprisonment was substituted. tencing Guidelines has also been issued. It is principal- See Blackstone’s Criminal Practice: B15.1 ly concerned to reflect the Guidelines on fraud. See
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harm, to someone. …Some risk of serious harm is not the test. The sentence was quashed and a determinate sentence If it were there would be an enormous number of defendants of six years’ imprisonment was substituted. who need to be in prison indefinitely. The test is the existence of a significant risk, enough to warrant a sentence which may See Blackstone’s Criminal Practice: E4.9 never end. This man has no history of either violence or exploitative or dangerous sexual offending.
CASE DIGEST—IN DETAIL
R (C) v Sevenoaks Youth Court [2009] EWHC question the cadet whom he is alleged to have attacked; 3088 (Admin) whether to accept his identification or to attack his credibili- ty; he will need to decide what line to take with his co-defen- The Coroners and Justice Act 2009, s. 104, which will dant, ‘P’, depending on the evidence he gives; he will need come into force on a day to be appointed, inserts new particular help to decide if he is to give evidence, and if so he ss. 33BA and 33BB into the YJCEA 1999. Under will need help to do so. It is in the highest degree unlikely that s. 33BA, the court may, on the accused’s application, this level of help can be given by a lawyer, however kind and sympathetic she may be. He needs someone to befriend and give a direction that provides for the any examination to help him, both during the trial itself and in preparation for of the accused to be conducted through an intermedi- it. In short, he needs an intermediary. Furthermore, if an ary. The court may so direct where the accused is either intermediary is to be effective, ‘C’ must know the intermedi- under the age of 18 and his ability to participate effec- ary and have confidence in him or her. Such trust will not be tively as a witness is compromised by his level of intel- established if their first meeting is on the morning of the trial. lectual ability or lack of social function (s. 33BA(5)) or Moreover, the court will have to adopt its procedures to where he is over 18 but suffering from a mental disor- ensure that the hearing is fair to ‘C’ by using simple language, der which prevents his effective participation. by taking breaks, by taking any and all such steps as are nec- essary. Experienced justices sitting in Youth Courts are well It appears, however, that the courts have already taken able to ensure the fairness of the proceedings. upon themselves the power to order the adoption of I conclude that there is nothing in the Waltham Forest case, such measures where they are deemed necessary, and whether it be rightly or wrongly decided, which prevents the do so independently of the YJCEA 1999. In this case, court from appointing an intermediary for a defendant pur- the court distinguished R(S) v Waltham Forest Youth Court suant to its common law powers… [2004] EWHC 715 Admin, and adopted a principle See Blackstone’s Criminal Practice: D14.105 previously stated in R (P) v West London Youth Court [2006] 1 WLR 1219, namely that: Wilkinson [2009] EWCA Crim 1925 The Youth Court has an inherent power to take such steps as would enable the young defendant to participate effectively The sentencing guidelines issued by the Court of in the trial, including, ‘being proactive in ensuring that the Appeal in Avis [1998] 1 Cr App R 420 were re-exam- claimant had access to support’. ined and the conjoined appeals considered in this Applying this principle, Openshaw J said: judgment, which required the court to address, inter alia, the impact of the CJA 2003, s. 225, and its relat- In my judgment, when trying a young child, and most partic- ed provisions (imprisonment for life and imprison- ularly a child such as ‘C’ who is only 12 with learning and behavioural difficulties, notwithstanding the absence of any ment for public protection). express statutory power, the Youth Court has a duty under its The court’s attention was drawn by counsel to two inherent powers and under the Criminal Procedure Rules to statutory sentencing anomalies that may affect some take such steps as are necessary to ensure that he has a fair firearms offences: trial, not just during the proceedings, but beforehand as he and his lawyers prepare for trial. He must be given such help 25. … First, whereas for the importation of class A drugs a as he needs to understand the case against him; he must be discretionary life sentence is available, and indeed for the helped to give his own side of the story as his proof of evi- importation of class B and class C drugs, the maximum avail- dence is drawn up; it may be that he needs help to speak to his able sentence is 14 years imprisonment, the maximum sen- lawyers, let alone to the court; he will need help to follow the tence for importing firearms (including handguns and case as it proceeds; he would need help to decide whether to machine guns with ammunition suitable for use) is 10 years
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imprisonment. …Second, in relation to firearms, there is no level of gun crime along with very lengthy determinate sen- equivalent statutory offence to the offence which applies to tences, indeterminate sentences, whether discretionary the possession of drugs with intent to supply. Section 3 of the imprisonment for life or IPP, inevitably arise for considera- Firearms Act 1968, which creates the offence of dealing in tion. firearms by anyone who is not registered as a firearms dealer is designed to deal with the apparently legitimate firearms The distinction between cases meriting imprisonment dealer who is trading without the relevant registration rather for life and those meriting ‘only’ imprisonment for than enterprises involving the illegal supply of firearms public protection (IPP) was also examined. Lord Judge between criminals. It also addresses the sale or transfer of any CJ examined a number of earlier cases in which the firearm or ammunition to someone who does not produce a same issue arose and concluded (at [19]): firearms certificate (section 3(2) of the 1968 Act). In any These decisions, like virtually every sentencing decision, event, these offences attract a maximum penalty of 5 years were fact specific. Nevertheless they give an indication of the imprisonment (section 51 and schedule 6 of the 1968 Act) approach of the court to legislative provisions which provide which in circumstances like the present would be wholly two forms of indeterminate sentence to deal with the danger- inadequate. The result is that where the prosecution discov- ous offender. In our judgment it is clear that as a matter of ers evidence of criminal activity involving the importation or principle the discretionary life sentence under section 225 manufacture or distribution of firearms and ammunition on should continue to be reserved for offences of the utmost a large scale, the defendants are indicted with offences con- gravity. Without being prescriptive, we suggest that the sen- trary to section 16 of the 1968 Act, that is, possession of tence should come into contemplation when the judgment firearms and ammunition with intent to endanger life. of the court is that the seriousness is such that the life sen- Although this offence does attract the maximum penalty of tence would have what Lord Bingham observed in Lichniak life imprisonment, and it is a specified violent offence for the [2003] 1 AC 903, would be a “denunciatory” value, reflective purposes of sections 224 and 225 of the 2003 Act, the prose- of public abhorrence of the offence, and where, because of its cution must prove the specific intent to endanger life or to seriousness, the notional determinate sentence would be very enable another to endanger life: otherwise a defendant long, measured in very many years. involved in the importation of firearms cannot be liable to discretionary life imprisonment. He also said (at [99]), this time specifically in the con- As to this, Lord Judge CJ said: text of an A-G’s Reference on sentence: 26. … the offence of importing firearms, or being in posses- In many cases where the defendant’s dangerousness is estab- sion of firearms with intent to supply them, whether manu- lished, there nevertheless will remain room for a sensible dif- factured by someone else or not, is not less criminally ference between sentencing judges whether a particular reprehensible than the importation of drugs or possession of offence under consideration is or is not serious enough to drugs with intent to supply them. It is indeed difficult to require the imposition of a sentence of life imprisonment, or anticipate many such cases where an imminent risk to life is whether an IPP will suffice. As we have emphasised, the sen- not an inevitable concomitant of the offence. If so, the avail- tence of life imprisonment remains the ultimate sentence, to ability of a discretionary life sentence should not be depend- be reserved for the most serious and grave cases. Where a rea- ent on proof of the specific intent required by section 16 of sonable judgment is that the sentence arguably does not the Firearms Act. reach or does not quite reach that level of seriousness, an IPP would not be unduly lenient. Where however the case is 27. Where however the statutory intent involving danger to plainly so serious that a sentence of life imprisonment is life has been established, and it is clear that the firearms were indeed required, then it is in our judgment unduly lenient for subsequently used with homicidal intent by others to whom any lesser sentence (including an IPP) to be imposed. Given they were supplied or who obtained them in the criminal the delicacy and difficulty of making the necessary judgment, firearms market, the sentences on the importer or supplier we accept that these cases will be exceptional. Nevertheless should always reflect these dreadful consequences. In the where the only realistic conclusion is that a discretionary sen- context of section 225 of the 2003 Act the fact that the tence of life imprisonment should have been imposed, then importer or supplier is not an individual who pulled any trig- this court will interfere even with an IPP and replace it with ger, or discharged any firearm, or caused serious injury him- life imprisonment. self, does not resolve the issue of future dangerousness in his favour. Criminals who are prepared to deal in such lethal In Wilkinson itself, a life sentence, with a minimum weapons invariably represent a serious public danger, and it specified term of 11 years, was upheld in respect of cannot be assumed that the danger they represent will have offences involving the large-scale conversion and sale dissipated when the determinate element of their sentences of ‘Mach 10’ sub-machine guns. These, together with has been completed. We therefore supplement the guidance appropriate ammunition, were found during the in Avis by emphasising that for criminals involved in this course of a police investigation into large scale supply-
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ing of prohibited firearms and ammunition. They dis- ing the appellant’s own brother and co-accused. covered what was described as the largest ‘arms factory’ The appellant did not object to the admission of the for the manufacture and distribution of these weapons facial mapping evidence per se, but argued that there within the UK. was no expertise-based justification for his expression See Blackstone’s Criminal Practice: B12.114 and E4.5 of the level of support which that comparison gave to the allegation that the man in question was the appel- Atkins [2009] EWCA Crim 1876 lant. He should not therefore have been allowed to express it. The Court of Appeal gave extensive consideration in this judgment to the case law on facial mapping (or The court, effectively following Gardner [2004] photographic comparison) evidence. The expert wit- EWCA Crim 1639, rejected this argument. Hughes LJ ness had testified that in his opinion CCTV images of said: a robber, who was also implicated in a murder, were ... where a photographic comparison expert gives evidence, consistent with the facial appearance of one of the properly based upon study and experience, of similarities appellants, and that the similarities were such as to and/or dissimilarities between a questioned photograph and a known person (including a defendant) the expert is not dis- lend ‘support or strong support’ to the conclusion that abled either by authority or principle from expressing his this appellant was indeed the man featured in the conclusion as to the significance of his findings, and ... he CCTV footage. The expert used five different forms of may do so by use of conventional expressions, arranged in a expression when evaluating the significance of such a hierarchy, such as those used by the witness in this case match, ranging from ‘0 = lends no support’ to ‘5 = ....[but] we think it preferable that the expressions should not lends powerful support’: be allocated numbers, as they were in the boxes used in the written report in this case, lest that run any small risk of lead- But, as the trial judge rightly reminded the jury, there ing the jury to think that they represent an established was no database cataloguing the numbers of persons numerical, that is to say measurable, scale. The expressions with particular facial features or measurements from ought to remain simply what they are, namely forms of words which the expert could derive any statistical analysis to used. They need to be in an ascending order if they are to explain the significance of the observed similarities, so mean anything at all, and if a relatively firm opinion is to be his finding of a match at somewhere between levels 3 contrasted with one which is not so firm. They are, however, expressions of subjective opinion, and this must be made and 4 on this scale was based only on his own experi- crystal clear to the jury charged with evaluating them. ence and expertise and on the fact that he was able to exclude a number of other potential suspects, includ- See Blackstone’s Criminal Practice: F18.29
LEGISLATION
Coroners and Justice Act 2009 • amendments to the Infanticide Act 1938 and the Suicide Act 1961; This Act, most of which is to be brought into force on • new provisions on prohibited images (see Comment a day to be appointed, makes major changes to the and Analysis); criminal law and includes the following provisions: • the abolition of common-law libel offences (in force • amendments to the law on murder – inter alia, s. 52 from 12 January 2010); will make some significant changes to the defence of • new provisions on witness anonymity orders (ss. 86 diminished responsibility which are primarily to 97) replacing the Criminal Evidence (Witness designed to modernise and clarify the defence (e.g., Anonymity) Act 2008, ss. 1 to 9 (in force from 1 instead of ‘abnormality of mind’, the accused will January 2010); have to prove an ‘abnormality of mental function- • amendments to a range of provisions on special ing’) and s. 56 will abolish the common-law defence measures for vulnerable and intimidated witnesses of provocation and replace it with a related but sig- and extensions of live links (ss. 98 to 110); nificantly different defence labelled ‘loss of control’;
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• s. 112 amends the CJA 2003, s. 120, by omitting 2003 (ss. 136A to 136R) which empowers courts to s. 120(7)(d) (requirement that complaint be made order the closure, on a temporary basis, of premises as soon as could reasonably be expected after the being used for activities related to certain sexual alleged conduct); offences; • s. 113 permits evidence in chief where video-record- • s. 22 inserts a new s. 132A into the SOA 2003, part ed evidence has been admitted; 2, which disapplies the time-limits for complaints • ss. 114 and 115 affect bail; they provide (i) for bail under part 2; to be denied unless there is no significant risk of an • ss. 23 to 25 amend the SOA 2003 in relation to for- offence causing physical or mental injury being eign travel orders; committed by the offender while on bail and (ii) bail • ss. 28 to 33 are concerned with alcohol misuse; decisions in murder case to be made by a Crown • ss. 28 to 50 create a new power to grant injunctions Court judge; to prevent gang-related violence; • s. 116 removes the requirement for signature of an • ss. 51 to 66 amend the Proceed of Crime Act 2002 indictment (in force from 12 November 2009); in relation to confiscation, civil recovery, and • provision for a new Sentencing Council for England detained cash investigations (see Comment and and Wales and the abolition of the existing sentenc- Analysis below); ing bodies (ss. 118 to 136); • ss. 67 to 78 amend the Extradition Act 2003, in par- • s. 137 and sch. 16 provide for the extension of driv- ticular: ing disqualifications where the offender has served a • ss. 69 and 70 insert new ss. 8A, 8B, 76A, and custodial sentence; 76B into the 2003 Act, so as to require extradi- • s. 138 adds certain terrorism offences to the list of tion hearings which have not yet begun to be specified violent offences for the purposes of the adjourned where the person in question is dangerous offenders provisions in the CJA 2003 (in charged with an offence in the UK in order for force from 12 January 2010); and proceedings to be brought; • s. 144 and sch. 17 provide for the admissibility and • ss. 72 and 73 amend ss. 59 and 132 of the 2003 proof of previous convictions in other EU Member Act, which deal with the procedure on return States. for persons serving custodial sentences in the UK who have been extradited from the UK on the condition that they are returned to the UK Policing and Crime Act 2009 to serve the remainder of their sentence; This Act, most of which is to be brought into force on • new ss. 153A to 153D of the 2003 Act, insert- a day to be appointed, includes the following provi- ed by s. 74 of the 2009 Act, empower the Sec- sions: retary of State to undertake that the person will be returned to the requested country to serve • s. 14 creates a new strict liability offence which is the sentence imposed by the UK court or after committed if someone pays or promises payment having served that sentence in the UK; for the sexual services of a prostitute who has been • s. 77 amends the procedure in s. 6 of the 2003 subject to exploitative conduct of a kind likely to Act for dealing with part 1 warrants by the induce or encourage the provision of sexual services introduction of a power for the extradition for which the payer has made or promised payment; judge to extend the period of detention of a • ss. 16 and 17 amend the Street Offences Act 1959, person provisionally arrested for a further 48 s. 1, so as to provide that the offence of loitering or hours if the judge considers, on the balance of soliciting for the purposes of prostitution can be probabilities, that it is not reasonable to com- committed by any person (not just a ‘common pros- ply with the initial 48-hour deadline imposed titute’) but that the conduct complained of must be for producing the necessary documents, persistent (as defined) and to provide for a new form including the provision of a copy of the part 1 of sentence requiring attendance at meetings with a warrant. supervisor; • s. 102 inserts new ss. 141ZB to 141ZD into the CJA • s. 19 creates a new offence of soliciting (SOA 2003, 1988, prohibiting the importation of offensive s. 51A) which replaces the offences under the SOA weapons; 1985, ss. 1 and 2; • s. 103 amends the Football Spectators Act 1989 so • s 21 and sch 2 insert a new part 2A into the SOA
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as to extend a prohibition on attendance at matches Order by making provision relating to gamma–buty- in England and Wales to cover matches throughout rolactone (GBL), 1,4–butanediol (1,4–BD), 1–ben- the United Kingdom; and zylpiperazine (BZP) and a group of substituted • s. 111 removes the requirement that a constable piperazines and synthetic cannabinoid receptor ago- seeking a warrant under the Misuse of Drugs Act nists excluding nabilone. 1971, s. 23, to enter and search premises must be acting for the police area within which the premises are situated – thus permitting police officers work- Misuse of Drugs (Amendment) (England,Wales ing for the Scottish Crime and Drugs Enforcement and Scotland) Regulations 2009 (SI 2009 No. Agency and the Serious Organised Crime Agency to 3135) apply. This Order amends the principal Order, with effect from 23 December 2009, so as to add a group of sub- Criminal Justice and Immigration Act 2008 stituted piperazines and the synthetic cannabinoid (Commencement No. 13 and Transitory Provi- agonists and certain anabolic steroids and non- steroidal agents to the schedules of restricted sub- sions) Order 2009 (SI 2009 No. 3074) stances; it also creates a new reg. 4B which makes an This Order brings most of the provisions of the Act additonal exception from regulations which applies in relating to youth rehabilitation orders into force on 30 certain circumstances to Gamma–butyrolactone and November 2009 (see Comment and Analysis). 1,4–butanediol.
Policing and Crime Act 2009 (Commencement Coroners and Justice Act 2009 (Commence- No. 1 and Transitional and Saving Provisions) ment No. 1 and Transitional Provisions) Order Order 2009 (SI 2009 No. 3096) 2009 (SI 2009 No. 3253) This Order brings into force inter alia the following This Order brings into force, on 14 December 2009, provisions of the Act: ss. 106 (directions to attend through live link), 107 • on 30 November 2009, s. 88 (provision of safe- (answering to live link bail), 108 (searches of persons guarding information to the police); and answering to live link bail), 109 (use of live links in • on 25 January 2010, ss. 6 to 9 (authorisations to enforcement hearings) and 110 (direction of Registrar police), 26 (penalty for contraveing notice relating for appeal hearing by live link). However, s. 106(3), to encrypted information), 51, 61, 62, 64 (which all 107 and 108 are implemented only for specified local relate to confiscation and civil recovery) and 67 to justice areas, namely those where live link police bail is 78 (extradition) and related amendments and available. Inter alia, the implemented amendments repeals in schs. 7 and 8. enable directions in relation to live links to be made by a single justice as well as a full bench, remove the need for the accused to consent to the making of a direction, Misuse of Drugs (Designation) (Amendment) and ensure that a direction may not be made unless the (England,Wales and Scotland) Order 2009 court is satisfied that it is not contrary to the interests (SI 2009 No. 3135) of justice to do so. The Order also makes transitional provision. This Order amends the schedule to the principal
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COMMENT AND ANALYSIS
Images of Children Section 65(2) defines an image as including a moving When Chapter 2 of Part 2 (ss. 62 to 68) of the Coro- or still image or data which is capable of conversion ners and Justice Act 2009 comes into force, it will into an image. Section 65(3) makes clear that an inde- create a new offence of possession of prohibited images cent photograph or pseudo-photograph of a child is of children. The offence is triable either way and pun- not capable of constituting an image for the purposes ishable with up to three years’ imprisonment and/or a of s. 62. For the purposes of the provisions, a child is a fine to the statutory maximum on indictment. The person under the age of 18 (s. 65(5)) and, where an fundamental difference between the new provisions image shows a person, that person is to be treated as a and other pre-existing offences relating to possession child where the impression conveyed is that the person of images of children (under ss. 1 and 1A of the Protec- shown is a child, or the predominant impression is that tion of Children Act 1978 and ss. 160 and 160A of the the person is a child even where some of the character- CJA 1988 – see B3.282 to B3.287) is that the prohib- istics of the person are not of a child (s. 65(6)). The per- ited images must be of a non-photographic or pseudo- son need not be a real person but may be ‘imaginary’ photographic nature. The new provisions thus cover, (s. 65(7)). for example, animated and digitally generated images. Defences to the offence of possession of a prohibited The scheme of ss. 62 to 68 is very similar to the corre- image of a child are set out in s. 64 and mirror those sponding provisions relating to extreme pornography found in s. 63 of the CJIA 2008 relating to extreme found in the CJIA 2008, ss. 63 to 68 (see B3.288 to pornography (see B3.293). Thus it is a defence, first, B3.293). for a person to prove that he had a legitimate reason for possessing the image, or, second, that he had not seen Section 62(1) creates the offence of possession of a the image concerned and did not know, or have any prohibited image of a child. A prohibited image is cause to suspect, that it was a prohibited image. Final- defined under s. 62(2) as being one which is porno- ly, it is a defence that the person was sent the image graphic, falls within s. 62(6) and is grossly offensive, without any prior request being made by, or on behalf disgusting or otherwise of an obscene character. The of the person and he did not keep it for a reasonable definition of ‘pornographic’ for the purposes of the time. It is submitted that the burden on the accused is provisions is the same as that found in s. 63(3) of the evidential. CJIA 2008 and is that it is of such a nature that it must reasonably be assumed to have been produced solely or Tim Moloney, Barrister,Tooks Chambers principally for the purpose of sexual arousal (s. 62(3)). Sections 62(4) and (5) provide that the pornographic New Powers relating to Proceeds of Crime nature of an image must be considered in the context of the whole where it forms part of a series of images. The Policing and Crime Act 2009 includes, in Part 5, For an image to fall within s. 62(6) it must be one a series of amendments to the Law on confiscation which either focuses solely or principally on a child’s (ss. 51 to 61), civil recovery (s. 62 to 65) and detained genitals or anal region (s. 62(6)(a)) or portrays any of cash investigations (transfer of jurisdiction to Crown the acts specified in s. 62(7). The acts set out in s. 62(7) Court - s. 66). This note outlines the new powers to are comprised of a variety of sexual acts with, or in the seize and retain property created by s. 52, inserting presence of, a child. ss. 47A to 47S into the POCA 2002 and omitting s. 45. Section 62 does not apply to the ‘excluded’ images defined in s. 63. The definition of excluded images is Power to Seize Realisable Property the same as that contained in s. 64 of the CJIA 2008 (see B3.292) and broadly speaking (but with the same Subject to any one of seven conditions specified in qualifications as relate to s. 64 of the CJIA 2008) s. 47B being met, s. 47C empowers an ‘appropriate applies to classified works. The scope of liability of officer’, namely, an officer of Revenue and Customs, a internet service providers is set out in sch. 13 to the constable, or an accredited financial investigator Act. (s. 47A), to seize any realisable property other than cash or ‘exempt property’ (see s. 47C(4)), if the officer
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has reasonable grounds for suspecting that (a) the (reconsideration of benefit: sixth condition), or under property may otherwise be made unavailable for satis- s. 22 (reconsideration of the ‘available amount’: fying any confiscation order that has been or may be seventh condition), and there is reasonable cause to made against the defendant, or (b) the value of the believe that the court will decide that the revised value property may otherwise be diminished as a result of of the defendant’s ‘benefit’ or ‘available amount’ (as the conduct by the defendant or any other person. case may be) will exceed the relevant amount Where proceedings for an indictable offence in respect (s. 47B(7), (8)). of which the defendant has been arrested have not yet Note that the fifth to the seventh conditions are not been started against him in England and Wales, the met if the officer believes that there has been undue power under s. 47C is exercisable only with the ‘appro- delay in continuing the proceedings or application (as priate approval’ (see s. 47G) unless it is not practicable the case may be) or the prosecutor does not intend to to obtain that approval (and note the limitation speci- proceed (s. 47B(10). fied in s. 47C(6) in the case of officers of Revenue and Customs). ‘Appropriate approval’ means ‘the approval Power to Search Premises, Persons and Vehicles of a justice of the peace or (if that is not practicable in The power to seize property under s. 47C is bolstered any case) the approval of a senior officer’ (s. 47G(2)). by further powers enacted under ss. 47D to 47F, name- Where the approval of a justice of the peace has not ly, to search premises, people, and vehicles. These been obtained, the appropriate officer must furnish a powers are exercisable only with ‘appropriate approval’ written report in accordance with s. 47H. (see s. 47G) unless, in the circumstances, it is not prac- The first two conditions specified in s. 47B have three ticable to obtain that approval. Where the approval of requirements in common, namely that (a) a criminal a justice of the peace has not been obtained, the appro- investigation has been started in England and Wales priate officer must furnish a written report in accor- with regard to an indictable offence, (b) a person has dance with s. 47H. been arrested for the offence, and (c) proceedings for In relation to ‘premises’ (within the meaning of the offence have not yet been started against the person s. 47D(3) and PACE 1984, s. 23), the appropriate offi- in England and Wales (s. 47B(1) and (2)). Where a cer must be lawfully on the premises and have reason- restraint order is not in force in respect of any realisable able grounds for suspecting that the property which he property (s. 47B(2)(e)), the first condition is met only intends to seize may be found there (s.47D(1)). if there is reasonable cause to believe that the person has benefited from conduct constituting the offence Where an officer has reasonable grounds for suspect- (s. 47B(2)(d). No such requirement is required where ing that a person is carrying property to which s. 47C a restraint order is in force (s. 47B(3)(d)). applies, the officer may (so far as he thinks it necessary or expedient) require the person to submit to a search For the purposes of the third and fourth conditions, of himself (s. 47E(2)(b)) or of any article with the per- proceedings for an indictable offence must have been son (s. 47E(2)(a)). However, a person is not required started in England and Wales (and have not been con- to submit to an intimate search or strip search cluded). If a restraint order is not then in force, the (s. 47E(5)). officer must have reasonable cause to believe that the defendant has benefited from conduct constituting A vehicle may be searched (s. 47F) where (a) an appro- the offence (third condition: s. 47B(4)). No such priate officer has reasonable grounds for suspecting requirement is necessary if a restraint order does exist that the vehicle contains property that may be seized (fourth condition: s. 47B(5)). under s. 47C, and (b) it appears to the officer that the vehicle is under the control of a person who is in, or in Where an application has been made by the prosecutor the vicinity of, the vehicle. The vehicle must be in any under ss. 19, 20, 27 or 28 (reconsideration of determi- place to which the public has access (on payment or nations) or, the officer believes that such an applica- otherwise) ‘as of right or by virtue of express or implied tion is to be made, the fifth condition will be met if permission’ or in any other place to which at that time there is reasonable cause to believe that the defendant people have ready access but which is not a dwelling has benefited from criminal conduct (s. 47B(6)). (s. 47F(2)). Provision is made where a vehicle is in a The sixth and seventh conditions relate to an applica- yard or garden associated with a dwelling (s. 47F(3)). tion made by the prosecutor (or where the officer A person may be required by the officer to permit entry believes that an application will be made) under s. 21 to the vehicle and/or to search it (s. 47F(4)).
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Detention and Release of Seized Property Sentencing Property that is seized under s. 47C may be detained initially for 48 hours (s. 47J). Youth Rehabilitation Orders Where the prosecutor makes an application for a Most of the provisions in the CJIA 2008 relating to restraint order that includes provision under s. 41A youth rehabilitation orders came into force on 30 authorising detention of the property, the property November 2009 by virtue of the Criminal Justice and may be detained until the application is determined or Immigration Act 2008 (Commencement Order No. otherwise disposed of (s. 47K). In the event that the 13 and Transitory Provisions) Order 2009. That Order application is refused, the property may be detained brought into force ss. 1 to 8 of the Act inclusive, until there is no further possibility of an appeal against together with schs. 1, 2 and 3. It should be noted that either (a) the decision to refuse the application, or (b) s. 9 (purposes etc. of sentencing: offenders under 18) any decision made on an appeal against that decision has not been brought into effect at this time. It is (s. 47K(3)). understood that there was some last-minute uncer- tainty over the effect of removing the reference to Where a restraint order is in force, but an application is ‘deterrence’ from what would have become the CJA made for the order to be varied so as to include provi- 2003, s.142A. Until s. 9 is brought into force, the rele- sion under s. 41A authorising detention of the proper- vant applicable general provisions when sentencing ty, the property may be detained until the application youths will continue to be the CDA 1998, s. 37 (which is determined or otherwise disposed of (s. 47L). states that the principal purpose of the youth justice In cases where no restraint order is in force, and no system ‘is to prevent offending by children and young application has been made for a restraint order to persons’ and the CYPA 1933, s. 44, to ‘have regard to include a provision under s. 41A authorising detention the welfare of the child or young person’ (see E1.1). of the property, a magistrates’ court may order an The YRO is a single community sentence within extension of the period for which the property (or any which the court may include one or more require- part of it) may be detained under s. 47J inter alia where ments variously designed to provide for punishment, there are reasonable grounds for suspecting that (a) the protection of the public, reduction of reoffending and property may otherwise be made unavailable for satis- reparation (E9.3). A YRO with intensive supervision fying any confiscation order that has been or may be and surveillance, or with fostering, is also provided for, made against the defendant, or (b) the value of the but may be imposed only where a custodial sentence property may otherwise be diminished as a result of would have been appropriate and, if the young offend- conduct by the defendant or any other person er was under 15 at the time of conviction, only if he (s. 47M). qualifies as a ‘persistent offender’. An order under s. 47M may be discharged or varied Schedules 1 and 2 to the Act are important, and con- (s. 47N). Where the magistrates’ court declines to tain much of the detail which the sentencing judge will make an order under s. 47M, there is a right of appeal need when considering whether to impose a YRO or under s. 47O, and the property may be detained ‘until when dealing with breach. Schedule 1 provides details there is no further possibility of an appeal against the of the various requirements which a court may include decision to refuse the application or discharge or vary in a YRO, and sets out the procedural provisions which the order (as the case may be)’: s. 47P. Property must must be complied with before a YRO can be made. be released if an appropriate officer decides that the There is one important change to the legislation in this ‘detention condition’ is no longer met (s. 47R). regard. Schedule 1, para. 30, originally provided that a YRO should normally take effect on the day after the Evidence must not be excluded in ‘detention order day on which the order was made (see E9.3). This proceedings’ (as defined by s. 47Q(3); i.e. orders under unusual arrangement attracted some well-aimed criti- s. 47M or s. 47O) on the grounds that it is hearsay, ‘of cism (see for example, Criminal Law & Justice Weekly whatever degree’ (s. 47Q) and the Civil Evidence Act (2009) 173 No 41, p.652) and the government has 1995, ss. 2 to 4 apply. changed its mind. The relevant paragraph is amended Rudi Fortson, LLB, Barrister by the Coroners and Justice Act 2009, sch. 21, para. 98 25 Bedford Row, London with effect from 12 November. Paragraph 30 now pro- Visiting Professor of Law at Queen Mary, vides that a YRO shall normally take effect on the day University of London on which the order is made, but the court may order
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that it is to take effect instead at a later date, ‘in partic- more receptive to changing their conduct and thus ular’ where the defendant is already serving a detention should be given greater opportunity to learn from their and training order and the court may order that the mistakes. Section 4 indicates that the ‘proper approach’ YRO takes effect either when the period of supervision when sentencing is a young offender is to pass a sen- in the DTO comes to an end or at the expiry of the tence which is no more restrictive on liberty than is term of the DTO. Schedule 2 deals with failures to proportionate to the seriousness of the offence, and to comply, revocation and amendment of YROs. seek to impose a sentence which has regard to (a) con- fronting the young offender with the consequences of Overarching Principles—Sentencing Youths the offending and helping them to develop a sense of The Sentencing Guidelines Council has issued a personal responsibility, (b) tackling particular factors Definitive Guideline on Overarching Principles— that put the young offender at risk of offending, Sentencing Youths. The full text can be found via (c) strengthen those factors that reduce the risk of re-
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Issue 2, January 2010 BLACKSTONE’S CRIMINAL PRACTICE BULLETIN
PUBLISHING NEWS
AVAILABLE JANUARY 2010
Blackstone’s Magistrates’ Court Handbook 2010 Andrew Keogh, Partner,Keogh Solicitors Now in its second edition, Blackstone's Magistrates' Court Handbook provides an indispensable, complete and practical guide for the busy court advocate, offer- ing extensive coverage of offences, sentencing, procedure and evidential issues. Covering all the key aspects of magistrates' court practice, strong emphasis is placed on the areas most likely to arise at short notice requiring an instant response from the advocate, and on those offences most frequently experienced at court by a legal aid lawyer, such as public order, drugs, weapons, driving, criminal damage and sexual offences. Part A on Procedure has been expanded to include new coverage on subjects such as Admissibility and Exclusion of Evidence, Bad Character, Hearsay, and Witnesses.
Blackstone's Magistrate's Court Handbook is presented in an easy-to-use format, facilitating quick reading and instant decision-making. The text is broken down with frequent headings and bullet points, and there are a number of tables and flow-charts, particularly on complex sentencing topics, as well as a clear system of icons to aid comprehension and speedy navigation. "The only book to contain all the material you need in such an easily portable volume...There can be no better person to produce this work." - District Judge Howard Riddle "An excellent book...it covers virtually every area of law and procedure you may encounter in the magistrates' court. Even better - it is handbag sized!" - Natasha McDermott, Managing Partner, Carters Solicitors 540 pages, 978-0-19-957668-5, Flexicover,£39.95 Jan 2010
For regular news and updates, follow us on Twitter at www.twitter.com/blackstonescrim
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BLACKSTONE’S CRIMINAL PRACTICE BULLETIN Issue 2, January 2010
AVAILABLE FEBRUARY 2010
Millington and Sutherland Williams on the Proceeds of Crime 3e Trevor Millington OBE, Barrister and Senior Lawyer,Asset Forfeiture Unit, Revenue and Customs Prosecutions Office, and Mark Sutherland Williams, Barrister,3 Paper Buildings Millington and Sutherland Williams on The Proceeds of Crime provides a definitive guide to all aspects of the law concerning the recovery of the proceeds of crime in England and Wales. It provides an easily navigable step-by-step approach that considers how the legislation is geared to ensuring that criminals do not benefit from their crimes financially, as well as detailed coverage of every stage of the confiscation process. This new edition has been fully updated to include all important legislative changes over the last three years, and covers all significant case law. "...an essential and invaluable text..." - Criminal Bar Association News 784 pages, 978-0-19-956612-9, Hardback, £145.00 Feb 2010
AVAILABLE MARCH 2010
The Law of Public Order and Protest HHJ Peter Thornton QC, Senior Circuit Judge, Central Criminal Court; Ruth Brander, Barrister,Doughty Street Chambers; Richard Thomas, Barrister,Doughty Street Chambers; David Rhodes, Barrister,Doughty Street Chambers; Mike Schwarz, Partner, Bindmans LLP; and Edward Rees, Barrister,Doughty Street Chambers The Law of Public Order and Protest provides a systematic, in-depth analysis of the law relating to public order and the right to protest. The text provides a com- prehensive guide to the area, analysing the underlying legal principles and consti- tutional and human rights background, as well as guiding readers through all procedural matters, the use of police powers, evidential issues, defences, and available orders (including ASBOs). The narrative also analyses the case law in both the domestic and European human rights context. The comprehensive work examines all offences brought in by statute since the Public Order Act 1986 as well as the remaining common-law offences. This new work steers you through the maze of legislation in this complex area. 472 pages, 978-0-19-956614-3, Hardback, £95.00 March 2010
Blackstone’s Criminal Practice Bulletin Published by Oxford University Press, Great Clarendon Street, Oxford OX2 6DP Customer services: (01536) 741 727, [email protected] Printed by:Ashford Colour Press Ltd, Gosport, Hampshire 1
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