Criminal Law and Litigation CPD Update

prepared for

Andrew Clemes

CPD Training 2008 edition in Law ILEX CPD reference code: L22/P22 CPD

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Published in 2008 by: ILEX Tutorial College Ltd College House Manor Drive Kempston Bedford United Kingdom MK42 7AB Preface

This update has been prepared by ILEX Tutorial College (ITC) to assist Fellows and Members of the Institute of Legal Executives (ILEX) in meeting their continuing professional development (CPD) or lifelong learning requirements for 2008. Fellows are required to complete 16 hours of CPD in 2008 and Members eight hours of CPD. It has been written for Fellows and Members currently practising in this area and it is assumed, therefore, that those using it have a level of knowledge equivalent to an ILEX Level 6 Professional Higher Diploma in Law pass.

Each update contains information on developments in law and/or practice in 2007 and early 2008. Studying each update and completing the accompanying self-assessment test will account for four hours of CPD. Fellows and Members are entitled to two free updates a year.

Details of the completion of the self-assessment test should be recorded by Fellows in their CPD logbooks using the reference code printed inside the front cover of the update. It is not necessary to return the completed self-assessment test to ILEX. All completed self-assessment tests should be retained, however, as ILEX may request their return for monitoring purposes.

Any queries about completion of the self-assessment test and any other CPD issues should be made to the Membership Operations Division on 01234 845733.

Contents

Chapter 1: Criminal Law

Chapter 2: Criminal Litigation

Chapter 3: Evidence

Chapter 4: Crown Court Proceedings

Chapter 5: Sentencing

Self-assessment Test

i ii Chapter 1: Criminal Law

Outline 1.1 Homicide – liability for manslaughter 1.5 Retrospective effect of changes in the 1.2 Kidnapping law 1.3 Attempting the impossible 1.6 Double jeopardy 1.4 Self-defence 1.7 Sexual offences

1.1 Homicide – liability for manslaughter

In R v Kennedy (No. 2) [2007] 3 WLR 612, the House of Lords reversed the judgment of the Court of Appeal in the instant case and overruled an earlier decision of the Court (R v Rogers [2003] 1 WLR 1374). K had been convicted of manslaughter, the allegation being that he had prepared a syringe of heroin, given it to B who had immediately injected it and then handed it back to K. K had then left the room and B had subsequently died from an overdose as the result of the injection. The House of Lords held that K could not have “caused” the heroin to be administered to B – B was an informed adult of sound mind and so was treated as being autonomous, able to make his own decisions about how he would act. B knew what he was doing and had chosen whether or not to inject himself. As K had not “caused” the heroin to be administered, he had not administered it in the sense of unlawfully administering a drug, contrary to s23 Offences Against the Person Act 1861. On the facts, K had not jointly administered the drug either and thus he had not committed an offence under s23. It had to follow that K had committed no criminal act which had been a significant cause of B’s death and his conviction for manslaughter must be quashed.

1.2 Kidnapping

The basic elements of kidnapping are taking or carrying someone away, using force or fraud, and without either the consent of that person or lawful excuse. According to Blackstone’s Criminal Practice 2008, the actus reus involves the unlawful deprivation of liberty. Where a D used fraudulent misrepresentations to induce others to travel, unaccompanied by him, from one place to another, there was neither a taking and carrying away nor a deprivation of liberty. This was the situation in R v Hendy-Freegard [2007] 3 WLR 488, where D perpetrated a fraud over a lengthy period, convincing others that he was a secret agent, that he and those around him were at risk and inducing some of them to embark on a journey around Britain.

1.3 Attempting the impossible

In R v Jones [2007] 3 WLR 907, J appealed against his conviction for attempting to cause or incite a child under 13 to engage in sexual activity, contrary to s8 Sexual Offences Act 2003. He had left his mobile telephone number on various train and station toilets, asking for girls aged 8–13 to contact him and have sex in return for cash. He was contacted by a police officer, pretending to be such a girl, and attempted to incite her to engage in sexual activity. The Court of Appeal held that the fact that it was impossible to commit the offence because of the substitution of an adult for a child did not lead to the conclusion that there was any defence in law where the other elements of the offence were all present.

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1.4 Self-defence

Since the trial of Norfolk farmer Tony Martin, there has been concern expressed about the scope of the common law defence of self-defence, specifically what degree of force would be reasonable and how that should be assessed. This has been addressed in s76 Criminal Justice and Immigration Act 2008. Where the issue in the case is whether the degree of force used was reasonable, it is to be decided with reference to the circumstances as D believed them to be. If D claims a particular belief regarding the existence of any circumstances, the reasonableness of that belief is relevant to the question of whether he genuinely held that belief. Once it has been determined that D genuinely held that belief, he can rely on it for the assessment of reasonable force, even if it was mistaken and even if the mistake was unreasonably made. If, however, the degree of force was disproportionate to the circumstances as D believed them to be, it will not be reasonable. Other points to consider when assessing whether the force used was reasonable will include the following – (a) that when a person acts for a lawful purpose, he may not be able to weigh to a nicety the exact measure of any action, and (b) if evidence is produced that D only did what he honestly and instinctively thought was necessary for a lawful purpose this will be strong evidence that he had only taken reasonable action. Self-defence here can include actions in the defence of another person.

1.5 Retrospective effect of changes in the law

In Cottrell [2007] 1 WLR 3262, the Court of Appeal ruled that where a conviction had been legitimate at the time but there had been a subsequent change in the law, an application for leave to appeal out of time against conviction would only succeed where the applicant would otherwise suffer a substantial injustice. Here, the change was a decision by the House of Lords that, where the Crown could adduce evidence of sexual intercourse with a girl aged under 16 but had no evidence on the issue of consent, a charge of indecent assault could not be instigated after expiry of the 12-month time limit to prosecute a charge of unlawful sexual intercourse with a girl under 16. See s6 Sexual Offences Act 1956 (subsequently repealed by the Sexual Offences Act 2003), and R v J [2005] 1 AC 562.

Conversely, the appeals succeeded in two cases where defendants had pleaded guilty to manslaughter charges. In both cases, they were drug users and had supplied drugs to a fellow user who then died from an overdose. They pleaded guilty on the basis of the law as it then stood but the position was subsequently changed by a decision of the House of Lords. See R v Burgess [2008] EWCA Crim 516 and R v Keen [2008] EWCA Crim 1000. The guilty pleas in both cases were tendered on the basis of the Court of Appeal’s judgment in R v Kennedy [2008] 1 AC 269, but in both cases it was (or should have been) appreciated that Kennedy was going on appeal to the House of Lords. An adjournment could have been sought, to await the decision of the House. Applying the principles laid down by the House of Lords, both B and K could have a defence to manslaughter on the basis that they had not jointly participated in the administration of the fatal dose. In Keen, the court said that a change in the law should only lead to judges exercising their discretion to allow an appeal out of time, where there had been a substantial injustice (applying Cottrell).

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1.6 Double jeopardy

In Miell [2008] 1 WLR 627, the Court of Appeal distinguished its earlier decision on retrials under CJA 2003 in Dunlop [2007] 1 WLR 1657. When the Crown seeks an order to quash an acquittal and order a re-trial pursuant to s76 CJA 2003, s78 requires the Court of Appeal to determine whether or not the new evidence offered by the Crown in support is compelling, reliable and highly probative. This is so, even where the new evidence includes a later confession and a conviction for perjury, based upon D’s evidence at his original trial for murder, and to which he pleaded guilty. The Court of Appeal formed a view that D’s confessions failed to meet the s78 criteria and therefore the conviction for perjury would not suffice either. D’s confession had been subsequently retracted by him and was, the court said, manifestly incompatible with other evidence, including forensic evidence.

1.7 Sexual offences

1.7.1 Outraging public decency – the need for a witness

In the course of executing a search warrant at D’s house, police recovered several films shot by D using a digital camera. The films showed views up inside the skirts of various women. D had entered a supermarket with his camera concealed inside a backpack and had disabled the recording light, then approached the women and placed his backpack low down in such a way as to get the camera to film up their skirts. None of the women had realised he was doing this, nor were his actions noticed by anyone else, including a store detective. He appealed against his five convictions for outraging public decency. The Court of Appeal held that it was not necessary to prove that anyone had actually witnessed the acts or had been outraged. It was sufficient that others had been present and that D’s actions had been capable of being seen. See R v Hamilton [2008] 2 WLR 107.

1.7.2 “Control” of a prostitute’s activities

The element of control is an important one in sexual offences concerned with prostitution. s53 Sexual Offences Act 2003 establishes an offence of controlling the activities of another person relating to that person’s prostitution for gain. “Gain” is defined in s54 but there is no similar definition offered for “control”. Control has been judicially considered but only at first instance – see Drew ( [December 2006], unreported, Blackstone’s Criminal Practice 2008 at B3.208). It has now been considered by the Court of Appeal in R v Massey [2008] 1 WLR 937. The court used a similar definition to that adopted by Rivlin J in Drew, namely, that there is no need to show compulsion or force although these may be present in some cases. Proof of instruction or directions to carry out the relevant activity or to do it in a particular way will suffice for “control”.

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4 L22/P22 © ITC Chapter 2: Criminal Litigation

Outline 2.1 Summary trials – proceeding in the 2.4 Appeal by case stated absence of the defendant 2.5 Judicial review – “matters relating to a 2.2 Lawyers’ duties to the court and to their trial on indictment” client 2.6 The “defence” of incapacity and hospital 2.3 Human rights orders

2.1 Summary trials – proceeding in the absence of the defendant

This has been a growing trend over recent years, with courts moving away from their traditional caution and concern for fairness towards a more aggressive response to absent defendants. This is facilitated by s54 Criminal Justice and Immigration Act 2008 which amends s11 Magistrates’ Courts Act 1980. This provides that magistrates’ courts may proceed in the absence of a juvenile accused and “shall” do if the absentee is an adult, unless it appears to be contrary to the interests of justice to do so or the court considers that there is an acceptable reason for the absence.

2.2 Lawyers’ duties to the court and to their client

This was considered by the Court of Appeal in two cases in 2007. In the first, Re Boodhoo [2007] 4 All ER 762, the client (J) rang the firm on the morning of day 1 of the trial to say that he had no intention of attending court. Attempts were made to trace J but were unsuccessful. When the judge refused an application to adjourn, the defence barrister and solicitor informed the judge that they would withdraw from the trial. The judge said that he could see no reason for this, they had full instructions, a withdrawal would put J at a disadvantage and could in effect frustrate a ruling that the trial should continue in his absence. The lawyers sought advice from their respective professional bodies and told the judge that they still proposed to withdraw. Although the judge did then adjourn the trial, he also made a wasted costs order against the solicitor B (but not the barrister). B’s appeal succeeded as the Court of Appeal said that he had been entitled to conclude that J’s attitude, and the uncertainties of the trial process, were such that he should withdraw. The trial judge did not seem to have appreciated the difficulties facing the lawyers when a defendant chose to absent himself from the trial. There were practical questions relating to the conduct of the trial as well as issues around the fundamental position of trust between client and lawyer when a defendant chooses to abscond. Nevertheless, there would be situations where the lawyers felt able to continue and it would be appropriate for them to do so. However, the court should respect a decision to withdraw where the lawyers have a genuine belief that, with regard for the best interests of their client, they could not properly represent him.

In the later case of R v Ulcay [2008] 1 Cr App R27, a different situation arose. The Court of Appeal had to consider the autonomy of the client in decision- making and what constitutes adequate preparation for the lawyers. On the former, the court held that some decisions were for the client, having received the best professional advice of their lawyers, namely how to plead and whether to testify. The conduct of the case was, however, a matter for the advocate so that, for example, where the lay or professional client wished the advocate to challenge evidence which was accepted to be true, the advocate could properly refuse to do so on the basis that it would be improper. On the issue of adequate preparation, the court held that a barrister in private practice must comply with para 602 Bar Code of Conduct. This “cab-rank” rule required a barrister to do his best for the client however late he was instructed, even

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though he might feel that there was insufficient time to prepare (for example, where a client changed lawyers in the course of a trial). para 701(b)‌(ii), which instructed barristers not to undertake any task for which “he did not have adequate time” was not an exception to the cab-rank rule.

2.3 Human rights

2.3.1 Art 6 European Convention on Human Rights and a fair trial

In Secretary of State for the Home Department v MB [2007] 3 WLR 681, the House of Lords ruled that for the purposes of Art 6(1) ECHR, proceedings were to be classified according to their substance and not their form. A distinction had to be drawn between measures aimed at prevention and those aimed at punishment, retribution or deterrence. Here, the statutory scheme of non-derogating control orders (under the Prevention of Terrorism Act 2005) raised no assertion of criminal conduct and the individual was not at risk of conviction or punishment. Thus, the proceedings did not involve the determination of a criminal charge for the purposes of Art 6(1); however, under the civil limb of the Article, an individual was still entitled to the degree of procedural protection which was commensurate with the gravity of the potential consequences of the order for him. The specific issue here was the withholding of material from D in the form of a closed statement; it was disclosed to the special advocate who supported the judge’s decision that it be withheld from D. The House held that the right to a fair trial was not an absolute right, that it might be limited in the interests of national security but that such limits would only be those which were strictly necessary. The use of special advocates was an important part of counterbalancing any problems likely to be faced by D but there might still be circumstances where the irreducible core of procedural protection (under Art 6) might not be satisfied. In such circumstances, the limiting provisions were to be “read down” in accordance with s3 Human Rights Act 1998, so that they took effect only where that was consistent with fairness.

2.3.2 Freedom of expression under Art 10 and its compatibility with the offence of sending malicious communications

The need to strike a balance between different people’s interests under ECHR was explored in Connolly v DPP [2008] 1 WLR 276. The Divisional Court held that an offence could not be created which would breach a person’s human rights under ECHR unless it could be justified within the terms of ECHR. Here, D was convicted of sending a communication of an indecent or grossly offensive nature with the purpose of causing distress or anxiety, contrary to the Malicious Communications Act 1988. D was an anti-abortion activist and had sent letters with images of aborted foetuses to pharmacies which sold the “morning after” pill. D said that her purpose in doing so was to protest and educate against abortion. She claimed that this was in exercise of her right to freedom of expression, protected under Art 10 in particular for political issues such as this, and her right to manifest her religious beliefs, protected under Art 9. The Divisional Court ruled that the offence could not stand unless permitted by the reservations in Arts 9(2) and 10(2) – namely, a restriction prescribed by law, directed to at least one of the permissible objectives and necessary in a democratic society. Applying these to the offence, the Court ruled that it was sufficiently precise and foreseeable to satisfy the first part, that the permissible objective was that other people had a right not to receive indecent or grossly offensive material when it was sent with the aim of causing distress and anxiety

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and that the prosecution of D to protect that right was both proportionate and necessary in a democratic society. The court dismissed D’s appeal by way of case stated, noting that the terms “grossly offensive” and “indecent” are ordinary English words with no special meaning and can be applied to political or educational material.

2.4 Appeal by case stated

As is commonly known, appeal by way of case stated is only available once the proceedings to which the appeal relates have been concluded with a final decision. It would seem unlikely, then, that this method of appeal could be used to challenge decisions made in committal proceedings. However, while that would apply to a decision whether or not to commit for trial, it now seems that a preliminary decision on jurisdiction could be a “final” decision and therefore susceptible to challenge by case stated. Nevertheless, as judicial review of that decision would also be available, and offers a swifter route to redress, that should still be preferred over case stated. See the decision of the Queen’s Bench Divisional Court in R (Donnachie) v Cardiff Magistrates’ Court [2007] 1 WLR 3085.

2.5 Judicial review – “matters relating to a trial on indictment”

2.5.1 Sentence

In R (CPS) v Crown Court at Guildford [2007] 1 WLR 2886, the Queen’s Bench Divisional Court held that an error over jurisdiction, made when passing sentence after a trial, was clearly a matter “relating to trial on indictment”, and so not susceptible of judicial review. The “error” was a significant one – D had been convicted of raping a girl aged 15 and the judge had concluded that he was “dangerous” but imposed an extended sentence under s227 Criminal Justice Act 2003, instead of passing either a sentence of life imprisonment or an indeterminate term of imprisonment for public protection under s225 Criminal Justice Act 2003. The error was pointed out to the judge but he refused to amend the sentence under the “slip” rule. What is described in the judgment as “the obvious remedy”, namely an Attorney General’s reference under s36 Criminal Justice Act 1988, as amended, was not sought in time by the prosecution. An ingenious attempt was made to circumvent the problem, with the CPS seeking a judicial review of the sentence. This was rejected by the Divisional Court as the sentence passed at the conclusion of a trial was plainly “a matter relating to a trial on indictment” and therefore outside the court’s jurisdiction, pursuant to s29(3) Supreme Court Act 1981. The extended sentence stood.

2.5.2 Making a decision whether to hear a bail application in open court

In R (Malik) v Central Criminal Court [2007] 1 WLR 2455 the issue was whether or not the Crown Court should hear D’s bail application in open court. The bail application followed two unsuccessful applications in the Magistrates’ Court, which had both been held in public. An application was made to the judge in the Crown Court to also hold the hearing in open court but he refused. The Queen’s Bench Divisional Court held that the matter was collateral to the

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indictment and was not caught by s29(3) Supreme Court Act 1981. On the specific issue in the case, the Divisional Court felt that the basic principle was to hear bail applications in open court. Nevertheless, it would be appropriate to continue to list them and call them on in open court and then adjourn to chambers. If an application was then made for a public hearing, that should be acceded to unless the interests of justice made it necessary to do otherwise.

2.5.3 Remanding a witness in custody

In R (H) v Crown Court at Wood Green [2007] 1 WLR 1670, the Divisional Court was required to pronounce on a situation where a prosecution witness had been remanded in custody during the trial. Initially, the prosecution had sought and obtained a witness summons, the witness then failed to attend and was brought to court under arrest. He then gave his evidence but, following an application, was treated as a hostile witness. During his time in the witness box, he was remanded in custody overnight and at lunch. When his evidence was completed, the judge again remanded him in custody as he felt the witness remained a potential witness and was liable to recall due to the way in which his evidence had been given. When the witness sought judicial review of his detention, the Divisional Court held that this was clearly a matter “relating to a trial on indictment”. The witness had other means available to challenge his detention – habeas corpus and an action for damages – and so there was no need to skew the definition under s29 in order to comply with s3 Human Rights Act 1998.

2.6 The “defence” of incapacity and hospital orders

2.6.1 In the Youth Court

In 1998, the statutory presumption of doli incapax was abolished (see s34 Crime and Disorder Act 1998). Most people understood this to mean that the concept no longer existed. That understanding was re-opened by Smith LJ in the Queen’s Bench Divisional Court in DPP v P [2008] 1 WLR 1005. Smith LJ considered, obiter, whether the defence might still exist, so that a child D had an evidential burden of proof to adduce material suggestive of incapacity. If that was satisfied, then the Crown would bear the legal burden of proof. This conjecture was unnecessary in the circumstances of the case since the point on appeal was whether the District Judge had been right to stay the proceedings due to medical evidence demonstrating that the accused child did not have the mental capacity to participate effectively in the trial. On this point, the Divisional Court felt that a stay of proceedings on such a ground should be exceptional. The preferred route would be to proceed with the trial while keeping the child’s situation under review. If there came a point where it seemed that the child was unable to participate effectively, the court should consider inquiring simply into whether the child had done the act alleged, with the view to then perhaps making a hospital order under s37(3) Mental Health Act 1983. Subsequently, the survival of doli incapax was considered further in R v T [2008] EWCA Crim 815, and the Court of Appeal stated that the defence had been abolished in its entirety in 1998.

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2.6.2 In the Magistrates’ Court

In R (on the application of Singh) v Stratford Magistrates’ Court [2007] 1 WLR 3119, the Divisional Court again considered mental capacity in Magistrates’ Courts. It held that the common law defence of insanity was available to defendants in the Magistrates’ Court. In addition, the court would be able to abstain from either convicting or acquitting a defendant and make a hospital or guardianship instead, if the relevant criteria were met. If it was clear that a hospital order was to be made, there would be no purpose in trying the issue of insanity – the court could resolve the case without trying the issue. Conversely, if it was clear that no hospital order would be made on the available medical evidence, the case should proceed to trial and the defendant either acquitted (if he was insane at the relevant time) or convicted. A defendant has no absolute right to be tried on the issue of insanity.

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10 L22/P22 © ITC Chapter 3: Evidence

Outline 3.1 Vulnerable defendants and live video links 3.4 Evidence of bad character 3.2 Admissibility of evidence adduced under 3.5 Hearsay evidence special measures 3.3 Evidence of complainant’s sexual history

3.1 Vulnerable defendants and live video links

The non-availability of special measures for defendants has been the subject of judicial comment. In R v Ukpabio [2008] 1 WLR 728, it arose once more for consideration. D was charged with inflicting grievous bodily harm. He suffered from paranoid schizophrenia and applied to be allowed to give his evidence via a live link and indeed to participate in the trial as a whole by such means. That application was refused on the basis that there was no jurisdiction to grant it. D appealed against his conviction. The Court of Appeal ruled that the judge had been correct to decide that he had no jurisdiction to make an order allowing D to give evidence via a live link. The provisions in the Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) formed a complete statutory scheme, but was one which made no provision for defendants. Conversely, bearing in mind a D’s right to a fair trial under Art 6 ECHR, circumstances could arise where it may be appropriate that a D, on his own application, should be absent from the courtroom for all or part of his trial, so long as his participation could be secured in an adequate fashion. That might include use of a live link. Although in principle an order could be made, on the facts of the present case no such order was required and the judge’s refusal had been correct.

Ukpabio must now be read in conjunction with s33A YJCEA 1999, inserted by the Police and Justice Act 2006. This makes provision for the evidence of a vulnerable defendant to be given by a live link. However, it is limited in its scope and, for an adult defendant to be permitted to give evidence in this method, the court would need to be satisfied that he was suffering from a mental disorder or otherwise has a significant impairment of intelligence and social function. The Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 has been amended to reflect these changes, in a newPart III.30.

3.2 Admissibility of evidence adduced under special measures

In R v R [2008] EWCA Crim 678, the Court of Appeal noted that s18 Youth Justice and Criminal Evidence Act 1999 stipulated that special measures were not to be taken by a court to be available until it had received notification from the Secretary of State that such facilities were available in the area where the trial would take place. However, this was an administrative provision and where no notification was given but the facilities were in fact available to the court, the court had the power to make a special measures direction. Evidence given in such circumstances would not be inadmissible by reason of the lack of a notice.

3.3 Evidence of complainant’s sexual history

The provisions of s41 YJCEA 1999 prohibit the production of evidence about the sexual behaviour of a complainant without the leave of the court, where the D is charged with a sexual offence. “Sexual offence” is defined in s62 YJCEA 1999 as including rape and indecent assault contrary to s14 Sexual Offences

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Act 1956 (SOA 1956), which was effectively replaced later by the Sexual Offences Act 2003 (SOA 2003). New provisions came into effect governing rape and indecent assault, with a new definitional section, but there were no transitional provisions to deal with sexual offences which had been committed prior to SOA 2003 coming into force. In R v C [2008] 1 WLR 966, D was charged with rape and indecent assault, both contrary to the provisions in SOA 1956, as the offences had allegedly been committed in 1998. He applied unsuccessfully at trial for leave to adduce evidence of the complainant’s sexual behaviour, under s41 YJCEA 1999. Having been convicted, he then appealed on the ground that since SOA 2003 came into force (in May 2004), s41 no longer applied to offences charged under SOA 1956. The Court of Appeal found that Parliament’s intention had been to extend the protection in s41 to all complainants, whenever the offence had taken place. s41 continued to apply in trials held after May 2004 for offences committed before that date, even though there was nothing in SOA 2003 to say so. The trial judge had correctly applied s41 to D’s application and the conviction was safe.

3.4 Evidence of bad character

3.4.1 Circumstantial evidence

Cases continue to come to the Court of Appeal, with Ds complaining about evidence adduced under s101 CJA 2003. In 2007, these included R v Wallace [2008] 1 WLR 572. W was on trial accused of three robberies and one attempted robbery, all involving small retail businesses. The prosecution evidence connecting W to each offence was circumstantial and there were features common to the offences which suggested that the same people had been involved each time. This is the sort of scenario that, in the past, would have been considered under the “similar fact” evidence rule, with the judge ruling on whether the evidence on one count was admissible on any other count. Those provisions were, of course, swept away by the s101 CJA 2003. In Wallace, there was no application under s101 and W appealed against his conviction on the ground that the route to cross-admissibility of evidence between separate counts was now governed by s101 and in the absence of a successful application, the jury should have been told to consider the evidence on each count separately. The Court of Appeal ruled that this type of evidence is indeed caught by the definition of “bad character” ins98 and that there ought to have been an application under s101. However, the appeal failed since any such application must inevitably have succeeded under s101(1)‌(d) (“important matter in issue between prosecution and defence”). The issue here was not propensity or untruthfulness but rather – was W involved in each robbery? No bad character direction would have been necessary in these circumstances and therefore the convictions were safe.

3.4.2 Specimen directions and D’s truthfulness

Also before the Court of Appeal in 2007 was R v Campbell [2007] 1WLR 2798. The trial judge used the specimen direction on bad character from the Judicial Studies Board but this was criticised in the Court of Appeal, in particular for its focus on using previous convictions when deciding if D had been truthful. The court felt that it should not follow automatically that where there is an issue as to whether or not the D’s case is truthful, evidence may be adduced under s101(1)(d) and s103(1)(b) CJA 2003. A propensity for untruthfulness will seldom be properly described as an important matter in issue between the prosecution and defence. Whether a D is telling the truth to

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the jury is likely to depend on the simple question – did he commit the offence charged? That should be the focus for the jury, not whether he has a propensity for lying. The only situation in which a D’s propensity for lying might fall within s101(1)(d) would be where lying is an element of the offence on the indictment. In such a situation, only a propensity to lie in the commission of an offence is likely to fall within s101(1)(d). The court concluded with a call to simplify the directions to be given to juries in relation to character evidence. The specimen direction has been removed from the Judicial Studies Board website and currently has not been replaced.

3.4.3 Evidence of co-defendant’s bad character and the Criminal Procedure Rules 2005

The breadth of evidence caught by the bad character provisions in CJA 2003 was illustrated again in R v Musone [2007] 1 WLR 2467. Here, M was on trial with a co-D, C, for the murder of a fellow prisoner, R, in his cell at Ryehill Prison. At trial, M ran a “cut-throat” defence, blaming C for the murder. Ten days into the trial, M’s advocate raised the prospect of adducing evidence that C had confessed to M, prior to the killing of R, that he, C, had been guilty of a murder some 12 years earlier, for which he had been tried and acquitted. On day 11, the application was made to adduce that evidence under s101(1)(e) CJA 2003, as having “substantial probative value in relation to an important matter in issue between the defendant and a co-defendant”. The judge ruled that the confession evidence had substantial probative value and related to an important matter in issue between the defendants. He refused the application, though, on the grounds that its introduction would be likely to deprive C of a fair trial, contrary to Art 6 ECHR, and also because the notice required to adduce evidence of bad character under the Criminal Procedure Rules 2005 (CrPR 2005) Part 35, had not been served at the appropriate time. In essence, the judge saw this as an attempt to “ambush” C in the middle of the trial.

M was convicted and appealed. The Court of Appeal noted that CJA 2003 makes no provision for discretionary exclusion of evidence which a defendant seeks to adduce under s101(1)(e), nor is it covered by s78 Police and Criminal Evidence Act (PACE) 1984. In essence, if it meets the criteria in s101(1) (e), it ought to go in as evidence. It was not necessary or appropriate to rely on Art 6 ECHR or on s3 Human Rights Act 1998 to imply into s101(1) (e) a power to exclude such evidence. As the court held – admissibility under s101(1)(e) “depends solely on the quality of the evidence”. However, the court went on to consider the impact of CrPR 2005. s111 CJA 2003 confers the power to make rules requiring a defendant to serve notice of evidence of a co-defendant’s bad character. The court held that it was legitimate under s111 to produce a rule giving a court the power to exclude such evidence where the defendant was in breach of the procedural requirements. CrPR 2005 r35.5 requires a defendant to give notice of the bad character evidence not more than 14 days after the prosecution has complied with the primary disclosure obligation. The Court recognised that Part 35 “contains no express provision for dealing with a sanction for failure to comply”. The court referred to the overriding objective in r1.1 and the obligations on the parties in r1.2 to conduct the case in accordance with the overriding objective. The court concluded that an exclusionary power had to be implicit in CrPR in order to prevent frustration of the overriding objective “by a deliberate manipulation of the rules”. In conclusion, the Court of Appeal acknowledged that it would be a rare case where non-compliance with a procedural rule would properly

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lead to the exclusion of evidence which was of substantial probative value to a defendant. However, in that rare case, exclusion may be the one way to ensure fairness. M’s appeal was dismissed.

3.5 Hearsay evidence

3.5.1 Dying declarations

The common law on dying declarations was removed by CJA 2003. Any such evidence now needs to be admissible under the hearsay provisions of CJA 2003. In Musone (see 3.4.3), the Court of Appeal considered the dying declarations of the victim, R, to the effect that he had been stabbed by M. The killing took place in a prison and two prisoners provided information to the police that R had emerged from his cell, bleeding, had collapsed and then said words to the effect that M had just stabbed him. The first prisoner, B, came to court to give his evidence. The judge ruled this admissible, under s116 CJA 2003. M’s application to exclude it under s78 PACE 1984 was based on several facts – prisoner B was a long-term friend of the victim and his bad criminal record suggested that he was highly unreliable, B’s evidence was inconsistent with that of other prisoners who did not hear R identify his killer, B did not immediately tell prison officers what he had heard and he had refused to attend court, having to be brought under a warrant. M’s application failed. The Court of Appeal ruled that the judge had correctly applied the statutory tests and correctly admitted this “powerful evidence”.

The second prisoner, P, had completed a questionnaire about the killing and signed a narrative account of what he had seen and heard with the words: “This is a true record of what I have said.” P refused to attend court, was brought under arrest, refused to answer questions but confirmed under cross- examination that he had said he would refuse to attend and was not going to make any statement. Following submissions, the judge ruled that P’s evidence of the dying declaration should be adduced in evidence, under s114(1)(d) (the interests of justice) and s121(1)(c). The latter provision was needed as the Crown would be proving one hearsay statement by means of a second – again, the interests of justice are a key ingredient for admissibility. The court reviewed the decision under s114 and concluded that it had been correct, albeit that the judge had fallen into error on one point – he had regarded possible unreliability as a matter simply going to the weight of the evidence and as something for the jury to assess. The court said that this was wrong – the apparent reliability of the evidence is an assessment for the judge to make, otherwise obviously unreliable hearsay evidence would be more likely to be admitted into evidence. This was not an outcome envisaged by s114. As for s121, the court agreed with the judge that this was important evidence, harking back to the old law on dying declarations. The court said that there was “nothing novel in the proposition that a dying man’s identification of his killer is of high value”.

3.5.2 The right to a fair trial

In R v Cole, R v Keet [2007] 1 WLR 2716, the crucial Crown evidence in both trials came in the form of hearsay. In C’s case, he was charged with the murder of his girlfriend – the Crown relied heavily on statements she had made to friends about C’s treatment of her. K was charged with attempting to obtain property by deception, in connection with roofing work on the home of an elderly couple. He had absconded and by the time of his trial, the

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wife was unfit to give her evidence to the court. In both cases, prosecution applications to adduce the evidence under s116 CJA 2003 succeeded and both defendants were convicted. On their appeals, the Court of Appeal held that hearsay evidence should not be excluded simply because it was the only, or the decisive, evidence against a defendant. The key issue was whether allowing it in as evidence was compatible with a fair trial. That would depend on the facts of each case; Art 6 ECHR did not apply since that was concerned with situations where a witness was available. The convictions of both defendants here were safe.

On the other hand, in R v Pulley [2008] EWCA Crim 260, the absence of the witness was crucial. P was charged with inflicting GBH on his wife. She made contradictory statements to police and medical staff about the cause of her injury, saying that P had deliberately inflicted it or that it had been caused by an accident. She denied having been drinking. Medical evidence showed that the injury might have been caused by an accident and also that she had been well over the drink-drive limit at the time. By the time of the trial, P’s wife had died, from causes unconnected to her injury. The Crown applied to adduce evidence of what she had told police and medical staff about P causing the injury. P was convicted and D appealed. The court ruled that the trial judge had erred in allowing in evidence when the witness had been very inconsistent and had lied. He had done so on the basis that this would help P – prosecution inconsistencies tend to favour the defence. The court said that this “test” would be likely to allow in less reliable evidence but exclude more reliable evidence and was clearly wrong. In the circumstances, the admission of K’s evidence, with no chance to cross-examine her, had meant that P had not received a fair trial.

3.5.3 Out-of-court statements by co-defendants

Following on from R v Finch [2007] 1 WLR 1645, this subject was again considered later in the year, this time by the Privy Council in Persad v State of Trinidad and Tobago [2007] 1 WLR 2379. This was done with reference to the limits of the House of Lords’ decision in R v Hayter [2005] 1 WLR 605. Hayter had decided that a jury could consider their verdict against defendant A, based in part on his own out-of-court admissions, and if they found him guilty, they could then use their finding of A’s guilt and the role that he had played when going on to consider the case against defendant B. The Privy Council stated that the universal rule, before Hayter, had been that out of court admissions are inadmissible against a co-defendant. Hayter had resulted in a “modest adjustment” of that rule. The question was – how far did it go? The Privy Council held that it would not permit a wholly exculpatory statement by D1 to be used against D2, where only one of them could be guilty of the particular offence.

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16 L22/P22 © ITC Chapter 4: Crown Court Proceedings

Outline 4.1 Indictments 4.4 s40 Criminal Justice Act 1988 4.2 Eligibility of jurors 4.3 Alternative verdicts under s6 Criminal Law Act 1967

4.1 Indictments

4.1.1 Alternative offences

In El-Kurd (No. 2) and Others [2007] 1 WLR 3190, the Court of Appeal considered the proper form of an indictment and the possible consequences of a defective indictment, both in terms of the safety of convictions based on that indictment and the possible substitution of convictions for alternative offences (under s3 Criminal Appeal Act 1968). The indictment here alleged a conspiracy to commit various money laundering offences and the Particulars of Offence alleged that the accused had conspired together “knowing or having reasonable grounds to suspect” that the money involved represented the proceeds of criminal conduct. The trial judge also directed the jury that they could convict the accused men if they found that the men had reasonable grounds for suspicion. Following their convictions, the House of Lords had held, in a different case, that the mens rea for the offences was knowledge and that mere suspicion or even the presence of reasonable grounds for suspicion was not sufficient to found a conviction.

The Court of Appeal ruled that the indictment itself was not wholly defective. The counts did not relate to the wrong offences nor did they charge an offence not known to law. The partial defect in drafting could be cured by amendment and in the circumstances the convictions were not to be regarded as unsafe on that ground. However, the judge’s summing-up had compounded the problem and the court could not be sure that the jury had not convicted having found a lesser intent than was necessary. Thus, the convictions were unsafe on this ground and were quashed.

On the point of substituted verdicts, the court observed that, as a matter of logic, not every allegation of conspiracy amounted to or included the substantive offence. Thus, the jury could not have convicted the accused men of the substantive offence using s6(3) Criminal Law Act (CLA 1967) and neither could the Court of Appeal use its power to substitute verdicts under s3 Criminal Appeal Act 1968. This strict interpretation of powers was reached notwithstanding consideration of earlier case law on alternative verdicts, in particular R v Wilson [1984] AC 242.

4.1.2 Ingredients of the offence of causing grevious bodily harm with intent

These were considered by the Court of Appeal in the context of drafting a count on an indictment, in R v Hodgson and Pollin [2008] EWCA Crim 895. The Ds were initially indicted with attempted murder. Discussions at court led to an agreement that a plea of guilty to a count of causing grievous bodily harm with intent, contrary to s18 Offences Against the Person Act 1861 (OAPA 1861) would be acceptable. A fresh count was added, with leave of the trial judge, which had as its statement of offence: “Inflicting grievous bodily harm, contrary to s18 OAPA 1861.” The particulars of offence identified the 2 Ds and their victim, gave the date and described their act as having “unlawfully inflicted grievous bodily harm”. The Ds applied for leave to appeal against

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their sentences but, on advice, then applied for leave to appeal against their convictions as being for an offence not known to law. The court held that it is not always necessary for the count to explicitly state the mental element of an offence – it may be implicit from the Statement of Offence and the factual particulars. The key question is – does the count have sufficient information to convey the nature of the charge? One example is theft, where typically no reference is made to the mental element of the offence. The court referred to s3(1) Indictments Act 1915 and CrPR 2005 r14.2, on the content of an indictment. The court noted that the Statement of Offence for this particular count referred to “inflicting” instead of “causing” and omitted any mention of “with intent”. The Particulars also omitted the phrase “with intent to do him [GBH]”. The court said that the first difference was immaterial; the more difficult issue was on the mental element since s18 has two different choices. However, the court concluded that it was implicit, where a s18 offence is alleged, that the defendant intended to cause GBH. The usual form of intent under s18 is of course intent to cause GBH and not intent to prevent lawful apprehension. Where the latter is the basis of the charge, it will need to be set out expressly in the indictment, in order to provide the defendant with reasonable information about the charge (as required by s3). The court concluded with an observation that it is counsel’s responsibility to ensure that the indictment is properly drafted prior to the arraignment.

4.1.3 Effect of an unsigned indictment

The House of Lords considered the effect on an indictment where it is unsigned by an officer of the Crown Court inR v Clarke [2008] UKHL 8. The Court of Appeal had held that the indictment was not rendered invalid or a nullity by this omission and that any conviction based upon that indictment was valid, reversing an earlier decision in R v Morais [1988] 87 Cr App R 9. The House of Lords ruled that the Court of Appeal had applied the correct test – to ask what Parliament had intended to be the consequence of non-compliance with the procedural requirement – but had reached the wrong conclusion. A bill of indictment which was unsigned did not become an indictment simply by virtue of a trial taking place and, without an indictment, there could be no valid trial. The most significant aspect of the decision inClarke was to reaffirm that there are some procedural requirements which ought to be complied with and failure to do so can result in a conviction being quashed. As Lord Bingham of Cornhill observed, “Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place.”

4.1.4 Settling the indictment

A Practice Direction (Criminal Proceedings: Arraignment) [2008] 1 WLR 154 was issued in November 2007. It amends Part IV.34 of the PD (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 and deals with a variety of matters. There is a 28-day time limit for the service of a draft indictment, starting with the day evidence was served in a case sent for trial, or the day of committal. In cases where multiple offending is alleged, and it is planned to have a jury trial for certain counts followed by judge-only trial for the rest, a particular two-part form of indictment should be used and the order for such a trial may only be made at a preparatory hearing. It is also possible for multiple offending to be charged in a single count. Each incident must be of the same offence and it will usually be the position that the victim was the

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same on each occasion (or there was no identifiable victim), that there was a marked degree of repetition of method or location, they took place over a clearly defined time-span (preferably not longer than a year) and there is a single defence applicable to all the incidents.

4.2 Eligibility of jurors

The House of Lords considered the consequences of expanding juror eligibility to cover persons engaged in the administration of justice in R v Abdroikov, R v Green and R v Williamson [2007] UKHL 37. The House held that the primary rule was still that justice must not only be done but also be seen to be done. Justice would not be seen to be done if, in a particular case, a fair- minded and informed observer would conclude that there was a real possibility of bias, either conscious or unconscious. The presence of a police officer on a jury would not of itself conflict with this principle but if there was a direct conflict of evidence between a police witness and the accused, a serving officer who was based in the same division ought not to serve on that jury. Similarly, justice would not be seen to be done where a full-time, salaried, long-serving employee of the Crown Prosecution Service was on a jury when the CPS was the prosecutor.

4.3 Alternative verdicts under s6 Criminal Law Act 1967

In R v Foster and others [2008] 2 All ER 597, the Court of Appeal looked again at s6 CLA 1967, with particular reference to its earlier judgment in R v Coutts [2006] 4 All ER 353. In several of the present appeals, the defendant has faced a single count and been convicted on it, with no alternative offence being left to the jury. The court stated that there was no absolute requirement to leave the jury with a possible verdict on an alternative offence. This was so even in cases where the defence consisted of a denial of the graver crime but an admission of a less serious one. Whether to leave an alternative offence to the jury obviously requires satisfaction of the test in s6(3) CLA 1967 (the allegations amount to or include, expressly or impliedly, the allegation of a second offence); once that test is met, the judge must look at all the circumstances in the case. This would include consideration of the risk that, if the jury were left with an all-or-nothing choice between a serious crime and complete acquittal, the defendant might be unfairly disadvantaged. Conversely, there is the danger that presenting a jury with multiple offences may confuse the issues and that at least some “alternative” offences may be seen as too trivial to apply to the alleged conduct. In F’s case, the judge had not erred in not leaving an alternative of assault ABH to the jury on a charge of attempted murder, and the conviction was not unsafe.

4.4 s40 Criminal Justice Act 1988

If a judge allows a submission of no case on a count for an indictable offence, what is the effect on a “linked” summary offence on the indictment? In R v Plant [2008] EWCA Crim 960, the court considered the following facts. P faced a three-count indictment. Count 1 alleged the breach of an ASBO, Count 2 alleged a second breach of the ASBO on a later date and Count 3 alleged assault by beating, which arose from the same incident as the second breach. Count 3 alleged a summary offence and was only on the indictment pursuant to s40 CJA 1988. A defence submission at the close of the Crown’s case succeeded in getting Count 2 dismissed. P was subsequently acquitted by the jury of Count 1 but convicted on Count 3. The Court of Appeal considered

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whether Count 3 should have been left to the jury once Count 2 (its “host” count) had been dismissed and concluded that it should. s40 focuses on whether a count for a summary offence may be added to an indictment. Once the criteria in s40 are met and the count is added, its role is at an end. The jury is entitled to consider the summary offence and return a verdict – to do otherwise would be very wasteful of resources and would not help to conclude criminal proceedings swiftly.

20 L22/P22 © ITC Chapter 5: Sentencing

Outline 5.1 General considerations 5.3 Dangerous offenders 5.2 Particular sentences

5.1 General considerations

5.1.1 Aims of sentencing for juvenile offenders

The purposes of sentencing, set down in s142 CJA 2003, are now to apply only to offenders aged 18 or over on the date of conviction. For younger offenders, s9 Criminal Justice and Immigration Act 2008 makes it clear that a sentencer must also have regard for “the principal aim of the youth justice system”, namely to prevent offending or re-offending, and the welfare of the offender. In essence, there is nothing new here – s9 simply pulls together disparate objectives established by legislation over several decades for juvenile offenders.

5.1.2 Changes to the Probation Service

The Offender Management Act 2007 remodels the probation service, as the amalgamation of the Prison Service and Probation Service in the National Offender Management Service has not been deemed a success.

5.1.3 Credit for giving assistance to a prosecutor or investigator

The Court of Appeal has observed, in R v P and Blackburn [2008] 2 Cr App R(S) 5, that there has never been great enthusiasm about the practice of reducing the sentence of an informer, or of someone who had given evidence against others who had participated in the same crimes or even in relation to crimes with which he had no personal involvement. However, this practice is one which is both long-standing and pragmatic. It is of considerable advantage in ensuring that major criminals are brought to justice. The disincentives for the individual are considerable – the risk of violent ill-treatment at the hands of fellow prisoners and, sometimes, the possibility of torture and execution. Balanced against this is one incentive to co-operate – a reduced sentence. It was accepted that this was a price worth paying. Arrangements for making a reduction in sentence were now on a statutory footing – see ss73 and 74 Serious Organised Crime and Police Act 2005 (SOCPA 2005). Under s73, a defendant pleading guilty could enter into a written agreement with a specified prosecutor to assist or offer assistance to the prosecutor oran investigator. The judge could take this agreement into account when passing sentence. Similarly, if such an agreement was entered into after sentence had been passed, it could be reviewed by the Crown Court with consideration of the agreement, under s74. s74 applied generally to the review of sentences, whenever they had been passed and whenever the crime in question was committed.

It was central to this new system that the offender made a public admission of the full extent of his own criminal conduct and agreed to take part in the formal process established by SOCPA 2005. This could easily lead to an offender pleading guilty to crimes which would not otherwise have been attributed to him. Sentencing for such offences should reflect the reality of the situation and would usually be imposed concurrently. While SOCPA 2005 gave no guidance on the levels of reduction in sentence, the court could not foresee any case in which such a defendant should escape punishment completely.

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The normal level of reduction should be in the range of a half to two-thirds of that sentence which would otherwise be appropriate. Only in exceptional cases would the appropriate level of reduction exceed three-quarters. This reduction in sentence is separate from, and additional to, any reduction for a guilty plea. The discount for assistance should be applied first. Mathematical precision is inappropriate, the key factor to look at is the totality of the sentence.

It should also be noted that the non-statutory pragmatic process had not been abolished and there might be cases where an offender was not willing to comply with the statutory process. In such a case, it could still be appropriate to make a reduction in the sentence, either when imposing it at Crown Court or later in an appeal against sentence.

5.1.4 Taking offences into consideration

In 2008, the Sentencing Guidelines Council (SGC) is expected to produce final guidance on the impact on sentencing of taking offences into consideration. This is a process that is often used by offenders to offer sentencers a concrete sign of their remorse and desire to start with a clean slate. The SGC noted in its 2007 consultation paper that the practice is not founded in statute and is simply a “long-standing convention”. The SGC noted that there is no limit to the number of offences which a court may take into consideration, and they can run into the hundreds, but are to be regarded solely as part of the “fuller factual context within which sentencing for the conviction offence(s) takes place”.

5.1.5 Revised guidelines on the reduction in sentence for a guilty plea

In 2007, the SGC issued revised guidelines on the appropriate reduction in sentence where a defendant has pleaded guilty. The basic sliding scale remains the same (running down from a third to a tenth) but the SGC now feels that where the prosecution case is overwhelming against the accused, the maximum reduction for a guilty plea should be capped at a fifth.

5.1.6 SGC guidelines for specific offences and for Magistrates’ Courts

The SGC produced final guidelines during 2007 covering matters such as failure to surrender to bail and offences under the Sexual Offences Act 2003 but the guidelines with the greatest potential impact are likely to be the revised sentencing guidelines for the Magistrates’ Court. These replace the guidance previously issued by the Magistrates’ Association (in 2004) with effect from 4 August 2008. One of the most important components is a reworking of how fines are calculated.

5.1.7 Assistance for the court when sentencing

All advocates are under a duty to assist the sentencer by bringing his attention to any legal restrictions on the sentence he can impose. They should be able to inform the court of any sentencing guidelines or guideline judgments of the Court of Appeal, as well as any statutory provisions governing the sentencing process: see R v Cain [2006] EWCA Crim 3233. A similar observation was made in Reynolds (see 5.3.2).

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5.1.8 Serious crime prevention orders

Part 1 Serious Crime Act 2007 introduces a measure intended to disrupt the involvement of specified individuals in serious criminal activities –the serious crime prevention order (SCPO). This may be made by the High Court on application by either the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions or the Director of the Serious Fraud Office. Additionally, the Crown Court has the power to make an SCPO following conviction. The aim of an SCPO is said to be protection of the public. An individual’s involvement in serious crime is demonstrated by his conviction for a serious offence or by showing that he facilitated the commission by someone else of a serious offence. These offences may have taken place in England and Wales or elsewhere. An SCPO can be very wide-ranging and may prohibit the individual from dealing in property, restrict his working arrangements or his use of premises and even prohibit travel, whether within or outside the United Kingdom.

5.1.9 Violent offender orders

Another new order, the violent offender order (VOO) is established under the Part 7 Criminal Justice and Immigration Act 2008. The VOO will be a civil preventative order, its aim being to protect the public from the risk of serious violent harm posed by a qualifying offender. “Public” here may mean the general public or a particular individual. The offender must be aged 18 or over and have been convicted of a specified offence and given either a 12-month custodial sentence or a hospital order. Defendants acquitted by reason of insanity or who have been found to have committed the act but are under a disability may also be caught. A VOO may prohibit the individual from entering specific premises or places, either completely or on or between specified times. It may also prohibit the individual from attending a specific event or from having any, or specified forms of, contact with specific persons. Breach of an order will be a criminal offence. There is also an obligation to notify the police of certain personal information and of any changes to that information. Failure to comply with the notification requirements will itself be a criminal offence.

5.2 Particular sentences

5.2.1 Conditional cautions for 16 and 17 year-olds

Part 4 Criminal Justice and Immigration Act 2008 extends the availability of conditional cautions to people aged 16 or 17 (the “youth conditional caution” can be applied to those aged 10–15 by the Secretary of State using the affirmative resolution procedure). Sch 9 amends the final warning scheme so that no youth who has received a conditional caution can then be given either a reprimand or a final warning.

5.2.2 Youth rehabilitation orders

Part 1 Criminal Justice and Immigration Act 2008 introduces a new type of sentence for juveniles – the youth rehabilitation order. This replaces curfew orders, action plan orders and attendance centre orders with a single generic order. This will work essentially like the adult community sentence (under s177 CJA 2003) with the court being able to select from a number of

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requirements, tailored to meet the specific situation. It therefore looks likely that the youth community order, set out in the CJA 2003 and originally intended for implementation in 2007 and then postponed to 2009, will never come into effect.

5.2.3 Restrictions on the power to make a community order

s11 Criminal Justice and Immigration Act 2008 inserts a new provision into CJA 2003 – s150A. This section limits the power to make a community order to offences punishable with imprisonment or where the defendant is a persistent offender who has previously been fined.

5.2.4 Reasonable excuse for breach of community order

In West Midlands Probation Board v Sadler [2008] 1 WLR 918, the Divisional Court held that the fact that an appeal against conviction or sentence had been commenced by lodging notices of appeal was not of itself a “reasonable excuse” for non-compliance with the requirements of a community order. The District Judge had dismissed the information laid by the Board for failure to attend unpaid work appointments. The Board’s appeal by way of case stated was allowed and the matter was remitted to the District Judge with a direction to convict.

5.2.5 Bind-overs

Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2980 has been amended to include a new section, III.31, on bind- overs. See PD (Criminal Proceedings: Further Directions) [2007] 1 WLR 1790. This is intended to reflect Strasbourg case law on binding-over orders. Part III.31.3 makes it clear that a court should no longer bind over anyone “to be of good behaviour”; instead of simply binding someone over “to keep the peace” generally, the court should specify the particular conduct or activity which must be avoided. Before a bind-over can be imposed, the court must be satisfied that the matters complained of did occur. The burden of proof rests on the complainant, if there is one, or the prosecution.

5.2.6 New custodial sentences

Provisions for “custody plus” and intermittent custody have not been introduced, amid concerns about the resource implications of the new sentences.

5.2.7 Suspended sentences

A suspended sentence of imprisonment must now include at least one community requirement, even if that is simply a supervision requirement: see R v Lees-Wolfenden [2006] EWCA Crim 3068.

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5.3 Dangerous offenders

5.3.1 Assessment of “dangerousness” – court to consider “any” relevant information

In R v Considine [2008] 1 WLR 414, the Court of Appeal considered what information might be relevant to making an assessment of dangerousness under s229 Criminal Justice Act 2003. In particular, the court considered whether such information was limited to evidence that was admissible at trial and matters which were proved by criminal convictions. The court noted that s229(2) (which relates to first-time or juvenile offenders) ands229(3) (which creates a presumption of dangerousness which may be set aside if unreasonable) both refer to “any information”. It drew a distinction between “evidence”, where the usage would usually indicate the need for admissible evidence and “information”, which the court saw as broader in scope. In Considine, D stood convicted of two counts of threats to kill and one count of unlawful possession of a bladed article. He had several previous convictions, including threats to kill and assault ABH. The trial judge also took account of the complainant’s testimony at trial which had included a history of serious violence against her going back over many years, which had never come before a court but which “if made the subject of trial and convictions would have filled those 10 years with “specified offences”. This evidence had been adduced under the “bad character” provisions of CJA 2003. D had not accepted the truth of those allegations and it was submitted that they were “unsubstantiated”. The Court of Appeal said that it was proper to take account of “material adverse to the offender which is not substantiated or proved by criminal convictions”.

Perhaps the key aspect of the judgment was that, when reaching an adverse conclusion on dangerousness, a judge ought not to rely on a disputed fact unless the dispute could be resolved “fairly” to D. An example of unfairness offered by the court was the situation where a D was “undercharged” despite the availability of evidence to justify prosecution for a more serious offence, and the prosecution intended to supply the court with all the “information” relating to the more serious offence once D was convicted of the less serious offence. If D was then treated as if he had been convicted of the more serious offence, that would be unfair because he would have been, in effect, convicted in the course of the sentencing decision without due process. The court reinforced this by adding that it is not appropriate for a judge to embark on a “Newton” hearing to decide whether the offender has committed a separate but similar offence to those before the court, solely in order to make an assessment of “dangerousness”.

5.3.2 The “slip” rule

In R v Reynolds and others [2007] 2 Cr App R (S) 87, the Court of Appeal gave general guidance on the statutory scheme in CJA 2003 for dealing with dangerous offenders. Chapter 5 CJA 2003 provides a particular code of sentencing for dangerous offenders, where the sentence was mandatory subject only to an assessment of dangerousness. The court observed that sentencers were still making mistakes in the application of the scheme, although that was not surprising given its complexity. A common mistake was failure to realise when a specified offence was also a “serious” one. Counsel in any case were under a duty to be clear on the sentencing powers of the court under Chapter 5, to be ready to assist the court on such points and to be alert to any errors that the judge had fallen into, so that they might be addressed before it was too late. If a mistake was made, it could be rectified using the power under

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s155(1) Powers of Criminal Courts (Sentencing) Act 2000. This “slip rule” can be used for up to 28 days, beginning with the date of sentence. This might result in a sentence being decreased or increased. Although the power to increase sentence should be exercised with care, nevertheless it would be proper to increase a sentence where the judge had failed to appreciate that a specified offence was a “serious” one. If a court exercises its power under s155 within 28 days, it may then adjourn sentence to a date falling outside that period (for example, to get a PSR). A sentence passed in such circumstances would be lawful (reversing the earlier decision in Stillwell and Jewell (1992) 13 Cr App R(S) 253).

5.3.3 Keeping an unlawful sentence

In Reynolds [2007] (see above), the Court of Appeal noted that, if the power under s155 PCC(S)A 2000 had not been exercised, it might still be possible to revisit the sentence via an Attorney-General’s reference. There might also be cases where an offender, ill-advisedly, sought to appeal a sentence. Where this would work to the detriment of the offender, the court was constrained by s11 Criminal Appeal Act 1968 not to vary a sentence so that an offender was dealt with more severely than he had been in the court below. To impose a mandatory extended sentence where the court below had imposed a determinate sentence, or to impose an indeterminate sentence where the court below had imposed either a determinate sentence or an extended sentence, would almost certainly fall foul of s11. The section would prevent the court from interfering with the original, erroneous, sentence, even if CJA 2003 required the imposition of a different, more severe, sentence. Although the original sentence was unlawful, it would not be a nullity – if it had not been quashed on appeal, it would remain a valid and effective sentence.

26 L22/P22 © ITC Criminal Law and Litigation

Self-assessment Test

Name: ......

Date: ......

Membership No: ......

Self-assessment Test

Criminal Law

Question 1

On what basis might someone charged with manslaughter, having supplied a Class A drug to an intravenous drug user who then injected it, be not guilty of the charge? On what basis might that person be guilty?

Question 2

Your client has been accused of attempting to incite a child aged 13 to engage in sexual activity. This is an offence contrary to the Sexual Offences Act 2003, but the attempt was made on the telephone and via e-mails. In fact, there was no 13-year-old and the “child” was an adult police officer. Does your client have a defence that he was “attempting the impossible”?

Question 3

For the offence of kidnapping, is it a requirement that the kidnapper accompany the victim?

Question 4

In the new definition for self-defence under s76 Criminal Justice and Immigration Act 2008, what is the relevance of the defendant’s belief as to the circumstances?

Question 5

Your client pleaded guilty to an offence. That plea was legitimate at the time and the period for an appeal has now expired but there has been a subsequent change in the law. Can it ever be proper to quash that conviction and, if so, on what basis?

Question 6

The Crown can seek an order to quash an acquittal and pursue a re-trial, using the procedure under Part 10 CJA 2003. If the new evidence consists of a later confession by D and his plea of guilty to committing perjury at the original trial, does it matter what the opinion of the Court of Appeal is as to the quality of that new evidence?

Question 7

For the offence of outraging public decency, is it necessary for anyone to actually witness the criminal acts or be outraged by them?

Question 8

Your client has been charged with controlling the activities of another person relating to that person’s prostitution for gain, contrary to s53 Sexual Offences Act 2003. His defence is that he was not in “control” at all and was simply making sure that his girlfriend did not come to any harm in her work and all he did was help her organise her diary and take bookings. Is he in jeopardy of a conviction?

L22/P22 © ITC 1 Self-assessment Test

Criminal Litigation

Question 9

Do magistrates have a discretion whether or not to proceed in the absence of the accused, under s11 Magistrates’ Courts Act 1980? Is the age of the accused relevant?

Question 10

Your client has rung you on the morning of his trial in the Crown Court, to say that he will not tell you where he is but he is not going to attend the trial. If you feel that your professional obligation is to withdraw, might you nevertheless face a wasted costs order?

Question 11

You have just received instructions to represent a defendant in a part-heard trial where the original defence team has withdrawn. You have contacted counsel to conduct the advocacy but his clerk tells you that counsel cannot accept the brief since he will not have adequate time to prepare it. Is this a proper reason to decline the instructions?

Question 12

An individual is facing an application for a non-derogating control order, under the Prevention of Terrorism Act 2005. Can he rely on Art 6 ECHR to establish a minimum level of procedural protection?

Question 13

In the context of the offence of sending a communication of an indecent or grossly offensive nature with the purpose of causing distress or anxiety, under the Malicious Communications Act 1988, do the terms “grossly offensive” and “indecent” carry any special meanings?

Question 14

Your client is charged with offences under the Trade Descriptions Act 1968, the allegations being that he altered the odometers of several vehicles. The informations must be laid within either three years from the commission of the offence or one year from its discovery by the prosecutor, whichever is earliest. Your application to have the charges dismissed as out of time has been refused by the District Judge and she has now committed your client to Crown Court for trial. Can you appeal by way of case stated against either decision?

Question 15

Your client has been convicted of a specified “serious” offence and should have been sentenced to either life imprisonment or an indeterminate term of imprisonment for public protection. In fact, the judge has just imposed an extended sentence. Could the prosecution seek judicial review of this sentence?

Question 16

If a judge decides to remand a witness in custody during a trial, can this be challenged by judicial review?

2 L22/P22 © ITC Self-assessment Test

Question 17

Is the defence of insanity always available to a defendant on trial in the Magistrates’ Court?

Evidence

Question 18

Is it possible that a vulnerable defendant might be allowed to be absent from the courtroom, participate in his trial solely via a live video link and to give his evidence by this means?

Question 19

If an investigation in 2008 shows the commission of a sexual offence, at a time prior to the commencement of the Sexual Offences Act 2003, so that the defendant is charged with an offence contrary to the Sexual Offences Act 1956, will s41 Youth Justice and Criminal Evidence Act 1999 apply at his trial to bar evidence of the sexual behaviour of the complainant?

Question 20

Your client faces a three-count indictment, alleging that he committed three robberies on “corner” shops. He denies any involvement. The evidence against him is circumstantial but it suggests that the same person is responsible for all three robberies. If the prosecution wants to ask the jury to use the evidence on the other counts when considering guilt on each count, will this be caught by the “bad character” provisions in s101 CJA 2003?

Question 21

Will the possible propensity of an accused for untruthfulness often be properly described as “an important matter in issue between the prosecution and defence” and hence allow evidence of this to be adduced?

Question 22

If D1 wishes to adduce evidence of D2’s bad character at his trial, can D2’s objection ever be successful?

Question 23

Where the only evidence, or the decisive evidence, against your client is hearsay evidence, should the court exclude it on that basis?

Question 24

Is an out-of-court statement by D1, which wholly exonerates him but which incriminates D2, likely to be admissible against D2?

Crown Court Proceedings

Question 25

If the count on an indictment either refers to matters which are not elements of the offence charged or omits references to matters which are elements of that offence, what is the legal effect of this, if any?

Question 26

At the end of a trial, your client has been convicted and then you discover that the indictment has not been signed by the appropriate officer of the court, as required. What should you do?

Question 27

During a trial, you learn that one of the jurors is a serving police officer. Should you raise this with the judge and, if you did, would you expect the judge to stand the juror down?

Sentencing

Question 28

Your client has been sentenced following conviction or a guilty plea and now instructs you that he is willing to offer information to the authorities concerning the criminal activities of others. Can his sentence be reviewed and reduced? If so, what sort of reduction might be expected?

Question 29

What new civil orders have recently been created by statute, the terms of which may restrict the individual’s working arrangements, prohibit them from travelling abroad or even within the UK, and ban them from entering specified premises, attending a specified event or from having a specified form of contact with a specific person?

Question 30

Your client was made subject to a community order. It had an unpaid work requirement. On your advice, he has lodged an appeal against conviction and sentence. Must he attend any appointment for the unpaid work requirement, pending the outcome of his appeal?

Feedback

Criminal Law

Question 1

The supplier might be not guilty of manslaughter if the court found that he had not, in law, administered it to the victim. Manslaughter needs to be founded on an unlawful act and, in the absence of causing it to be administered – the victim being an adult free to make his own choices – there would be no unlawful act for which the supplier of the syringe would be responsible. If the evidence indicated that the drug had been administered jointly, then criminal liability would follow. See Kennedy (No. 2) [2007] 3 WLR 612.

Question 2

This situation was considered by the House of Lords in Jones [2007] 2 WLR 907. The House concluded that where all the other ingredients of the offence were present, the fact that it was impossible to commit the offence as there was no 13-year-old involved did not provide a defence to the charge.

Question 3

This, previously unexplored, facet of the offence of kidnapping was revealed by the Court of Appeal in Hendy-Freegard [2007] 3 WLR 488. The crime is commonly understood to be committed by taking or carrying the victim away with the use of force or fraud, and without the victim’s consent or a lawful excuse. However, the facts here showed that the victims took themselves away, unaccompanied by H-F, and the Court of Appeal held that the absence of the “kidnapper” was fatal. There could be neither the deprivation of liberty nor the taking or carrying away.

Question 4

Under s76 Criminal Justice and Immigration Act 2008, the defendant’s belief as to the circumstances is central to the issue of whether the degree of force used was reasonable. Once the court has determined that D genuinely held a particular belief, the assessment of reasonable force takes place in that particular factual context. It is irrelevant if D’s belief was mistaken, even if the mistake itself was unreasonable.

Question 5

This point was considered in three separate appeals to the Court of Appeal. Although there were different outcomes, dependent on the facts of each appeal, the same principle and test were used in all three. The court accepted that it should be possible to quash a conviction which was quite proper at the time of the verdict or guilty plea. However, such an appeal out of time should only be allowed where the applicant would otherwise suffer a substantial injustice. See Cottrell [2007] 1 WLR 3262, Burgess [2008] EWCA Crim 516 and Keen [2008] EWCA Crim 1000.

Question 6

The new evidence has to be compelling, reliable and highly probative: s78 CJA 2003. Where D’s confession was manifestly inconsistent with other evidence at his murder trial, including forensic evidence, it may not satisfy the criteria in s78. In that case, his plea of guilty to perjury will not suffice either and the court will decline to make the order sought.

Question 7

It is not necessary that anyone actually perceived the particular acts of the defendant, nor need anyone actually be outraged. It is enough that others were present at the scene at the time, that D’s acts were capable of being seen and, if seen, could have caused outrage. See Hamilton [2008] 2 WLR 107.

Question 8

He may well be. In Massey [2008] 1 WLR 937, the Court of Appeal held that although force or compulsion may be present in such cases, the Crown has no need to prove this or even adduce evidence on the issue. It will suffice to prove control if D has given instructions or directions to carry out the relevant activity or to do it in a particular way.

Criminal Litigation

Question 9

Under amendments made by s54 Criminal Justice and Immigration Act 2008, magistrates “shall” proceed in the absence of the accused, unless to do so appears contrary to the interests of justice or there is an acceptable reason for the absence. Where the accused is aged under 18, the magistrates “may” proceed in his absence.

Question 10

In Re Boodhoo [2007] 4 All ER 762, the Court of Appeal said that judges should respect a lawyer’s decision to withdraw where that is supported by a genuine belief that, having regard to the best interests of the client, they cannot properly represent him at trial.

Question 11

The primary obligation of counsel is to do his or her best for the client, however late in the day instructions are received and despite the fact that he or she may feel that there is not enough time to prepare the case properly. This is an aspect of the cab-rank rule, set down in para 602 Bar Code of Conduct. Although there is a separate provision instructing counsel not to undertake work for which he or she does not have adequate time (para 701(b)(ii) Bar Code of Conduct), this is not an exception to the cab-rank rule. See Ulcay [2008] 1 Cr App R 27.

Question 12

Such proceedings are not criminal in nature since they do not involve the determination of a criminal charge – the statutory scheme makes no assertion of criminal conduct and the individual is not at risk of conviction or punishment. However, the civil limb of Art 6 ECHR will apply and by virtue of that, the individual is still entitled to that degree of procedural protection which is commensurate with the gravity of the possible consequences for him of making such an order. See Secretary of State for the Home Department v MB [2007] 3 WLR 681.

Question 13

In Connolly v DPP [2008] 1 WLR 276, the Queen’s Bench Divisional Court held that these terms have no special meanings and are ordinary English words.

Question 14

You cannot appeal against the decision to commit for trial as this is not a “final” decision as required for appeals by case stated unders111 Magistrates’ Courts Act 1980. However, you could use s111 to challenge the decision that the informations were laid in time as this is a jurisdictional matter which has been “finally” determined. Even so, judicial review would be a swifter method to adopt. See R (Donnachie) v Cardiff Magistrates’ Court [2007] 1 WLR 3085.

Question 15

Judicial review is not available to challenge this sentence, even though it is unlawful and contravenes the mandatory sentencing requirements in CJA 2003. The sentence is plainly “a matter relating to a trial on indictment” and so is caught by the prohibition in s29(3) Supreme Court Act 1981; see R (CPS) v Crown Court at Guildford [2007] 1 WLR 2886.

Question 16

The decision to remand a witness in custody in the course of a trial is clearly “a matter relating to a trial on indictment” and so not susceptible to judicial review by application of s29(3) Supreme Court Act 1981. See R (H) v Crown Court at Wood Green [2007] 1 WLR 1670.

Question 17

Insanity is a defence available on summary trial. If it is clear that a hospital order will be made, there is no purpose in trying the issue of insanity. If it is clear that no hospital order will be made, the court should proceed to trial and acquit the defendant if he was insane at the relevant time. See R (on the application of Singh) v Stratford Magistrates’ Court [2007] 1 WLR 3119.

Evidence

Question 18

Both are possible. Giving evidence via a live link is now permitted for vulnerable defendants – see s33A Youth Justice and Criminal Evidence Act 1999 and Practice Direction (Criminal Proceedings: Consolidation) [2002] 1 WLR 2870 as amended, at Part III.30. Vulnerable defendants may be permitted to be absent from their trial and follow proceedings via a live link if to do so is necessary to secure a fair trial and comply with Art 6 ECHR; see Ukpabio [2008] 1 WLR 728.

Question 19

s41 Youth Justice and Criminal Evidence Act 1999 will prohibit evidence of the complainant’s sexual behaviour at the trial. Even though there are no transitional provisions for s41’s application in the Sexual Offences Act

2003, it was the intention of Parliament that the protection of s41 would extend to all complainants, regardless of when the offence took place. See R v C [2008] 1 WLR 966.

Question 20

This is “bad character” evidence within s98 CJA 2003 and so the prosecution would need to give notice and show that the evidence is admissible via one of the gateways in s101. The most obvious gateway here is s101(1)(d) – an important matter in issue between prosecution and defence, namely, was it him? See Wallace [2008] 1 WLR 572.

Question 21

A propensity for untruthfulness will seldom be properly described as an important matter in issue between the prosecution and defence, even where the prosecution suggests that D is running a lying defence. Whether he is telling the truth is likely to depend on the simple question – did he commit the offence charged? That ought to be the focus for the jury. See Campbell [2007] 1 WLR 2798.

Question 22

The Court of Appeal has held that there is no exclusionary discretion which applies here under either s101(1)(e) CJA 2003 or under s78 PACE 1984. The question for admissibility is straightforward – does the evidence have substantial probative value in relation to an important matter in issue between the defendant and a co-defendant? It is neither necessary nor appropriate to imply an exclusionary power into the s101 “gateway”, relying upon Art 6 ECHR or s3 Human Rights Act 1998. However, CrPR 2005 Part 35 require notice to be given of the intention to adduce such evidence. Despite the absence from Part 35 of any sanction for failure to comply, an exclusionary power had to be implied in order to give effect to the overriding objective in CrPR r1. See Musone [2007] 1 WLR 2467.

Question 23

Hearsay evidence should not be excluded from trial simply because it is the only evidence, or is the decisive evidence, against the accused. The key issue is whether allowing it in as evidence is compatible with a fair trial. There may be circumstances where the impossibility of cross-examining the witness makes the trial unfair, others where it does not. Similarly, the reliability of the evidence may vary – the less reliable it appears to be to the judge, the more likely that he should exclude it. See Cole, Keet [2007] 1 WLR 2716 and Pulley [2008] EWCA Crim 260.

Question 24

The use of such evidence against co-defendants was considered by the House of Lords in Hayter [2005] 1 WLR 605, where it was held to be admissible on the following rationale – consider the verdict against D1, taking account of his out-of-court admissions; then, if you convict D1, consider his role and guilt when examining the evidence against D2. The Privy Council placed a limit on this reasoning in Persad v State of Trinidad and Tobago [2007] 1 WLR 2379. It held that Hayter would not permit a statement by D1, which was wholly exculpatory of himself, to be admissible against D2, where only one of them could be guilty of the offence.

Crown Court Proceedings

Question 25

One has to look at the information given in the count. It has to comply with s3 Indictments Act 1915 and CrPR r14.2, by containing sufficient information to convey the nature of the charge to the defendant. The inclusion of an alternative (non-existent) mental element would not of itself render a conviction unsafe; see El-Kurd (No. 2) [2007] 1 WLR 3190. The omission of “with intent” from a count for causing grievous bodily harm with intent to do so was not a material omission since this mental element was implicit. However, had the prosecution case been that D acted “with intent to prevent lawful apprehension”, that information would need to be included specifically and clearly in the count. See Hodgson and Pollin [2008] EWCA Crim 895.

Question 26

You should advise that there is a strong ground for an appeal against conviction. The House of Lords in Clarke [2008] UKHL 8 reversed the decision of the Court of Appeal and held that a bill of indictment did not become a valid indictment simply because a trial had taken place; without a valid indictment, there could be no valid trial. Parliament had intended the consequence of a non-signature to be fatal to any subsequent conviction.

Question 27

Serving police officers are eligible for jury service since the changes tothe Juries Act 1974 made by CJA 2003. However, defendants are entitled to a fair trial and justice must be seen to be done. This will not be so where a fair- minded and informed observer would conclude that there was a real possibility of bias, either conscious or unconscious. See Abdroikov and Others [2007] UKHL 37. Whether the test is met will depend on the facts of each case and the fact that the juror is a police officer is inconclusive by itself; however, the presence of a full-time, long-serving employee of the CPS on the jury means that justice will not be seen to be done where the CPS is the prosecutor.

Sentencing

Question 28

Under s74 Serious Organised Crime and Police Act 2005 (SOCPA 2005), an offender may seek a review of his sentence from the Crown Court, where he has entered into a written agreement with a specified prosecutor to assist the prosecutor. Any reduction in the reviewed sentence would normally be in the range of 1/2 to 2/3 of the sentence that would otherwise be appropriate; in exceptional cases, the reduction might be as high as 3/4. The Court of Appeal set out these parameters in P and Blackburn [2008] 2 Cr App R(S) 5, as SOCPA 2005 itself gave no guidance. The court could not envisage a case in which a defendant should escape punishment completely.

Question 29

The serious crime prevention order (SCPO) is created by the Serious Crime Act 2007. An individual who is found to be involved in serious crime (either by his conviction for a serious offence or through his facilitation of the commission of a serious crime by someone else) can be made subject to a SCPO. This can prohibit him from dealing in property, restrict his working arrangements or

their use of premises and prohibit his travel, both inside and outside the UK. The violent offender order (VOO) is established by Part 7 Criminal Justice and Immigration Act 2008. The recipient must have been convicted of a specified offence and sentenced to a minimum 12-month custodial sentence or made subject to a hospital order. Someone under a VOO may be barred from certain premises or places, either totally or at certain times. He may be barred from attending a certain event or from having contact with specific people. The aim of both orders is said to be the protection of the public.

Question 30

The fact that an appeal against conviction or sentence has been lodged is not of itself a “reasonable excuse” for non-compliance with the requirements in a community order imposed as the sentence following the conviction under appeal. See West Midlands Probation Board v Sadler [2008] 1 WLR 918.