Criminal Law and Litigation CPD Update

prepared for Criminal Law and Litigation CPD Update Andrew Clemes CPD Training 2008 edition in Law ILEX CPD reference code: L22/P22 CPD © 2008 Copyright ILEX Tutorial College Limited All materials included in this ITC publication are copyright protected. All rights reserved. Any unauthorised reproduction or transmission of any part of this publication, whether electronically or otherwise, will constitute an infringement of copyright. No part of this publication may be lent, resold or hired out for any purpose without the prior written permission of ILEX Tutorial College Ltd. WARNING: Any person carrying out an unauthorised act in relation to this copyright work may be liable to both criminal prosecution and a civil claim for damages. This publication is intended only for the purpose of private study. Its contents were believed to be correct at the time of publication or any date stated in any preface, whichever is the earlier. This publication does not constitute any form of legal advice to any person or organisation. ILEX Tutorial College Ltd will not be liable for any loss or damage of any description caused by the reliance of any person on any part of the contents of this publication. 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. L22/P22 © ITC 1 Criminal Law 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.

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