RADAR Research Archive and Digital Asset Repository Doyle, D Manx Criminal Law and Procedure (in the Court of General Gaol Delivery and beyond) Doyle, D (2010) Manx Criminal Law and Procedure (in the Court of General Gaol Delivery and beyond). Isle of Man: Isle of Man Law Society. This version is available: http://radar.brookes.ac.uk/radar/items/69eee221-bed9-e52c-0c1b- c651e3316837/1/ Available on RADAR: August 2013 with permission from the Isle of Man Law Society. Copyright © and Moral Rights are retained by the author(s) and/ or other copyright owners. This work is licensed under the Creative Commons Attribution-NoDerivs 3.0 Unported License. To view a copy of this license, visit http://creativecommons.org/license/by-nd/3.0/ This document is the electronic version of the original printed version. WWW.BROOKES.AC.UK/GO/RADAR MANX CRIMINAL LAW AND PROCEDURE (in the Court of General Gaol Delivery and beyond) MANX CRIMINAL LAW AND PROCEDURE (in the Court of General Gaol Delivery and beyond) David Doyle Isle of Man Law Society ISLE OF MAN LAW SOCIETY Published by the Isle of Man Law Society The Hall of the Society, 27 Hope Street, Douglas, Isle of Man IM1 1AR. www.iomlawsociety.co.im with the assistance of the Manx Heritage Foundation www.manxheritage.org Copyright © David Charles Doyle 2010 David Charles Doyle has asserted his right to be identified as the author of this book. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner ISBN 978 0 956 2064 7 3 Printed and bound in Wales by Gomer Press MANX CRIMINAL LAW AND PROCEDURE (in the Court of General Gaol Delivery and beyond) CONTENTS Subject Page number Contents 1-3 About the Author 4 Foreword 5 Table of Acts of Tynwald 6-10 Table of Secondary Legislation 11 Table of Manx cases 12-16 Preface and acknowledgments 17-20 The Court of General Gaol Delivery 21 Information amendment joinder and severance 22-34 Attempts 34-35 First appearance at Court of General Gaol Delivery 35-38 Communications with court administration 38-40 Children in Court of General Gaol Delivery and media coverage 40-42 Trial directions 42-47 Sentence directions 47-48 Bail 48-50 - Granting or refusing bail 50-55 - The imposition of conditions 55-57 - Breach of bail conditions 57-62 Factual basis of sentence 62-70 Prosecution offering no evidence 70 Change of plea 70-72 Sentencing 73 - General 73-74 - Custody 74-75 - Reports 76-77 - Mitigation 77-87 - Aggravating factors 87-89 - Suspended sentence 89-91 - Suspended sentence supervision order 91 - Community service order 91-95 - Compensation order 95-97 - Probation order 97-104 - Combination order 104-105 - Electronic monitoring 105 - Exclusion order 105-111 - Register of sex offenders 111-117 - Sex offenders travel notification order 117 - Sex offenders prevention order 117-122 - Extended sentence 122 - Offences to be taken into consideration 122-123 - Fines 123 - Attendance centre 123 1 - Anti-social behaviour sentence 124 - Curfew order 125-128 - Reparation orders and restorative justice 128-130 - Ban from licensed premises 130-131 - Conditional discharge 131-132 - Absolute discharge 132 - Pardons 132 - Confiscation order 133-137 - Forfeiture and disposal 137-139 - Starting points 139-148 - Leniency and mercy 149-151 - Severe sentences 151-152 - Sentencing not a mathematical process 153 - Consecutive/concurrent sentences 153-159 - Maximum sentences 160-161 - Sentencing of co-defendants 161-164 - Media and victim issues in the sentencing process 164-167 - Licence and sentence expiry dates and early release of detainees 167 - Sentencing guidelines 167-171 - General comments on sentencing 171-178 - Assistance to the court in respect of sentencing issues 178-180 - Goodyear indications 181-182 Trials 183 Trial bundles and general preparation 183-186 Compliance with case management directions 186-196 Unnecessary adjournments and vacation of trial dates 196-205 Prompt time keeping 202-206 Interventions by Deemsters 206-209 Disclosure 210-227 Expert evidence 227-235 Evidence of speed 235 Site views 235-236 The jury 236-243 Opening remarks 243-244 Interpreters 244-245 Evidence 245-256 Exhibits 257-259 Transcripts of interviews 259-263 No comment responses 264 Examination in chief 264-265 Cross examination on the character of a witness 265-266 Defendant’s loss of shield 266-267 Cross examination generally 267-278 Cross examination in rape and other sexual offences cases 278-280 Re-examination 280 Identification evidence issues 281-299 Breaches of codes of practice 299-302 2 Refreshing memory 302-303 Recent complaints in criminal cases 303-308 Hostile witnesses 308-310 Vulnerable witnesses 310-314 Witness anonymity 314 Good character 314-318 Bad character 318-325 Exclusion of confessions 325-326 Exclusion of unfair evidence 326-334 Witness refusing to give evidence and contempt 334-337 Witness/defendant becoming ill 337-340 Failure to call witness 340-343 No case to answer 343-352 Stay on grounds of abuse of process 352-363 Case for the prosecution 363-368 Case for the defence 368-369 Addresses to jury 369-371 Alternative verdicts 371-382 Counsel’s duty to assist Deemster in respect of summing up 382-397 Duties of advocates 397-414 Difficult cases for counsel 414-419 Costs 420 Costs orders against public funds 420-422 Costs orders against advocates 422-423 Costs orders against defendants 424 Appeals and references 425 - General 425-427 - Appeals against conviction 427-429 - Substantial miscarriage of justice and fresh evidence 429-439 - Lurking doubt 439-449 - The proviso and retrials 449-451 - Appeals in respect of admissibility of evidence decisions 452 - Reluctance to interfere with case management decisions 452 - Appeals by defence against sentence 452-459 - References on points of law 459 - Unduly lenient sentences 459-464 - Appeals under the Proceeds of Crime Act 2008 464-465 - No stay 465 - Appeals in respect of pre-trial rulings 465-469 - Criminal appeals and leave to appeal out of time 469-470 - Bail pending appeal 470-471 - Citation of authorities in respect of appeals 472-480 - Privy Council and criminal appeals 480-486 The future 487-489 Index 490-493 3 About the author David Doyle was sworn in as Her Majesty’s Second Deemster in the Isle of Man on the 21st March 2003. As Second Deemster he has presided over preliminary hearings, criminal trials and sentencing hearings in the Court of General Gaol Delivery. He also presides over preliminary hearings and civil trials in the High Court of Justice in the Isle of Man and sits in the Appeal Division as and when required. He has an active interest in Manx law past, present and future. He also has an active interest in the role of the Island in the wider international community. On the 8th October 2005 he presented a paper on the Island’s legal system and judiciary to the Legal Wales conference at Cardiff University. On the 3rd October 2007 he presented a paper on the Island’s constitutional position and its legal system at Harvard Law School in Boston. 4 Foreword Ready access to judicial decisions is fundamental not only to the proper accountability of judges but also to the fairness of any legal system and its future development. Although this might pose problems for a compact jurisdiction such as the Isle of Man, the Island has always been well served by its permanent judiciary and those Deemsters with whom I have served as Judge of Appeal have contributed much to avoiding such problems. His Honour Deemster Cain was the inspiration for the Manx Law Reports. His Honour Deemster Kerruish was responsible for Manx judgments on line, something which allows every person ready access to what the courts decide. Now His Honour Deemster Doyle, following in this excellent tradition, has produced his weighty tome on Manx criminal law. I first met David Doyle shortly after I became Judge of Appeal. A few years later I read an article by him in the Journal of the Commonwealth Lawyers` Association as whether prior to the implementation of the Human Rights Act 2001 reference could be made to the European Convention on Human Rights to inform the exercise of an administrative, as opposed to a judicial, discretion. In so far as he concluded that it was preferable to follow decisions of the Staff of Government Division, to which I had been a party, rather than decisions of the House of Lords, I have always applauded his judgment. That view must have been shared by many others because soon afterwards he was appointed as Her Majesty’s Second Deemster, an office which he has since held with great distinction. It is fair to say that on his appointment David’s knowledge of the criminal law was somewhat less than intimate, no doubt reflecting George Bernard Shaw’s dictum that ‘the criminal law is no use to decent people’. Over the subsequent years I became aware that his thorough preparation for cases which he was about to hear had produced voluminous notes to cover whatever problem might present itself in the Court of General Gaol Delivery. So it was that I expressed the view, initially in humour but later seriously, that such notes might form the basis for a book which might offer guidance for all criminal practitioners and judges. Hence this book was created. It is a work of unadulterated thoroughness and detail covering every aspect of the subject which seamlessly combines both scholarship and practicality. Anyone involved in criminal law in the Island would do well to read it and I warmly commend it.