Blackstone’s CRIMINAL PRACTICE

QUARTERLYUPDATE

Blackstone’s

CRIMINAL PRACTICE

2 Case Digest—In BriefCriminal Law — Human Rights and DetentionOffences — Animal CrueltyOffences — Terrorist PublicationOffences — Perverting the Course of JusticeCriminal Law — EU Law and Double Jeopardy

3 Procedure — Adjournment onMedical GroundsEvidence — HearsayCriminal Law — ConspiracyRoad Traffic — Causing Death by Dangerous Driving

4 Evidence — Bad CharacterEvidence — DNAEvidence — Expert WitnessesRoad Traffic — Road or Public PlaceProcedure — ASBOs

5 Procedure — Extradition

5 SentencingAssaultAggravated Vehicle-takingFalse Identity Documents

6 Reduction in Sentence for Guilty PleaSentencing GuidelinesImmigration – Sham MarriagesCausing Death by Dangerous DrivingEnforcement of Fines

7 Confiscation Orders

7 Case Digest—In Detail

Coley [2013] EWCA 223

8 Asmelash [2013] EWCA Crim 157

Sadighpour [2012] EWCA Crim 2669

9 Plunkett [2013] EWCA Crim 261

10 LegislationMental Health (Discrimination) Act 2013

Prevention of Social Housing Fraud Act 2013

Proceeds of Crime Act 2002 (Appeals under Part 2) (Amendment) Order 2013 (SI 2013 No. 24)

Misuse of Drugs Act 1971 (Amendment) Order 2013 (SI 2013 No. 239)

Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 6) Order 2013 (SI 2013 No. 453)

11 Protection of Freedoms Act 2012(Commencement No. 5 and Saving and Transitional Provision) Order 2013 (SI 2013 No. 470)

Trafficking People for Exploitation Regulations 2013 (SI 2013 No. 554)

12 Comment & Analysis

The New Code for Crown Prosecutors Alison Levitt QC

13 The Criminal Procedure (Amendment)Rules 2012 (SI 2012 No. 3089)Peter Hungerford-Welch, LLB, FHEA

16 Publishing News

Welcome to Blackstone’s Criminal Practice Quarterly Update.

Ensuring that practitioners are kept fully up to date with recent developments in criminal law, procedure and sentencing, this publication enhances the comprehensive coverage provided in Blackstone’s Criminal Practice 2013.

This latest issue digests recent cases across a range of offences including perverting the course of justice, causing death by dangerous driving, animal cruelty, and false identity documents as well as summarising procedural

and evidential cases dealing with matters such as adjournment on medical grounds, extradition, expert witnesses, DNA evidence, and reduction in sentence for a guilty plea. More detailed coverage is provided on the cases of Coley, Asmelash, Sadighpour, and Plunkett. The Update also offers insights from Alison Levitt QC on the new Code for Crown Prosecutors and an update on the changes to the Criminal Procedure Rules 2012 from Peter Hungerford-Welch.

Sir Anthony Hooper andProfessor David Ormerod

EDiTors’ wELcomE

issUE 3 SPRING 2013

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QUARTERLYUPDATE2

cASE DIGEST–iN BriEFoffences — Terrorist PublicationFaraz[2012] EWCA Crim 2820

In determining whether a given publication amounts to a terrorist publication within the meaning of the Terrorism Act 2006, s. 2(3), evidence of its possession by known terrorists is admissible, if at all, only for the ‘extremely limited purpose’ of demonstrating that such persons may be amongst those who read it. It cannot prove that they were encouraged by it to commit or instigate terrorist offences; but there is an obvious risk that a jury may be prejudiced into condemning the publication purely by reason of its association with known terrorists, and if such evidence is properly admitted at all there must be a clear warning to the jury as to what it can and cannot be used to prove.

offences — Perverting the Course of JusticeKenny [2013] EWCA Crim 1

A breach of a restraint order under the POCA 2002 (clearly amounting to contempt of court) can also amount to the offence of perverting the course of justice. There is no closed list of acts which can give rise to the offence. However, the Court of Appeal was keen to make it clear that they were not encouraging prosecutors to charge perverting the course of justice where it is unnecessary to do so; ordinarily the sanction of contempt of court will suffice.

Criminal Law — EU Law and Double Jeopardy Åklagaren v Hans Åkerberg Fransson [2013] EUECJ C-617/10

This case concerned serious tax offences. The CJEU explains the field of application of the Charter of Fundamental Rights and interprets the principle preventing a person from being punished twice. In particular, the ne bis in idem principle does not preclude a Member State from imposing successively, for the same acts of tax evasion, a tax penalty and a criminal penalty where the tax penalty is not criminal in nature.

See Blackstone’s Criminal Practice: B10.93


See Blackstone’s Criminal Practice: A9.21

Criminal Law — Human rights and DetentionOstendorf v Germany[2013] ECHR 197

The use of preventative custody was justified under Article 5(1) as detention ‘in order to secure the fulfilment of an obligation prescribed by law’ where custody had served to fulfill the specific and concrete obligation on Ostendorf to refrain from arranging a brawl between opposing groups of hooligans at a football match.

offences — Animal CrueltyR (Gray) v Aylesbury Crown Court [2013] EWHC 500 (Admin)

The widely publicised Spindle Farm case, involving extreme cruelty to horses, led to a Divisional Court hearing. The Court took the opportunity to review the Animal Welfare Act 2006. Issues of particular interest relate to the meaning of ‘ought reasonably to have known’ in s. 4(1)(b) and ‘such steps as are reasonable in all the circumstances’ in s. 9(1). The Court also considers a range of procedural issues arising under the Act and warns against convictions under both ss. 4 and 9 of the Act on what are essentially the same facts.

See Blackstone’s Criminal Practice: A7.52


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3issUE 3 SPRING 2013

Procedure — Adjournment on Medical GroundsKillick v West London Magistrates’ Court [2012] EWHC 3864 (Admin)

The Divisional Court summarised the relevant principles which apply when an accused fails to appear and an adjournment is sought on medical grounds. The overriding principle is that the court should not proceed to hear a case in the accused’s absence without satisfying itself that the claim for an adjournment may properly be rejected and that no unfairness will thereby be done. Where medical evidence shows the accused to be unfit to attend court, either as a result of involuntary illness or incapacity, it would be very rarely right for the court to exercise its discretion in favour of commencing the trial, or to proceed to hear the case in his absence. If a court asked for an adjournment on medical grounds suspects the grounds to be spurious or believes them to be inadequate, the court should ordinarily express its doubts and thereby give the accused an opportunity to resolve those doubts.

See Blackstone’s Criminal Practice: D22.16

See Blackstone’s Criminal Practice: F16.33

Criminal Law — ConspiracyShillam[2013] EWCA Crim 160

This case, involving an alleged conspiracy for the supply of drugs, gives rise to a warning to prosecutors from the Court of Appeal not to overreach with charges of conspiracy but to bear in mind the basic requirement of a single joint design. In the instant case, the conviction of a ‘middle man’ as a conspirator in a much wider ranging scheme for the supply of drugs was quashed.

road Traffic — Causing Death by Dangerous DrivingJenkins [2012] EWCA Crim 2909

The Court of Appeal emphasised that the RTA 1988, s. 2B, does not require that the dangerous driving be coterminous with the impact resulting in the death. The case involved parking a vehicle in a location where visibility was an issue. The Court of Appeal stressed that the offence relates to causing death by driving and not causing death while driving.

See Blackstone’s Criminal Practice: A5.42 and A5.46

See Blackstone’s Criminal Practice: C3.15

Evidence — HearsayAdeojo [2013] EWCA Crim 41

At a trial and retrial for murder, the hearsay evidence of E was correctly admitted where his statement asserted that he had recognised two gunmen who had shot his friend dead. E’s evidence was admissible at the first trial under the CJA 2003, s. 119(1), after he proved to be a hostile witness, and under s. 116 at the retrial, following the emergence of evidence that he was in fear for his family. Factors tending towards the unreliability of E’s statement included his bad character, proved by convictions that also provided ample evidence of his preparedness to lie, and the inconsistency between his evidence and that of another witness, U, who claimed that the gunmen were unrecognisable because their faces were covered. The potential unreliability of the evidence had to be considered both in relation to the possibility that E was deliberately lying, and that he was genuinely mistaken. However, there was a wealth of other evidence linking the two accused with the scene. The judge gave an unequivocal and detailed warning to the jury of the shortcomings of the evidence, and the safeguards and counterbalancing measures were such that the jury could safely conclude that E’s evidence was reliable.

Blackstone’s Criminal Practice 2013Now available as a fast, intuitive app LAW


QUARTERLYUPDATE4

Evidence — Expert WitnessesFrancis [2013] EWCA Crim 123

The competence of a doctor who specialised in emergency medicine to provide an expert opinion on the cause of a wound was challenged in this appeal, given that he was not and had never been a forensic pathologist. His evidence was that the wound was caused by a bladed instrument and could not have been caused (as the accused suggested) by an accident involving a safety pin. His evidence was held to be admissible (at [37]):

. . . he had a wealth of experience through working as an accident and emergency doctor. He must … have dealt with many thousands of cases of lacerations and cuts during his years as a doctor in that department.

On the determination of expert competence, the Court of Appeal also rejected an argument that the trial judge ought to have ordered a voir dire in order to determine the issue of competence, even though the defence had not requested it.

See Blackstone’s Criminal Practice: F10

Evidence — Bad CharacterFranklin [2013] EWCA Crim 84

The accused was alleged to have disposed of a cycle ridden by a murderer. Although her role did not involve violence, her previous convictions for assault and street robbery were said to have been rightly admitted to show that she had been a party to a joint enterprise that had violence or the fear of violence as its object.



Evidence — DNADlugosz [2013] EWCA Crim 2

Further guidance on the use of Low Template DNA evidence derived from ‘mixed samples’ was provided by the Court of Appeal in this case. The Court considered three conjoined appeals, each of which raised issues as to the value of Low Template and mixed profile DNA evidence, and as to the way in which such evidence should be presented in court. The Court rejected the argument that, unless statistical evidence of the relevant DNA match probability could be given, then evaluative opinion (e.g., ‘This lends substantial support,’) should not be admitted either.

road Traffic — road or Public PlaceCowan v DPP [2013] EWHC 192 (Admin)

In order to determine that an area within the Kingston University campus was a road or other public place for the purposes of the RTA 1988, there must be evidence that the public used the roadway in question as members of the public, i.e. without restriction. Students were not to be treated as members of the public because they had a right to occupy their rooms and make use of the facilities by virtue of their status as students; their visitors gained access only for the purposes of the occupiers of the site.


Procedure — AsBosPender v DPP [2013] All ER (D) 173 (Jan)

A court should not impose an ASBO under the CDA 1998, s. 1C(2), when it is clear that the defendant is incapable (e.g., through addiction or mental disorder) of understanding and/or complying with it. The court added that if uncontradicted medical evidence states that this is the case, then a judge may disagree only if he has some basis for doing so and only if he explains the basis for that disagreement.




AssaultDay[2013] All ER (D) 76 (Mar)

Two and a half years’ imprisonment for an offence of assault causing actual bodily harm was not manifestly excessive even though it fell within category two of the relevant sentencing guidelines. There were substantial reasons for a sentence outside the category range to be passed: (i) the victim was a 73-year-old woman; (ii) the offender had taken her keys and entered the victim’s house with friends; (iii) the offender had been drunk; (iv) the victim had told the offender to leave and he had refused; and (v) when the victim had tried to call the police, she was subjected to a brutal assault.

Aggravated Vehicle-takingBratu [2013] All ER (D) 105 (Jan)

The offender pleaded guilty to aggravated vehicle-taking after taking his partner’s car without her consent and was sentenced to eight months’ imprisonment, which was upheld on appeal. There were many aggravating features, including the fact that he was found to be two and a half times over the legal alcohol limit, had been driving dangerously at speed, had run a red light, and had made off instead of stopping at once when ordered to do so by the police.



SENTENcING

Procedure — ExtraditionZakrewski v Regional Court in Lodz, Poland [2013] UKSC 2

Z was arrested on a Polish EAW that referred to four offences of which he stood convicted in Poland. The warrant correctly identified both the offences and the sentences imposed. Z also faced charges in England. Following his arrest, he successfully applied to the Polish courts to have his four sentences ‘aggregated’ so that he now faced a total of just 22 months’ imprisonment in place of the 45 months total he had faced before. Having secured this reduction, he then sought to have the EAW declared invalid on the basis that it no longer

correctly identified the sentences to be served. Lord Sumption said (at [8]):

The validity of the warrant depends on whether the prescribed particulars are to be found in it, and not on whether they are correct. It cannot be open to a defendant to challenge the validity of a warrant which contains the prescribed particulars by reference to extraneous evidence tending to show that those statements and information are wrong. If this is true of statements and information in a warrant which were wrong at the time of issue, it must necessarily be true of statements which were correct at the time of issue but ceased to be correct as a result of subsequent events.


False identity DocumentsGoodings [2012] EWCA Crim 2586

The Court of Appeal quashed a sentence of six months’ imprisonment imposed on D for an offence under the Identity Documents Act 2010, s. 6, and substituted a sentence of two months’ imprisonment. There was ample evidence to suggest that D had been guilty of a more serious offence under s. 4 of the Act and this appeared to have been taken into account by the judge in sentencing, but it was improper to do so because this was not the offence to which D had pleaded guilty.



QUARTERLYUPDATE6

reduction in sentence for Guilty PleaCaley [2012] EWCA Crim 2821

Sentencing practice in guilty plea cases and the definitive sentencing guideline, Reduction in Sentence for a Guilty Plea, were considered once again in this important guideline judgment of the Court of Appeal. The Court offers guidance on what should be regarded as a ‘first reasonable opportunity’ so as to secure the maximum discount but the Court also considers other matters, including discounts in ‘overwhelming evidence’ cases and the use of Newton hearings.

sentencing GuidelinesSharma [2013] EWCA Crim 175

Section 125 of the CAJA 2009 does not require the judge to state in terms that the interests of justice require that he goes outside the Guidelines. It requires that the circumstances must be such that it is in the interests of justice to do so. Where the nature of the offending considered in the light of the antecedents is such as to warrant a sentence in excess of the guidelines then it is necessarily in the interests of justice for the judge to impose that sentence. Elias LJ said that it would be ‘absurdly formalistic’ for a judge to the s. 125 requirement as a mantra on every occasion when a sentence in excess of the guidelines is imposed.

immigration – sham MarriagesOliviera [2012] EWCA Crim 2279

This appeal involved two cases concerning the same underlying type of offence, namely facilitating the commission of a breach of immigration law by the means of a sham marriage between an illegal immigrant and a European Union national in breach of the Immigration Act 1971, s. 25. The Court of Appeal referred to the common aggravating factors identified in Le and Stark [1999] 1 Cr App R (S) 422, but added recruitment of others as a further factor of relevance. Noting that the maximum sentence has been doubled for the underlying offence since the Court offered guidance in Le and Stark, a ‘severe’ sentence of five years’ imprisonment on a guilty plea was upheld, but sentences for conspiracy in respect of two offenders were reduced from 42 months to 30 months.

Causing Death by Dangerous DrivingRigby [2013] EWCA Crim 34

A diabetic pleaded guilty to causing death by careless driving after suffering a hypoglycemic episode at the wheel and was initially sentenced to 16 months’ imprisonment and disqualified from driving for 10 years, the judge equating D’s behaviour with drink-driving, because he had been aware on the day that his blood sugar levels were unusually high and had treated that with a very high, but unbeknown to him inappropriate, dose of insulin. His sentence was reduced by the Court of Appeal to four months as his culpability arose from choosing to drive knowing that there was some risk of a hypoglycemic attack but had he checked he might, but only might, have been alerted to the possibility of a problem and taken precautionary measures.

Enforcement of Fines R (Purnell) v South Western Magistrates’ Court [2013] EWHC 64 (Admin)

The Divisional Court made some important observations about the imposition and enforcement of fines, particularly on persistent offenders who may be of limited means. Sir John Thomas P said ‘Confidence in the criminal justice system is very severely undermined if fines are imposed in amounts which cannot realistically be discharged; it is particularly damaging in the case of persistent offenders.’



See Blackstone’s Criminal Practice: E15.11





cASE DIGEST–iN DETAiLColey [2013] EWCA 223

The Court of Appeal was concerned with three accused and remarked that the cases concerned the interplay between the law relating to voluntary intoxication and the law relating to insanity or (non-insane) automatism (although the case of the appellant Harris was concerned with the assertion he was reckless: see below). The Court was at great pains to emphasise that this was not ‘an occasion for any wide-ranging general statement of the law of insanity, still less of loss of capacity generally’. The Court welcomed the ongoing work of the Law Commission in the area, especially in light of an expectation that the defence would be used more frequently in light of the more attractive range of disposals where insanity was found. The Court expressed the view that it is essential that the Law Commission review addresses ‘the vital question of disposal following the differing verdicts which may ensue’ (at [61]).

Notwithstanding the Court’s reluctance to offer general guidance, the judgment in Coley is likely to be frequently referred to because of the paucity of other guidance in this area of law.

The appellant Coley had probably suffered a psychotic episode following consumption of strong cannabis. He had entered a neighbour’s house in a balaclava and with a knife and had inflicted terrible injuries. It was suggested that he may have been acting out the role of a character in a computer game. He claimed to have ‘blacked out’. The trial judge refused to leave

the defence of insanity to the jury and that view was supported by the Court of Appeal. Hughes LJ said (at [18]):

The precise line between the law of voluntary intoxication and the law of insanity may … be difficult to identify in some borderline cases. But the present case falls comfortably on the side of the line covered by voluntary intoxication. … If the doctors were right about his state of mind, his mind was to an extent detached from reality by the direct and acute effects on it of the ingestion of cannabis. Every intoxicated person has his mind affected, and to an extent disordered, by the direct and acute effects of the ingestion of intoxicants; all intoxication operates through the brain. Not infrequently it would be perfectly legitimate to say of a very drunken man that his mind had become detached from reality by the intoxication … In order to engage the law of insanity, it is not enough that there is an effect on the mind, or, in the language of the M’Naghten rules, a ‘defect of reason’. There must also be what the law classifies as a disease of the mind.

As to automatism, the Court referred to Quick [1973] QB 910 and observed that the defence of automatism is not available to a defendant who has induced an acute state of involuntary behaviour by his own fault. The trial judge had formed that view that a direction on automatism would be an unnecessary complication since the jury had to reach a verdict on the issue of whether Coley had formed an intention to kill but, while defending the judge’s actions on the particular facts, Hughes LJ remarked (at [25]):

On the facts of this case we agree that the verdict of guilty involves a clear finding that despite his state of mind, the defendant intended to kill and thus that he acted voluntarily. We do not, however, think it safe to say that in every case in which automatism is indeed a possible and legitimate conclusion, it should be

Confiscation ordersWaya [2012] UKSC 51

This is a leading judgment of the Supreme Court which offers a wide-ranging review of the confiscation regime and especially its proportionality having regard to the ECHR, First Protocol. Inter alia the Court held (at [28]) that to make a confiscation order where the defendant ‘has restored to the loser any proceeds of crime which he had ever had, is

disproportionate. It would not achieve the statutory objective of removing his proceeds of crime but would simply be an additional financial penalty.’ Moreover, if a borrower repays a fraudulently induced loan, whether secured or unsecured, ‘…a confiscation order which requires him to pay the same sum again is (lifestyle considerations apart) likely to be disproportionate and wrong’ (at [48]).

See Blackstone’s Criminal Practice: E19

QUARTERLYUPDATE8


removed from the jury if they have a decision to make about specific intent. That may particularly be so if the jury is invited to infer intent from the action, which may be a very short-lived action; if the action might indeed have been involuntary, such inference would not be safe and the jury ought in such a case to confront the issue of involuntary automatism before it goes on to intent.

The third appellant in Coley, Harris, had set a fire in his own semi-detached property while suffering an episode of alcohol psychosis or alcohol-induced hallucinosis arising from the sudden cessation of excessive alcohol consumption. He contended that he had given no thought at all to any risk which his actions might pose to his neighbours, and on that

basis denied that he was guilty of arson being reckless as to whether the life of another was endangered. Following a direction at his trial that the issue of whether he was reckless was to be determined, on the principles relating to voluntary intoxication, as if he had not been drinking, he pleaded guilty.

The Court held that Harris’s condition was not a case of voluntary intoxication but of mental illness (‘a great many mental illnesses have their roots in culpable past misconduct of the sufferer’ (at [59])) and he had been entitled to have the issue of recklessness determined by a jury.

Asmelash [2013] EWCA Crim 157

The Court of Appeal confirmed in this case that, in considering the question under the CAJA 2009, s. 54(1)(c), of whether ‘a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or similar way to D’, the fact that the accused had voluntarily consumed alcohol was not to be included in D’s circumstances.

The trial judge had given the jury the following direction: ‘Are you sure that a person of [D’s] sex and age with a normal degree of tolerance and self-restraint and in the same circumstances, but unaffected by alcohol, would not have reacted in the same or similar way?’ The defence suggested that direction was inadequate. Lord Judge CJ said (at [24]):

In essence, therefore, [counsel for the defence’s] submission proceeds on the basis that in the absence of any express statutory provision, in the context of ‘loss of control’, a new approach to the issue of voluntary drunkenness is required. We disagree. We can find nothing in the ‘loss of control’ defence to suggest that Parliament intended, somehow, that the normal rules which apply to voluntary intoxication should not apply. If that had been the intention of Parliament, it would have been spelled out in unequivocal language. Moreover, faced with the compelling reasoning of this court in Dowds [[2012] 1 Cr App R 455 ] in the context of diminished responsibility, it is inconceivable that different criteria should govern the

approach to the issue of voluntary drunkenness, depending on whether the partial defence under consideration is diminished responsibility or loss of control. Indeed, given that in a fair proportion of cases, both defences are canvassed before the jury, the potential for uncertainty and confusion which would follow the necessarily very different directions on the issue of intoxication depending on which partial defence was under consideration, does not bear contemplation.

His Lordship went on to point out (at [25]) that this: does not mean that the defendant who has been drinking is deprived of any possible loss of control defence …. If a sober individual in the defendant’s circumstances, with normal levels of tolerance and self-restraint[,] might have behaved in the same way as the defendant confronted by the relevant qualifying trigger, he would not be deprived of the loss of control defence just because he was not sober.

It was also acknowledged that different considerations would apply to the quite different situation of a person mercilessly taunted about a severe alcohol or drug problem which would then form part of the circumstances. The decision about the irrelevance of the voluntary intoxication has also to be read in the light of the fact that it was not suggested in this case that D’s intoxication ‘caused him to be mistaken about anything that was going on at the relevant time, or about what he was doing. Accordingly, the only relevance of the drunkenness was that it affected the appellant’s self-restraint and caused him to act in a way in which he would not have acted if sober’ (at [19]).

sadighpour [2012] EWCA Crim 2669

Both the nature of the burden of proof where a defence is raised under the Immigration and Asylum

Act 1999, s. 31, and the consequent approach of the Court of Appeal on a plea of guilty were considered in this case.

As to the first issue, the Court said (at [15]-[18]) that an accused must first satisfy an evidential



Plunkett[2013] EWCA Crim 261

The accused had incriminated themselves in exchanges between them that were recorded by police, the most damaging of which occurred during a staged delay in a police van, when they were essentially ‘getting their story straight’ before police interview. The question for the Court of Appeal was whether the evidence arising from the recordings was admissible. The contention was that that the recordings were made unlawfully, as they were not made in accordance with the powers under the RIPA 2000 and breached the ECHR, Article 6(3)(b), and that the evidence should, therefore, have been excluded under the PACE 1984, s. 78.

One major issue was whether the surveillance was ‘directed’ or ‘intrusive’ (see RIPA 2000, s. 26), since the officer authorising it was not of sufficient rank to authorise intrusive surveillance. That, in turn, largely depended on whether the vehicle in which the exchanges took place was a ‘private vehicle’ within

the meaning of s. 48(1). The suggestion that a police van was a ‘private vehicle’ was given short shrift (at [31]):

The police vehicle in which the recordings were made was a van owned by the Hampshire Constabulary and used solely for police purposes. Taking the ordinary meaning of the definition, the police vehicle was not a private vehicle; it was owned by a state entity and it was not being used for private purposes, but for the purposes of the state.

The Court went on to hold that the surveillance was necessary and proportionate, which is a requirement of an authorisation under RIPA 2000.

In considering the issue of whether there had been a breach of Article 6(3)(b), the Court had to consider a submission that the Article 6 rights extended to prevent the use of disclosure before interview to provoke incriminating conversations about what the accused might say in interview in response to the allegations and that what had been done was akin to tape recording conversations with their solicitors. These submissions were said (at [48]) to have no foundation in fact or law.

burden that he was a refugee (i.e. ‘a person who has left his own country owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion’: Refugee Convention, Article 1). If the evidential burden is satisfied, the Crown would have to prove that he was not a refugee. If the Crown fails to disprove this, the accused must then prove on the balance of probabilities: (a) that he did not stop in any country in transit to the UK or could not reasonably have expected to be given protection under the Refugee Convention in countries outside the UK in which he stopped; (b) that he presented himself to the authorities in the UK without delay; (c) that he has good cause for his illegal entry or presence in the UK; and (d) that he made a claim for asylum as soon as was reasonably practicable after his arrival in the UK. But the Court noted that the position must be different where the Secretary of State has already rejected a claim to asylum made by a person who claims a defence under s. 31(1) because, by s. 31(7), such a person is taken not to be a refugee unless he ‘shows’ that he is. That, said the Court, must mean that he has a full persuasive burden to discharge on a balance of probabilities.

As to the second issue, whereas the Court is normally ultimately concerned with whether a conviction is safe, here the Court was concerned with how the test should be applied following a guilty plea when a possible defence had been overlooked. The accused had pleaded guilty without being advised as to a possible defence under s. 31. The Court observed that, in Boal [[1992] QB 951, the Court of Appeal had said that it would be prepared to set aside a guilty plea on appeal if the circumstances are such that the Court regards the conviction as unsafe, but it was an exceptional course to be taken only when the Court believes that the overlooked defence would quite probably have succeeded and therefore concludes that an injustice has been done. Whereas, in Mohamed [2011] 1 Cr App R 432, the Court had cited Boal but spoken in terms of there being ‘no reasonable prospect of a defence under section 31 succeeding; the Court concluded that, in the instant case, it did not matter whether it asked itself whether the defence would quite probably succeed or put the question in terms of there being a reasonable prospect of a s. 31 defence succeeding as it was quite satisfied that neither test would be satisfied if the matter were to be retried.

QUARTERLYUPDATE10


10

LEGISLATIoNMental Health (Discrimination) Act 2013

This Act includes amendments of the Juries Act 1974, s. 1 and sch. 1. The amendments have the effect that disqualification on mental health grounds is restricted to (i) a person for the time being liable to be detained under the Mental Health Act 1983 and (ii) a person for the time being resident in a hospital on account of mental disorder as defined by that Act. The amendments are to be brought into force on such day as the Secretary of State may by order appoint.

Prevention of social Housing Fraud Act 2013

This Act, inter alia, creates new criminal offences of unlawful sub-letting by secure and assured tenants of social housing. It also makes provision concerning the prosecution of these offences (including prosecution powers for local authorities) and provides for courts to make orders for the recovery from defendants of profits made from unlawful sub-letting, either following conviction or in separate civil proceedings. It will be brought into force in relation to England, on such day as the Secretary of State may by order appoint, and in relation to Wales, on such day as the Welsh Ministers may by order appoint.

Proceeds of Crime Act 2002 (Appeals under Part 2) (Amendment) order 2013 (si 2013 No. 24)

This Order amends the principal Order (SI 2003 No. 82) as to a wide range of procedural matters. It has effect from 8 February 2013.

Misuse of Drugs Act 1971 (Amendment) order 2013 (si 2013 No. 239)

The broad effect of this Order is to amend the Misuse of Drugs Act 1971, sch. 2, part 2, so as to control the following as Class B drugs with effect from 26 February 2013:

(a) Synthetic cannabinoid receptor agonists (synthetic cannabinoids);

(b) 2-(ethylamino)-2-(3-methoxyphenyl)cyclohexanone (commonly known as methoxetamine) and other compounds related to ketamine (Class C) and phencyclidine (Class A); and

(c) 2-((dimethylamino)methyl)-1-(3-hydroxyphenyl)cyclohexanol (commonlyknown as “O-desmethyltramadol”, a metabolite of the prescription only medicine, tramadol).

Legal Aid, sentencing and Punishment of offenders Act 2012 (Commencement No. 6) order 2013 (si 2013 No. 453)

The principal purpose of this Order is to bring into force the new criminal legal aid regime with effect from 1 April 2013. The following statutory instruments are among those underpinning the regime:

• The Criminal Legal Aid (General) Regulations 2013 (SI 2013 No. 9) make provision for determinations in relation to whether an individual qualifies for criminal legal aid under the LASPO 2012, part 1. Part 2 makes provision for the making of determinations in relation to individuals who are arrested and held in custody. Part 3 makes provision about the proceedings which constitute criminal proceedings in addition to those already listed in s. 14 of the Act (criminal proceedings). Part 4 makes provision about the making and withdrawal of determinations about advice and assistance for criminal proceedings. Part 5 makes provision in relation to determinations about representation for criminal proceedings and for the withdrawal of such determinations and as to which proceedings are (and are not to be) regarded as incidental to criminal proceedings. Part 5 also makes provision (reg. 21) about the circumstances in which the interests of justice test set out in s. 17 (qualifying for representation) is taken to be met. An individual may apply for a review of a determination by the Director that the interests of justice do not require representation to be made available (reg. 27) and, if dissatisfied with the review, may then appeal (regs. 29 and 30). Part 6 makes provision for legal persons.

• The Criminal Legal Aid (Remuneration) Regulations 2013 (SI 2013 No. 435) make provisions for the funding and remuneration of advice, assistance and representation made available under the LASPO 2012, ss. 13, 15, and 16. Regulations 4 to 27 deal with the manner in which fees are to be claimed, determined, and paid, including provisions permitting interim payments and payments for expert services.



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Regulations 28 to 30 provide for an appeal mechanism to challenge, in certain circumstances, the appropriate officer’s determination of the fees payable to a representative. The provisions deal with the redetermination of fees by an appropriate officer, appeals from the appropriate officer to a Costs Judge and appeals from the Costs Judge to the High Court. The schedules set out the graduated fees and fixed fees payable to advocates for proceedings in the Crown Court, the fees payable to solicitors (and other appropriately qualified persons) for proceedings in the Crown Court, the manner in which fees are to be claimed, determined and paid in proceedings in the Court of Appeal, the rates payable for proceedings in a magistrates’ court and certain other work to which the 2010 Standard Crime Contract applies, and the fees and rates payable to experts.

• The Legal Aid (Disclosure of Information) Regulations 2013 (SI 2013 No. 457) make provision for providers of services under the LASPO 2012, Part 1, to disclose information notwithstanding the usual rules of privilege regarding the disclosure of client information. Provision is also made to prevent the disclosure of certain information for the purposes of the investigation and prosecution of offences.

• The Criminal Legal Aid (Financial Resources) Regulations 2013 (SI 2013 No. 471) make provision in relation to the circumstances in which an individual’s financial resources are such that they are eligible for criminal legal aid. Part 2 makes provision in relation to the financial eligibility of an individual for advice and assistance provided under s. 15 (advice and assistance for criminal proceedings). Part 3 makes provision in relation to the financial eligibility for representation provided under s. 16 (representation for criminal proceedings). Part 4 makes provision in relation to the enforcement of an obligation to make a payment imposed under s. 23.

• The Criminal Legal Aid (Contribution Orders) Regulations 2013 SI 2013 No. 483) make provision in relation to the liability of individuals who are in receipt of representation under the LASPO 2012, s 16 (representation for criminal proceedings), to make a payment in connection with the provision of such representation, based on an assessment of their financial resources.

• The Criminal Legal Aid (Recovery of Defence Costs Orders) Regulations 2013 (SI 2013 No. 511) provide that where an individual receives legal aid for representation in relation to criminal proceedings

before any court other than the magistrates’ court or the Crown Court, the court hearing the proceedings must, unless an exception applies, make a determination at the conclusion of the proceedings requiring the individual to pay some or all of the cost of their representation. Regulations 7 to 11 set out the circumstances in which a court may not make such a determination. Regulations 12 to 14 make provision for the assessment of financial resources and regs. 16 and 17 make provision in relation to the provision of information. Regulation 20 makes provision for the enforcement of an RDCO by the Lord Chancellor.

• The Legal Aid (Financial Resources and Payment for Services) (Legal Persons) Regulations 2013 (SI 2013 No. 512) make provision for determining the financial eligibility of legal persons (i.e. non-individuals) for civil and criminal legal aid.

• The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Consequential, Transitional and Saving Provisions) Regulations 2013 (SI 2013 No. 534) make transitional and saving provisions and consequential amendments to secondary legislation. They make provision about the treatment of legal aid applications made before 1 April 2013.

Protection of Freedoms Act 2012 (Commencement No. 5 and saving and Transitional Provision) order 2013 (si 2013 No. 470)

This Order provides, inter alia, for ss. 109 (trafficking people for sexual exploitation), and 110 (trafficking people for labour and other exploitation), to come into force on 6 April 2013.

Trafficking People for Exploitation regulations 2013 (si 2013 No. 554)

These Regulations implement Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replace Council Framework Decision 2002/629/JHA. They lay down certain requirements to be observed by the police during the investigation of trafficking offences with a view to providing protection for complainants, and enhanced protection for child complainants. They also provide for amendments to special measures regime under the YJCEA 1999; these have the effect of affording similar protection to complainants in trafficking offences to that afforded to victims of sexual offences.

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commENT & ANALYsisThe New Code for Crown ProsecutorsAlison Levitt QCPrincipal Legal Advisor to the Director of Public Prosecutions

In January this year, the Director of Public Prosecutions published a new edition of the Code for Crown Prosecutors. There is a statutory obligation on the DPP to publish such a Code (under the Prosecution of Offences Act 1985, s. 10), which prescribes how prosecutorial decisions must be taken and sets out the way in which cases will be approached. The Code must be laid before Parliament every year. This is the seventh edition.

The wording of the new Code was finalised after a public process in which contributions were sought from a range of consultees, including lawyers, judges, charities, and members of the public. It reflects the fundamental Crown Prosecution Service principles that all prosecutorial decisions will be taken in a manner free from improper influence and in the interests of justice.

Save in limited circumstances, decisions whether to charge or to continue with a prosecution are made by applying the full Code test. This consists of two stages: the first contains an evidential sufficiency requirement; only if that is met will the prosecutor then go on to consider the public interest.

The test itself remains unchanged from previous editions but Chapter 4, which explains how the prosecutor should approach the two stages, is shorter than its predecessors. Earlier versions had contained lists of examples of the type of situation a prosecutor might encounter, but although these continued to expand with every edition of the Code they remained, inevitably, non-exhaustive. In recognition of the fact that sitting underneath the Code is the CPS Legal Guidance, which has been developed to assist prosecutors with a vast range of topics from abuse of process to young offenders, the new Code does not give examples but concentrates on the principles which should be applied in every case.

The Legal Guidance is primarily intended to help prosecutors apply the Code in relation to individual offences. However, because the Code and other guidance documents are publicly available on the

CPS website, it also allows the public not only to understand the way in which decisions are reached, but to hold the CPS to account if the principles are not followed. Again, many aspects of the Legal Guidance have been developed following a period of public consultation: assisted suicide and social media cases providing but two examples.

At the evidential stage, the prosecutor must be satisfied that there is a realistic prospect of conviction, that is to say that an objective, impartial and reasonable jury or bench of magistrates (or judge hearing the case alone), properly directed and acting according to the law, is more likely than not to convict the defendant. This requires an objective assessment of the strength of the available evidence: the new Code makes it an explicit requirement that the prosecutor should approach this by considering whether the evidence is admissible, reliable, and credible. As part of this process the prosecutor must consider the impact of any defence upon which the suspect might rely.

If the evidence is found not to fulfil the three requirements of admissibility, reliability, and credibility then para. 3.3 reminds the prosecutor that he or she should not simply conclude that a prosecution is not possible but should consider whether (and, if so, how) the evidence might be strengthened or improved. In other words, it is the duty of the prosecutor to see if the case can be ‘built’.

If, despite the best efforts of the prosecutor and investigator, there remains no realistic prospect of conviction then no prosecution can take place, no matter how serious or sensitive the case may be, and irrespective of the views of the victim.

The requirement that the prosecutor can consider the public interest only once he or she is satisfied that there is sufficient evidence (unless para. 4.2 applies) remains unaltered from earlier versions of the Code. That having been said, the way in which a prosecutor must approach the determination of the public interest has substantially changed. Earlier versions of the Code contained lists of public interest considerations tending both in favour of and against prosecution. These have been replaced by seven questions, to which a holistic approach must be taken; the questions should be asked sequentially and only once they have all been considered can the prosecutor



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reach an overall view as to whether the public interest does or does not require a prosecution to take place.

The seven questions are:

• How serious is the offence committed?

• What is the level of the culpability of the suspect?

• What are the circumstances of, and the harm caused to, the victim?

• Was the suspect under the age of 18 at the time of the offence?

• What is the impact on the community?

• Is prosecution a proportionate response?

• Do sources of information require protecting?

The move to a series of pivotal questions reflects changes in approach in the wider criminal justice system; for example, the experience of victims is now regarded as being more central than perhaps it has been in the past. It is thus fitting that consideration of the harm caused by the defendant and the views of victims, or their families, now form a critical part of the early stages of the determination of where the public interest lies, rather than merely being left to the end.

In previous versions of the Code, consideration of the public interest in relation to suspects who were aged under 18 at the time of the offence was dealt with as a separate chapter. But deciding to prosecute a child requires particular consideration and should not be an afterthought to the full Code test (para. 4.12(d)); thus the fact that a suspect was under 18 is now one of the explicit questions prosecutors must address. For the first time, a prosecutor who is considering prosecution of someone aged under 18 must consider not only the age of the suspect but also

his or her level of maturity; whilst it is uncontroversial that ignorance of the law is never a defence, a failure to appreciate the seriousness of his or her conduct may be a very relevant factor when considering whether the public interest requires a prosecution.

One of the fundamental differences in the new Code is that it requires prosecutors to consider whether prosecution represents a proportionate response to the behaviour complained of. It is axiomatic that the decision to bring criminal charges is always a significant step which may have serious repercussions. The declaration of the need for proportionality involves not merely consideration of the cost of bringing a case, but serves to remind prosecutors (particularly in the case of minor offences) that to embark on a process where the outcome will be a criminal record for the suspect but the penalty imposed is likely to be nominal, is one which should always merit anxious consideration. In other words, a conscious decision should be made as to whether it is really necessary to invoke the criminal justice system (para. 4.12(f)). A further aspect of proportionality is that prosecutors are required to consider effective case management: a proportionate response to a case involving multiple suspects might be to reserve prosecution for the main participants, in order to avoid excessively long and complex trials.

The State – which for these purposes is represented by the CPS – has an obligation to suspects, defendants, victims, their families, witnesses, and the wider public. The Code exists not only to ensure that prosecutors make consistent decisions but also provides a public standard against which those decisions may be judged. The objective in every case is to ‘make sure that the right person is prosecuted for the right offence’ (para. 2.2).

The Criminal Procedure (Amendment) rules 2012 (si 2012 No. 3089)Peter Hungerford-Welch, LLB, FHEABarrister; Assistant Dean (Professional Programmes)The City Law School, City University, London

The amendments made by this Order to the CrimPR come into force on 1 April 2013. The most important changes are as follows.

Part 2

Rule 2.4 is amended to make it clear that an information may be served, or a written charge and

requisition issued, by a ‘member, officer or employee of a prosecutor’ acting on the prosecutor’s behalf. Persons not included in this list would not be able to commence proceedings on behalf of a company or organisation. Media Protection Services v Crawford [2012] EWHC 2373 (Admin) establishes that a person who is not in the employment of the prosecutor cannot commence criminal proceedings, which is a ‘reserved activity’ under the Legal Services Act 2007, s. 12, unless they are duly authorised to do so, under s. 14.

Part 3

Rule 3.8(4) is replaced with a new version, which requires the court to ‘take every reasonable step

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(a) to encourage and to facilitate the attendance of witnesses when they are needed; and (b) to facilitate the participation of any person, including the defendant’.

Parts 18 and 19

These Parts are amended to take account of the fact that, under the LASPO 2012, s. 91, a court may remand an accused who is under the age of 18 to local authority accommodation or (if he has attained the age of 12) remand him to youth detention accommodation. These provisions came into force on 3 December 2012 (see the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 4 and Saving Provisions) Order 2012 (SI 2012 No. 2906)).

Part 21

Rule 21.2 is amended to provide that the prosecutor must serve ‘initial details of the prosecution case’ (the definition of which is unaltered) on the court as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing). However, these initial details no longer have to be served automatically on the accused. Rather, if the accused requests those details, the prosecutor must serve them on him as soon as practicable (and, in any event, no later than the beginning of the day of the first hearing); if the accused does not request those details, the prosecutor must make them available to the defendant at, or before, the beginning of the day of the first hearing.

Part 37

Rule 37.10(3)(c) is amended to require the prosecutor, at the sentencing hearing in the magistrates’ court, to provide to the court any statement of the effect of the offence on the victim, the victim’s family or others (i.e. victim personal statement).

Rule 37.10(9) is amended to give greater detail about the passing of sentence. It provides that, once account has been taken of all the evidence, information, and any report available, the court must, as a general rule, pass sentence there and then. When passing sentence, the court must (unless neither the offender nor any member of the public is present) explain the reasons for deciding on that sentence, and must (unless the offender is absent or his ill-health or disorderly conduct makes it impracticable to do so) explain to the offender the effect of the sentence

and the consequences of failing to comply with any requirements that have been imposed, and any power that the court has to vary or review the sentence.

The court must also consider exercising any power it has to make a costs or other order (for example, a compensation order).

Rule 37.14(2) is amended to give more detail about the duties of a justices’ legal adviser: before the hearing begins, drawing the court’s attention to what the prosecutor alleges, what the parties say is agreed, what the parties say is in dispute, and what the parties say about how each expects to present the case, especially where that may affect its duration and timetabling (supporting the court in carrying out active case management, pursuant to r. 3.2); whenever necessary, giving the court legal advice and, if necessary, attending the members of the court outside the courtroom to give such advice (but informing the parties of any such advice given outside the courtroom); and assisting the court, where appropriate, in the formulation of its reasons and the recording of those reasons.

Part 42

Rule 42.1 is amended to refer to the explanation of sentence required where a reduced sentence is passed because of assistance given or offered by the offender (see SOCPA 2005, s. 73).

A new rule, r. 42.11, is added to provide for an application by the prosecution for a sentence to be reduced if the offender subsequently assists, or agrees to assist, in the investigation or prosecution of an offence; or for a reduced sentence to be increased if the offender agreed to give such assistance but subsequently knowingly failed to do so (see SOCPA 2005, s. 74).

Part 76

The revised note to r. 76.4 draws attention to the fact that, where the court makes an order for the payment of a defendant’s costs out of central funds, under the Prosecution of Offences Act 1985, s. 16, s. 16A of that Act (which came into force on 1 October 2012: see the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Commencement No. 2 and Specification of Commencement Date) Order 2012 (SI 2012 No. 2412)) provides that a defendant’s costs order may not require the payment out of central funds of any amount in respect of the accused’s legal costs (defined as meaning ‘fees,



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LAW

charges, disbursements and other amounts payable in respect of advocacy services or litigation services including, in particular, expert witness costs’: s. 16A(10)) unless the accused is an individual (i.e. not a company) and the costs were incurred in proceedings in a magistrates’ court or in a Crown Court appeal against the decision of a magistrates’ court (s. 16A(4)). Thus, a company cannot recover legal costs incurred in defending

magistrates’ court proceedings or trial on indictment; an individual can recover legal costs incurred in respect of magistrates’ court proceedings but not trial on indictment. Where a defendant’s costs order does include an amount in respect of legal costs, that amount must not exceed an amount specified by regulations made by the Lord Chancellor (s. 16A(9)).

Blackstone’s Criminal Practice 2013Professor David Ormerod Barrister, Bencher of the Middle Temple, Professor of Criminal Justice, Queen Mary, University of London; and The Right Honourable Sir Anthony Hooper

Supplement 2 now published – available in print, app, and eBook formats.

Hardback + digital + all updating supplements pack October 2012 | 3,328 pages 978-0-19-965893-0 | £350 (including VAT)

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Issue 3, Spring 2013

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PUbLIShING NEWsNEW EU Law in Criminal Practice

Edited by Duncan Atkinson, Barrister, The Chambers of David Fisher QC and David Perry QC

EU Law in Criminal Practice is the only book to offer a comprehensive and practical guide to the interplay between European Union law and UK criminal practice. It enables the busy criminal practitioner to understand the legal landscape that the Treaty of Lisbon created, offering a thorough and practitioner-focused analysis of the relevant regulations and case law.

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NEWJudicial review: Principles and Procedure

Jonathan Auburn, Barrister, 39 Essex Street, Jonathan Moffett, Barrister, 11 KBW, and Andrew Sharland, Barrister, 11 KBW Consultant Editor: Richard McManus QC, Barrister

Covering all of the substantive grounds on which a claim may be brought, this definitive new work provides unrivalled analysis and guidance on the law of judicial review.

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NEW EDITIONNicholls, Montgomery, and Knowles on The Law of Extradition and Mutual AssistanceTHIRD EDITION

Clive Nicholls QC, Barrister, 3 Raymond Buildings, Clare Montgomery QC, Barrister, Matrix Chambers, Julian B. Knowles QC, Barrister, Matrix Chambers, Anand Doobay, Consultant, Peters & Peters, and Mark Summers, Barrister, Matrix Chambers

Nicholls, Montgomery, and Knowles on The Law of Extradition and Mutual Assistance is a leading work in this complex and growing area of law. It provides a comprehensive and analytical treatment of the laws covering the extradition arrangements between the UK and other states, as well as international mutual assistance.

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