Crime Brief
Date: 05 October 2007
Authors: Andrew Keogh
Issue: Vol 157, Issue 7291
Categories: Features, CPR
CRIMINAL PROCEDURE RULES
The Law Society has published a practice note detailing solicitors’ duties under the Criminal Procedure Rules (CrimPR). The purpose of the practice note is to provide assistance to the profession in seeking to define the extent of duties and burdens under the rules, and to identify and address the ethical problems that are likely to arise from their imposition. It examines the following: (i) the solicitor’s duty to the court; (ii) the solicitor, the client and the court, “a divided loyalty”; (iii) the CrimPR; and (iv) the approach of the court towards solicitors under CrimPR (see www.lawsociety.org.uk).
Rule amendments
The second amendment to the CrimPR 2005 was implemented on 1 October 2007. The following changes are made:
- A new Pt 65 (appeal to the Court of Appeal: general rules), in substitution for the existing Pt 65 (appeal to the Court of Appeal against ruling in preparatory hearing). The rules that relate to an appeal against a ruling in a preparatory hearing are found in the new Pt 66. The new Pt 65 provides rules of general application to appeals.
- A new Pt 66 (appeal to the Court of Appeal against ruling at preparatory hearing), in substitution for the existing Pt 66 (appeal to the Court of Appeal against ruling adverse to prosecution). The rules that relate to an appeal against a ruling adverse to the prosecution are found in the new Pt 67 (Appeal to the Court of Appeal against ruling adverse to prosecution).
- A new Pt 67 (appeal to the Court of Appeal against ruling adverse to prosecution), in substitution for the existing Pt 67 (appeal to the Court of Appeal against order restricting reporting or public access). The rules that relate to an appeal against an order restricting reporting or public access are found in the new Pt 69 (appeal to the Court of Appeal regarding reporting or public access restriction).
- A new Pt 68 (appeal to the Court of Appeal about conviction or sentence), in substitution for the existing Pt 68 (appeal to the Court of Appeal against conviction, sentence or sentence review decision).
- A new Pt 69 (appeal to the Court of Appeal regarding reporting or public access restriction), in substitution for the existing Pt 69 (reference to the Court of Appeal of point of law). The rules that relate to a reference to the Court of Appeal of a point of law are found in the new Pt 70 (reference to the Court of Appeal of point of law or unduly lenient sentencing).
- A new Pt 70 (reference to the Court of Appeal of point of law or unduly lenient sentencing), in substitution for the existing Pt 70 (reference to the Court of Appeal of unduly lenient sentence).
Change of plea from guilty to not guilty
Perhaps the most significant change is the completely new procedure for change of plea—guilty to not guilty—to be found in rr 37 and 39. In brief, the new procedure will require that the defendant serves on the prosecution and court a document containing the following:
(i) the reasons why it would be unjust for the guilty plea to remain unchanged;
(ii) what, if any, evidence the defendant wishes to call;
(iii) identity of any proposed witness; and
(iv) whether legal professional privilege is waived, specifying any material name and date.
Case management
The third edition of the Criminal Case Management Framework for adult cases in the magistrates’ court has been published. Later releases will deal with crown court cases. The framework incorporates changes made as a result of simply speedy summary justice which is now being rolled out nationally. All practitioners are strongly advised to obtain a copy and become familiar with its content.
SENTENCING GUIDELINES
The Sentencing Guidelines Council has updated the compendium of Court of Appeal judgments. The update deals specifically with the dangerous offender provisions and forms a useful guide for criminal lawyers still seeking to get to grips with what are very complex provisions (see www.sentencing-guidelines.gov.uk).
R v Hamilton [2007] EWCA Crim 2062, [2007] All ER (D) 99 (Aug)
The appellant, a practising barrister, admitted taking video footage with a camera so positioned by him that he was able to take footage up the skirts of a 14-year-old and various women who were shopping in supermarkets.
He had done so surreptitiously. Before entering the supermarket he placed his digital camera in a rucksack with the lens hidden and pointing upwards and wedged in position; he disabled the indicator light that would have flashed when he was filming. He manoeuvred the rucksack into a position whereby it was pointed up the inside of a woman’s skirt to film her underclothes in the area of her crotch; the camera would automatically focus on what was in the centre of the lens. This was a random method of filming, but he found that one of the best points at which to film was at check out queues where the woman up whose skirt he was filming was more likely to be stationary. This practice is known as “up-skirting”.
Unnoticed
None of the women involved had ever seen him filming and none of the adults filmed had been identified; neither the store detectives nor anyone else had noticed what he was doing. What he had done was only discovered when the police found at his house 20 hours of his filming on video cassettes. It was accepted that there had to be a direct line of sight between the lens and the object which was being taken. It was contended therefore by the prosecution that the lens was capable of being seen and so what he was doing could have been seen at the supermarkets. This was disputed by the appellant.
The police identified the female referred to in count 10. She was a schoolgirl who had been filmed wearing a school uniform in the Westgate Leisure Centre in Chichester. She was at the time 14 years and five months. The appellant had been confident that she was a sixth former and at least 16 years old and had expressed surprise to hear that she was only 14. The appellant said that he did not believe he had committed a criminal offence in filming adults.
The appellant in person applied to dismiss the proceedings in relation to the offences of outraging public decency on the basis that the prosecution had to prove there was an element of publication in the activity. It was his submission that there was no evidence that he was seen by anyone, there was no publicity and that his intention was irrelevant.
HELD In order to prove an offence of outraging public decency the prosecution had to show that: (i) that the act was of such a lewd, obscene or disgusting character that it outraged public decency; and (ii) that the act took place in a public place and that it was capable of being seen by two or more persons present even if they had not actually seen it. Appeal dismissed.
R v Xhelollari [2007] EWCA Crim 2052
HELD (i) every offence of rape is serious, but it does not follow that an indeterminate sentence must be imposed in every such case, (ii) the risk assessment of the report was based entirely upon the perceived vulnerability of the victim and the unwillingness of the appellant to acknowledge guilt. It recognised, however, the absence of any relevant pattern of offending behaviour and that the final decision was for the court.
Indeterminate sentencing
The imposition of a sentence in this case leads to a conclusion that such sentences would always be passed on a first conviction for rape where, as is always the case, there must have been some psychological harm to the victim and where the offender refuses to admit guilt. That, in the court’s judgment, is an inadequate basis on which to impose an indeterminate sentence on a necessary hypothesis that there is a significant risk of serious harm from future offending. Such a conclusion must be founded upon evidence rather than speculation or mere apprehension of some risk of future harm.
The recently promulgated sentencing guidelines on offences under the Sexual Offences Act 2003 clearly envisage the passing of determinate sentences in many cases of rape where the salient features of the offence mirror those identified in this case, or, indeed, in cases more serious in themselves than this case. The guidelines recognise that in all such cases the question of dangerousness has to be addressed.
R v Johnson [2007] EWCA Crim 1978 (Jul)
HELD While there is an argument for extending the scope of the defence of insanity to include acts which the defendant knew to be legally wrong, but thought were morally justified, the law remained as settled in R v Windle [1952] 2 QB 826, [1952] 2 All ER 1.
R v Neuberg [2007] EWCA Crim 1994 (Jul)
D benefited from operating a prohibited trading name for her company. The judge held that the benefit for the purposes of confiscation was the gross turnover. It was held that the approach taken by the judge was correct. There was no disproportionate interference with her rights under the European Convention on Human Rights (the Convention) as the amount payable was directly linked to realisable assets.
R (on the application of Brooke and another) v Parole Board and another, R (on the application of O’Connell) v Parole Board and another, R (on the application of Murphy) v Parole Board and another [2007] EWHC 2036, 2037, 2038 (Admin), [2007] All ER (D) 39 (Sep)
The Parole Board failed the independence test required by Art 6 of the Convention. Due to the far reaching implications of this ruling, the judgment was stayed pending appeal.
R v Watty [2007] EWCA Crim 123, [2007] All ER (D) 219 (May)
HELD “Parliament cannot have intended a sentence of imprisonment for public protection for offences of a relevant minor nature which would at most result in only a short term of imprisonment. If we are right in the view that the appropriate determinate sentence in this case would be one of 12 months’ imprisonment, it would follow that the minimum period which should have been specified as part of a sentence of imprisonment for public protection would have been six months. The regime of imprisonment for public protection is not geared to passing such a sentence with a specified period of such short duration.”
CRIMINAL CONTRACTING
The Legal Services Commission (LSC) has done an about turn in relation to its criminal contracting reform. Suppliers will no longer have to express an interest in contracts and sign in the New Year, but instead sign up during October 2007. Presumably this is to head off any chance of threatened contract boycotts. The LSC will:
- terminate the current General Criminal Contract with effect from midnight on 13 January 2008;
- run an open application process open to current and new providers leading to the award of new contracts which will operate for six months from 14 January 2008; and
- re-allocate duty solicitor work and issue rotas on that basis for the six months of the new contract.
The timetable for reform is in Box 1.
Share this page
