Crime brief

ASBOs

R (Gosport Borough Council) v Fareham Magistrates’ Court [2006] EWHC 3047 (Admin)

A person could not be found to have behaved in an anti-social manner—for the purposes of making an anti-social behaviour order—in the absence of a potential victim.

COMMENT This judgment is not easy to reconcile with Chief Constable of Lancashire v Potter [2003] EWHC 2272 (Admin), [2003] All ER (D) 199 (Oct). As Potter was decided by a two-judge Divisional Court it is to be preferred.

Hearsay evidence

R (Meredith) v Harwich Justices [2006] EWHC 3336 (Admin), [2006] All ER (D) 45 (Dec)

In this case a prosecution witness, whose evidence would be fatal to the defendant, proffered the following medical note: “The above patient of mine has a past history of a depressive illness with panic attacks. Her recent invite to attend court as a witness is causing a recurrence of her symptoms and I would suggest that it would be in her best interests if she was able to submit written evidence rather than having to appear in court.”  The prosecution sought to adduce the statement as hearsay under s 116 of the Criminal Justice Act 2003 (CJA 2003).

HELD
(i) In cases where the evidence of the witness was important to the issues overall, the
application must be scrutinised with particular care.
(ii) In the absence of clear and positive evidence about a person’s unfitness to attend court further inquiries should be made.
(ii) A court should consider what other steps—such as counselling for the witness—could be taken as opposed to admitting the evidence as hearsay.

Meaning of living accommodation

R v F, Court of Appeal, 21 December 2006

F was charged with racially aggravated harassment. The incident was alleged to have occurred while F was detained in a police cell. The defence submitted that a cell constituted a dwelling under
s 8 of the Public Order Act 1986, and accordingly the offence was not made out. The judge accepted that submission. On an appeal by the prosecution under s 58, CJA 2003, the Court of Appeal ruled that a police cell was not a home, nor was it living accommodation where a person lived. Fresh trial ordered.

Sentencing

R v Richardson and others [2006] EWCA Crim 3186, [2006] All ER (D) 255 (Dec)

This case details how the guideline case of R v Cooksley [2003] EWCA Crim 996, [2003] 3 All ER 40 should be applied to cases of causing death by dangerous driving, or driving while under the influence of drink or drugs, given that the statutory maximums for those offences have now been increased.

HELD The relevant starting points identified in Cooksley should be reassessed as follows:
(i) No aggravating circumstances—12 to two years’ imprisonment (previously 18 months).
(ii) Intermediate culpability—two to four and a half years’ imprisonment (previously three years).
(iii) Higher culpability—four and a half to seven years’ imprisonment (previously five years).
(iv) Most serious culpability—seven to 14 years’ imprisonment (previous starting point of six years).

In relation to causing death when under the influence, the new guidelines are:
(i) If the level of impairment is only just in
excess of the permitted limit, and the driving is otherwise careless rather than dangerous in the sense outlined in this judgment, the consumption of alcohol provides the most significant aggravating element of the offence. If there are no others, it will normally fall within the category of offences of causing death by dangerous driving which lack any additional aggravating features.
(ii) As the consumption of alcohol increases, so does the relative culpability, and by the time the consumption is at or about double the legal limit, the case would fall within the
intermediate category.
(iii) At higher levels than this, in the vast majority of cases, there is a correlation between the amount of alcohol consumed and significantly reduced standards of driving. In the vast majority of these cases, some distinct elements of culpability in the driving itself, identified as aggravating features in Cooksley, are almost inevitable. At these sorts of levels, the result will be dangerous driving of a kind which will take the case into the categories of higher culpability and then most serious culpability.
(iv) There are not likely to be many cases where the alcohol level reaches three times the permitted limit, and the driving itself will be no worse than careless driving. However even if it were not dangerous in this sense, at these and higher levels the sentencing decision would normally fall within the two most serious categories of culpability.
 

R v Smith and Smith [2006] EWCA Crim 901

HELD
(i) The existence of a mental disorder was not necessarily required before a discretionary life sentence could be imposed.
(ii) The fact that Smith had been convicted of an offence in relation to an attempted ‘contract killing’, was not in itself enough to justify a discretionary life sentence.

R v C and others, Court of Appeal, 5 December 2006

Both judges and advocates had a duty to ensure that the court only passed lawful sentences. The duty, as far as advocates were concerned, rested on both prosecution and defence.
The court invited the Sentencing Guidelines Council to produce a schedule outlining relevant sentencing guidelines. The same approach had been successfully introduced in New Zealand. 

Evidence and procedure

R v Livesey [2006] All ER (D) 241 (Dec)

Livesey was tried for an offence of harassment under s 4 of the Protection from Harassment Act 1997 (PHA 1997). The defence succeeded in a submission that there was no case to answer, but the judge allowed an offence under s 2, PHA 1997 to be left to the jury as an alternative. It was argued that since the offence was not permitted to be added to an indictment pursuant to s 40 Criminal Justice Act 1988, that the judge had erred.

HELD Parliament had clearly intended under s 4(5), PHA 1997 to permit the s 2 offence as an alternative and the judge was correct in his decision. The court applied R v Carson (1990), The Times, 20 April and nothing in R v Galbraith affected that ruling as it must have been in the court’s mind at the time the decision was made.

R v Hamza [2006] EWCA Crim 2918, [2006] All ER (D) 390 (Nov)

Section 4 of the Offences Against the Person Act 1861 applies to the situation where a person incites a foreign national in England or Wales to commit murder outside the jurisdiction.

R (Wilkinson) v Director of Public Prosecutions [2006] EWHC 3012 (Admin)

This appeal concerned the increasingly common practice of the Crown Prosecution Service (CPS) to charge offences under s 329(1) of the Proceeds of Crime Act 2002 (PCA 2002) as opposed to handling stolen goods under s 22 of the Theft Act 1968 (TA 1968).

HELD
(i) When that offence was created in PCA 2002 it was in the context of legislation
directed primarily at money laundering and matters of serious criminality.
(ii) It is an offence which in one sense is easier to prove than that of handling stolen goods because the mens rea is one of ‘knowing or suspecting’ that the property constituted or represents a benefit from criminal conduct rather than ‘knowing or believing’ which
applies in s 22, TA 1968.
(iii) PCA 2002 should be resorted to only in
serious cases, and that is clear from the CPS’s own guidance.
(vi) If an offence was inappropriately charged it was for the court to express that view to the Crown and encourage them to charge a lesser offence. But encouragement is where it would stop. It is ultimately a matter for the Crown.
(v) Satellite litigation is to be discouraged.

Statutory provisions
Fraud Act 2006

The Fraud Act 2006 (FrA 2006) came into force on 15 January 2007. A new offence of fraud has been created that can be committed in any one of three ways (s 2–4, FrA 2006).
Of particular note is the repeal of s 15A, TA 1968 and ss 1 and 2 of the Theft Act 1978.
The Criminal Justice Act 2003 (Commencement No 14 and Transitional Provision) Order 2006 (SI 2006/3217)

Section 14(1) substitutes a new para 2A of Pt 1 of Sch 1 to the Bail Act 1976 (BA 1976). This paragraph provides that if defendants are 18 years or over and it appears that they committed an offence that carries a maximum sentence of life imprisonment while on bail in criminal proceedings, they may not be granted bail unless the court is satisfied that there is no significant risk of their committing an offence while on bail.

Section 15(1) substitutes a new para 6 of Pt 1 of Sch 1, BA 1976 and provides that if defendants are 18 years or over and it appears to the court that, having been released on bail in or in connection with the proceedings for an offence that carries a maximum sentence of life imprisonment, they failed to surrender to custody, they may not be granted bail unless the court is satisfied that there is no significant risk that, if released on bail, they would fail to surrender to custody.

There are slightly less onerous provisions for those aged less than 18 years of age. The order came into force on 1 January 2007.The Domestic Violence, Crime and Victims Act 2004 (Commencement No 7 and Transitional Provision) Order 2006 (SI 2006/3423)

The following sections came into force on 8 January 2007 provided that committal, transfer or service of evidence in a sending case takes place on or after that date:
(i) sections 17 to 21 (trial by jury of sample counts only);
(ii) section 30 (prosecution appeals); and
(iii) section 56 (grants for assisting victims, witnesses, etc).
The Police and Justice Act 2006 (Commencement No 1, Transitional and Saving Provisions) Order 2006 (SI 2006/3364)

This order brought a number of important provisions into force on 15 January 2007, including:
(i) Section 11 of the Police and Justice Act 2006 (PJA 2006). This section will limit detention in police custody pending a CPS decision about charge, to a maximum of three hours.
(ii) Section 44, PJA 2006. This section provides for sentencing to take place via a video-link facility.