Crime Brief

R v C [2007] EWCA Crim 2581, [2007] All ER (D) 102 (Nov)

It was argued that Youth Justice and Criminal Evidence Act 1999, s 41 did not apply to offences occurring prior to the Sexual Offences Act 2003 coming into force, but being tried after that date. 

HELD  Section 41 applies to trials conducted after the coming into force of the Sexual Offences Act 2003, in respect of allegations preceding that Act, even though there are no transitional provisions provided for.

R v Clark (application under s 58 of the Criminal Justice Act 2003) [2007] All ER (D) 120 (Oct)

The refusal of a prosecution adjournment was a ruling to which Criminal Justice Act 2003, s 58 applied (power to appeal a termination ruling).

T v Director of Public Prosecutions [2007] EWHC 1793 (Admin), [2007] All ER (D) 133 (Jul)

A case where the appellant gave a prepared statement in interview and the court drew inferences from silence. The court offered the following by way of observation: “...it seems to me that courts are at risk of falling into the error into which this court fell if in a potential section 34 case they simply ask themselves the question: are we entitled to draw an adverse inference?”  The questions that a court should ask are as follows.
(i)  Has the defendant relied in his defence on a fact which he could reasonably have been expected to mention in his interview, but did not?  If so, what is it?
(ii)  What is his explanation for not having mentioned it?
(iii)  If that explanation is not a reasonable one, is the proper inference to be drawn that he is guilty?

The court also reminded solicitors to consider carefully the issue of whether they might be required to give evidence if they acted at the police station, and whether or not this impacts on them doing the advocacy in a case.
Attorney General’s References (74 and 83 of 2007), The Times 16 November 2007
HELD
(i)  In relation to rape of a child under 13, actual consent may in some rare cases provide mitigation.
(ii)  When considering culpability, actual consent was capable of being a mitigating factor.
(iii) Careful consideration had to be given in all cases, but particularly where there was a significant discrepancy in age, to the extent to which ostensible consent had been obtained opportunistically, or by means of coercion, which might be subtle, or exploitation, which would be particularly relevant in cases where there might have been an element of grooming. In those cases ostensible consent might well have little value as mitigation.
(iv) In all cases the difference in age between the offender and the child would be of great significance.
(v)  As far as apparent age was concerned, the definitive guideline only referred to it as being capable of being a mitigating factor in the case of an offender under the age of 18, where such an offender reasonably believed the other person to be 16 or over. However, that did not mean that a reasonable belief that the victim was 16 or over could not be a mitigating factor for a person over the age of 18 but the older the offender the less relevant a mistake as to age, even if reasonably held, would be.
(vi) Four years should be the minimum starting point with a sentencing range of three to seven years. Their lordships did not wish, however, to exclude the possibility of a non-custodial sentence in exceptional circumstances. The general guidance given in R v Corran [2005] All ER (D) 40 (Feb) remained valuable.

R v Langham [2007] All ER (D) 233 (Nov)

The downloading of images for “research” purposes, if that explanation was believed, provided the offender with only minimal mitigation. That factor would not be sufficient in itself to warrant the finding of exceptional cases warranting a non-custodial sentence.

R (Yilmaz) v Central Criminal Court [2007] EWHC 2620 (Admin), [2007] All ER (D) 369 (Nov)
 

A rather academic point relating to when a bill of indictment is preferred. In this case a bill preferred for the purposes of assisting a judge during a bail application was not deemed served as it had not been sent to the proper officer with the intention that the indictment be scrutinised to ensure compliance with the Administration of Justice (Miscellaneous Provisions) Act 1933, s 2(2). The point was important in the context of this case as the applicant was arguing that his custody time limits had expired at any earlier point in time.

El-Farargy v El Farargy and Others [2007] EWCA Civ 1149, [2007] All ER (D) 248 (Nov)

Another civil case, this time one that was widely reported in the popular press in relation to appearance of bias. The most interesting aspect to criminal lawyers is this part of the judgment, equally applicable to all courts not just civil (in criminal cases of course you cannot go the appeal court pre-trial in order to have the judge removed).
(i)  If circumstances permit it, an informal approach should  be made to the judge, for example by letter, making the complaint and inviting recusal.
(ii)  While judges must heed the exhortation not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague.
(iii)  If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.

Ward v Police Service of Northern Ireland [2007] UKHL 50 [2007] All ER (D) 315 (Nov)

On a warrant for further detention under the Terrorism Act 2000 the judge has the power to exclude the detainee and his legal representative in order to inquire in private the scope of the proposed questioning, in this case to ensure it was not simply repeating that which had already been conducted. Upon allowing the application there was no duty to disclose what was said. It was the duty of the judge to carefully scrutinise the application, the detainee was only entitled to know the ground of the application and thereafter make representations.

R v Salih [2007] EWCA Crim 2750, [2007] All ER (D) 318 (Nov)

S was charged with possession of a firearm with intent and an issue arose as to lawful possession for the purpose of self defence. The defence argued that a conditional intent such as this afforded a defence. The prosecution argued that the defendant would have to show fear of an imminent attack at the time of the possession. It was held that:

“In accordance with Stubbs and Thomas, the effectiveness of legislation designed to prevent the carrying of firearms or offensive weapons would be “seriously impaired” if anyone who reasonably feared that he might at some time be unlawfully attacked was allowed to carry such a weapon. If at the moment at which the defendant is alleged to be in possession of a firearm he is anticipating an imminent attack and carrying the weapon for his own defence against a specific danger then that may be different.”

R (Faithfull) v Ipswich Crown Court [2007] EWHC 2763 Admin, [2007] All ER (D) 403 (Oct)

The claimant challenged an order made in the Ipswich Crown Court. He challenged it on the grounds that the judge failed to make a compensation order in his favour under the Powers of Criminal Courts (Sentencing) Act 2000. It was held that the claimant’s case fell at the first hurdle as the matter was one relating to trial on indictment and accordingly the Supreme Court Act 1981, s 29(3)  prevented a challenge by way of judicial review.
 

Home Office Circular 33/2007

This guidance details the powers of community support officers, both basic and discretionary, provided for under various pieces of legislation. It is inevitable that from time to time there will be breaches and this document will be of value to criminal law departments in solicitors firms. An extension of available powers takes effect from 1 December 2007.

SERIOUS CRIME ACT 2007

Section 1 gives the High Court the power to make a Serious Crime Prevention Order, essentially an anti-social behaviour order (ASBO) for those individuals (and corporate bodies) allegedly involved in high level criminal behaviour. An order may be made if the court is satisfied that a person has been involved in serious crime, whether that involvement was in England and Wales or elsewhere in the world, and where it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the subject of the order in serious crime in England and Wales. 

Section 5 contains examples of the types of provisions that a serious crime prevention order might include, but does not limit the flexibility of the court, provided for by s 1(3), to impose such provisions as it thinks appropriate for the purposes of protecting the public by preventing, restricting or disrupting the subject’s involvement in serious crime. These prohibitions, restrictions or requirements might relate to, for example, a person’s travel, financial dealings or the people with whom he is allowed to associate. The orders can also require the reporting of financial information. Other provisions in the Act (s 19) allow for order to be made in the Crown Court following conviction. Breach of an order carries up to five years’ imprisonment. For corporate bodies the remedies include winding up the company.

R v Knight [2007] All ER (D) 381 (Nov)

Where a person made an entry in a diary, not intending that others would read that entry, issues of hearsay evidence did not arise and the Criminal Justice Act 2003 (CJA 2003) was not engaged. Such evidence fell into the category of real evidence akin to evidence of reaction. In this case the diary had been destroyed but the judge allowed a witness who had read the diary, and was available for cross-examination, to give evidence as to its contents. As the evidence was not hearsay, considerations of double hearsay under CJA 2003, s 115 were not relevant.

R v Mabee 21 November 2007 (unreported)

M was made the subject of a Football Banning Order following his conviction for violent disorder. Both M and the complainants had been travelling home from a football match when violence broke out following a racial slur. On appeal the court held that the incident had been wholly unrelated to football, save for the fact that both sides had an obvious interest in the sport on that day. Accordingly a football banning order was not appropriate.

R (Revenue and Customs) v Lloyds Bank Plc [2007] EWHC 2393 (Admin)

In this case money, the subject of restraint was moved from a current account to an interest bearing account without having first arranged for a variation of restraint. It was held that the bank was in contempt of court for the movement of monies. But in the circumstances of this case there would be no award of costs and no punishment.

Comment A worthless piece of litigation using precious public funds. The bank had acted innocently, at no point had placed funds at risk and had increased the amount of realisable assets
available.