Criminal Law Update, series 1: issue 14
19 May 2008
References to Criminal Law Week are abbreviated to CLW with the year, issue and paragraph number given. If a date is given this is the date of the judgment.
The Criminal Justice & Immigration Act 2008
This publication has commented previously (issue 6, July 2006) to the effect that it would be hard to imagine that after the publication of the CJA 2003 with its 339 sections and 38 schedules that there could be anything left to legislate on in the field of criminal law for years to come. However we underestimated the shameless ability of this government to change its mind at the whim of editors of papers like the Daily Mail and seek to change the law in a desperate attempt to retain popular support. Hence it should not really come as any great surprise to find that this present Act weighs in at 154 sections and 28 schedules and that much space is devoted to amending or simply jettisoning altogether measures from previous Acts. For a digest of the Act see CLW 08/19/12. Enjoy the read.
We will return to this subject in greater detail in the next issue of this Update. For now we draw attention to the fact that the dangerous offender provisions of the 2003 Act are to be amended by sections 13 to 17 (no commencement date for this yet) to make such sentences a matter of discretion rather than obligation, to impose some limits on the offences that would attract such a sentence and to provide that such sentences should not be imposed unless the notional minimum term would be at least two years (the equivalent therefore of a determinate sentence of at least four years). Not before time some might say. In the interim these amendments provide useful support for an argument that from now on no offender should receive an IPP sentence unless the notional determinate sentence would have been at least four years.
There have been a number of interesting (although not always useful) decisions on bad character in the last few months.
Impugning the character of the complainant
One decision which is likely to be of relevance for all practitioners is the CA judgment in Lamaletie and Royce  EWCA Crim 314, (CLW 08/11/1) (28.02.2008) (2008) 152 (10) S.J. 28. The CA held that an allegation by the defendant that he was defending himself against an unprovoked attack by the complainant was an attack on another person’s character and therefore fell within section 101(1)(g) CJA 2003. The fact that it was necessary for the defendant’s case (of self-defence) to make the allegation was relevant to the exercise of the judge’s discretion to exclude evidence under section 101(3) but was not to whether the allegation fell within the section 101(1)(g) gateway.
The CA said that in a situation where the defendant has attacked the character of a witness, evidence of the defendant’s bad character will assist the jury in deciding who they should believe. For those purposes the details of the defendant’s bad character are unnecessary and potentially distracting. The Court held also that there is no rule that the prosecution must have full details of all previous convictions in order to be able to rely on them to demonstrate propensity under section 101(1)(d). It is good practice for such details to be available but whether they are necessary for the jury to assess propensity will depend on the facts of the case.
Prosecution relying on bad character of person other than the defendant
In the case of R v Ross  Crim. L.R. 306,  EWCA Crim 1457(CLW 08/11/2) the CA held that in a prosecution for money laundering under POCA 2002 the trial judge was entitled to admit evidence of the drug-related previous convictions of two people who had accompanied the defendant on trips abroad, the Crown having applied to adduce the convictions as evidence that the trips were drug-related. Astonishingly the convictions were admitted as evidence which had to do with the alleged facts of the offence (pursuant to section 98 CJA 2003) meaning that the bad character provisions were not engaged.
One of the people whose convictions were admitted was in fact a prosecution witness. The CA said that because the witness was called for the Crown to give evidence only in relation to the defendant’s acquisition of a car, the reliance by the prosecution on his previous convictions to address the issue of whether the trips abroad were drug-related did not amount to an attack on the credibility of their own witness. However, when the witness in fact testified that the trips were not drug-related, so that the purpose of the bad character evidence was then to encourage the jury to ignore his evidence, an irregularity had occurred.
Evidence of incident where prosecution decided not to charge
The CA held in the case of R v Nguyen  EWCA Crim 585 (CLW 08/12/1) (18.03. 2008) that the fact that the prosecution seek to rely, as bad character evidence, upon evidence which they have decided not to make the subject of a criminal charge, did not of itself have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. In this case the prosecution made a deliberate decision not to charge the appellant with offences of assault but rather to adduce the evidence obtained as evidence of bad character in the appellant’s murder trial.
In R v Z  2 AC 483 the HL had held that prima facie all evidence relevant to the question whether the defendant was guilty of the offence charged was admissible, and therefore evidence of previous allegations was admissible notwithstanding the fact that the defendant had previously been acquitted of charges based on those allegations. It had subsequently been held that allegations which had never been tried were potentially admissible ( R v Edwards (Stewart) and another  1 WLR 1524), and the same principle applied to allegations which the prosecution had decided not to make the subject of separate charges.
Bad character evidence other than evidence of previous convictions
In a subsequent case the courts were urged to exercise caution before admitting evidence of bad character other than previous convictions as evidence of propensity and to consider whether the admission of the evidence would lead to the trial becoming unnecessarily long and complex. Just as a small number of previous convictions might amount to weak evidence of propensity, so might a small number of unproven allegations; however the greater the number of allegations the more likely that the jury would be sidetracked into consideration of collateral issues. Another concern was that defendants might well be compromised in challenging allegations which were un-investigated and untried since the evidence was likely to be stale: R v McKenzie  EWCA Crim 758 (CLW/08/15/1) ( 11.04 2008) CA.
Important explanatory evidence
In a prosecution of a defendant without previous convictions for a fraud on the revenue, evidence relating to two earlier tax investigations was admissible as important explanatory evidence within section 101(1)(c). Since the defendant’s dealings with the Inland Revenue demonstrated dishonesty throughout, the evidence was also admissible as evidence of propensity to commit offences of the kind with which the defendant was charged and propensity to untruthfulness. In those circumstances a full good character direction would be a charade notwithstanding the defendant’s lack of previous convictions. R v Doncaster  EWCA Crim 5, CA (CLW 08/16/3) (23.01.2008).
Police officers on jury service
In 1965 Lord Morris reported on the desirability of police officers and others who are employed in the criminal justice system serving on juries. The view of the committee was firmly against the involvement of such persons in jury service. In 2001 the report of Lord Justice Auld suggested that the ban on police officers and others involved in the CJS could no longer be justified. His report was seized on by a populist government eager to please the editors of the Daily Mail and Sun newspapers and in a crude attempt to increase the rate of convictions the Labour government decided in 2003 Criminal Justice Act that there was after all absolutely no reason why anyone involved in the CJS including police officers and prosecutors should not serve on juries. In the first case on this topic to reach the HL, Abdroikof and others  UKHL 37 a majority of their Lordships seem to have been impressed by the sentiments expressed by counsel in the case to the effect that it is wrong that those who are professionally committed to one side of an adversarial process should be allowed to assess the evidence of witnesses such as police officers who are similarly committed to one side only of the process.
Such worthy sentiments found no echo in the CA in the recent case of R.v. Bakish Khan and others  EWCA Crim 531 (CLW 08/12/2) (14.03.2008). The case in which a number of appeals on similar points were heard together was presided over by the two most senior criminal judges, the Lord Chief Justice and the President of the QBD. All the appeals were dismissed despite at least one case involving an important dispute of evidence between the defence and police officers in which the court seems to have felt that the implausibility of the defence case was sufficient reason not to be bothered by the presence of a police officer on the jury with knowledge of a police witness in the case. Subsequently the CA has declined to certify that the case involves a point of law of general public importance so that no further appeal is possible within this jurisdiction at least and this issue can now be regarded as closed at least for the moment. So practitioners have been warned. If you don’t want a police officer on your jury make sure they don’t get on in the first place. The CA did give guidance to courts that police officers should inform court staff of their occupation and it appears that Crown Courts have now received further guidance from HM Courts Service to the effect that before a jury is sworn the court clerk should be in a position to inform the judge and advocates whether there are any police officers in the jury panel although whether this is dependent on the police officer remembering to tell anyone as opposed to an enquiry being made by court staff is less clear.
Money Laundering & Confiscation
The misuse of the money laundering provisions of POCA 2002, enacted apparently to prosecute those who were not the principal offenders such as drug importers but who helped to convert their cash into seemingly legitimate assets, seems set to continue since the CA which has had several chances to do so refuses to put an end to the practice which allows thieves and burglars to be prosecuted as if they were in fact money launderers. The latest example is R. v. Rose; R. v. Whitwam  EWCA Crim 239 (CLW 08/09/02) 21/02/2008. Whether this was what parliament ever intended seems not to have been considered. The reality is of course that this has much less to do with any perceive inadequacies in the law of theft, burglary or handling stolen goods and rather more to do with the fact that POCA is regarded by prosecutors as the key to the door which allows the court to consider confiscating all the assets of the offender which he cannot prove (for a variety of possible reasons) have been come by legitimately.
The House of Lords has just given judgment in three cases involving confiscation of assets. The most important case appears to be R.v. May  UKHL 28 in which the HL has decided that the sums of money obtained by those involved in conspiracies (whether drug importations or cheating the Revenue) was to be regarded as received by each member of the conspiracy just as if they had been acting alone. This appears to pave the way for massive confiscation orders to be made against each defendant in such cases irrespective of the fact that each one only received a far smaller amount. According to the HL this is a fair and proportionate response to the important need to protect the public. Those who have to deal with this Alice in Wonderland legislation my care to take a different view. See also R.v. Green  UKHL 30 and CPS v. Jennings  UKHL 29.
Custody Time Limits
Courts are reminded that delays which routinely prevent trials from being listed within the CTLs may well amount to systemic failure which will not amount to a good and sufficient cause for an extension – see Kalonji v. Wood Green Crown Court  EWHC 2804 (Admin) (CLW 08/09/01) following R. (Gibson and another) v. C.C. at Winchester  1 W.L.R. 1623 D.C.
At a time when terrorism cases have become far more common than in the past it is a well to remember that there is an important distinction between material which appears to encourage acts of terrorism and that which would be useful to someone who as planning to commit such an act. Whilst material in the second category would come within section 58 of the Terrorism Act 2000, the former would not. See R. v. K  2 W.L.R. 1026 (CLW 08/08/11) (13/02/2008).
Inferences from silence
The decision in R.v. Wheeler  EWCA Crim 688 (CLW 08/15/2) (13.03.2008) is a salutary reminder of the care that needs to be taken over deciding whether a direction about inferences from silence is really appropriate. The defendant was charged with rape. In his evidence he relied on a number of factual assertions which he had not mentioned in interview. However these assertions were either not in dispute at all or not in a significant way. Nonetheless the judge gave the jury a direction on drawing an adverse inference and the jury convicted. In the circumstances of a case in which the evidence came entirely from the complainant on the one hand and the defendant on the other the CA felt obliged to quash the conviction as being unsafe.
Where a summary offence was joined on an indictment with an indictable offence which was the subject of a successful submission of no case to answer, the summary only offence did not have to be withdrawn from the jury and tried by a magistrates’ court: R v Plant, The Times April 21 2008, CA.
A reminder of the need for vigilance comes from what might seem like the straightforward case of R v James  1 Cr App R (S) 238 . Where a defendant pleaded guilty to three charges of common assault on an indictment which had contained one offence of assault occasioning actual bodily harm and two of common assault, the Crown Court’s sentencing powers were limited to those of the magistrates’ court. A total sentence of nine months’ imprisonment was therefore unlawful.
Two more cases on sentencing for cannabis cultivation have been considered by the CA: R v Pham  1 Cr App R (S) 272 ; R v Kay and Summana  1 Cr App R (S) 404 . However, practitioners are referred to the case of Xiong Xu and others  EWCA Crim 3129 (considered in the last bulletin) for guidance on this type of case.
Judges are required by s172 CJA 2003 to have regard to relevant sentencing guidelines if they apply at the date of sentence even if they did not apply at the date of conviction. This principle does not offend Article 7 ECHR (prohibition on retrospectivity) since guidelines are not rules of law: R v Bao  1 Archbold News 4 CA,  EWCA Crim 2781 (CLW 08/08/12).
Practitioners are referred to the new Guidelines on assault and other offences against the person and assaults on children and cruelty to a child (both applicable to defendants sentenced after 3rd March).
Allowance for time served on remand
When re-sentencing by way of imprisonment defendants who have breached a community order, courts are required (by s240 (3) CJA 2003) to order that time spent in custody on remand should be taken into account (unless subsection (4) applies): R v Stickley  1 Archbold News 3 CA,  EWCA Crim 3184.
Identification by ear-prints
Although in principle evidence from an expert in this field is admissible, given that in Dallagher  1 Cr. App. R. 195 the CA quashed a conviction based on such evidence and has done so again in the long running case of Kempster  EWC Crim 975 it is clear that such evidence will have to be approached with considerable caution.
Kate Stone and Mark George