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.

Youth Sentencing Changes

The CJA 2003 was meant to bring in youth community orders (sections 177 to 180) which was in effect a re-packaging of the various community rehabilitation orders available under the PCC(S) Act 2000 e.g. curfew orders, exclusion orders etc but in respect of offenders aged 16 or 17 these faced continual postponement and were never brought into force, so young offenders have continued to be subject to the 2000 Sentencing Act. By the time the CJIA 2008 was being drafted someone had had another bright idea and decided that what was needed was something called a youth rehabilitation order. Hence sections 1 and Schedule1 of the 2008 Act. These provisions came into force on 30th November 2009 and replace the previous orders available under the 2000 Act with the new type of order. Whether this makes any difference to the administration of youth justice remains to be seen but it good to know that this time all that effort by civil servants in thinking up catchy new names has actually been rewarded by seeing the fruits of their labours brought into the light of day. The new provisions are set out in the 2010 edition of Archbold at paras 5-159 onwards.

Youth Sentencing Guidelines

The Sentencing Guidelines Council has finally issued a guideline for the sentencing of young people under the age of 18. This covers all offences and applies to the Crown Court as well as the Youth Court and contains many signs that encourage the view that maybe there is a chance that the number of young people in custody might continue to fall as it has done for the last year. Given that according to the Youth Justice Board there were over 2500 under 18s in custody in September 2009 there is however plenty of scope for improvement. So, for example, the guideline reminds courts that, at least when sentencing young people re-integration rather than retribution is the aim (para 1.3), sentencing young people requires a different approach to adults (2.2), emphasises the fact that the “welfare of the offender” is a relevant factor (2.7), highlights the high incidences of mental health problems and learning difficulties amongst young people in the CJS, that young people tend to grow out of crime (4.2) and that young people should generally be dealt with less severely than adults (3.1) and that it is important to avoid alienating young persons (3.7). Much of this may be familiar language in the Youth Courts but deserves emphasis in the Crown Court where young people are less likely to appear but, used properly by advocates, there is plenty of material here to try to stem the tide of ever longer custodial sentences at least for this group of offenders. The full guidelines can be found at www.sentencing-guidelines.gov.uk and are required reading. See CLW 09/43/29.

The perils of telephone cell site evidence

A recent trial at Leeds Crown Court (R. v. Small, Pyke & Elliott, (Wilkie J and a jury 6.10.09 to 6.11.09)) highlighted the perils involved in an over reliance on expert evidence and the need for defence solicitors to ensure there is a thorough investigation of the circumstances. The firm providing cell site reports for the police had removed a page from the final report which explained the limitations of cell site evidence, including that it is not an exact science, that such evidence should not be used alone but only in conjunction with other evidence and that whilst it can state where a phone was not operating from it cannot prove the exact location of the mobile phone when it is making a call.

On further enquiry it appeared that the page in question had been removed as a “management decision” from all the reports produced by this company for a period of about nine months following representations from another police force that the inclusion of the warning tended to suggest that there was insufficient evidence to prosecute. In court the expert was forced to agree that it was important that jurors should be told about the limitations of scientific evidence. This was particularly important in this case as the address where the murder took place was very close to the home address of one of the defendants so that it was impossible on the evidence to say whether the phone was at the scene of the murder at a particular time or was in fact at the defendant’s home address.

Other omissions from the expert report included the failure to mention that some of the technical readings that had been taken at a number of addresses linked to the defendants, such as their home addresses, were only taken two and a half years after the murder which might have explained the difference in readings obtained. The report also failed to mention (because the expert was unaware of it) that since the original readings had been taken in 2006 a housing estate had been built in the immediate vicinity of the scene of the murder and the address of one defendant and that this might have affected conclusions he had reached such as that whilst the readings were consistent with the phone being at or in the vicinity of the scene of the murder they were not consistent with the phone being at the defendant’s home address.

Acceptance of pleas

The Attorney-General has issued revised guidelines on the acceptance of pleas. (CLW 09/41/17) These came into force on 1st December 2009 so that the version in the First Supplement to Archbold at A-259 is now out of date. The main changes relate to the basis of plea particularly in multi-handed cases.

Bad character

The exception from the definition of bad character in s. 98 of the CJA 2003, for evidence which “has to do with the alleged facts of the offence with which the defendant is charged” does not cover evidence of the defendant’s motive or intent. A judge should take care to consider whether evidence is admissible at common law or only under the CJA 2003 and care is also required in explaining the use the jury may make of such evidence – see R.v. Fox [2009] Crim L.R. 881; [2009] EWCA Crim 653 (CLW 09/43/1) (02/04/2009).

In R.v Clements, The Times, 4 December 2009, C.A. (24/11/2009) (CLW 09/44/1) the CA held that for evidence of a previous offence to be admissible to prove propensity the circumstances must have been such as to have some probative force by reason of the similarity of the conduct to the facts of the alleged offence. The fact that both the prior offence and the offence being tried were sexual was insufficient.

Assault on Police

Where the arrest of a person by one constable is unlawful, other officers who saw what had happened and went to assist their colleague were not acting in the execution of their duty so that another person who reasonable resisted those police officers was not guilty of assaulting those officers. Christie v. Leachinsky [1947] A.C. 573 applied. See Cumberbatch v. CPS; Ali v. D.P.P. (24/11/2009) D.C.This may be of use in protest cases.

Sexual Offences Prevention Order

When considering whether to make a SOPO a court is required to determine to the criminal standard whether acts which would justify the making of such an order had actually occurred. See Chief Constable of Cleveland v. H (20/11/2009) Admin Ct.

The Coroners and Justice Act 2009 and The Police and Crime Act 2009
For those of you who thought we might see out the year without the annual raft of changes to criminal legislation these two new Acts will provide further distress but plenty of Christmas reading. Like all criminal legislation these days both Acts are big (the C&JA has 183 sections and 23 schedules and the P&CA has a further 117 sections and 8 schedules) and both Acts makes amendments across a wide range of criminal provisions.

The Coroners and Justice Act 2009

Ignoring, for the purposes of this publication the amendments to the law relating to inquests the Act makes substantial amendments to the criminal law. Section 2 (1) of the Homicide Act 1957 is replaced to provide a revised definition of diminished responsibility. Section 3 of the 1957 Act is repealed and the law of provocation amended. The most significant changes are that the loss of control does not have to be sudden and that sexual infidelity is no longer to be regarded as a basis for a defence of provocation. Sections 74 to 85 relate to the anonymity of witnesses and introduce the concept of an investigation anonymity order to protect a potential witness during the investigation. Readers of this publication may recall that the Criminal Evidence (Witness Anonymity) Act 2008 became law just 33 days after the House of Lords judgment in R.v. Davis (Iain); R.v. Ellis [2008] 2 Cr. App. R. 462 in which the HL held that a trial would be unfair and convictions unsafe if based solely or to a decisive extent on the statements or evidence of anonymous witnesses. The one sop to critics of the rush to legislate without proper debate was that such orders could not be made after the end of 2009 without a further order being made by the Secretary of State. No great surprise then that having given the court the power to make anonymity orders that the government should wish these to continue as they do courtesy of the sections 86 to 94 of the new Act which largely restate the provisions of the 2008 Act. Automatic special measures are extended to witnesses up to the age of 18 in relation to offences involving weapons by ss. 98 and 99. A new Section 22A provides that in the case of adult complainants in sex cases the court must on application admit the complainant’s video-recorded statement in evidence in chief. A witness giving evidence over the live link can now choose a person to accompany them (section 102) which we presume would not extend to the weeping mother of a child witness, although quite what happens when the weeping only begins part way through the evidence is entirely unclear. Section 103 removes the prohibition on supplementary questions on matters already covered in the video recorded evidence. Finally, section 120 (7) of the CJA 2003 has been amended so that “recent” complaints no longer have to be recent as the requirement in s. 120 (7) (d) is repealed. In another Parliamentary “V” sign to the House of Lords section 116 removes the requirement, insisted on in R.v. Clarke; R.v. McDaid [2008] 2 Cr. App. R. 18, that a bill of indictment needs to be signed by the proper officer of the court in order to be valid. As with all legislation different parts of the Act come into force at different times but some of the above is already in force e.g. in relation to indictments, the changes in respect of witness anonymity on 1.1.10 and other provisions on 12.1.10 and this is before the usual confetti of commencement orders over the next few years. The Act is digested at CLW 09/43/14.

The Police and Crime Act 2009

Provisions include attempts to outlaw prostitution by amongst other things making it a criminal offence to pay a woman who has been exploited by another for sexual services (ss.14-20) and the imposition of sex orders imposed on sex offenders (ss. 22-25). In a further extension of the use, so beloved of this government, of civil procedure to criminalise conduct without having to negotiate the higher burden of proof which is the irritating concomitant of criminal process the Act introduces injunctions to deal with gang related violence (ss. 34 to 50.) to be dealt with in the county court or High Court. No need therefore to bother with charging people with criminal offences, it can all now be dealt with so much more easily (and cheaply) and the court can even attach a power of arrest in respect of certain provisions and in any event ss 43 and 44 provide a power of arrest with or without warrant. Brilliant! In addition there are myriad other amendments to legislation relating to confiscation (ss 51 to 61), extradition (ss. 67 to 78), criminal records (ss.93 to 97) which allows the Secretary of State to send a copy of criminal convictions to prospective employers resulting presumably in the immediate loss of that job opportunity but the prize for the most pointless amendment must surely go to s. 81 which changes the name of the Independent Barring Board (created by the Safeguarding Vulnerable Groups Act of as long ago as 2006) to that of the Independent Safeguarding Authority. What conceivable benefit this will bring to vulnerable groups is entirely unclear. Still in a time of high unemployment I suppose that we should recognise the government’s contribution to keeping the printers, stationers and sign writers busy making the necessary and evidently important changes. The first commencement order is summaries at CLW 09/44/9.

Kate Stone and Mark George Q.C. 11th December 2009