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.

Abuse of Process

In historic abuse cases the issue of whether proceedings should be stayed is fraught with difficulty. R v F [2011] 4 Archbold Review 1, [2011] EWCA Crim 726, (CLW 11/18/1), judgment in considering earlier authorities, reinforced 5 propositions which have been established in bringing cases where there has been a long delay:-

1. Proceedings should be stayed if the court is satisfied that by reason of delay a fair trial would not be possible;
2. The proper time to apply for a stay was usually at trial after all the evidence had been called;
3. In assessing whether the defendant has suffered any prejudice due to the passage of time, the court must consider what evidence had been lost and how important the evidence was in the context of the case as a whole;
4. To what extent could any prejudice that has been identified be compensated for by directions to the jury;
5. Was it fair to try the defendant if the complainant’s delay in coming forward was unjustified? In considering this the court had to bear in mind that, for victims of sexual abuse, such delay can be for good reasons.

Adverse inferences

The case of R.v. Hackett [2011] EWCA Crim 380 judgment was considered in the last issue of this Update. As the commentary at CLW 11/14/3 points out there will be cases where a s.34 direction will need to be given along with a Lucas direction, such as where D has not answered questions in interview (requiring a s.34 direction) and then gives evidence of an alibi which it is suggested by the prosecution was false.

Remands in custody of children and young persons

A youth court cannot grant bail to a child or young person since this can only be done in the Crown Court – s.115 Coroners and Justice Act 2009. Nonetheless this provision should be read together with s.23 of the C&YPA 1969 (Archbold para.3-69) in determining the appropriate nature of the remand, i.e. remand to local authority custody, secure accommodation, remand centre or prison. It cannot have been the intention of Parliament that remands in prison were to be mandatory for young defendants and such remands should be a matter of last resort. – see R (A by a litigation friend) v. Lewisham Youth Court and D.P.P.,[2011] EWHC 1193 (Admin) (CLW 11/19/4) judgment

Sentence - Manslaughter – diminished responsibility

In R.v. Welsh [2011] EWCA Crim 73 (CLW 11/16/24) (01/02/2011) judgment the Court of Appeal held in the case of a man who had been found guilty of manslaughter by reason of diminished responsibility that a life sentence rather than a hospital order under s.37 Mental Health Act 1983 was appropriate where there was a basis for saying that his responsibility for the killing had still been “substantial” and there was a risk that he would remain dangerous even if his condition improved as a result of treatment.The court acknowledged that the sentence would probably mean that he would end up being transferred back and forth between prison and hospitals as his condition improved and then deteriorated. Practitioners should bear in mind that the MHA 2007 amended s.45A of the 1983 Act so that it now applies to any person suffering from mental disorder and not, as before, only to those suffering from psychopathic disorder. Under s.45A the court has power to pass a sentence of imprisonment for any offence apart from murder but then order the defendant to be transferred to and detained in a hospital rather than a prison.

This type of disposal, which appears to combine what the courts will regard as the safeguard of life imprisonment with suitable hospital treatment as required is likely to become much more common than it has been thus far in cases of serious mental disorder, where previously a hospital order and limitation order would have been made, as it guarantees that someone who has committed a serious offence will essentially be subject to a life sentence rather than being regarded primarily a patient with all that that implies, especially when it comes to the issue of release or discharge.

Time on remand and suspended sentences

The Court of Appeal in R.v. Hewitt [2011] EWCA Crim 885 (CLW 11/18/09) (22/03/2011) held that the appropriate course is to fix the length of a suspended sentence without reference to time spent on remand in custody and to indicate to the defendant that, in the event of implementation, he could expect an order under. S.240 CJA 2003 to be made in his favour in respect of the time spent in custody before the suspended sentence was passed. Section 240 (7) makes it clear that a suspended sentence is to be taken as being imposed when the court makes an order for it to take effect, and therefore that is the right time for an order under s. 240 to be made. The CA did however also state that it is important that a judge should know how long a defendant has already been in custody because this might mean that the judge would have to consider whether a suspended sentence was in fact the appropriate sentence to impose.

In R.v. Maughan [2011] EWCA Crim 787 (CLW 11/18/10) (22/02/2011) the CA held that where a person had served the equivalent of a sentence of 13 months imprisonment on remand, the judge should not have passed a sentence of six months imprisonment suspended for two years together with an unpaid work requirement but should have sentenced him a way that allowed him the “benefit” of the time spent on remand. A sentence of six months imprisonment was substituted. The decision is criticised by the editor of CLW on the basis that if a suspended sentence is appropriate then that is what the court should impose and there is no reason to depart from the proper hierarchy of sentences especially these days when an order under s.240 allows time on remand to be credited against any sentence passed.

Attorney-General’s References – new material

In two recent cases the question arose as to whether the CA can take into consideration new material in deciding whether a sentence was unduly lenient? The answer appears to be that the CA must decide the matter based on the material that was before the sentencing judge and not on new material that has since come to light. If, however, the court decides that a sentence was unduly lenient it can then go on to consider new material. In Att. Gen’s. Reference (No 84 of 2009) (R v Quain) [2011] 1 Cr App R (S) 509, [2010] EWCA Crim 1879, (CLW 11/16/11), a pre-sentence report was flawed on the issue of dangerousness because it had proceeded on a wrong factual basis and a new pre-sentence report was prepared for the CA. The prosecutor should have brought the errors to the attention of the sentencing judge and an adjournment in the circumstances may have been appropriate but it was not for the CA to consider the new report on the issue of whether the sentence was unduly lenient. However, where, on the material before the sentencing judge, the CA decided a sentence was unduly lenient, it could then look at new material.– Att. Gen.’s Reference (No 74 of 2010) (R v Pearson), The Times, April 1 2011, [2011] EWCA Crim 640, (CLW 10/46/14). New material, therefore, can only come into the equation once the court has decided a sentence is unduly lenient.

Evidence - Hearsay - text messages and other communications to and from defendants

The decision of the CA in R.v. Twist [2011] EWCA Crim 1143 (12/05/2011) judgment is likely to prove to be an important clarification of what the court referred to as “the comparatively new rules upon hearsay in the CJA 2003.” The CA considered four cases all involving text massages found on the mobile phones of the appellants although the same principles apply to all forms of communication. Section 114 of the CJA 2003 shows that the first question to ask is what is a party seeking to prove? If what he seeks to prove is that a matter stated in a communication is true, the hearsay provisions of the CJA 2003 are then engaged.

References to “implied assertions” are no longer helpful nor are they required since the statutory provisions reversed the effect of R. v. Kearley [1992] 2 A.C. 228. To be “a matter stated” within s.115 (3) the purpose of the maker must either have been to make the recipient believe the matter stated or to cause a person to operate on the basis that the matter is true. If the maker of the statement does not have that purpose, as for example where a person sends a text enquiring about the purchase of some drugs, where the statement is simply part of their common understanding, there is no “matter stated” and the hearsay provisions are not engaged. If the evidence is relevant to some issue its admissibility will fall to be considered according to the ordinary rules governing admissibility. If the requests were evidence that the recipient was a drug dealer and if that was what the prosecution wanted to prove the texts would be relevant to that issue and admissible.

The same would apply where the prosecution seek to adduce evidence of a text message which appears to suggest that the recipient was in possession of a firearm. Since it was no part of the sender’s purpose to make anyone believe that the recipient was in fact in possession of a gun (that was just the common understanding of the parties to the communication) the text message was not “a matter stated” within s.115 and therefore was not hearsay and it would be admissible to prove that at the time the recipient had been in possession of a firearm. As the court observed the answer to the question whether a piece of evidence is hearsay will be case-sensitive. The same communication may sometimes be hearsay and sometimes not, depending on the matter for which it is relied on and the fact which it is sought to prove.

Juries - Prison officers as jurors

R.v. Zejmowicz and Ruskinski [2011] EWCA Crim 1173 (11/05/2011) judgment is the latest reminder that if you don’t want particular groups of people such as police or prison officers on your jury you need to do something about it before the jury is sworn. In this case the CA held that on the facts found by an investigation by the CCRC there had been no appearance of bias from the fact that a prison officer was on the jury of two men who were on remand at the same prison and same wing where he worked. The court pointed out that if it had been known at the outset that he was a prison officer he would have been asked to stand down as a precaution. So the remedy is simple. If it matters in a particular case, check with the usher and/or court clerk if anyone on the jury panel has disclosed an occupation you would object to and if necessary ask the judge to enquire of the panel whether any of them work for whatever organisation you would wish to exclude. Chances are you will be able to exclude them at the stage before the jury are shown. However there is now a long and growing list of cases where the matter has not been raised until on appeal and the CA has rarely felt inclined to interfere. [ more on police juror cases ]

Jury consulting the internet

In R v McDonnell [2011] 1 Cr App R 347 CA, [2010] EWCA 2352 (CLW 11/15/3) (30/07/2010) judgment the CA ruled that a judge had been right not to discharge a jury that had been found with material downloaded from Wikipedia and the BBC website after retiring to consider its verdict.In such cases a judge must investigate the position and consider whether the jury might be influenced to reach a decision otherwise than on the evidence adduced and such consideration needs to take into account the following:-

1. The material itself, whether it was relevant, and the possibility that the jury might have been adversely influenced by information that was not logically probative but potentially prejudicial;
2. The fact that private researches were carried out contrary to the judge’s directions;
3. What, if any, other material may have been viewed that potentially affected the jury’s decision;
4. Whether there was a risk such conduct would be repeated;
5. What steps the judge took to remedy the position. This point is relevant if the matter proceeds to appeal.

In the case of McDonnell the material was said to be factual, had limited relevance and, as such, any potential prejudice was limited. The CA said the judge had been right to deal with the case by clear directions to the jury that the case had to be decided on the evidence alone.

It is concerning that the jury ignored the judge’s direction to try the case on the evidence alone and perhaps even more concerning that the CA upheld the judge’s decision not to discharge the jury. It is impossible to say what else had been consulted, how the jurors were influenced and whether they were able to ignore what they had seen. It may be that judges will have to give stronger warnings when directing juries to try the case on the evidence alone by perhaps also stating that consulting other materials is contempt of court which, if seen by a juror, must be brought to the judge’s attention and that such behaviour could result in the trial being aborted and the juror fined.

Brigid Baillie and Mark George Q.C.
23rd May 2011