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.

Contempt of Court – juror misconduct

The cases of AG v Fraill and Sewart; R v Knox [2011] EWHC 1629 (Admin)(CLW 11/24/16) (16/06/2011), (2011) 155 (24) S.J. 11 judgment received widespread publicity when a juror received 8 months custody for contempt of court after ignoring the direction of the judge not to conduct internet searches and not to talk to persons outside the jury about the case. The juror conducted internet searches, contacted an acquitted defendant via Facebook and disclosed information about jury deliberations whilst the jury was still considering verdicts on the other defendants. This resulted in the jury being discharged and a retrial being ordered. Even though the juror was of good character, had admitted what she had done and did not try to influence the jury as a result of her researches, custody was warranted. Although no further guidance was given in this case about what directions or warnings a judge should give to a jury about using the internet or communications outside the case, judges might care to consider warning the jury that the whole process of trial by jury could be undermined by such behaviour. Of course judges face a dilemma here. They traditionally rely on forming a friendly relationship with the jury during the trial as a way of ensuring that the jury will then follow their directions which invariable are more helpful to the prosecution than the defence. It won’t therefore seem very attractive to many judges if they have to start the trial by threatening to lock up jurors who go on the internet in defiance of directions to the contrary! See the last issue of this update and the case of R v McDonnell [2011] 1 Cr App R 347 CA, [2010] EWCA 2352 where a jury was not discharged despite internet searches and some guidance was given about what directions a judge should give to jurors.

Delay

Applications for a stay of the indictment as an abuse of process and a submission of no case to answer are two distinct matters which should be considered separately. The former should be determined according to the principles laid down in Att-Gen’s Reference (No.1 of 1990) (1992) 95 Cr. App. R. 296 and the latter according to the principles laid down in R.v. Galbraith 73 Cr. App. R. 124. Contrary to the practice that seems to have developed since R.v. Smolinski [2004] 2 Cr. App. R. 661, an application to stay the indictment as an abuse of process ought ordinarily to be made and determined at the outset of the case, unless there is some specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage – R.v. F. (S.) [2011] EWCA Crim 1844; (CLW 11/29/1) (21/07/2011) judgment

Bad character – scope of s. 98 (b)

At his trial, for conspiracy to cheat the public revenue, H wished to cross-examine his co-accused D about a threat to blackmail him made earlier by D when he threatened to implicate H in the offence unless he paid him a large sum of money. The CA held that this was evidence of “misconduct in connection with the investigating or prosecution” of that offence within s.98 (b). There was no doubt that the evidence would have been admissible before the 2003 Act came into force and since the common law continued to apply to evidence which was within s.98 the evidence was admissible. Applying R.v. Randall [2004] 1 W.L.R. 56 HL, the judge had no discretion at common law to refuse to admit evidence which one accused wished to adduce against a co-accused provided only that it was relevant which it plainly was here as it went to D’s credibility. Neither was there a discretion to exclude the evidence under s.78 PACE 1984 because that only applied to evidence the prosecution sought to adduce. If the court was wrong then the evidence was plainly admissible under s.101 (1) (e) – see R.v. Apabhai and others [2011] EWCA Crim 917; (CLW 11/22/3) (18/03/2011) judgment .

Bad character – s.101 (1) (d)

Evidence that a person charged with sexual abuse of a child was in possession of indecent photographs of children was admissible under s.101 (1) (d) of the CJA 2003 on the grounds that it was evidence of a sexual interest in children and thus relevant to an important issue between the defendant and the prosecution. It went to deal with the unlikelihood of coincidence. See R.v. D (N.); R.v. P (A.); R.v. U (S.) [2011] EWCA Crim 1474; (CLW 11/25/1) (17/05/2011). The commentary in Criminal Law Week suggests the CA were wrong to conclude that the evidence was also capable of establishing a propensity, pointing out that under s. 103 (1) (a) propensity means “a propensity to commit offences of the kind charged”. Practitioners will be interested in that fact that the CA stated that gateway (f) (correcting a false impression) is too often invoked and that a defendant who denies his involvement does not fall within s. 101 (1) (f), as well as the court’s conclusion that gateway (c) is even more open to misuse. Also of importance the CA confirmed that it is not the law that once bad character evidence has been admitted through one gateway it can then be used by the jury in any way they choose. It is important to establish why the evidence may be admissible as this helps to clarify the purposes for which the jury may legitimately use the evidence.

Bad character – section 101 (1) (g)

The decision in R.v. Clarke (Trevor) [2011] EWCA Crim 939; (CLW 11/26/1) (01/04/2011) judgment is welcome reaffirmation of the continuing relevance of pre-Act authorities which had been doubted in R.v. Woodhead [2011] EWCA Crim 472; (CLW 11/13/3) (15/02/2011) . Section 101 (1) (g) largely restates the previous common law and as long ago as R.v. Jenkins 31 Cr. App. R. 1 the basis for admitting evidence of the character of a defendant who attacks the character of prosecution witnesses was established as being that it is only fair for the jury to have such material before them when deciding the credibility of the defendant in making his attack.

Hearsay

The first question to ask when considering whether a matter stated is hearsay or not is to ask what is the purpose for which the party wishes to adduce the evidence?The fact that A phoned or texted B may be relevant simply to establish that the two were in contact with each other. The content of what was said might be irrelevant and therefore no issue of hearsay would arise. It is only if a matter stated in a communication was relied upon as fact that the hearsay rules are engaged – see s.115 (3). The decision to be made by the court would be case sensitive. The same communication might be hearsay or not depending on the purpose for which it was proposed to adduce the evidence. There is no longer any need to consider the vexed issue of whether a statement was an implied assertion (see R.v. Kearley [1992] 2 A.C. 228. In R.v. Twist and others [2011] EWCA Crim 1143 (CLW 11/22/4) (12/05/2011) judgment the CA heard four conjoined appeals. In three of the cases what was sought to be proved was that the defendants were either involved in the supply of drugs or the possession of a firearm. In each case the CA held that text messages received on the defendants’ mobile phones were not hearsay because they did not contain any matter stated to which s.115 (3) applied and simply went to establish the fact that was in issue. In R. v. Lowe the complainant’s mobile contained 47 text messages from D who was accused of rape. The court concluded that the texts were not hearsay and were admissible to prove the fact of a rape but even if they were hearsay they were admissible under s. 114 (1) (b) and s.118 as admissions against interest by D.

InR v Ford[2010] EWCA Crim 2250 (CLW 11/20/4) (03/08/2010) judgment the Court of Appeal stated that in circumstances where a witness has been frightened, either by or on behalf of the defendant, and thus refuses to give oral evidence, the defendant should not generally be allowed, in opposing the application to admit the statement, to rely on weaknesses or inconsistencies contained within the statement. To do so would be to allow the defendant to benefit from his wrongdoing or that of his associates. The CJA 2003 permits, in certain circumstances, statements to be read to the jury. These are where witnesses are absent, but identified. There is, however, no power under either the CJA 2003, Criminal Evidence (Witness Anonymity) Act 2008 or the Coroners and Justices Act 2009 to permit anonymous hearsay to be read to a jury. Some of the rules against anonymous witnesses have been relaxed under the 2008 Act but it doesn’t extend to both anonymity and absence. In addition, no common law power to allow for witness anonymity survives the 2008 Act.

Special measures

As from 27th June 2011 various amendments made by the Coroners & Justice Act 2009 to the special measures provisions in YJ&CEA 1999 came into force – Coroners & Justice Act 2009 (Commencement No 7) Order 2011 (S.I. 2011 No. 1452) (CLW 11/23/39). Amongst other provisions s.110 of the C&JA 2009 allows a child witness (now up to the age of 18) to opt out of the usual method of evidence given by pre-recorded video and TV link so long as the court is satisfied that doing so will not diminish the quality of their evidence.There is therefore the prospect of such witnesses giving evidence from behind a screen in court.

Breach of ASBO

The insidious way in which a breach of an ASBO can lead to a prison sentence being passed even though the original offence for which the ASBO was imposed is non-imprisonable is illustrated by the case ofR v Fagan[2010] EWCA Crim 2449 (CLW 11/20/7) (09/09/2010) in which 20 months imprisonment on a guilty plea was upheld for an offender who was a drug user, had 6 previous convictions for breaches of ASBOs, was on licence for breach and had unpaid fines for begging. He was subject to a 5 year order which prohibited him from “causing harassment, a nuisance or annoyance by seeking to beg from any person upon any main line or underground ... station or train within the boundary of the M25”. The breach involved him being found on a train asking passengers for money to pay for accommodation for the night.According to the Court of Appeal, begging from a captive audience on a train will cause distress, even if not serious and by pleading guilty he had accepted he had caused annoyance or nuisance. He had previously breached the order and had been warned at a previous sentence for breach that this was his last chance and a serious penalty would follow for any future breach. Terms of ASBOs often include behaviour already covered by the criminal law where the penalty might be a fine or a short prison sentence. The imposition of an ASBO means the offender may be given a prison sentence for breaching the order rather than for the offending behaviour so it is a way of imposing what can be a lengthy prison sentence for a relatively trivial offence. Begging under S.3 of the Vagrancy Act 1824 is not imprisonable and an offence under S.4 (begging after a conviction under S.3) carries a maximum of 3 months. Previous instances have included a term in an ASBO prohibiting being drunk in a public place (non-imprisonable) and a prison sentence where drunken behaviour has put the person in breach of the ASBO.

Murder – Minimum terms – knife attacks

It hasn’t taken long for the new provision as to 25 year starting points for knife murders only introduced in 2010 to attract the attention of the Court of Appeal. In a series of cases listed together R.v. Kelly and others [2011] EWCA 1462; (CLW 11/24/17) (16/06/2011) judgment the CA had to consider on the facts of each case the application of the term “took a knife or other weapon to the scene.”

Sentencing – Indictment

An indictment should match that which is alleged and a defendant can only be sentenced for what he or she has been convicted of. The exception to this is contained in rule 14.2. (2) of the Criminal Procedure Rules 2010 which permits an allegation of more than one incident if, taken together, they amount to a course of conduct having regard to the time, place or purpose of commission. Where this applies the indictment must make it clear that the charge relates to a course of conduct, together with the period over which it is charged, so that a jury can clearly identify an event from the indictment rather than have “specimen counts”. A number of counts, rather than a number of incidents rolled into one count, are preferable so that verdicts are meaningful, transparent and reflect the criminality involved. Putting juries in charge or taking verdicts on multi count indictments may take longer but are, on the whole, to be preferred to indictments in which a count will refer to more than one incident or be a “specimen count” – R v Hartley[2011] EWCA Crim 1299, (CLW 11/26/7) (12/05/2011) judgment . This procedure is clearly preferable to that permitted under sections 17 to 19 of the Domestic Violence, Crime and Victims Act 2004 whereby a jury can try sample counts and the remainder of the counts are tried by the judge. If a count is a specimen count the prosecution will call all the evidence so why not have the jury try all the counts?

Sentencing – provocation as mitigation

The Court Of Appeal has confirmed that merely because sexual infidelity is no longer a basis for a defence of provocation (Coroners & Justice Act 2009, s.55 (6)(c)) does not mean that it cannot amount to mitigation when sentencing for murder – see CJA 2003 Sch 21 para.11. See Att-Gen’s Reference (no. 11 of 2011); R.v. Williams (Sanchez) [2011] EWCA Crim 1496 (CLW 11/28/12) (08/06/2011).

Sentence – Robbery

One way in which MPs, who have recently discovered their backbones and a newly formed resolution to stand up to the bully boys of the tabloid press, could prove their mettle would be to revive Ken Clarke’s recently rubbished plans to reduce the prison population. With no money in the kitty and with the numbers in prison rising inexorably Ken must really love the latest “assistance” provided by their Lordships in the Court of Appeal. The case of R.v. Turner (B.J.) 61 Cr. App. R. 67 has been the standard starting point for sentences for armed robbery since 1975, but no longer. Their Lordships decided in R.v. Kelly and others [2011] EWCA Crim 1462; (CLW 11/24/18) (16/06/2001) judgment that there needs to be maintained a relationship between sentences for murder and those for serious offences of violence and since, as we all know, sentences for murder have gone through the roof thanks to David Blunkett and the CJA 2003, it is now time to hike up the sentences for armed robberies in order to achieve a better balance with sentences for murder.As the commentary in CLW points out, this would seem to mean that for consistencies sake, if nothing else, there will shortly be a readjustment of sentences for all manner of less serious robberies and other offences of dishonesty all in the name of maintaining a proper sense of proportion.

Indefinite sentences and dangerousness

Solicitors who consider that a client facing an indeterminate sentence would be assisted on the issue of dangerousness by a report from a psychologist or psychiatrist should not be deterred by the obiter comments of the CA in R.v. Beesley and Coyle; R.v. Rehman [2011] EWCA Crim 1021; (CLW 11/21/11) (18/04/2011) judgment . Anyone who has any experience of an OASys assessment, the usual tool used by probation officers to determine risk of re-offending and of serious harm, will be very concerned by the CA’s view that such an assessment summarised in a PSR should be all that is needed to determine dangerousness. These assessment run to over 40 pages, contain a great deal of information of dubious value, will undoubtedly leave the reader no better informed at the end than at the beginning and usually end up determining that your client is the most dangerous person the probation officer has ever come across since the last OASys assessment they carried out. Certainly in hearings before the Parole Board it is my experience that most of those who have to read them regard them as barely worth the paper they are written on.

In R.v. Smith (Nicholas) [2011] UKSC 37 (CLW 11/28/16) (20/07/2011) judgment the Supreme Court held that ordinarily it would not be sensible to impose a sentence of IPP on a prisoner previously sentenced to life imprisonment since it would not achieve anything but in the circumstances of this case where the prisoner had been released by the Parole Board because he was no longer deemed to be dangerous the sentence was right because it reflected the fact that the prisoner was indeed dangerous.

Sexual Offences Prevention Orders

Whilst a SOPO might be necessary if the sentence was a determinate or extended one where the licence had a defined and limited life, it would not usually be necessary or appropriate to add a SOPO to an indeterminate sentence since the licence on which a prisoner would be released could include the necessary restrictions – R.v. Smith (Steven) and others[2011] EWCA Crim 1772 (19/07/2011) judgment .

Inappropriate cross-examination by prosecution counsel

Cross-examination of an accused who denied rape as to whether he accepted that a rape had taken place and inviting him to explain the DNA evidence was inappropriate and should not have been allowed to continue. Questions directed at facts not within the knowledge of an accused invited impermissible speculation and should not have been allowed.Defence counsel in this case had objected to the line of questions at the time and had been overruled by the judge. In the Court of Appeal he fared no better since the Court held that although what had happened was wrong it did not affect the safety of the convictions – see R.v. C [2011] EWCA Crim 1607; (29/06/2011) judgment .

Police (Detention and Bail) Act 2011

Less than two months after McCombe J in R. (Chief Constable of Greater Manchester Police) v. City of Salford Magistrates’ Court and Hookway [2011] EWHC 1578 (Admin) (CLW 11/24/3) (19/05/2011) upheld the decision of a district judge at Salford Magistrates’ Court to refuse the police an extension of time for holding a suspect without charge the government passed this Act intending to restore the position to that which was thought to pertain prior to this case. If the government really thought this was the last word on this topic their optimism may be misplaced.A careful consideration of the law as set out in PACE 1984 suggests that in fact it remains difficult for the police in many cases to justify making application for extensions in cases where defendants have been on bail for weeks if not months and even more difficult to see on what basis such an extension can be lawfully granted. The commentary at CLW 11/27/9 bears careful reading and sets out the potential arguments against further detention by the police and the granting of such extensions.

Brigid Baillie and Mark George Q.C.

2nd August 2011