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.

Bad Character – applications by co-accused – Criminal Justice Act 2003 section 101 (1) (e)

Where an accused makes an application to adduce bad character of a co-accused it is important that the judge makes an assessment of both whether the evidence has “ substantial probative value” and whether it relates to “an important matter in issue” between the co-accused. Where a defendant is seeking to prove a relevant propensity, he must first establish that the evidence is substantially probative of the propensity (which it may not be if there is other evidence to the same effect) and, next, that the propensity is substantially probative of the fact in issue. Furthermore, the judge is required to make an assessment of the importance of the issue between the defendants in the context of the case as a whole. Once the statutory criteria for admission of character evidence against a co-accused are met there is no discretion to exclude it on case management grounds (save for a deliberate refusal to comply with the notice requirements of the Criminal Procedure Rules 2011 – Archbold para. 13-110). R.v. Phillips (Paul Andrew) [2012] 1 Cr. App. R. 332; [2011] EWCA Crim 2935; (CLW 12/14/1) (21/12/2011). judgment

Good character

In R. v. P.D. [2012] EWCA Crim 19, (CLW 12/7/3) (26/01/2012) judgment the defendant on various charges of physical and sexual violence against his wife (including anal rape) had no previous convictions for sexual offences but the judge declined to give a modified direction (going to propensity). This was held to be a serious misdirection rendering the defendant’s conviction unsafe, even though he would not have been entitled to directions relating to credibility (because of limited admissions he had made about using violence against his wife and because of evidence that he had misused charitable money) and even though there was other powerful evidence that his wife had been telling the truth (including an internet article in which the defendant described anal rape as “the ultimate punishment”); the fact that a good character direction might be undermined by the facts of a particular case was no warrant for declining to give any such direction; it was for the jury to decide what weight to give the absence of previous convictions; and while it is possible to envisage a case where a verdict might be safe despite a failure to give a Vye [1993] 1 W.L.R. 471, C.A., direction ( e.g. where the character of the defendant casts no light upon his guilt or innocence), this was not such a case.

Hearsay

In the end then the European Court of Human Rights (ECtHR) decided to back off from what otherwise threatened to be a nasty confrontation between the ECtHR and the UK courts on hearsay evidence. A five judge Court of Appeal and a powerful seven judge Supreme Court in R.v. Horncastle [2010] 2 A.C. 373; [2010] 2 W.L.R. 47 had already made it clear that there was no way that the UK courts were going to accept the absolute prohibition on the use of hearsay evidence, even when this was the sole or decisive evidence, that the ECtHR appeared to have upheld in the chamber decision in Al-Khawaja v. United Kingdom (2009) 49 E.H.R.R.1.In Al-Khawaja v. United Kingdom; Tahery v. United Kingdom 54 E.H.R.R. 807 (CLW 11/46/7) (15/12/2011) judgment the ECtHR held that exceptions to the principle in Article 6 (3) (d) are possible after all, certainly when the reason is the death of the witness and possibly where the witness is absent through fear although in this case the admission of hearsay requires careful scrutiny and must be a measure of last resort. The ECtHR accepted in principle that the regime of admissibility of hearsay evidence set out in the Criminal Justice Act 2003 ss. 114 to 126 provides adequate safeguards to ensure fairness and therefore to comply with the requirements of Article 6. In the case of Al-Khawaja itself the court accepted that in the case of a witness who had subsequently died the admissibility of his evidence in hearsay form did not result in a breach of Art 6. In the case of Tahery however where the sole if not decisive statement came from a witness who claimed to be in fear, the Court was not persuaded that these same provisions even coupled with a strong judicial direction to the jury were sufficient to avoid a breach of Art.6.

This decision may therefore still be of assistance in domestic cases where these difficulties continue to arise. Indeed R.v. Ibrahim [2010] EWCA Crim 837 (27/04/2012) is a good example. The alleged victim of a rape, who was a drug addict, had died by the time of the trial. Her statement was admitted under s. 116 CJA 2003. On appeal the CA considered that there was justification for admitting her evidence under s.116 subject to the issue of sufficient counterbalancing measures as identified in Al-Khawaja v. United Kingdom. On this basis the court had to consider that V’s statements were central to the case, that she was a heroin addict and had previously made a false allegation of sexual assault. The court concluded that she was not a reliable witness and in the absence of sufficient supporting evidence the conviction was unsafe as the evidence of the complainant ought not to have been admitted.

Hearsay evidence – memory refreshing and section 120 CJA 2003

When a witness reads their witness statement in an attempt to refresh their memory (s.139 CJA 2003) but the statement does not have the desired effect of jogging the memory the contents of the statement are not made admissible by s. 120 (3) because this sub-section only applies when the effect of the statement is to refresh the witness’s evidence. Part of the statement may however be admissible under s. 120 (4) and (5) and potentially under s.120 (6), subject to any argument under s. 78 PACE 1984 but only those parts that described the appellant and identified him as the person who threw a bottle and hit the complainant and not other parts of the narrative much less the whole of the statement. R.v. Chinn [2012] EWCA Crim 501 (CLW 12/13/2) (15/03/2012) judgment .Practitioners should bear in mind that just because there had been cross-examination on the contents of a witness statement does not mean that that statement should necessarily be given to the jury as an exhibit. This will depend on the common law rules relating to the extent to which cross-examination had gone beyond the point on which the witness has refreshed her memory when giving evidence. In addition s.122 specifically states that such a statement once exhibited should not accompany the jury when they retire save if the court thinks it appropriate that it should or all parties agree that is should. Sara Woodhouse Davie commented on this case for Lexis Nexis see here .

Police Officers on Juries

The decision of the European Court of Human Rights in Hanif and Khan v. United Kingdom [2012] Crim. L.R. 295; The Times, December 27, 2011 (CLW 12/01/05) (20/12/2011) judgment may provide further support for a submission that police officers ought not to be included in jury panels for fear of a breach of Article 6 if such a submission is made before the jury is sworn. It may however be of less value to those who have already been convicted. Before the ECtHR the applicants did not go so far as to suggest that the presence of police officers on a jury would automatically result in an Art 6 breach and whilst the ECtHR upheld the submission that in a case where police evidence is challenged on an important issue in the trial (in this case evidence of surveillance officers that the applicant was in the company of another man whilst allegedly delivering controlled drugs) the presence of a police officer on the jury did breach Art 6, the Court was strongly influenced by the fact that the police officer juror had personal knowledge of the police officer witness. Absent that fact it is far from certain that the Court would have reached the same conclusion. The advice to advocates therefore remains the same as before. If you do not think the presence on your jury of police officers (or prison staff etc) would be appropriate then you must raise this with the judge before the jury is sworn. Trying to raise this issue on an appeal is a pretty forlorn hope in the light of the current authorities on this topic. Mark George Q.C. represented Ilyas Hanif, instructed by Chris Davey of Howells LLP, Sheffield more here .

Video-recorded evidence

It has become increasingly common practice for prosecution witnesses to give evidence in chief via a pre-recorded video interview with a police officer. Yet despite years of experience together with the fact that there are clear legal principles governing the limited circumstances in which a jury should be allowed to retire with a transcript of such an interview it seems that some judges and advocates remain unaware of the rules in this regard. In Issue 29 (22nd March 2011) we noted the case of R.v. Popescu [2010] EWCA Crim 1230 in which the CA set out a number of principles as to the proper practice in such circumstances. See now Archbold para. 8-92. In R.v. Sardar [2012] EWCA Crim 134; (CLW 12/11/3) (09/02/2012) the CA took the opportunity to repeat these principles. In the present case the judge took the view that it was only fair for the jury to have the transcript with them when they retired as they also had the transcript of the defendant’s interview! As the CA in Sardar pointed out this was no justification whatsoever for this to have happened. There is no comparison between a defendant’s post arrest interview and the evidence in chief of the complainant. If it was bad enough that the judge had formed a completely erroneous view of the law it was compounded by the failure of the advocates (a barrister for the prosecution and a solicitor-advocate for the defence) to point out the error to the judge and to agree to allow the jury to retain the transcript.

For the avoidance of doubt the jury should only have a transcript whilst watching the video recording if the sound quality makes it hard to follow or if the defence wish to cross-examine on the contents of the transcript and this would be hard to follow without the jury having copies. Once the transcript has served this limited purpose it should be withdrawn from the jury. Only if there is a specific point to be made to the jury about what the transcript contains should the jury be allowed to take copies with them into the retiring room and even then there are other ways of achieving this without the jury retaining the full transcript e.g. they can be given an agreed note of what was said. This apart no defence advocate should allow such a document, containing the core of the prosecution case, to be retained by the jury during their deliberations. There can be no possible benefit to the defence and the prejudice likely to arise should be obvious.

Loss of control – partial defence to murder

The changes to the law on provocation contained in the Coroners and Justice Act 2009 (Archbold para. 19-51 and 19-52) which sought to exclude sexual infidelity as a basis of the partial defence were always likely to prove controversial. No matter that statistically it may have been the case that far more men than women relied on the defence, it is a simple fact of human life that few things are more likely to provoke a potentially violent reaction in a partner than to find the other partner engaging in sexual activity with another person. The decision of the Court of Appeal in R. v. Clinton and others [2012] EWCA Crim 2 (CLW 12/03/5) (17/01/2012) judgment seems likely to substantially undermine the intention of the legislature in passing these provisions. The Court accepted that sexual infidelity alone could not be a qualifying trigger for the defence as required by s. 54 but went on to state that where sexual infidelity is integral to, and forms an essential part of, the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of s 55 (3) and (4), the prohibition in s. 55 (6) (c) does not operate to exclude it.

Life Imprisonment and Article 3

In Vinter and others v. United Kingdom, The Times, February 8, 2012, (CLW 12/03/12) (13/12/2011) judgment the European Court of Human Rights had to consider a claim from three prisoners serving whole life tariffs for offences of murder that their sentences amounted to ill-treatment and therefore a breach of Article 3 of the European Convention. The court said that it would only be on “rare and unique occasions” that a sentence could be held to be so grossly disproportionate that it amounted to a breach of Art.3.Providing a life sentence was imposed only after the court had considered all the relevant mitigating and aggravating factors no issue under Art 3 could arise at the time the sentence was imposed. As to the future, an Article 3 issue would only arise when it can be shown that the applicant’s continued imprisonment can no longer be justified on any legitimate penological grounds. Pete Weatherby Q.C . represented Mr Vinter instructed by solicitors more here .

Discount for plea of guilty

In R. v. Wilson (Paul) [2012] EWCA Crim 386 (CLW12/11/6) (14/02/2012) It was emphasized that it would be productive ultimately of chaos, and would undermine consistency in sentencing and the value of a guilty plea to the criminal justice system, if the existing guideline could be disregarded, unless it was possible to find that the interests of justice required its disapplication; it was important to underline that part of the advice that would be given to a defendant was that a guilty plea, even in an extreme case, would attract some discount: Even in overwhelming cases, a plea of guilty was a distinct public benefit and the earlier it was put forward the better it was for everyone. In this case the judge had given no credit for a plea of guilty on the basis that the evidence was such that the offender had had no option but to plead guilty. No specific feature of the case required the Sentencing Council’s guidance on credit for pleas of guilty to be disapplied; it was decided to vary the sentence to allow limited credit (reducing the minimum term attaching to a discretionary life sentence from 15 years to 13-and-a-half years.

Guideline on sentences for drug offences

The Sentencing Council for England and Wales has issued a definitive guideline, applying to all offenders aged 18 or over who are sentenced on or after February 27, 2012, regardless of the date of their offence. The offences covered are: (I) fraudulent evasion of a prohibition on the importation or exportation of a controlled drug, (II) supplying or offering to supply such a drug and possession of such a drug with intent to supply it to another, (III) production of such a drug and cultivation of a cannabis plant, (IV) permitting premises to be used, and (V) possession of a controlled drug. For the full text of the guideline see www.sentencingcouncil.org.uk .

The guideline sets out eight steps to be followed (in order), which broadly correspond to the steps set out in the guideline on offences against the person except that there is no step requiring the court to consider whether an offender meets the dangerousness criteria. There are 27 listed examples of aggravating features. 16 factors reducing seriousness or reflecting personal mitigation are described. Culpability demonstrated by the offender’s role is in three degrees; leading, significant or lower. These lists although comprehensive are not exhaustive. The category of harm is measured by the indicative quantity of the drug concerned. There are the usual tables with the appropriate starting points and range for each class of drugs. There are similar tables for supply and possession with intent to supply, production and cultivation and permitting premises to be used. There is a final table for simple possession.The guideline continues the trend towards a logarithm programme approach towards the sentencing exercise. Follow each of the stages in the programme (in order) and you will be told what the sentence is going to be. Expect to hear advocates reminding sentencers that these are guidelines not tramlines!

Sentences for dangerous offenders

In R . v. J. (M.) , [2012] EWCA Crim 132; (CLW 12/07/25) (09/02/2012) judgment , the Court of Appeal sought to clarify any uncertainty that followed from the recent Supreme Court decision in R. v. Smith (Nicholas) [2011] 1 W.L.R. 1795 (see Archbold, 2012, §§ 5-495 et seq.) in whichthe Supreme Court considered when the judge is required to make the assessment of future risk of serious harm. The Supreme Court decision seemed to exclude from consideration questions about the likely impact on a young offender of the process of maturation (as in R. v. Lang and other appeals [2006] 2 All E.R. 410, C.A. ( CLW/05/41/9 )) or the possible impact of alternative sentencing options that would sufficiently address the risk posed by the offender so as to make an indeterminate sentence unnecessary. In R. v. Smith (Nicholas), it was argued on behalf of the defendant that, in determining the issue of dangerousness, the sentencing judge had to decide whether the defendant would pose a significant risk when he had served his otherwise appropriate determinate sentence. The Supreme Court rejected this argument. Lord Phillips pointed out at [14] that section 225(1) (b) is in the present tense, and that the sentencing judge is permitted to impose an indeterminate sentence “if there is a significant risk” that members of the public will suffer serious harm as the result of the commission by the defendant of further specified offences. Lord Phillips continued at [15] by saying that he did not consider that section 225(1) (b) required a judge to carry out the exercise for which the appellant contended.

“Rather it is implicit that the question posed by section 225(1) (b) must be answered on the premise that the defendant is at large. It is at the moment that he imposes the sentence that the judge must decide whether, on that premise, the defendant poses a significant risk of causing serious harm to members of the public.”

The practice of the Court of Appeal has been to allow for future maturation and the effect of other measures upon the offender during his sentence to be taken into account.
It has not been on the basis that the defendant is “at large” at the moment of passing sentence. What the judge has to do (as the Court of Appeal said) is to make a decision whether there is now a significant risk of the commission of further offences causing serious harm. By definition, that requires the judge to look to the future. The only certainty about the defendant’s future is that he will one day die. But other things may be said with a high degree of confidence: for example, that, on any view, he will be in prison for many years, and/ or that he will die sooner rather than later (on account of old age, illness or a combination of the two). Other things may be said with a degree of confidence (that young offenders mature and often leave their criminal ways behind them that some offenders respond well to treatment programmes). All of these considerations (as well as others), have to be factored into a decision as to whether the particular offender before the court presents an unacceptable risk; but, if the judge has to ask himself what the risk is if the offender were at large, they would all be irrelevant.

Smith was right to say that the question to be asked is: what is the risk of further offences, but was wrong to say that this has to be answered on the assumption that the offender is at large. The court is expected to take account of the possible effect of lesser, alternative sentences on the question of risk. Section 226 applied where a person under 18 was convicted of a serious offence and the court was of the opinion that there was a significant risk to members of the public of serious harm as the result of the commission of further specified offences. Mirroring the provisions of section 225 (in relation to adults), subsection (3) required (other than in the exceptional case where detention for life was appropriate on account of the seriousness of the offence) that the court should impose a sentence of detention for public protection, but only if (unlike the provision for adults, where there was no such escape clause) the court was of the view that an extended sentence under section 228 would not be adequate to protect the public from the risk of such harm at the hands of the offender. Thus the court had to ask itself: even if an extended sentence were to be imposed, would the offender still present an unacceptable risk? This clearly required the court to consider both the effect of maturation and the effect of the workings of an extended sentence (both the custodial element and the extended licence element). And if the sentencer was obliged to consider the effect of an extended sentence, then it is against all logic to suppose that Parliament intended that he should not equally consider the possible effects of other lesser measures, including a straightforward determinate sentence.

The commentator in Criminal Law Weekly (12/07/25) suggests that the Supreme Court judges are somewhat out of touch with the real world practicalities of sentencing as opposed to academic thoughts and arguments about the present and past tense. Now that’s a thought!

Andy Fitzpatrick and Mark George Q.C.

4th May 2012