Criminal Law Update, series 1: issue 11

29 November 2007

Conviction of co-accused

The case of R.v. S (26/07/2007) [2007] EWCA Crim 2105 (CLW 07/37/2)  is a useful reminder that the power under s.74 PACE 1984 to admit the plea of guilty of a co-accused is to be used sparingly. There is a growing tendency (encouraged no doubt by the bad character provisions of the CJA 2003) for prosecutors to seek to adduce such evidence (and indeed other evidence as well) on the basis that it is part of the background or that the jury need to be told so as to avoid speculation about what has happened to the co-accused. Frequently the defence also want the evidence in so that the point can be made that the real culprit has pleaded guilty but this is not always the case and if the plea of the co-accused is not relevant for the limited purposes set out in s.74 then it is not admissible. In a blow to the bureaucrats who would like all points of law to be ironed out well in advance of the trial the court also pointed out that where admissibility depends on what the issues turn out to be for the jury it may be better for a decision on admissibility to be delayed until the issues have been clarified in the course of the evidence.

Jury composition and certainty of verdicts

I suspect that many practitioners had assumed that the effect of allowing all manner of people employed in the criminal justice system to sit on juries (section 321 and Schedule 33 of the CJA 2003) meant that even police officers can routinely sit provided they do not know about the case itself or the actual officers involved in giving evidence. The important decision of the House of Lords in R.v. Abdroikof and others [2007] UKHL 37  appears to allow greater scope for arguing that police officers should not be allowed to sit. This is obviously the case if they do know the officers involved in the trial but the HL have gone further. The argument that appears to have won the day for two of the appellants was that when police officers are on a jury the possibility of bias (possibly unconscious) inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process (para. 23 and 24).

The appeal of Abdroikof himself was dismissed. He had been tried at the Old Bailey, there was no real conflict between the evidence of the police officers and the defence and the best that could be said was that the officers (including the foreman of the jury) were all members of the Metropolitan Police. In the case of the appellant Green, the HL said that he “was not tried by a tribunal which was and appeared to be impartial (para.26). As the court pointed out there was a crucial dispute between the evidence of a police officer who was the alleged victim of an assault and the defence and although the policeman juror and the alleged victim were not known to each other they shared the same service background. The appeal of Williamson was allowed in circumstances where a member of the CPS had served at his local Crown Court. The view of the HL (paras. 27 and 51) appears to make it clear that CPS employees cannot serve on juries where the CPS is the prosecuting authority.

In cases tried outside London it seems that it may be possible to argue in a case were there is a genuine dispute as to the evidence to be given by police officers that no police officer should serve on a jury where evidence is to be heard from officers from the same force as the juror see para. 54 per Baroness Hale or at least from a police station that commits to the same Crown Court. The case requires careful reading and consideration for the future.

For an example of how a judge (and advocates) should be careful to ensure that verdicts delivered before the majority direction has been given really are unanimous see R.v.Charnley [2007] 2 Cr. App. R. 468. The problem is more likely to arise where there are multiple defendants and/or counts. If the court is alerted to the problem before the jury have dispersed the judge should reconvene the jury and investigate the matter thus avoiding a potentially serious miscarriage of justice and an unnecessary appeal.

Sentencing Cases

Imprisonment for public protection

There is no requirement that there should be a nexus between the facts of the case for which the offender is being sentenced and the facts on which a finding of dangerousness are based – see R.v. Green (John Francis) [2007] EWCA Crim 2172 06/09/2007.

Basis of plea

If a basis is going to be tendered it is essential that practitioners get it right first time and ensure that it is agreed by the prosecution. Victories for defendants in Newton hearings are about as likely as an away win this season for Derby County! i.e. they may happen but very rarely and then only by a fluke! The decision in R.v. Hall [2007] 2 Cr. App. R. (S.) 268 is a salutary lesson in how not to conduct such a case and the consequences for the lay client.

Manslaughter

A person is not guilty of unlawful act manslaughter if he supplies a class A drug to a fully informed and responsible adult who died as a result of the self-administration of the drug because (a.) the act of supplying the drug did not cause harm to the receiver and (b) in any event the act of supply could not have been the cause of death because the act of self-administration by a fully informed person broke the chain of causation. See R.v. Kennedy (No.2) [2007] 3 W.L.R. 612; [2007] UKHL 38 (CLW 07/38/9). More surprising than the outcome is that it took 10 years to get the right decision after two previous appeals to the CA had been turned down.

Sentencing for attempted murder

The decision in Att-Gens Reference (No.66 of 2007) (R.v. Russell) EWCA Crim xxx (CLW 07/38/11) confirms (should there have been any doubt) that sentences for attempted murder are now running at unprecedented levels far in excess of what would have been imposed before the hike in murder sentences following the introduction of the new levels of sentencing in the CJA 2003. Admittedly this case was an attempted execution but even so, the fact that the CA substituted a minimum term of 17 years for one of 7 ½ years means that the Court considered that the appropriate determinate sentence would have been 34 years (giving allowance for early release) and since the plea was entered at the earliest opportunity and was therefore presumably subject to a deduction of one third the appropriate sentence after a trial would have been 51 years! Is that really the appropriate sentence even for such a serious offence as this? See also R.v. Ford [2006] 1 Cr. App. R. (S.) 204; Archbold 2007 para. 34-102.

Conspiracy to rob

For two examples of sentencing in cases of car-jacking robberies by gangs see R.v. Gbedje and Owoola [2007] 2 Cr. App. R. (S.) 585 and R.v. Khan and Khan [2007] 2 Cr. App. R. (S.) 612. Reference should also be made to the SGC guideline on robbery – see Archbold 2007 Appendix K-80.

Representation Orders

Where solicitors are seeking a representation order in the Court of Appeal before leave to appeal has been granted, see RCPO v. Stokoe Partnership (M.,J. and P. and Ministry of Justice, interveners) [2007] A.C.D. 342 (CLW 07/39/30) for the correct interpretation of the Defence Service (General) (No.2)Regulations 2001 (S.I. 2001 No. 1437) and confirming that the CA does have the power to grant a rep. order in such circumstances.

Hearsay and the Criminal Justice Act 2003

Those who struggle with the rules of evidence, especially when reference is made to hearsay may wish to note that in R.v. Knight (20/11/2007 Lawtel 21/11/2007) the CA confirmed that where the aunt of a girl gave evidence about a diary entry she had read about the girls relationship with the appellant (the diary itself having been destroyed) this was not hearsay and therefore did not fall within s.115 of the 2003 Act – R.v. N (Kenneth) [2006] EWCA Crim 3309; Archbold 2007 3rd Supp. para. 11-4 applied. The evidence of the aunt was direct evidence of the contents of the diary and was equivalent to evidence of the reaction of a person to an incident.

Legal representation

The decision to withdraw from a criminal trial is usually not an easy one bearing in mind the duty of advocates under the Code of Practice but the situation is not helped by the case of R.v. Ulcay and Toygun [2007] EWCA Crim 2379; (CLW 07/40/3) (19/10/2007). Counsel and solicitors who were appointed in place of the original team were refused an apparently lengthy adjournment in order to prepare the case properly, the effect of granting which would have been to de-rail the trial and were expected to soldier on according to the CA. This is likely to make advocates and solicitors very wary of agreeing to take over representation of a defendant in a substantial case until they have been able to assess the scale of the task facing them and get an indication in advance of how much time they will be allowed to prepare the case. Since clients can now sue for negligence and alternatively complain to our professional bodies many will wonder if accepting such an offer is really in their own interests.

New Legislation

Serious Crime Act 2007

This received the royal assent on 30 October 2007 but is not yet in force. We all long ago lost count of how many criminal law statutes have been passed by this government but if this one actually sees the light of day there are a considerable number of provisions that will affect criminal practitioners. Key amongst them is a power given to both the High Court (s.1) but also the Crown Court (s.19) to make a serious crime prevention order apparently designed to make it harder for those convicted of serious offences to do it again. Evidently prison no longer works! So in the CC your drug importation client will not only be liable to 20 years plus or thereabouts and the confiscation of whatever assets he has (or doesn’t have as the case may be) and a consecutive sentence in default (to be served in full) but he can now also be made the subject of a SCPO. This involves all sorts or restrictions on what he can or can’t do, whom he associates with, premises to which he has access and travel. These however are only examples and the range of measures that can be included seems to be limited only by the imagination of the judge and/or prosecution.

Of course from the title of the Act it can safely be assumed that only serious crimes can trigger a SCPO. That much is true and Part I of Schedule I helpfully names thirteen such crimes including the trafficking of drugs, people or arms, money laundering and fraud and also armed robbery and blackmail. Again however these are merely examples and section 2 helpfully gives the court the power to treat any other offence as a serious offence for the purpose of the Act provided that it is sufficiently serious to be treated as if it were a specified offence. And if I am not mistaken in my reading of para.15 of Part I of Schedule I (and I would be happy to be told that I am) the court can include offences committed before the Act comes into force. This after all is presumably why the High Court can be given the power to make such orders because the CC couldn’t do so after the case has ended.

In addition new offences of encouraging or assisting crime are created by sections 44 to 49. There is much to consider here. For a brief but more comprehensive summary of the provisions than is included here, see CLW 07/40/20.

Mark George