w/criminal law update autumn 2017.2

CRIMINAL LAW UPDATE

Autumn 2017

Anthony EdwardsTV Edwards LLP

www.tvedwards.comEdition 2

October 2017

INDEX

1. STATUTORY CHANGE

2. CRIMINAL INVESTIGATIONS

3. PROFESSIONAL STANDARDS

4 PROCEDURE including civil jurisdiction

5 YOUTH JUSTICE

6 CRIMINAL LAW AND ROAD TRAFFIC

7 SENTENCING

8 EVIDENCE

9 COSTS AND LEGAL AID

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Part 1 STATUTORY CHANGE

22.2.17

Mutual recognition of driving disqualifications

Effective between Ireland and the UK (s31 and Sched 7 CJCA 2015 and The Specified

Agreement on Driving Disqualifications Regulations 2017)

26.6.17

Money Laundering, Terrorist Financing and Trans fer of Funds (Information on the Payer)

Regulations 2017 (S.I. 2017 No. 6920) in force

Still substantially dependent on due diligence. Breach of the Regulations carries a

maximum on indictment of 2 years

Criminal Finances Act 2017 (in force where shown)

The purpose of the Act is to “amend the Proceeds of Crime Act 2002; make provision in

connection with terrorist property; create corporate offences for cases where a person

associated with a body corporate or partnership facilitates the commission by another

person of a tax evasion offence.”

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Proceeds of crime (Pt 1 (ss.1-34))

Chapter 1 Unexplained wealth orders.

The High Court may make an order that requires the respondent to provide a statement

setting out the nature and extent of his interest in the property in respect of which the

order is made, explaining how he obtained the property, and setting out such other

information in connection with the property as may be so specified.. An application must

specify or describe the property in respect of which the order is sought, and specify the

person whom the enforcement authority thinks holds the property (“the respondent”)

(s.362A(2) POCA).

Section 362B POCA 2002 sets out the requirements for making an order namely that the

court must be satisfied that there is reasonable cause to believe that the respondent

holds the property (it does not matter whether or not there are other persons who also

hold the property, or whether the property was obtained by the respondent before or after

the coming into force of this section) and the value of the property is greater than

£50,000; that there are reasonable grounds for suspecting that the known sources of the

respondent’s lawfully obtained income would have been insufficient for the purposes of

enabling him to obtain the property and that he is a “politically exposed person” or there

are reasonable grounds for suspecting that he is, or has been, involved in serious crime

(a person is involved in serious crime if he would be so involved for the purposes of Pt 1

of the Serious Crime Act 2007 : see ss2 and 3 and sched 1 pt 1)

Section 362C(1) and (2) provide that where the respondent fails, without reasonable

excuse, to comply with the requirements imposed by an unexplained wealth order in

respect of any property before the end of the response period, the property is to be

presumed to be recoverable property for the purposes of any proceedings taken in 3

respect of the property under Part 5 (civil recovery of the proceeds, etc., of unlawful

conduct) of the 2002 Act, unless the contrary is shown.

Section 362D deals with the effect of an unexplained wealth order in cases of compliance

or purported compliance and gives 60 days for a decision to be made as to future action.

Under section 362E(1), a person commits an either-way offence if, in purported

compliance with a requirement of an order, he makes a statement that he knows to be

false or misleading in a material particular, or recklessly does so (maximum penalty on

conviction on indictment, two years’ imprisonment, or a fine, or both)

Section 326F(1) (statements) provides that a statement made by a person in response to

a requirement imposed by an order may not be used in evidence against him in criminal

proceedings (subject to the exceptions in subs. (2)).

362FStatements

(1)A statement made by a person in response to a requirement imposed by an unexplained wealth order

may not be used in evidence against that person in criminal proceedings.

(2)Subsection (1) does not apply—

(a)in the case of proceedings under Part 2 or 4, [note i.e.confiscation proceedings]

(b)on a prosecution for an offence under section 362E,

(c)on a prosecution for an offence under section 5 of the Perjury Act 1911 ..(false statements), or

(d)on a prosecution for some other offence where, in giving evidence, the person makes a statement

inconsistent with the statement mentioned in subsection (1).

(3)A statement may not be used by virtue of subsection (2) (d) against a person unless—

(a)evidence relating to it is adduced, or

(b)a question relating to it is asked,

by the person or on the person’s behalf in proceedings arising out of the prosecution.

Chapter 2 Money laundering 4

The principal money laundering offences are not committed where a person has made an

authorised disclosure and has not been refused consent to carry out the prohibited act.

Where consent is refused, the person making the authorised disclosure may not rely

upon the defence should he carry out the prohibited act within a moratorium period of 31

days from the date of the notice of refusal, This Act provides for a power for the court to

extend the moratorium period (In force 31.10.17)

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Chapter 3 deals with Civil recovery

Section 14 (forfeiture of cash) amends section 289 (meaning of cash for purposes of Ch.

3 of Pt 5) of 2002 Act to add gaming vouchers, fixed-value casino tokens, and betting re-

ceipts (defined in new subs. (7A)), the effect being that those items may be seized under

Part 5.

Chapter 3A (ss.303B-303Z) into Part 5, which makes provision for the seizure and

recovery of listed types of personal or moveable property (“listed assets”) that is the

proceeds of unlawful conduct (ss.241 and 241A) or intended for use in such conduct, and

its forfeiture in summary proceedings. Section 303B(1) defines a “listed asset” as an item

of property that falls within one of the specified descriptions of property, viz. precious

metals, precious stones, watches, artistic works, face-value vouchers and postage

stamps.

Sections 303J to 303N deal with seizure and detention. Under section 303J(1), a

relevant officer may seize any item of property if he has reasonable grounds for

suspecting that it is a listed asset, it is recoverable property or intended by any person for

use in unlawful conduct, and the value of it is not less than the minimum value (viz.

£1,000 (s.303Y)). Under section 303J(2), a relevant officer may also seize any item of

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propert, which cannot be separrated. Under section 303K, property seized under section

303J may be detained for an initial period of six hours; and, if its continued detention is

authorised by a senior officer, for a further 42 hours. Section 303L provides for the further

detention of seized property to be authorised by a magistrates’ court if satisfied of certain

matters (up to a maximum of two years (from the first order)). Section 303O provides that

a magistrates’ court may order the forfeiture of property or any part of it if satisfied that it

is recoverable property or is intended for use in unlawful conduct,. Sections 303P to

303R explain how associated property (defined in s.303P(3)) and joint property are to be

dealt with when forfeiture is ordered. Section 303S provides for a right of appeal against

a forfeiture decision.. Sections 303V (victims and other owners) and 303W

(compensation), make supplementary provision.

Section 16 inserts new Chapter 3B (ss.303Z1-303Z19) into Part 5 of the 2002 Act, which

makes provision for the freezing and forfeiture of bank and building society accounts

where they contain the proceeds of unlawful conduct.

Chapter 4 contains enforcement powers and related offences.

Part 2 Terrorist property

Section 35 enables the making of disclosure orders in connection with investigations into

terrorist financing offences A statement made by a person in response to a requirement

of a disclosure order may not be used in evidence against that person in criminal

proceedings (subject to exceptions)

Schedule 1 (forfeiture of terrorist cash) to the Anti-terrorism, Crime and Security Act 2001

is amended so that gaming vouchers, fixed-value casino tokens, and betting receipts are 6

included in the definition of terrorist cash and 3 extending the length of time that a

magistrates’ court may authorise the detention of cash following seizure to six months

(from three months)).

A new Part 2A is inserted, which makes provision for forfeiture of terrorist cash without a

court order, allowing it to be administratively forfeited by way of a notice issued by a

senior officer (as exists for current cash seizure with the same right to apply to set aside

the forfeiture)

Part 3 Corporate offences of failure to prevent facilitation of tax evasion In force 30th

September 2017Guidance was issued in October 2016 and will be updated

Six guiding principles

The guidance is formulated around six guiding principles for the prevention procedures that businesses should put in place:

Risk assessment: a business assesses the nature and extent of its exposure to the risk of those who act for or on its behalf.

Proportionality: risk-based prevention procedures will depend on the levels of control and supervision that a business is able to exercise over a person acting on its behalf and the proximity of that person.

Top level commitment: senior management should be committed to prevention and should foster a culture in facilitation of tax evasion is never acceptable.

Due diligence: procedures should take an appropriate and risk-based approach.

Communication (including training): prevention policies and procedures are communicated throughout the business.

Monitoring and review: the business monitors and reviews prevention procedures and makes improvements where necessary.

This is a strict liability offence. A business will have a defence if it can prove it had put in place reasonable prevention procedures to prevent the facilitation of tax evasion taking place (or that it was not reasonable in the circumstances to expect there to be procedures in place).In the event of a facilitation offence taking place, it is a defence for a business to show that either reasonable prevention procedures were in place to prevent the facilitation by the associated person or that it was reasonable not to establish additional procedures at the time the offence was committed.

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Section 44 provides for the meaning of “relevant body” (a body corporate or partnership

(wherever incorporated or formed) and makes provision as to when a person “acts in the

capacity of a person associated with a relevant body”

Section 45 creates the offence of corporate failure to prevent the facilitation of tax

evasion in relation to United Kingdom taxes. The offence is committed by a relevant body

where an associated person commits a tax evasion facilitation offence, that is, criminally

facilitates another’s offence of tax evasion Section 46 creates an offence of corporate

failure to prevent the facilitation of foreign tax evasion offences with a dual criminality

requirement).

Section 47 (in force 17th July 2017) requires the Chancellor of the Exchequer to publish

guidance about the procedures that relevant bodies might put in place for the prevention

of such offences. Section 48 makes provision for the extra-territorial application of the

offences under sections 45 and 46, and for jurisdiction over such offences. No

proceedings for an offence under section 46 may be instituted in England and Wales

except by or with the consent of the Director of Public Prosecutions (s.49).

Section 50 makes supplementary provision in relation to offences committed by

partnerships.

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PART 2 CRIMINAL INVESTIGATIONS

2nd August 2017

Police and Criminal Evidence Act 1984 (Application to Revenue and Customs)

(Amendment) Order 2017 in to force giving officers of HMRC the same rights as

constables under Crime and Policing Act 2017 amendments to PACE.

Undercover operations

The provisions of the Regulation of Investigatory Powers Act apply to public authorities

and not to individuals acting without authority or encouragement from the police, even if

the police later adopt their evidence. In this case members of “Dark Justice” pretended to

be underage children

R v Walters and Ali (Newcastle Crown Court 6.4.17)

Legal Professional Privilege in criminal investigations

Documents produced during an internal company investigation by lawyers and forensic

accountants are not always covered by LPP.A fact finding exercise is required to see if

LPP arises because the document is produced for the dominant purpose of conducting

litigation, relates to contemplated or actual criminal proceedings, and those proceedings

are adversarial. An investigation may not be adversarial and be at a stage when the

prospect of criminal proceedings was fanciful. The creation of documents for the purpose

of obtaining legal advice concerning how to avoid a criminal investigation into the same

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matters would not be subject to litigation privilege in any event. Statements taken by

lawyers could not acquire LPP if they would not have been privileged if taken by others.

The company’s privilege only applies to those individuals seeking advice on the

company’s behalf. The general obtaining of information from others would not attract LPP

DSFO v Eurasian Natural Resources Corp Ltd 2017 EWHC 1017 (QB)

For conduct of SFO interviews see PROFESSIONAL STANDARDS

Privilege against self incrimination

The Common Law privilege against self incrimination does not apply to material that

came in to existence independently and generally prior to any compulsory discovery

process

R v River East Supplies Ltd v Nottingham Crown Court 2017 EWHC 1942 (Admin)

Deferred Prosecution Agreements

When considering whether a deferred prosecution agreement was in the interests of

justice (Crime and Courts Act 2013, it was relevant to consider

(a) the seriousness of the predicate offences,

(b) the importance of incentivising the exposure and self-reporting of corporate

wrongdoing,

(c) the history (or otherwise) of similar conduct,

(d) the attention paid to corporate compliance prior to, at the time of and subsequent to

the offending,

(e) the extent to which the defendant had changed in both its culture and its personnel,

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(f) the impact of prosecution on employees and others who were innocent of any

misconduct,

(g) the time and cost of any prosecution, and

(h) the benefit of making the defendant a “flagship of good practice and an example to

others demonstrating what can be done to ensure ethical good practice in the business

world”;

Serious Fraud Office v. Rolls Royce plc and another (2017) Lloyds Rep. F.C. 249

The Criminal Justice (European Investigation Order) Regulations 2017 In force 31.7.17

These Regulations transpose Directive 2014/41/EU of the European Parliament and of the

Council of 3rd April 2014 regarding the European Investigation Order in criminal matters

Part 2 gives to judicial authorities the power to make a European investigation order on the

application of a prosecutor, a defendant or accused in criminal proceedings, or a constable

acting with the authority of a prosecutor. Prosecuting authorities defined as “designated

public prosecutors” are also given a power to make a European investigation order and, in

England and Wales and Northern Ireland, to validate an order at the request of certain

investigating authorities, such as the police.

For the purposes of Part 2, a European investigation order is an order made under regulation

6 or 7 specifying one or more investigative measures to be carried out in a ‘participating

State’ for the purpose of obtaining evidence for use in a domestic (UK) criminal investigation

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or proceedings. Participating States are all of the Members of the European Union except for

Denmark and Ireland.

Under regulation 6, a judicial authority may make an order where it is satisfied that a

domestic criminal investigation or prosecution exists, that it is necessary and proportionate to

make the order, and where the investigative measures to be specified in the order could

lawfully have been ordered or undertaken under the same conditions in a similar domestic

case. For certain types of investigative measures such as those relating to video and

telephone conferencing, financial information, and the interception of telecommunications,

additional conditions and requirements are imposed.

Designated public prosecutors must apply the same tests when making or validating a

European investigation order under regulation 7.

Regulation 11 is to assist the judicial authority or designated public prosecutor when deciding

whether an investigative measure order could lawfully have been ordered or undertaken

under the same conditions in a similar case. It sets out specified matters the decision-maker

must take into account for certain types for investigative measures (those which require

some form of court or other authorisation before they can be carried out domestically, for

example the search of a person’s property under a warrant issued under section 8 of the

Police and Criminal Evidence Act 1984 or the interception of communications under the

Regulation of Investigatory Powers Act 2000). Regulation 11 does not prevent the decision-

maker from taking into account other matters, nor does it require the decision-maker to take

the specified matters into account in relation to investigative measures which fall outside the

scope of paragraphs (2) to (6) (for example measures which are “non coercive” and which

domestically, are not subject to any form of court or statutory authorisation process).

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Chapter 3 of Part 2 transposes provisions of the Directive relating to the temporary transfer of

prisoners for the purpose of UK investigations and proceedings. A European investigation

order may be issued requesting the transfer of a prisoner in the UK to a participating State for

the purpose of assisting there in relation to the UK investigation, or for the transfer of a

prisoner from a participating State to the UK to assist here in a UK investigation or to take

part in criminal proceedings.

Part 3 deals with European investigation orders received from a participating State (termed

“the issuing State”) by one of the UK’s central authorities, which must be given effect to

(“recognised and executed”) in accordance with the UK’s obligations under the Directive.

Regulation 26 sets out the procedural steps which must be taken where a European

investigation order is first received by a central authority (including acknowledgement of

receipt) and requires the authority to take a decision on execution and recognition. The

central authority for England and Wales and Northern Ireland is the Secretary of State.

Regulation 28 sets out the circumstances where recognition or execution of a European

investigation order may be refused. Different grounds for refusal are available depending on

the nature of the investigative measure requested. Some grounds for refusal are always

available in principle; these are set out in Schedule 4

SCHEDULE 4 Regulation 28General grounds for refusal1. The execution of the European investigation order would be impossible as a consequenceof—(a) an immunity or privilege under the law of the part of the United Kingdom in which theevidence to which the order relates is situated, or(b) any rule of law of that part of the United Kingdom on the determination and limitation ofcriminal liability relating to freedom of the press and freedom of expression in othermedia.2. The execution of the European investigation order would harm essential national securityinterests, jeopardise a source of information or involve the use of classified information relating tospecific intelligence activities.3. An investigative measure specified in the European investigation order would not beauthorised in a similar domestic case under the law of the part of the United Kingdom in which theevidence to which the order relates is situated, where—(a) the European investigation order has been issued in relation to proceedings brought byadministrative or judicial authorities in respect of acts which are punishable under the

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national law of the issuing State by virtue of being infringements of the rules of law, and(b) the decision may give rise to proceedings before a court having jurisdiction, in particular,in criminal matters.4. The execution of the European investigation order would be contrary to the principle of ne bisin idem.5. The European investigation order relates to conduct which is alleged to have occurred outsidethe territory of the issuing State and wholly or partially in the United Kingdom, and the conductdoes not constitute an offence under the general criminal law of the part of the United Kingdom inwhich it occurred.6. There are substantial grounds for believing that executing the European investigation orderwould be incompatible with any of the Convention rights (within the meaning of the HumanRights Act 1998.7. There are substantial grounds for believing that—(a) the European investigation order has been issued for the purpose of investigating orprosecuting a person on account of that person’s sex, racial or ethnic origin, religion,sexual orientation, nationality, language or political opinions;(b) a person’s position in relation to the investigation or proceedings to which the Europeaninvestigation order relates might be prejudiced by reason of that person’s sex, racial orethnic origin, religion, sexual orientation, nationality, language or political opinions.

Regulation 27 permits the central authority to go back to issuing authority if more information

is required in order to take a decision on recognition or execution, for example in order to

work out whether a particular ground for refusal applies

Regulation 30 sets out the time limits within which a central authority must take its decision

on the recognition and execution of a European investigation order, and within which the

order must be executed (the investigative measure carried out) where a decision to

recognise and execute has been taken. These time limits can be extended in certain

circumstances..

Regulation 34 applies where an authority of the issuing State requests to participate in the

execution of a European investigation order in the UK, and extends civil and criminal liability

provisions applying to police and NCA officers to persons authorised to assist under the

regulation, where they are assisting police or the NCA in the execution of the order.

Regulations 39 and 40 set out the procedure for giving effect to a European investigation

order by requiring a court to issue a search warrant or production order, and confer powers

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of entry, search and seizure where a warrant is issued. Under regulation 41 a court may in

limited circumstances vary or revoke a search warrant or production order issued for the

purpose of giving effect to a European investigation order.

The following Regulations make similar provisions for a court to issue a customer information

order or an account monitoring order with the same powers to vary or revoke

Regulation 49 creates a summary only offence of failing to comply with a customer

information order (or giving false information), and

regulation 50 creates either way disclosure offences (akin to domestic “tipping off” offences)

relating to these orders and to requests for banking information made in reliance on Article

27 of the Directive. This offence applies to institutions and individuals (maximum 2 years on

indictment)

Schedule 4 lists common grounds for refusal (those grounds for refusal which are in principle

available irrespective of the nature of the investigative measure requested).

Investigations involving Wards of Court

It appears Crim PD V Evidence 17A is not accurate: see decision in relation to Family

Practice Direction, which has now been amended: Re a Ward of Court 2017 EWHC 1022

(Fam), The effect is that permission is not required to interview in a criminal investigation

or call in criminal proceedings, a ward.

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Cautions

The imposition of a caution will not always make a subsequent private prosecution an

abuse of process. > Much will turn on what was said to the suspect at the time the

caution was imposed and what the complainant knew and said about the caution being

imposed

R (Lowden) v Gateshead MC 2016 EWHC 3536 (Admin)

Criminal Record Certificates

Provisions limiting protection from disclosure by reference to the number of convictions,

or the imposition of a custodial sentence or the seriousness of the offence or the fact that

the conviction is “current”, was not “in accordance with the law” a required by Art 8 (2)

ECHR

R (P) (G) (W) v Secretaries of Justice and the Home Department 2017 EWCA Civ 321

Validity of diversions

A conditional caution was quashed as the officer had considered, under s23 CJA 2003,

whether there was sufficient evidence to charge under the wrong offence (s5 instead of

s4 POA 1986)

R (Owusu-Yianoma) v Chief Constable of Leicestershire 2017 EWHC 576 (Admin)

Labour Abuse Prevention Officers

On 30th April 2017 are given certain PACE powers including power to deliver a person

to a constable as soon as practicable

(SI 2017/ 520)16

Production Orders (under POCA 2002)

Such a production order may only be used to obtain material that may assist an

investigation. The seizure of cash does not meet that test.

A Magistrates Court has an inherent jurisdiction to set a side an unlawful production

order made in the absence of a party affected

R (Merida oil Traders Ltd ) v CCC 2017 EWHC 747 (Admin)

Publicity

The publication, which did not advance the prosecution case, following a leak to the

press, of details of intercepted calls, was a breach of Art 8

Apostu v Romania 65 EHRR 411(8)

Decision to prosecute

Art 8 ECHR is not engaged in an initial decision to prosecute

SXH v CPS 2017 UKSC 30

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Part 3 PROFESSIONAL STANDARDS

Law Society Guidance

Representing clients at interviews with SFO under s 2 CJA 1987

1.2 What is the issue?

Section 2 (2) Criminal Justice Act 1987 provides that:

The Director [of the Serious Fraud Office] may by notice in writing require the person whose affairs are to be investigated ('the person under investigation') or any other person whom he has reason to believe has relevant information to answer questions or otherwise furnish information with respect to any matter relevant to the investigation at a specified place and either at a specified time or forthwith.

On 6 June 2016, the SFO published revised operational guidance on the presence of an interviewee's legal adviser at a 'section 2' interview for both interviewees and lawyers.

The SFO operational guidance seeks to restrict, by means of undertakings agreed in advance, the actions that can be taken by a solicitor when acting for someone interviewed under section 2.

Before agreeing to provide such undertakings you will have to be satisfied that you are acting in accordance with your professional duties and on the instructions of your client. Practitioners are reminded that the SFO's guidance does not override their obligations under the SRA Handbook and under the SRA Code of Conduct 2011.Your professional obligations are at all times defined by the SRA rather than by the SFO.

The Law Society recognises that many practitioners might feel that they have no choice but to agree with any conditions imposed by the SFO on their attendance at a section 2 interview, in order to avoid any prejudice to their client's position which might otherwise arise. This practice note reminds practitioners of the need to ensure that any agreements entered into with the SFO do not compromise their ability to comply with their professional conduct obligations, whether at the time of the agreement or in the future.

Practitioners will be aware that their clients have no right to legal representation during an SFO section 2 interview, as recently confirmed by the High Court in R (Lord & others) v SFO [2015] EWHC 86. It does not, however, follow from this position that the SFO, as a condition to permitting a practitioner to attend a section 2 interview with their client, can dictate how that practitioner should conduct himself or herself in the performance of their professional role as their client's legal adviser and representative. The Law Society understands that the SFO is concerned to safeguard the integrity of its investigations, but considers that this goal is achieved by the rigorous application of the professional conduct obligations identified in this practice note.

In addition to this practice note, practitioners should be mindful of the separate SRA guidance on employer's solicitors attending Health and Safety Executive (HSE) interviews with employees, issued on 17 March 2006 and updated on 5 February 2014.

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The Law Society considers that the substance of the SRA's guidance is equally relevant to solicitors attending SFO section 2 interviews.

2 Application of the SRA Principles to the operational guidance

2.1 Conditions under which a lawyer will be permitted to attend an SFO interview

The SFO operational guidance states that a lawyer's attendance will be conditional upon agreement by the lawyer that breach of the parameters is likely to lead to the exclusion of the lawyer, without notice. The parameters are:

The lawyer may provide legal advice or essential assistance. Otherwise they must not do anything to undermine the free flow of full and truthful information which the interviewee, by law, is required to give.

Generally no more than one lawyer will be allowed in the interview, unless expressly agreed by the SFO.

A written note may be made of the interview, but no audio or video recording may be made on behalf of the interviewee.

In considering whether you can agree to act within these parameters, you must bear in mind your duty to act in good faith and do the best for your client. You are reminded that the areas that you may advise on in a section 2 interview might not be foreseeable. In the context of a section 2 interview, your role will primarily be to advise your client about the relevant legislation and to ensure that the interview is conducted fairly and in accordance with both statute and common law. Such advice may include ensuring that:

Your client has an adequate opportunity to answer the questions

Answers given by your client are not misconstrued

The protection of your client's welfare during the interview (in particular, ensuring that there are sufficient breaks and that any medical assistance that may be required is provided)

Questions are clear, fair and adhere to the section 2 notice

Questions do not risk breaching legal professional privilege, whether belonging to the client or to another party, such as the client's employer

Improper pressure is not exerted

Your client has adequate time to consider any documents that he or she is asked to read

Your client is able to put forward an accurate account which does not put him or her in jeopardy of violating section 2 (14) CJA 1987

You are able to advise your client whether he or she has a reasonable excuse under section 2 (13) CJA 1987 not to answer questions.

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You must not feel inhibited from intervening to provide advice. If you are excluded by the SFO in circumstances where you legitimately intervene during questioning, you should ensure that you have time to consult your client in private before leaving, in order to advise on the circumstances under which it would be proper not to answer questions.

You should bear in mind that section 2 (2) CJA 1987 enables the director to require the interviewee to 'answer questions or otherwise furnish information with respect to any matter relevant to the investigation.' This obligation should not be confused with, and does not imply, a requirement to be co-operative or helpful.

2.2 Undertakings sought by the SFO

The SFO operational guidance asks that a solicitor makes a number of standard undertakings which are discussed below.

The SRA Handbook defines an undertaking as:

'a statement, given orally or in writing, whether or not it includes the word 'undertake' or 'undertaking', made by or on behalf of you or your firm, in the course of practice, or by you outside the course of practice but as a solicitor or registered European Lawyer, to someone who reasonably places reliance on it, that you or your firm will do something or cause something to be done, or refrain from doing something.'

Breach of an undertaking is prima facie evidence of professional misconduct and results in personal liability irrespective of whether the undertaking was given with or without the client's or firm's authority, or whether the subject matter of the undertaking was outside the control of the person giving the promise.

You should bear in mind the following general points:

You should consider whether it is appropriate and necessary to agree the undertakings sought by the SFO on a case-by-case basis. You should carefully consider the implications of agreeing to any undertaking and, if necessary, seek to amend the terms of the undertaking before agreeing it.

Any ambiguity is usually construed against the person giving the undertaking. In all circumstances, therefore, you should carefully read an undertaking and, prior to agreeing an undertaking, ensure that any ambiguities are removed.

You must bear in mind that a matter may progress in a way which is difficult to foresee and that in some cases the restrictions which the SFO seek by way of the undertakings could significantly constrain your conduct of the case in the future.

You should inform your client of the content of the undertakings that are being requested from the SFO.

You should ensure that any undertakings that are given are appropriately limited in time and scope.

You should not agree any undertakings that are not applicable in any cases (for example, restrictions on the use of documents where no documents are provided). In order to decide whether undertakings are necessary in any particular case, you

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may require further information from the SFO. In such cases, you should ensure that any information from the SFO that you rely on to determine the necessity of the undertaking is confirmed in writing.

It is worth noting that the guidance is specific to a client 'interviewed as an interviewee, not a suspect'.

Sub-paragraphs 2.2.1 to 2.2.9 set out some of the considerations relevant to the specific undertakings sought by the SFO.

2.2.1  Your firm does not represent any individual or legal person who is a suspect in the investigation

You should bear in mind that your obligations under the SRA Handbook and under the SRA Code of Conduct 2011 already act as a restraint in acting in particular circumstances (see 'Conflicts of Interest' below).

It might be difficult to identify all of the suspects in the investigation, especially if there has been little if any pre-interview disclosure when the undertaking is sought.

Without knowing the identities of the suspects, you or your firm may inadvertently be acting for (or subsequently enter into a retainer with) a suspect (either an individual or a company). Although this may concern matters that are outside the scope of the investigation or entirely independent of it, this may still amount to a breach of the undertaking.

You owe a duty of confidentiality to any current or former client. If the SFO do not know that you act for that client, and it is not a matter of public record, you would require that client's consent before disclosing this to the SFO as part of an enquiry to establish whether you represent a suspect.

Giving this undertaking in these terms will not prevent you from acting for two or more section 2 interviewees. If a client interviewee under section 2 is later charged, given the continuing nature of the obligation as set out in the SFO operational guidance (i.e. '[your firm] will be bound by these undertakings until notified by the SFO of the conclusion of the investigation or prosecution'), one construction of this undertaking would prevent you from acting for that client in the substantive proceedings and or from continuing to act where a second interviewee subsequently becomes a suspect. If you feel it is necessary to give this undertaking, you should consider seeking an amendment to remove this ambiguity. The Code of Conduct does not impose a prohibition from acting in these circumstances although you must consider your professional obligations in each particular case.

It may be appropriate to seek clarification from the SFO whether 'suspects' is limited to those who have been so far been interviewed under caution or

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alternatively to seek a list of suspects in the investigation. You may feel able to give this undertaking only after you have been given a list of suspects by the SFO.

If you or your firm have gained knowledge through disclosure in a section 2 interview for Person 1 and later are considering acting for Person 2 in a section 2 interview, then you must consider conflict of interests in the normal way.

2.2.2 All pre-disclosure documents and documents provided during the interview ('relevant documents') retained by your firm will be kept confidential to your firm and your client/Section 2 interviewee

While you must not risk prejudicing a criminal investigation and must act in accordance with the criminal law, there might be circumstances where you are able to disclose pre-disclosure documents and documents provided during the interview. If you agree to give this undertaking, you may come into conflict with your professional obligations if your client gives you express instructions to disclose documents where it is legitimate to do so. You should carefully consider whether this might constrain you in acting on instructions and in acting in your client's best interests. If you do provide this undertaking, obtaining your client's specific agreement may prevent a potential conflict with your duty to act only on your client's express instructions. It might not, however, prevent the potential for a conflict in a case where you feel it is in your client's best interest to disclose documents.

It is not clear if this undertaking would extend to the content of the documents. However, given that any ambiguity is usually constructed against the party making the undertaking, you may wish to clarify this in any undertaking given.

You should ensure that this undertaking covers the documents provided by the SFO, and not any copies of the documents that your client holds which have been provided by another source.

Your client may owe a duty of confidence over disclosed documents and/or agree with the SFO to keep them confidential; however, whether they comply with this is a matter beyond your control. You should not give an undertaking as to how your client will behave in such circumstances. You should confirm that the undertaking does not extend to undertaking that the client will not disclose the content of the interview, or discuss it with anyone without written authority of the SFO.

Issues may arise over whether you can represent a second witness in terms of whether or not your duty of confidentiality over disclosure given to the first witness puts you in difficulty with the second witness. Each case must be considered on its merits.

2.2.3 No relevant documents will be provided to or discussed with anyone other than (name of client), without the written authority of the SFO

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You should ensure that this undertaking covers the documents provided by the SFO, and not any copies of the documents that your client holds that have been provided by another source.

You should also ensure that all relevant members of your client's legal team (including counsel, for example) are included within the undertaking.

You should seek clarification of the meaning of 'relevant'.

2.2.4 Relevant documents will not be copied.

If you give this undertaking, you should ensure that you are provided with sufficient copies of documents by the SFO.

You should seek clarification of the meaning of “relevant.”

2.2.5 All relevant documents will be kept securely in (name of firm) offices at all times until they are returned to the SFO.

If you give this undertaking you will need to be clear as to whether this includes any copy of the documents provided to your client. It might be in your client's interests to have a copy of the documents. You should not give an undertaking as to how your client will behave in such circumstances.

You should ensure that you have considered the practicalities of complying with this undertaking, including where documents will be read, stored (including electronically) and how you will discuss the documents with your client.

2.2.6  All relevant documents will be returned to the SFO after the Section 2 interview.

You should agree a timescale prior to agreeing to this undertaking.

You should remember that any marked documents will be subject to your duty of confidentiality. In order to preserve confidentiality, you may wish to undertake to destroy the documents yourself rather than return them to the SFO.

Prior to agreeing this undertaking you should consider whether it might be in your client's interest to retain copies of the documents following the interview and while the investigation remains outstanding, so that, for example, they are available should a witness statement be requested.

2.2.7 Whilst a note may be taken of the Section 2 interview (name of firm) will not transcribe or otherwise record the interview.

Before agreeing not to transcribe the interview you must be content that notes from the interview will be sufficient to properly advise your client. You should confirm that you will not be prevented from asking for a question or answer to be

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repeated or clarified so that you have an accurate record sufficient to advise your client.

You should also consider whether any prohibition by the SFO on more than one lawyer attending the interview would have a significant adverse effect on the quality of notes taken and ability to provide advice given during the interview.

You should clarify what is meant by 'transcribe' particularly as this prohibition is not included in the section of the SFO operational guidance that sets out the parameters of the lawyer's attendance.

You should establish whether, in what circumstances, and when the SFO is prepared to provide a transcript of the interview.

2.2.8 (Name of firm) will not disclose the content of the interview to, or discuss it with, anyone other than (name of client / Section 2 interviewee), without the written authority of the SFO.

While you must not risk prejudicing a criminal investigation and must act in accordance with the criminal law, there may be circumstances under which you are able to disclose the content of an interview to a third party. If you agree this undertaking, you might come into conflict with your professional obligations if your client gives you express instructions to disclose the content of the interview where it is legitimate to do so. You should carefully consider whether this could constrain you in acting on instructions and in acting in your client's best interests. If you do provide this undertaking, obtaining your client's specific agreement might prevent a potential conflict with your duty to act only on your client's express instructions. It might not, however, prevent the potential for a conflict in a case where you feel it is in your client's best interest to disclose the content of the interview.

You may wish to clarify that this refers to the questions/line of questioning rather than your client's knowledge and recollection of the events under scrutiny. You may wish to obtain written confirmation of the information which is covered by the undertaking, and the legal basis for the restriction.

You should not give an undertaking as to how your client will behave. You should confirm that this undertaking does not extend to undertaking that the client will not disclose the content of the interview, or discuss it with anyone without written authority of the SFO.

2.2.9 You will be bound by these undertakings until notified by the SFO of the conclusion of the investigation or prosecution.

All of these undertakings, if given, will remain in place as the investigation and any proceedings continue. They will impose a restriction on your conduct going forward. You should ensure that the undertakings are limited in time so that they come to an end if, for example, a charging decision is made, or if the SFO confirm that the investigation has come to an end.

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If your client becomes a suspect there will be steps you may wish to take on behalf of your client based on the material disclosed and what was said during the interview – for example your own enquiries including speaking to potential witnesses. You may wish to limit the undertakings so that they come to an end if your client becomes a suspect, or by mutual agreement.

2.3 Conflicts of interest

It is for you to determine in each case whether or not there is a conflict or a substantial risk of conflict and whether you can properly act for more than one party.

In many cases there may be a conflict or significant risk of conflict between two parties involved in an investigation. The Code of Conduct sets out the basis for deciding whether or not you can act for more than one party.

Code of Conduct Chapter 3: Conflicts of interests  

You can never act where there is a conflict, or a significant risk of conflict, between you and your client. If there is a conflict, or a significant risk of a conflict, between two or more current clients, you must not act for all or both of them unless the matter falls within the scope of the limited exceptions set out at Outcomes 3.6 or 3.7. In deciding whether to act in these limited circumstances, the overriding consideration will be the best interests of each of the clients concerned and, in particular, whether the benefits to the clients of you acting for all or both of the clients outweigh the risks.

See also the Law Society's practice note on conflicts of interests in criminal cases.

Code of Conduct Chapter 4: Confidentiality and disclosure  

The duty of confidentiality to all clients must be reconciled with the duty of disclosure to clients. This duty of disclosure is limited to information of which you are aware which is material to your client’s matter. Where you cannot reconcile these two duties, then the protection of confidential information is paramount. You should not continue to act for a client for whom you cannot disclose material information, except in very limited circumstances, where safeguards are in place.

See also the SRA guidance in the analogous circumstances of a HSE investigation mentioned in the SRA guidance on employer’s solicitors attending HSE interviews with employees.

Rejecting un-remunerative publicly funded criminal work

1.2 What is the issue?

The SRA Principles require that solicitors must:

Provide a proper standard of service to their clients (Principle 5 and Chapters 1-6);

Behave in a way that maintains the trust the public places in them and in the provision of legal services (Principle 6 and Chapter 11); and

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Run their business or carry out their role in the business effectively and in accordance with proper governance and sound financial and risk management principles (Principle 8 and Chapter 7).

The reduction in funding for criminal legal aid work has created a situation where many solicitors are increasingly required to undertake work that is unremunerated or carried out at a loss. This presents a serious tension between continuing to undertake legally aided work and obligations to provide a proper standard of service to their clients or to conduct business in a financially sustainable manner.

As a result firms must carefully consider each instruction, in particular as to whether to accept or refuse such instructions will be contrary to their professional obligations.

This practice note is intended to assist solicitors in identifying circumstances which may warrant a refusal to undertake legal aid work and, in doing so, to ensure compliance with the Solicitors Regulation Authority's Code of Conduct.

2 Considerations for determining whether to refuse instructions

2.1 The role of the compliance officers

2.1.1 The COFA has the ultimate responsibility for ensuring that the business of the law firm is run in a financially sustainable manner. He/she must exercise due diligence when determining whether or not a firm can properly enter into a contract for the provision of legal services and continue to act on any occasion when such a contract is amended, or the basis of remuneration is amended within the contract or is affected by any external financial circumstance.

2.1.2 The COLP has responsibility for ensuring that the services offered by the firm are provided by competent, sufficiently resourced fee earners which meet or exceed the standards set by the regulator.

2.1.3 Any failure by the compliance officers to properly discharge their role may become the subject of professional disciplinary proceedings.

2.1.4 Compliance officers must, when the firm enters into a contract or when determining whether to continue to discharge a contract in circumstances where the contract has been amended or the basis of remuneration has been changed, exercise due diligence in determining:

Whether the contract provides sufficient remuneration to enable the provision of such services that must be provided under the contract in a manner which is financially sustainable and properly resourced, and:

What discretionary services can be provided under the scope of the contract in a manner which is financially sustainable and properly resourced.

2.1.5 Compliance officers must be able to demonstrate that they have established whether the firm can provide the services that must be provided under that contract and revise the assessment on each occasion when the contract is varied or is affected by some external factor.

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2.1.6 Compliance officers must be able to demonstrate that they have established the level at which the firm can provide discretionary services under that contract and revise the assessment on each occasion when the contract is varied or is affected by some external factor.

2.2 Mandatory Contractual Services

2.2.1 Firms should remind themselves of the obligations that arise under the General Criminal Contract 2017. It contains some requirements which must be provided during the lifetime of the contract. These requirements include, for example, the provision of office premises and obtaining and maintaining Lexcel or SQM as well as the provision of some mandatory legal services. The nature and level at which legal services must be delivered under the contract is dependent on whether the firm has contracted to provide ‘duty solicitor services’ as well as ‘own client services’.

2.2.2 Where a firm fails to provide services which it must provide under the terms of the contract, such as not complying with a requirement to provide a court duty solicitor at court when rostered to do so without good cause, this is likely to amount to a contract breach and the imposition of contract sanctions. In such circumstances, if the reason for non-compliance is that such work has ceased to be properly remunerated, the firm must consider through its compliance officers whether the continued provision of court and police station duty solicitors under the contract continues to be sustainable, or whether duty solicitor provision should be withdrawn, with the consequence that the contract will revert to an own client contract. See the Standard Crime Contract 2017: Specification clause 6.9 and Standard Terms clauses 13.13 and 13.14.

2.3 Discretionary Contractual Services

2.3.1 The General Criminal Contract 2017 enables providers to offer publicly funded criminal defence services in addition to those which must be provided by those firms which have taken up duty solicitor obligations.

2.3.2 Whilst potential clients seeking criminal defence services must be fully and properly informed of the availability and eligibility criterion of the legal aid scheme, there is no mandatory obligation that requires a contract holder to offer to undertake work under a legal aid scheme, provided that instructions are rejected on an appropriate basis.

2.3.3 The rejection of instructions on the basis that the work is not properly remunerated or cannot be properly resourced given the funding available under the legal scheme is compliant with the principles set by the Solicitors Regulation Authority.

2.3.4 It is a matter for firms and their compliance officers to establish the nature of work that is not properly remunerated under the contract and it is likely that such assessments will vary according to location and nature of the firm concerned and will need to be revisited at least annually or whenever the contract is varied.

2.4 Court-appointed advocates

2.4.1 Clause 10.15 of the specification of the General Criminal Contract provides for the assignment of a court duty solicitor as a court-appointed advocate under section 38(4) of the Youth Justice and Criminal Evidence Act 1999 and requires the duty solicitor once appointed to undertake the work ‘unless there are exceptional circumstances that prevent it from doing so’.

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2.4.2 Notwithstanding the language used within that contractual term, a duty solicitor who is asked to accept such an appointment must be able to do so in circumstances where they can comply with and strictly adhere to their professional code of conduct.

2.4.3 In determining whether the work as a court-appointed advocate is properly remunerated, and therefore work that should be properly accepted, a solicitor must take into account that:

The work is not remunerated under the General Criminal Contract but is work that will be subject to taxation and will be paid from central funds in circumstances where there is no guarantee that the claim for work done by the solicitor will be paid in full or at all;

There will be an administrative cost to the firm of preparing a claim for payment that exceeds that of making a claim for duty solicitor work under the contract; and

That there will be a delay in payment being made to the firm due to the time in which taxation of the claim will be made.

Solicitors and compliance officers must consider whether accepting such an instruction is consistent with their obligation under Principle 8 of the SRA Code of Conduct which requires them to ‘run your business or carry out your role in the business effectively and in accordance with proper governance and sound financial and risk management principles’; and whether accepting such instructions would enable the solicitor to comply with their duty to ‘maintain systems and controls for monitoring the financial stability of your firm and … and to take steps to address issues identified.’

2.4.4 In determining the risk posed by the acceptance of such instructions, solicitors must also consider whether accepting those instructions would conflict with another professional obligation, including but not limited to:

Providing a proper standard of service to their clients (Principle 5). Whilst section 38(8)(b) of the Youth Justice and Criminal Evidence Act 1999 requires the appointment of a ‘qualified legal representative’, i.e. a representative with a right of audience within the meaning of the Courts and Legal Services Act 1990, under Principle 5 of the SRA Code of Conduct the obligation upon the solicitor accepting such an instruction is greater. They must ensure and be satisfied that they have the necessary ‘resources, skills and procedures to carry out your client’s instructions’ so as to comply with Outcome 1.4 of the code.

o ‘Necessary resources’ includes having sufficient time and capacity to:

Properly consider the prosecution evidence and the context in which cross examination is to take place;

Attend on the defendant to discover the basis of his defence and the questions that should properly be put to the witness to be cross-examined.

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‘Necessary skills’ includes being satisfied that the solicitor has sufficient experience, confidence and technical ability to properly interact with the defendant in the case and to cross-examine the vulnerable witness in question.

Whilst in the case of court appointments under the act the defendant is not a ‘client’ (S38 (5)), the solicitor must have regard to Principle 6, ‘behave in a way that maintains the trust the public places in you and in the provision of legal services’, and should not provide legal services where there are insufficient resources or skills to undertake the work.

Ensuring that the solicitor does not ‘allow their independence to be compromised’ (Principle 3) which includes, but is not limited to, ensuring that there is no conflict of interest between the solicitor, the court, the defendant and another party to the proceedings. It also includes:

The interests of other clients whose cases may be affected by the obligation placed on the solicitor by the acceptance of instructions as a court-appointed advocate;

The obligations imposed on the solicitor by other courts in respect of cases in which the solicitor currently holds instructions and the risk of non-compliance with the directions of those courts by the acceptance of instructions to act as a court-appointed advocate.

 

2.4.5 In circumstances where a solicitor forms the view that they cannot comply with any or all of their professional obligations a solicitor must consider whether to decline to accept the instruction being offered.

Legal Professional privilege

Even though the employees are told that the notes of their interview will be privileged,

and are authorised by their employer to answer lawyers’ questions as part of an internal

enquiry, the notes do not attract LLP- the interviewees are not clients of the lawyers. Nor

in this case did the notes disclose a “trend of advice”

RBS Rights Issue Litigation 2016 EWHC 3161 (Ch

Legal professional privilege in criminal investigations - see CRIMINAL INVESTIGATIONS

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Withdrawal from trial

A judge was in error to assume that solicitor could cross examine without instructions

Rr(Jones) v Liverpool and Knowsley MC 2016 EWHC 3520 (Admin)

See generally R v Ulcay 2007 EWCA Crim2379

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PART 4 PROCEDURE

Bail Appeals

The 2 hours for the giving of written notice of appeal by the crown, against the grant of

bail, is to be liberally interpreted where the delay is no fault of the prosecution and the

defendant is not prejudiced (having had oral notice)

It is likely that the conclusion of proceedings means conclusion of all linked proceedings

R (Cardin) v Birmingham CC 2017 EWHC 21010 (Admin)

Criminal Procedure Rules 2017 In force 2.10.17

Summary: New and amended Criminal Procedure Rules

require the Crown Court when giving directions for trial to ensure that specified explanations have been given to the defendant.

They draw attention to the potential consequences of trying together offences that should be tried separately.

They allow electronic service of documents in extradition appeal cases later on the day of service than now.

They supply procedures to supplement the Criminal Justice (European Investigation Order) Regulations 2017 and the Criminal Finances Act 2017.

They make miscellaneous other minor amendments

Explanations for the defendant in the Crown Court

Rule 4(a) of these Rules amends rule 3.13 of the Criminal Procedure Rules to require the Crown Court at the plea and trial preparation hearing, to ensure that explanations have been given to the defendant about potential credit for a guilty plea and about the potential consequences of failing to attend the trial.

Consequences of trying together offences that should be tried separately

Rule 4(b) of these Rules adds a note to rule 3.21 of the Criminal Procedure Rules to draw attention to the potential consequences of conducting a trial in breach of the requirements of that rule.

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Until 2016 the Criminal Procedure Rules had prohibited the inclusion of more than one alleged offence in a single Crown Court indictment unless those offences all were founded on the same facts or formed or were a part of a series of offences of the same or a similar character; and the common law was understood to require that the consequence of breach of that particular procedural requirement would be the annulment of the entire trial. With effect from 3rd October, 2016, the Criminal Procedure (Amendment No. 2) Rules 2016, S.I. 2016/705, removed that procedural requirement and in its place changed rule 3.21 of the Criminal Procedure Rules to require the Crown Court to exercise its power to order separate trials of offences that did not meet those criteria. The Explanatory Memorandum published with those Amendment Rules explained:1

“the new rules abolish the current requirement that restricts the types of offence which an indictment validly may include, and they replace that requirement with one which restricts the types of offence which may be tried at the same time: the objective being to ensure that a trial is fair while abolishing the present antique and formalistic means of achieving that”.

In the case of R v Williams [2017] EWCA Crim 281, [2017] 4 W.L.R. 93, in which the defendant’s trial had taken place before the rule was changed, the Court of Appeal in its judgment drew attention to the rule change and invited the Rule Committee to clarify its effect, as far as that can be done in procedure rules. The Committee decided to add a note to rule 3.21 to draw attention to the powers of the Court of Appeal to quash a conviction that is unsafe – for example, because the trial was unfair – and in an appropriate case to order a re-trial.

Service of documents in extradition appeal cases

Rule 5 of these Rules amends rule 4.11 of the Criminal Procedure Rules to allow the service of documents by electronic means in extradition appeal cases to have effect on the same business day if those documents are sent at a later time of day than in other criminal proceedings – by 4.30pm instead of by 2.30pm.

Rules to supplement European investigation orders

Rule 7, rule 10(a), (u) and (w) and rule 12 of these Rules amend rules in Part 18, Part 47 and Part 49 of the Criminal Procedure Rules (respectively, Measures to assist a witness or the defendant to give evidence; Investigation orders and warrants; and International co-operation) to provide for applications to a court in England and Wales for a ‘European investigation order’ for execution in another state, and to provide for the judicial consideration in England and Wales of such an order made in another state which has been sent for execution here.

The amendments made by these rules to Parts 18 and 47 of the Criminal Procedure Rules govern applications for ‘outbound’ orders. The amendments to Part 49 govern the procedure on the judicial consideration of ‘inbound’ orders. All the rule amendments follow closely the provisions of the Regulations and set out the procedure to be followed.

Rules to supplement the Criminal Finances Act 2017

Rule 9 and rule 10(b) to (n), (v) and (x) of these Rules amend rules in Parts 33 and 47 of the Criminal Procedure Rules (respectively, Confiscation and related proceedings; and Investigation orders and warrants) to accommodate statutory amendments made by the Criminal Finances Act 2017 to the Terrorism Act 2000 and to the Proceeds of Crime Act

1

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2002. Rule 33.24 is amended to allow for the new scope of applications under section 67 of the Proceeds of Crime Act 2002 (Seized money) which now will allow money seized by investigators to be applied towards payment of a confiscation order. The changes to the rules in Part 47 reflect the introduction by the 2017 Act of new types of investigation into proceeds of crime, and provide for applications by investigators for the Crown Court to extend the ‘moratorium period’ under the new section 336A of the Proceeds of Crime Act 2002.

In force 13th November 2017

 In Part 3 (Case management)—

(a)in rule 3.13 (Pre-trial hearings: general rules), as amended by the Criminal Procedure (Amendment No. 3) Rules 2017—

insert—

“(5) The court―

(a)at the first hearing in the Crown Court must require a defendant who is present―

(i)to provide, in writing or orally, his or her name, date of birth and nationality, or

(ii)to confirm that information by those means, where the information was given to the magistrates’ court which sent the defendant for trial; and

(b)at any subsequent hearing may require such a defendant to provide or confirm that information by those means.”,

“Under section 86A of the Courts Act 2003(4), Criminal Procedure Rules must specify stages of

proceedings at which the court must require the information listed in rule 3.13(5). A person commits an

offence if, without reasonable excuse, that person fails to comply with such a requirement, whether by

providing false or incomplete information or by providing no information.”;

“PREPARATION FOR TRIAL IN A MAGISTRATES’ COURT

Pre-trial hearings in a magistrates’ court: general rules

3.27.—(1) A magistrates’ court―

(a)must conduct a preparation for trial hearing unless―

(i)the court sends the defendant for trial in the Crown Court, or

(ii)the case is one to which rule 24.8 or rule 24.9 applies (Written guilty plea: special rules; Single justice procedure: special rules);

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(b)may conduct a further pre-trial case management hearing (and if necessary more than one such hearing) only where―

(i)the court anticipates a guilty plea,

(ii)it is necessary to conduct such a hearing in order to give directions for an effective trial, or

(iii)such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant.

(2) At a preparation for trial hearing the court must give directions for an effective trial.

(3) At a preparation for trial hearing, if the defendant is present the court must―

(a)satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), that the defendant will receive credit for a guilty plea;

(b)take the defendant’s plea or if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty; and

(c)unless the defendant pleads guilty, satisfy itself that there has been explained to the defendant, in terms the defendant can understand (with help, if necessary), that at the trial―

if the court so directs.

(5) The court―

(a)at the first hearing in the case must require a defendant who is present to provide, in writing or orally, his or her name, date of birth and nationality; and

(b)at any subsequent hearing may require such a defendant to provide that information by those means.

(i)the defendant will have the right to give evidence after the court has heard the prosecution case,

(ii)if the defendant does not attend, the trial is likely to take place in the defendant’s absence, and

(iii)where the defendant is released on bail, failure to attend court when required is an offence for which the defendant may be arrested and punished and bail may be withdrawn.

(4) A pre-trial case management hearing must be in public, as a general rule, but all or part of the hearing may be in private

Note. At the first hearing in a magistrates’ court the court may, and in some cases must, send the

defendant to the Crown Court for trial, depending upon (i) the classification of the offence, (ii) the

defendant’s age, (iii) whether the defendant is awaiting Crown Court trial for another offence, (iv) whether

another defendant charged with the same offence is awaiting Crown Court trial, and (v) in some cases, the

value of property involved. See also Part 9 (Allocation and sending for trial).

Under section 11 of the Magistrates’ Courts Act 1980(5), where the defendant does not attend the trial,

where the defendant is at least 18 years old, and subject to some exceptions, then the court must proceed

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in his or her absence unless it appears to the court to be contrary to the interests of justice to do so. Where

the defendant does not attend the trial and he or she is under 18 then, again subject to some exceptions,

the court may proceed in his or her absence.

Under sections 8A and 8B of the Magistrates’ Courts Act 1980(6), a pre-trial ruling about the admissibility

of evidence or any other question of law is binding unless it later appears to the court in the interests of

justice to discharge or vary that ruling.

Under section 86A of the Courts Act 2003(7), Criminal Procedure Rules must specify stages of

proceedings at which the court must require the information listed in rule 3.27(5) and may specify other

stages of proceedings when such requirements may be imposed. A person commits an offence if, without

reasonable excuse, that person fails to comply with such a requirement, whether by providing false or

incomplete information or by providing no information.

Criminal Practice Directions in force 2.10.17

CPD V Evidence 18E: Use of s.28 Youth Justice and Criminal Evidence Act 1999: Pre-recording of cross-examination and re-examination for witnesses captured by s.16 YJCEA 1999

1. This new practice direction is based on the existing protocol that was used to support the pilot of s.28 YJCEA 1999 at Leeds, Liverpool and Kingston Crown Courts. The accompanying annex provides additional guidance, especially for advocates, as to how ground rules hearings operate.

CPD VI Trial: 26G Juries: Preliminary instructions to jurors

2. This addition mandates the use of the new form Your Legal responsibilities as a Juror which has been designed as an aid to assist members of the jury with understanding their legal rights and continuing duties and obligations.

CPD VI Trial: 26Q Majority verdicts

3. The amendment to 26Q.7 attempts to ensure that it is explicit that the trial judge has a discretion as to whether any unanimous verdicts are taken before giving the majority direction to juries.

CPD XI Appeal: 39A Appeals against conviction and sentence- the provision of notice to the prosecution

4. Following the case of R v Palmer, the paragraph establishes the procedure when there is a renewed application for leave to appeal against sentence where there has been a fatality. The current practice adopted by the Office of the Court of Appeal Criminal Division is that where

35

there is a renewed application for leave to appeal against sentence, the court will adjourn the hearing so the prosecution can be represented and the victim’s family can be notified.

CPD XI Other proceedings EXTRADITION 50D

5. This amendment ensures the practice direction remain consistent with the position in the Criminal Procedure Rules.

Local Authority prosecutions

A local authority does not have a power under s222 Local Government Act 1972 to

prosecute cases unconnected with their area as this was not “in the interests of their

inhabitants” This case appeared to be an attempt to profit from the incentivisation

payments following on successful confiscation proceedings which created a conflict of

interest

R v AB 2017 EWCA Crim 534

Authorisation of proceedings

In considering the Trade Union and Labour Relations (Consolidation) Act 1992 the

“Carltona” principle was not excluded by s190(2)

2) Proceedings in England or Wales for such an offence shall be instituted only by or with the

consent of the Secretary of State or by an officer authorised for that purpose by special or general

directions of the Secretary of State.

The principle established that the relevant officer (here a lawyer) stands in the shoes of

the Secretary of State. The subsection does not prevent authorisation being given by

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another officer in accordance with the principle in Carltona V Ministry of Works 1943 2 All

ER 560

R (Forsey) v North Derbyshire MC 2017 EWHC 1152 (QB)

Entry of pleaThe actual plea to an either way allegation must in the magistrates’ court, as in the crown

court, be entered personally by the defendant. (s17A Magistrates’ Courts Act 1980). A

failure to do so nullified any proceedings as it went to jurisdiction

Westminster City Council v Owadally 2017 EWHC 1092 (Admin)

122 Magistrates Courts Act 1980 is limited to this extent to summary only offences Appearance by counsel or solicitor.

(1)A party to any proceedings before a magistrates’ court may be represented by a legal representative.

(2)Subject to subsection(3) below, an absent party so represented shall be deemed not to be absent.

(3)Appearance of a party by a legal representative shall not satisfy any provision of any enactment or any

condition of a recognizance expressly requiring his presence.

Mode of Trial

When an either way offence was sent together with a related low value shoplifting and

the either way matter was discontinued, there could be no indictment relating only to the

shoplifting

S40 CJA1988 could not apply as it is not a listed offence

Sched 3 CDA1998 dos not apply as there is no indictable offence

The Court of Appeal reconstituted itself as magistrates’ court (Cf R v Frimpong v CPS

2015 EWCA Crim 1933

R v McDermott-Mullane 2016 EWCA Crim 2239

Note: S66 Courts Act 2003 gives a court the powers of a district judge

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Sending

When sending cases under s51(3) CDA 1998 a clear distinction must be made between

either way offences (s51(3)(a) and summary only cases (of which low value shoplifting is

one) (s51(3)(b)

R v Maxwell 2017 EWCA Crim 1233

Note This case was a sentencing disaster: for all the other issues: see sentencing

Case management

The decision of a magistrates’ court to reverse its earlier decision was upheld where the

crown had succeeded in a contested application to vacate a trial and de-warned its

witnesses where on the day of trial, the following day, the court found the application was

materially misleading. Following that later decision the crown, in the absence of

witnesses, offered no evidence

DPP v Woods 2017 EWHC 1070- (Admin)

Note the issue on which misrepresentation was found to have occurred was who was responsible for the

crown’s expert not being available for the trial date. The crown had not served until shortly before trial the

SFR on which they replied and which was now challenged

DisclosureIn order to obtain further disclosure of information in relation to machines used to test for alcohol levels, it was not sufficient to state that the reading was not consistent with the alcohol consumed

The requirements were

The material must be prosecution material i.e. in the prosecutor’s possession in connection with the case against the accused. Documents in the custody suite could be inspected by the investigating or disclosure officer and so fell to be reviewed

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there must be a proper evidential basis for concluding that the material sought is reasonably capable of undermining the prosecution or of assisting the defence, or that it represents a reasonable line of enquiry to pursue.

it is not enough for one or more experts to say that the material is necessary to verify that the device was reliable and the application for s8 disclosure must provide an evidential basis for it.

It is not enough to say that the defence case is that the amount drunk would not put the defendant over the limit or anywhere near it, and therefore the machine must be unreliable.

What the evidence needed to do, in order to provide a basis for such a disclosure order was to address two critical features. .

The first requirement is the basis for contending how the device might produce a printout which, on its face, demonstrated that it was operating in proper fashion, but which could generate a very significantly false positive reading, where, on the defence case, the true reading would have been well below the prosecution limit.

The second requirement is to identify how the material which was sought could assist to demonstrate how that might have happened.

Those are the two issues which arise and which the expert evidence in support of disclosure should address. Unless that evidence is provided, the disclosure is irrelevant

Evidence of unreliability may be given by the defendant proving the amount of alcohol taken (Cracknel v Willis 1988 AC 450)but that is not the same as permitting disclosure without meeting these tests.

Note: The court also considered the circumstances in which it would accept an application for judicial review before a conclusion in the case was reached

First, it is difficult to visualise circumstances in which it would be appropriate to adjourn a trial simply for the purpose of challenging an interlocutory ruling made during the course of that trial. Such a challenge should be pursued at its conclusion. Second, a challenge to an interlocutory order or decision should not lightly be made but may, exceptionally, be justified where the challenge raises issues likely to have general or wider application and is not dependent on the ultimate result and there is no other means by which the order or decision can be challenged

The type of challenge in this case is a good example of the circumstances in which the court should be prepared to exercise its jurisdiction to intervene. The proper approach to applications of this nature (whether they should be acceded to or rejected) requires principled resolution not least to ensure that practice is consistent across the country. If, as a matter of principle, an order of disclosure is justified, that is one thing. If, however, it is not justified, that is different. To argue that an inappropriate order in relation to disclosure can be justified because it might be compensated in costs runs counter to the necessary principled resolution of issues in a way that prevents repetitive arguments in different courts, with none providing a binding solution to the problem.

.

R(DPP) v Manchester and Salford MC 2017 EWHC 1708 (Admin)

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Access to the court

The right of the public to attend court is subject to the need to preserve order, at common

law and under s 53 Courts Act 2003. Whilst HMCTS might have policies the final decision

to exclude from a trial should be made judicially

R (O’Conner and Jerard) v Aldershot MC 2016 EWHC 2792 (Admin)

Time limits

(Animal Welfare Act 2006 s31)1. The time limit for a prosecution under section 4 of the2006 Act is fixed by section

31(1). The information must be laid within six months of, not the commission of the

offence, but “the date on which evidence which the prosecutor thinks is sufficient to justify

the proceedings comes to his knowledge” (i.e. section 31(1)(b)); with a longstop date of

three years from the commission of the offence (i.e. section 31(1)(a)).

2. This required the prosecution to make a “careful decision”. “… The decision is not

whether there is a prima facie case but whether the evidence is sufficient to justify a

prosecution. That will involve a consideration of what is in the interests of justice. It will

usually involve (and certainly in the present case was rightly regarded as involving) the

opportunity for the defendant to make a statement either at interview or in writing by way

of mitigation

3. That decision needs to be made with especial care; and it cannot be avoided or

delayed by – to use the phrase of Pill LJ in Johnson at [33]) – the mere “shuffling of

papers”, or by information being sat on so as to extend the time limit. So far as substance

is concerned, it demands, not merely consideration of whether there is a prima facie

case, but whether it is in the public interest for such a prosecution to be brought.

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4Those working for investigatory bodies (such as the FSA) were investigators, the

prosecutor being the CPS.

5. In cases where there is a time issue, it is for the prosecutor to show, to the relevant

standard of proof, that there has been compliance with section 31(1)(b). If there has been

non-compliance, the prosecution is invalid.

6. [T]he prosecution may surmount the time bar hurdle by either of two means. The first

is the issue of a certificate [under section 31(2)]. The second is the adducing of evidence

of fact showing who made the decision that a prosecution was justified and when.” “A

certificate is not essential”.

Where reliance is placed upon a certificate, then:

a. The certificate must strictly comply with the statutory requirements; and it must comply

on its face, in the sense that deficiencies cannot be remedied by reference to extrinsic

evidence

b. A valid certificate is determinative of the matter unless the certificate is inaccurate on

its face (i.e. plainly wrong on its face and patently misleading), or can be shown to be

fraudulent

c. By the certification process, the 2006 Act provides a prosecutor with an evidential

short-cut. A certificate does not have to be issued before proceedings are commenced It

can be issued at any time, at least until the close of the prosecution case. Where a

certificate is defective, it is a nullity; and, although the cases do not appear to deal with

point specifically, as a matter of principle, I see no reason why, a certificate having been

found to be deficient, the prosecutor cannot issue a new certificate – and, if that complies

with the requirements of section 31(2), such a certificate will be evidentially conclusive of

its contents subject, of course, to the limitations on all certificates that they cannot be

relied upon if inaccurate on its face or fraudulent.

d.. Where, after a first certificate valid on its face, a second certificate is issued with a 41

different date of knowledge, then that may well require some form of explanation from the

prosecutor; but where it is clear why the first certificate is bad – for example, it is clear

from the face of the certificate that the prosecutor focused on the wrong question – then I

see no reason why, in principle and in practice, a new certificate addressing the right

question cannot be issued.

e. Where there is no certificate to be relied upon – because either none was issued, or

any certificate issued was defective – then the court must still go on to consider and

determine whether the prosecution was brought within the time required by section 31(1)

(b) It must do so by considering all the available evidence, including documents such as

reports even if not supported by a statement although the weight to be given to that

evidence, without being the subject of any supporting statement or cross-examination, is

of course a matter for the court.

CPS v Woodward 2017 EWHC 1008 (Admin) applying Letherbarrow v Warwickshire CC

2016 EWHC 4820(Admin) but contra Morgans v DPP 199 1 WLR 968 on the basis that

this decision allows the time limit to institute proceedings to run from the actual decision

to institute proceedings.

Defence case statements

In a case where there is a denial of the allegations

44. [it] was wrong to characterise the questions being asked in cross-examination as being objectionable because they were 'speculative' or because they had not been foreshadowed in the Defence Statement. The defence case may be a denial that an event (or in this case, the offences) described by a witness took place. The defence is entitled to test the truth and accuracy of prosecution evidence by questions which test their likelihood. Cross-examination of [ ]the 'mechanics' of the how something happened may lead a jury to conclude that it did not happen, or may not have happened, in the way described by the witness. In our judgment such a challenge does not have to be specificallypre-figured in a Defence Statement provided the Defence Statement otherwise complies with s.6A of the Criminal Procedure and Investigation Act 1996.

R v SG 2017 EWCA Crim 617 [see also in EVIDENCE]42

The consequences of death

Trials cannot be initiated pursued or continued against those who have died. A verdict

should not have been taken. The indictment must be declared to be of no effect

R v Turk 2017 EWCA Crim 391

Appeals to the Court of Appeal

Following a conviction, an appeal was launched on the basis that a SOCPA agreement

with a co=defendant had not been disclosed. It then became clear that it had been

disclosed to the solicitors and counsel’s clerk. The appeal was abandoned. This was a

nullity because the defendant was unaware of the full circumstances

R v Riley 2017 EWCA Crim 243

To challenge a conviction the appeal must be brought within 28 days of conviction even if

sentence is outstanding. It cannot await the outcome of the sentence

R v Cook 2017 EWCA Crim353

An extension of time in which to appeal may only be allowed if the applicant shows that

substantial injustice would otherwise be result. The same applies to applications to

amend grounds of appeal lodged within time

R v Agera 2017 EWCA Crim 740

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Disallowance of time served

If an appeal is without merit time may be disallowed even though(i) the single judge has

not ticked the relevant box and (ii) the application is signed by counsel “The bar has to

learn”

R v Babiak 2017 EWCA Crim 160

Appeal on the basis of new evidence

It is difficult to envisage a case involving new evidence, where privilege should not be

waived. The court gave directions as to how single judges should deal with such matters

R v Singh (Kunwar Ajit) 2017 EWCA Crim 466

Reconsideration out of time

The decision in Yassin 2015 EWCA Crim 1577 allowing the late reconsideration of a final

order was rarely to be used (and was inappropriate in this confiscation case). It allowed a

late reopening

Where there was as yet no formal record of a decision

Where the order appealed was a nullity

and where there was such a defect in procedure as to cause injustice

The need for in the public interest for finality had to be balanced with the interests of the

defendant and any victim

If it was intended to use the procedure the following steps should be taken

i) If a party (whether prosecutor or defendant) wishes the Court of Appeal (Criminal Division) to re-open a final determination of the court based on the implicit jurisdiction identified in Yasain it must:

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a) Apply in writing for permission to re-open the decision, as soon as practicable after becoming aware of the grounds for doing so; andb) Serve the application on the Registrar and all other parties to the proceedings.

ii) The application must specify the decision which the applicant wishes to re-open and provide reasons identifying:

a) The circumstances which make it necessary for the court to re-open that decision in order to avoid real injustice;b) What makes those circumstances exceptional and thus appropriate for the decision to be re-opened notwithstanding the interests of other parties to the proceedings and the importance of finality;c) An explanation and reasons for the absence of any alternative effective remedy and for any lapse of time in making the application having discovered the facts which form the grounds for so doing.

iii) On receipt of an effective application, the Registrar will refer the application to the full Court for determination on paper. There is no right to an oral hearing unless the full Court so directs.

iv) The Court must not give permission to re-open a final determination unless each other party to the proceedings has had an opportunity to make representations. In making any such representations, the prosecution has a duty to obtain the views of any victim or the family of such a victim

The decision also considers other remedies available

R v Hockey 2017 EWCA Crim 742

Court of Appeal Criminal Division Procedure

The Court has published updated guidance in May 2017

1 Guide to commencing proceedings in the Court of Appeal Criminal Division

2 Guide for Counsel/ Solicitor Advocates Proceedings in the Court of Appeal Criminal

Division

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Civil law issues

Cash etc. seizure

The power of the court to forfeit cash under the Proceeds of Crime Act 2002 is not dependant on the legality of the search warrant for or original detention of the cash

Campbell v Bromley MC 2017 EWCA Civ 1161

Contempt procedure

Before any court considers a committal application, whether for a contempt in the face of the court or for breach of an order, it should check, with the assistance of the lawyers that

there is complete clarity at the outset as to precisely what the foundation of the alleged contempt is (contempt in the face of the court, or breach of an order),

prior to the hearing, the alleged contempt is set out clearly in a document or application that complies with applicable rules of procedure and which the person accused of contempt has been served with,

if the alleged contempt is founded on breach of a previous court order, the person accused has been served with that order, and that it contained a penal notice in the required form and place,

consideration is given to the question whether the judge hearing the committal application should do so, or whether it should be heard by another judge,

the accused has been given the opportunity to secure legal representation, as he is entitled to,

the accused has been advised of the right to remain silent,

if the accused chooses to give evidence, he has been warned about self-incrimination,

that the standard of proof applied is the criminal standard, and

any committal order sets out what the findings are that establish the contempt

Re L. (a child); Re Oddin 2016 EWCA Civ 173

Costs in Contempt proceedings are considered in COSTS and LEGAL AID

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PART 5 YOUTH JUSTICE

Establishing age

If there is a real doubt about the defendant’s age directions should be given for an age assessment to be carried out usually through the YOT. S99 Children and Young Person’s Act requires this and an adjournment should have been allowed

R (M) v Hammersmith MC 2017 EWHC 1359 (Admin)

Trials of children and young people

Good practice for vulnerable witnesses apply equally to child defendants as to witnesses

Tag questions should be avoided and clear language is essential

The judge should consider appropriate measures for trial

The measures include: i) There should be the provision of an intermediary for the purposes of preparation for the trial and during the trial and a pre -trial visit arranged where appropriate. ii) Subject to the need for appropriate security arrangements, and if practicable, the trial should be held in a courtroom in which all the participants are on the same or almost the same level and a vulnerable defendant, especially if young, should normally, if he wishes, be free to sit with members of his family or others in a like relationship, and with some other suitable supporting adult such as a social worker, and in a place which permits easy, informal communication with his legal representatives.

iii) The wearing of robes and wigs should take account of the wishes of a vulnerable defendant.

iv) The conduct of the trial should be according to a timetable which takes full account of a vulnerable defendant's ability to concentrate with frequent and regular breaks, if necessary.

v) The trial judge should ensure, so far as practicable, that the whole trial is conducted in clear language that the defendant can understand and that evidence in chief and cross-examination are conducted using questions that are short and clear. The conclusions of the 'ground rules' hearing should be followed, and advocates should use and follow the advocates' 'toolkits'.

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R v Grant- Murray and Henry and others 2017 EWCA Crim 1228

Youth Court Bench Book

The Judicial College has published a new edition

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PART 6 CRIMINAL LAW AND ROAD TRAFFIC

Joint liability

Liability of company officers

Where a statute states that a body corporate is guilty of an offence …” in respect of any

act or default which is shown to have been committed with the consent or connivance of,

or to be attributable to any neglect on the part of, any director, manager, secretary or

other similar officer of the body corporate or any person who was purporting to act in any

such capacity he, as well as the body corporate, shall be guilty of that offence and shall

be liable to be proceeded against and punished accordingly.”, this does not require an

actual conviction of the body corporate, but merely that the body corporate is “guilty of an

offence” in order for another relevant person or director to be found guilty;

London Borough of Havering v. Masters, (2017) EWHC.848.(Admin.)

Defences

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Self defence

This is a potentially a defence to an allegation of dangerous and careless driving. It will

depend on the force used in the driving in the particular circumstances. Even though

dangerous driving does not inherently involve the use of force, there may be a need for

responsive force . It would be wrong for self defence to be available when driving off to

avoid injury but unavailable to nudge someone away when fearing violence

R v Riddell 2017 EWCA Crim 413

Note The issue is the relationship with duress. Self defence is a more attractive defence as the test is

subjective and one does not have to fear death or serious injury. Self defence will only apply to offences

involving a degree of force- not e.g. speeding where duress will have to be used as a general defence.

Householder cases

The test under the Criminal Justice and Immigration Act 2008 is not just “are the jury satisfied that the force was disproportionate” but whether, in the householder context, if not disproportionate, whether it was unreasonable

s5A) provides In a householder case, the degree of force used by D is not to be regardedas having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.(6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.

“Once the jury have determined the circumstances as the defendant believed them to be, the issue, under s.76(3), for the jury is (as it always has been at common law) whether, in those circumstances, the degree of force used was reasonable. In determining the question of whether the degree of force used is reasonable, in ahouseholder case, the effect of s. 76 (5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self defence is not made out.

If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of

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the section, of itself necessarily the use of reasonable force. The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable.

The terms of the 2013 Act have therefore, in a householder case, slightly refined thecommon law in that a degree of force used that is disproportionate may nevertheless be reasonable. As subsection (6) makes clear, in a non-householder case the position is different; insuch a case the degree of force used is not to be regarded as reasonable if it was disproportionate

Thus the amendments to s.76 put the householder relying on self defence in a position different from all others relying on the defence. This is clear on the languageof the Act. But it is narrow and not of the wide-ranging effect for which the appellant contended. We accordingly reject the contention that provided the degree of force used by a householder is not grossly disproportionate then it is necessarily reasonable…

It nevertheless may not always be easy for a jury readily to appreciate the task that faces them in a householder case. It is therefore important that when summing up in cases where the householder's defence is raised the judge gives some colour to the issue of self defence which arises. It may be helpful to explain to the jury in general terms that

Parliament has conferred a greater latitude in cases of a householder in his own home, for reasons they will doubtless readily understand. It can be pointed out that what might be an unreasonable degree of force used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in his own home. That is why it is particularly important thatthe jury assess the defendant's actions by reference to the circumstances in which he found himself and as he believed them to be - a point that can then be illustrated and expanded in the summing up with the detail appropriate to the case. However, it must of course be made clear to the jury that the use of force that is grossly disproportionate (completely over the top, in ordinary language) can never be reasonable

It would, in our view, generally be helpful also to explain to the jury in such a case in everyday language the dilemma that would confront any householder when an intruder enters his or her house. The householder is entitled to some latitude as to the degree of force used; if the jury do not regard the degree of force as being completely over the top they need carefully to examine all the circumstances in determining whether the prosecution have proved that the degree of force used was unreasonable. It is this context that differentiates the householder case.

It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a knife or stick that would lawfully be to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if

51

known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might beunreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.

Another useful illustration may be the question of retreat. S. 76(6A) makes clear thatthere is no duty to retreat; the possibility of retreat is but a factor in determining whether the degree of force used was reasonable. If there is a threat of confrontation in the street, then the option to retreat may be important in determining whether the use of any force was reasonable. In the case of an intruder in the home, however, the option of retreat is unlikely to arise in many cases and therefore the degree of force used, although otherwise appearing to be disproportionate, might nonetheless be assessed as reasonable.”

R v Ray 2017 EWCA crim1391

S3 Criminal Law Act 1967

The defence of the use of reasonable force to prevent the commission of crime will not

apply unless the force is directed to the prevention of an imminent or immediate crime.

Highway obstruction because of the alleged unlawful supply of arms did not meet this

test

R (DPP) v Stratford MC 2017 EWHC 1794 (Admin)

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Murder defences

Diminished responsibility

“Adjustment disorder” is in psychiatrists’ view capable of substantially impairing a

defendant’s ability to form a rational judgment or exercise self- control. This was

accepted by the Crown in the Courts Martial Appeal Court on a review of the original

decision when the issue had not been raised

R v Blackman 2017 EWCA Crim 190

The defence applies if D was suffering from an abnormality of mental functioning which -

(a) arose from a recognised medical condition, (b) substantially impaired D’s ability to do

one or more of the things mentioned in subsection (1A), and (c) provides an explanation

for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are - (a) to understand the nature of D’s conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

(1B) For the purposes of subsection (1)(c), an abnormality of mental functioning provides

an explanation for D’s conduct if it causes, or is a significant contributory factor in

causing, D to carry out that conduct.”,

in determining whether or not an abnormality of mental functioning had impaired a

defendant’s ability to form a rational judgment, it is not always possible neatly to separate

the decision-making process from the actual ultimate decision; the two may be entirely

enmeshed and it was over-refined to suggest otherwise;

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there may be cases where an entirely irrational decision may be taken (for example, to

kill one’s neighbour because of a fixed belief that he is an alien from Mars intent on blow-

ing up innocent people in the village), but that decision and the motivation for it may then

be accompanied, in terms of giving effect to it, by ostensibly logical and rational decisions

with a view to carrying out the intended killing (e.g. by buying a knife and waiting for the

neighbour to be alone);

Section 2 imports a consideration of the extent of the abnormality of functioning and its

impact, substantial or otherwise, on doing the specified things; that in turn is likely in an

appropriate case to involve an appraisal of the impact of any abnormality of mental

functioning both on a defendant’s decision-making generally and also on the particular

decision to kill the victim; further, section 2 is not confined to a rational judgment as to

whether an act was right or wrong (though that could be an element); the elements of

section 2 should, so far as possible, not be glossed in a summing-up; the aim in a

summing-up in cases of this kind should be to focus on the actual provisions of the

section without undue elaboration; thereafter, the aim should be to marshal the evidence

of the expert witnesses as given at trial to the provisions of the section and the issues

arising

R. v. Conroy (2017) EWCA Crim. 81

The defence requires an abnormality of mental functioning which ... substantially

impaired D’s ability to do one or more of the things mentioned in subsection (1A)”. A

detailed direction as to the meaning of the word “substantially” is not required (although

some cases may require a rather more amplified approach, depending on the

circumstances); Where one of the expert psychiatrists concluded that the appellant’s

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paranoid personality disorder might constitute a “partial” explanation or cause for the

killing and where it was submitted that the judge should have directed the jury that, as a

matter of law, a partial impairment may be capable of coming within the ambit of section

2, whilst that proposition is perhaps correct in the sense that the impairment does not

have to be total, the fact remains that the word in the section is “substantially”, and it

simply would not be correct to state, as a bald proposition of law, that “partial impairment”

equates to substantial impairment:

R. v. Squelch, (2017) EWCA Crim. 204

A person suffering from schizophrenia who killed while intoxicated (here with drugs)

could rely on the defence of diminished responsibility if their condition was of such

severity that, even without intoxication, it would have impaired their responsibility. They

could also rely on the defence if the schizophrenia was coupled with drink or drug

dependence (alcohol dependency syndrome), so that the intoxication was not voluntary,

which together substantially impaired responsibility

R v Joyce and Kay [2017] EWCA Crim 647:

Loss of control

To amount to the loss of control under s55 Coroners and Justice Act 2009 an act must be

caused by a justifiable sense of being seriously wronged. A judge correctly withdrew the

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defence from the jury as this could not arise where the defendant was subject to a

hospital and limitation order and was acting in breach of hospital rules.

R v Meanza 23017 EWCA Crim 445

Gross Negligence Manslaughter

The test of reasonable foreseeability giving rise to serious and obvious risk of death was

to be applied objectively but prospectively at the time of the breach of duty and before it

occurred.. Here the failure to carry out an eye test that would retrospectively have

identified the relevant risk was not to the point

R v Rose 2017 EWCA crim 1168

Section 5, Domestic Violence Crime and Victims Act 2004

provides that“ (1) A person (“D”) is guilty of an offence if—(a) a child or vulnerable adult (“V”) dies as a result of the unlawful act of a person who —(i) was a member of the same household as V, and(ii) had frequent contact with him,(b) D was such a person at the time of that act,(c) at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and(d) either D was the person whose act caused V’s deathor—(i) D was, or ought to have been, aware of the risk mentioned in paragraph (c),(ii) D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and(iii) the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.…..(6) In this section—…. “vulnerable adult” means a person aged 16 or over whose ability

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to protect himself from violence, abuse or neglect is significantlyimpaired through physical or mental disability or illness, throughold age or otherwise.

The complainant was 19 years old but suffered isolation and physical and emotional abuse

“In our view, the choice of the words or otherwise to follow the identified categories issignificant. The word or creates an alternative scenario. The words or otherwise therefore distinguish the circumstances in question from the categories that precede them. The words have a specific purpose, leaving open the possibility of other sets of circumstances or conditions that could feature as the background to the central operative requirement that the individual’s ability to protect him or herself from violence, abuse or neglect is significantly impaired. They provide for an additional third category or categories of potentially vulnerable adults who are not suffering from an illness, disability or old age. The linkage between the categories specified and the alternative category is that the adult’s ability to protect himself must be impaired. Furthermore, whilst the first and second categories are conditions intrinsic to the victimthrough which the ability to protect him or herself is impaired, the cause of suchconditions (other than old age) can be either intrinsic or external, for example the mentalor physical trauma suffered in an accident. The natural meaning of otherwise does notnecessitate that the cause be intrinsic. It can be an external cause, through which thevictim’s ability to protect him or herself is impaired.

In principle, there is no limit to the facts and circumstances that might lead to the victim

finding him or herself in a state of impaired ability to obtain protection. None of the categories

is closely defined. In the first category, any illness, physical or mental disability, provided

there is evidence that it caused significant impairment, will suffice. The inquiry the court must

perform is fact and context sensitive. The causes of vulnerability may be physical,

psychological and or they may arise from the victim’s circumstances. [T]he third category is

not limited to cases of “utter dependency”. A victim of sexual or domestic abuse or modern

slavery, for instance, might find him or herself in a vulnerable position, having suffered long

term physical and mental abuse leaving them scared, cowed and with a significantly impaired

ability to protect themselves.

R v Uddin 2017 EWCA Crim 1072

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Conspiracy to supply drugs

A conspiracy to supply drugs cannot exist between different defendants on the same

count of an indictment. However in this case the quantity of cocaine was such that it

could be inferred it was to be supplied beyond the group. The count alleging their being

concerned in the supply of drugs referred to the process of supply; no actual supply was

required

R v Abi-Khalil2017 EWCA Crim 17

Theft

The withdrawal of money from a cash machine knowing it will result in an unapproved

overdraft, if dishonest, may amount to the offence of theft

Chodorek v Poland 2017 EWHC 995 (Admin)

Assault in the execution of duty

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When a police officer, who had served a civil injunction which purported to have a power

of arrest but that power was invalid, then arrested the same person for breach of the

injunction he was acting in the execution of his duty

Ahmed v CPS 2017 EWHC 1272 (Admin)

But many decisions come to a different conclusion. It is a matter of law not honest belief see Ali v DPP 174

JP 149; Kerr v DPP 158 JP 1048

Obstruction/ disruptive behaviour on an aircraft

The offence of intentionally interfering with the performance of a member of the

crew….under art 142 Air Navigation Order 2009 requires an intention to interfere not

merely an intent to commit the act or omission that has that effect. In this respect it is the

same as the offence of wilfully obstructing a constable under s89 Police Act 1996

R v Aslam 2017 EWCA Crim 717

Prison Act

Under s40B and C Prison Act 1952 it is an offence, without authorisation, to bring etc. a

list…” article in question” in to etc. a prison There is no stated mental element.

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The offence will be made out if the crown proves at that person knew that they had a

prohibited item. It was not necessary to prove that they knew the actual nature of the

contends of a package

R v Johnson 2017 EWCA Crim 189

Improper use of public electronic communications network: s127(1)(a) Communications

Act 2003

The offence is of sending by means of a public electronic communications network a

message or other matter that is grossly offensive or of a menacing character. In deciding

whether a particular message is grossly offensive, a court needs to be careful not to

criminalise speech that, however contemptible, is no more than offensive;

It has to be asked whether taking account of the context and all the relevant

circumstances, and applying the standards of a reasonable person in an open and just

multi-racial and multi-faith society, it is proved that a particular message was grossly

offensive to those to whom it related or was of a menacing character, and whether it

would have created a sense of apprehension or fear in a person of reasonable fortitude

who received or read it:

DPP v. Smith (Kingsley Anthony) (2017) EWHC 359 (Admin.)

Public Order Act 1986

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Subject to particular facts, a dwelling for the purposes of s8 and s5(2) does not include a

garden to front or rear of a property

DPP v Distlll 2017 EWHC 22444 (Admin)

Hate crime

New guidance was issued by CPS on 21.8.17

CPS definition

The police and the CPS have agreed the following definition for identifying and flagging hate crimes:

"Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person's disability or perceived disability; race or perceived race; or religion or perceived religion; or sexual orientation or perceived sexual orientation or a person who is transgender or perceived to be transgender."

There is no legal definition of hostility so we use the everyday understanding of the word which includes ill-will, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike.

How to prove an offence was racially or religiously aggravated within the meaning of the Crime and Disorder Act 1998 and section 145 of the Criminal Justice Act 2003.

To assist prosecutors to build cases that will satisfy the criteria for an increased sentence under s145, the elements of each subsection that need to be satisfied are set out below, followed by the evidence that will be necessary or useful to establish those elements.

A. Demonstrating hostility

The elements to be satisfied are that:

1. The offence to be sentenced has one or more identifiable victims.

2. The victim (or one of them) belongs to a particular racial or religious group or there is evidence that the offender presumed that he or she did so at the time of the offence (whether or not that was in fact correct).

3. The offender, by words or deeds or other indication, demonstrated (i.e. actually manifested or indicated) some hostility towards the victim based on the actual or presumed membership of a racial or religious group. Where the offence itself involves some hostile act towards the victim (i.e. an offence of assault) there must additionally be some evidence of a demonstration of hostility on grounds of actual or perceived membership of a racial or religious group. It need not be proved that the offender was actually motivated by any malevolence on grounds of the race or religion but it must be shown that, viewed objectively, he did in fact make some outward indication of hostility on that ground. Verbal abuse, referring to the membership of that group or a feature of it, will suffice provided it actually demonstrates hostility towards the victim. Expressions of, or behaviour consistent with, contempt for the individual victim is unlikely alone to suffice, unless it can be shown to amount to the necessary demonstration of hostility based on the actual or presumed membership.

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4. The demonstration of hostility must have occurred at the time of or immediately before or after the conduct element of the substantive offence.

5. In any case involving multiple offenders, consider first whether there is evidence that each offender, by his behaviour in committing the conduct element of the substantive offence, associated himself with the demonstration of hostility proved (in which case all will be liable for the aggravating feature). If there is no such evidence, can it be shown that the individual offender was himself responsible for the demonstration of hostility relied upon.

The following evidence will be necessary:

1. Evidence of the utterance, doing or showing of any indication of hostility towards the victim. The evidence should be as particular as possible as to the terms of the indication of hostility.

2. The victim (or one of them) belongs to a particular racial or religious group or there is evidence that the offender presumed that he or she did so at the time of the offence (whether or not that was in fact correct).

3. Alternatively and/or additionally, evidence that the offender either knew or presumed that the victim belonged to a racial or religious group.

4. Evidence that the hostility referred to in (1) was based on the actual, known or presumed membership of a race or religion.

5. Evidence that the demonstration of hostility relied upon was more or less contemporaneous with the conduct element of the offence, or that it can immediately be related to it in time.

In addition, evidence of some malevolence towards the victim based on his or her actual or presumed race or religion, although not necessary, will be useful. This need not necessarily be contemporaneous to the substantive offence.

It should be noted that mere evidence of the commission of the substantive offence against a victim who identifies with a race or religion will not suffice. That is not to say that it is irrelevant: evidence of the commission of an assault offence or one that involves the use or threat of violence may well be good evidence of the relevant hostility being present or demonstrated. Typically however there will be another explanation for the commission of the offence and so further evidence of a specific, express demonstration of hostility based on presumed or actual race or religion will be required.

Motivated by hostility

The elements to be satisfied are that:

1. The offender can be shown to harbour a hostility towards a person or persons who belong to, or are presumed to belong to, a religious or racial group.

2. At least one reason why the offender committed the offence was his hostility towards that person or such persons who belong to, or are perceived to belong to, this group i.e. his purpose or incentive for committing the substantive offence included that hostility, even if it was also motivated by other reasons. It need not be shown that it was his sole or main motivation.

3. It need not necessarily be the case that the immediate victim of the offence belongs to this group. Indeed, it is not necessary that there is one, or more than one, individual victim of the offence, provided that the directed hostility is one of the motivations. For example, an offence may be directed at:

o A friend or associate

o A Synagogue or Mosque

o An organisation known to support members of ethnic or religious groups

The following evidence will be necessary:

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1. Primary evidence, whether direct or circumstantial, from which it can be deduced or inferred that the offender has a hostility towards people (or one person) of a particular race or religion. The kind of evidence will vary from case to case but may well include, for instance:

o words, whether contemporaneous or not;

o writings;

o social media postings;

o insignia;

o membership of far right groups

o presence with others promoting such hostility or association with them;

o previous incidents of hostility, e.g. targeting only persons of a particular religion as the victims of criminal attacks or forms of abuse, such as a Jewish person's house for criminal damage but no other houses in the same street; and

o previous convictions for offences directed at similar victims.

2. Evidence from which it can be inferred that the current offence is motivated by the hostility referred to. In some cases the existence of the hostility and the fact of its contribution to motivation may derive from the same evidence and may be direct and simple: for example, the words accompanying the conduct element of the offence, as reported by the victim, may make clear the hostility of the offender for persons of a particular race or religion and the association of the feeling with the commission of the offence. In other cases a more determined search for such evidence will be necessary.

In cases where the obvious motivation for the commission of the offence is common to all such offending (theft, robbery, sexual offending, drugs offending, etc.) there will have to be discrete, additional evidence of motivation which displaces the obvious inference.

In cases where the offence charged usually has a fact specific motive (public order offences directed at individuals, offences against the person, etc.) it may be that the primary evidence readily gives rise to the conclusion that the hostility is based on race or religion. If not, some further, secondary evidence of motive will be necessary.

School attendance

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Children fail to attend regularly at school under s444 Education Act 1996 when they fail

to attend on every day when required to do so in accordance with the rules prescribed by

the school, unless they have permission to be absent or some other reasonable excuse

Isle of Wight Council v Platt 2017 UKSC28

Road Traffic

Case management

The proactive approach to case management applies as much to road traffic cases as to

all others. In a judgment “to be cited” when issues of adjournment or case management

arise

11. The Criminal Procedure Rules provisions most in question might be thought to be as follows. Each participant in a criminal case, that is to say lawyers as well as parties, must prepare and conduct their care in accordance with the rules: see CPR 1.2(1)(a) and (b). The key objective under the rules is to deal fairly with the case, and that includes dealing with the case efficiently and expeditiously: CPR 1.1(2)(e). Time wasting, extension of hearings and taking hopeless points in the hope of wearing down an opponent or the court are neither proper nor legitimate ways in which to conduct a case, for a party or for a party's lawyers. Courts must be aware of such behaviour and employ firm case management to prevent it.12. Each participant in a case has the obligation set out in CPR 1.2(1)(c):"At once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering theoverriding objective."That means, for example, that if defence lawyers consider that a document is missing or service of a document has not taken place, their obligation is to say so early. Not to say so early may hinder the overriding objective because it is likely to cause an adjournment which could be avoided, and thus prevent the case being decided "efficiently and expeditiously". If the defence are going to suggest that some document or some piece of service is missing, they must do so early. If they do not, then it is open to the court to find that the point was raised late, and any direction then sought to produce a documentor to apply for an adjournment may properly be refused.13. Critical rules affecting all parties, including defendants and their representatives, are rules 3.2, 3.3 and 3.11. It is not necessary for me to quote them in full, but the attention of a court dealing with such cases should be drawn to those rules and perhaps in particular to 3.2(2)(a) - active case management includes the early identification of the real issues; 3.3(1) - each party must (a) actively assist the court in fulfilling its duty under rule 3.2,with, or if necessary without, a direction and (b) apply for a direction if needed to furtherthe overriding objective; 3.3(2) active assistance for the purposes of this rule includes (a) at the beginning of the case communication between the prosecutor and the defendant at the first available opportunity; (c)(ii) what is agreed and what is likely to be disputed (in other words, what is agreed and what is likely to be disputed should be the subject of active assistance and early communication); (c) (iii) likewise, what information or other material is required by one party of another and why; and (iv) what is to be done, bywhom and when. CPR 3.11: in order to manage a trial or an appeal, the court (a) must establish with the active assistance of the parties what are the disputed issues; and (d) may limit (i) the examination, cross-examination or re-examination of a witness and (ii) the duration of any stage of the hearing.

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14. In the absence of some specific evidence which indicates that there is a problem with the Intoximeter EC/IR machine, approved in 1998 and, with approval, reissued in 2005,extensive exploration of technicalities will normally be a waste of time.15. It is perfectly open to a court to ask if a defendant intends to give evidence to the effect that he or she had not been drinking or had drunk so little that the excess alcohol reading cannot properly be explained. If the answer is no, then the court can properly question what may be the evidential basis for a challenge to the reading produced by the testing equipment, provided the proper procedures have been followed.

R (Hassani) v West London MC 2017 EWHC 1270 (Admin)

On disclosure see R (DPP) v Manchester and Salford MC 2017 EWHC 1708 (Admin) in PROCEDURE.

Tampering s25 RTA 1988

Tampering with a motor vehicle means more than touching. It means interfering without

authority or so as to cause damage

S v DPP 2007 EWHC 1162(Admin)

PART 7 SENTENCING65

1 General principles2 Guidelines3 Ancillary orders

4 Particular sentences

I General principles

The sentencing minefield

See R v Maxwell 2017 EWCA Crim 1233

1 A sentence must be imposed for each offence and identified as concurrent or consecutive

2 A court may impose no separate penalty but only a judge can do this

3 All matters carrying endorsement must have licence endorsed even if there are no points

4 Disqualification from driving must be extended by the time actually to be served in custody if for the same offence

5 The additional disqualification is discretionary if custody is for a different offence R v Needham 2016 EWCA Crim 455 and ss35A and B RTOA 1988

6 Know which cases carry minimum disqualifications (Aggravated TWOC: 12 months)

7 Only one order for disqualification until there is a successful retest can apply at one time R v Anderson 2012 EWCA Crim 3060

8 Low value shoplifting is summary only absent a defence election or matters charged on the same occasion amounting to more than £200

9 s40 CJA 1988 does not include low value shoplifting

10 If no election, summary matters can only be sent if appears to be related to indictable matter

11 If sent in this way must proceed under Schedule 3 CDA 1998; they are not on indictment

12 Know maximum sentence (where aggravated vehicle taking only by reason of damage under £5000 : 6 months (4 months on G plea)

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Discount for guilty plea

A full discount should be given in a case of murder

1 where the first appellant made it clear that he would plead guilty to murder as soon as

the psychiatric evidence ruled out any partial defence based on diminished responsibility

and where he therefore did so on the morning of trial,

2 the second appellant only admitted the offences of manslaughter by reason of

diminished responsibility (but admitted participation in killing both victims with murderous

intent),but the reason was entirely based on supportive expert evidence that her legal

advisers obtained; the challenge to that psychiatric evidence by the Crown was not

based on a rejection of factual evidence provided by the appellant, but, rather, on a

disagreement between the psychiatrists as to the appropriate diagnosis and whether,

ultimately, an abnormality of mental functioning caused by a recognised medical

condition could be established;

The statutory obligations to have regard to the principal aim of the youth justice system,

viz. to prevent offending by children and young persons (Crime and Disorder Act 1998

s.37 and to the welfare of such offenders (Children and Young Persons Act 1933, s.44,

do not apply when imposing a mandatory life sentence; this guidance is given in the new

guideline on sentencing children Schedule 21 identifies a free-standing approach to the

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fixing of the minimum term for those who were under 18 when they committed their

offence, which is reflected in the different starting point;

R. v. Markham and Edwards, [2017] EWCA Crim. 739.

Basis of plea and discount

Where an unrealistic basis was put forward and a Newton listed, discount could be

reduced even though the Newton was not pursued. A realistic basis should have been

proposed,.

R v Abbas 2017 EWCA Crim 251

A basis should be signed by both crown and defence advocates and it is good practice

for the defendant also to sign (see Crim PD B11

R v Mula 2017 EWCA Crim 32

Disclosure

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Where the defendant had seen IDPC and, at the police station, the CCTV , discount was

lost when he delayed so that defence lawyers could view the CCTV

R v Butt 2017 EWCA Crim 352

Factual basis for sentencing

If there was only one basis for a jury decision, sentencing must be that basis.

When there was more than one explanation a judge must be satisfied to the criminal

standard of the basis on which sentence is imposed

If it remains uncertain which basis applies that most favourable to the defendant must be

used

R v King 2017 EWCA Crim 128

Previous convictions

Convictions post dating the offence in question do not classify as previous convictions

although the commission of the current offence while on bail was an aggravating factor.

Consider the sentencing guideline on totality

R v Darrigan 2017 EWCA Crim 169.

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Disparity

The fact that, though prosecution error, the trial collapsed of those more heavily involved,

was not a ground for reducing a proper sentence on those lower down the drug supply

chain

R v Paywand 2007 EWCA Crim 885

Specimen counts

The restrictions on sentencing did not apply where the Revenue had properly indicted a

defendant for Cheating the Public Revenue over 9 years and for case management

reasons the number of occasions considered by the jury was limited and the judge

directed that they could convict if all on the jury agreed on a cheat taking place on at

least three occasions

R v Lunn 2017 EWCA Crim 34

Use of the slip rule (155 PCC(S)A 2000)

The principles are as follows, set out in a case where the judge, knowing that the

Attorney was to review his sentence as unduly lenient, increased the sentence

substantially but proceeded in the absence of the defendant

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(1) Where an error occurs in the factual basis of sentence it should be pointed out to the court as soon

as possible and consideration should be given to correcting it at the earliest opportunity, preferably by

revisiting sentence on the same day rather than a subsequent day.

(2) A judge should not use the slip rule simply because there is a change of mind about the nature or

length of the sentence but the slip rule is available where the judge is persuaded that he had made a

material error in the sentencing process whether of fact or law. It is relevant in considering whether he had

made a material error that that error might be corrected by the Court of Appeal on the Attorney General's

application.

(3) The sooner the slip rule is invoked in such a case the better. The passage of time from the first decision

to its revision is a material consideration as to how the power should be exercised but there is a 56-day cut

off in any event.

(4) A judge should not be unduly influenced by the prospect of a reference being made to change the

sentence that he thought was right at the time by the mere threat of a review by the Attorney General. If the

judge concludes that the sentence was not wrong in principle and was not unduly lenient, he should not

change his mind simply because there is the possibility of a reference. The judge can then use the

opportunity at the further sentencing hearing to give any further explanations for the original decision for

the sentence.

(5) Sentencing and re-sentencing should take place in the presence of the appellant and administrative

convenience should not be allowed to degrade that principle. But if for one reason or another the appellant

cannot be brought to court in the 56 days there is a discretion to proceed in his absence so long as there is

an advocate who can fully represent in the sense of who is properly instructed as to the relevant facts and

is able to assist the court to make pertinent submissions on the facts and the law, as clearly this appellant's

advocate was on the date of the re-sentence.

(6) Although Nodjoumi (1985) no longer identifies the basic rule in such cases, the appearance of justice

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and the impact of the change on a defendant where an error has not been induced by anything that he has

said or done is a relevant consideration and in appropriate cases it can be reflected in a modest discount to

the proposed revised sentence to reflect this fact. This is done in this case. We consider that modest

discount was appropriate and sufficient.'

 R v Warren 2017 EWCA Crim 226

Extreme Old age

Whilst age (old as well as young) is a relevant factor for sentencing, extreme old age

does not of itself allow anything more than a “limited degree of mercy” as an additional

factor to reduce an appropriate sentence

R vClarke 2017 EWCA Crim 393

Time in custody abroad pending extradition

Time spent in custody abroad pending extradition should be allowed against the

sentence imposed (s243 CJA 2003 applying s 240ZA) but had to be announced in open

court

R (Shields McKinley) v Secretary of State for Justice 2017 EWHC 658 (Admin)

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Unduly lenient sentences

From 7.8.17 the Attorney General may refer sentences which fall within the following

provisions

(a) section 11 or 12 of the Terrorism Act 2000 (“the 2000 Act”) (offences relating toproscribed organisations);(b) sections 15 to 18 of the 2000 Act (offences relating to terrorist property);(c) section 38B of the 2000 Act (failure to disclose information about acts ofterrorism);(d) section 54 of the 2000 Act (weapons training);(e) sections 57 to 58A of the 2000 Act (possessing things, collecting information andeliciting, publishing or communicating information about members of the armedforces etc for the purposes of terrorism);(f) section 113 of the Anti-Terrorism, Crime and Security Act 2001 (use of noxioussubstances or things to cause harm or intimidate);(g) section 1 or 2 of the Terrorism Act 2006 (encouragement of terrorism);(h) section 6 or 8 of the Terrorism Act 2006 (training for terrorism).(2) Any case in which sentence is passed on a person for one of the following—(a) an offence under section 20 of the Offences Against the Person Act 1861(inflicting bodily harm);(b) an offence under the following provisions of the Criminal Damage Act 1971(i) section 1(1) (destroying or damaging property);(ii) section 1(1) and (3) (arson);(iii) section 2 (threats to destroy or damage property);(c) an offence under sections 1 to 5 of the Forgery and Counterfeiting Act 1981;where there is jurisdiction in England and Wales by virtue of any of sections 63B to 63D ofthe 2000 Act (extra-territorial jurisdiction in respect of certain offences committed outsidethe United Kingdom for the purposes of terrorism etc).”.

Arson

For the future, in any case of arson, there should be a sentencing note provided by the Crown for the sentencing judge.

Rv Cox 2017 EWCA Crim 1360

2Guidelines

Cusodial and Community Sentecnes

Use of suspended sentences

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Benefit fraud

False claim for £70000 housing benefit and council tax over a period of 8.5 years. The

claim was for the non existent rent of a property for her grossly disabled daughter. The

defendant was of good character and a significant if non residential and not only carer

for her daughter: sentence suspended

R v Vincent 2017 EWCA Crim 333

Robbery: Totality principle

4 year delay from 2012 when committed; had already been sentenced for other

robberies committed at that time when he was 24; life turning round : sentence

suspended

R v Gooden 2016 EWCA Crim 2286

Burglary and theft

The balancing exercise required by the Guideline, involves weighing, on the one hand, the extent to which the offender

presents a risk or danger to the public, whether appropriate punishment can only be achieved by immediate custody,

and any history of non-compliance with court orders; and, on the other hand, whether there is a realistic prospect of

rehabilitation, whether there is strong personal mitigation, and whether immediate custody will result in harmful impact

on others

The judge did not give sufficient weight to the Appellant’s strong personal mitigation and the devastating impact of the

immediate imprisonment on her [an age]-old daughter (considering R v Petherick)

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The appellant had a history of mental illness, abusive relationships and was deemed to be a suicide risk. A report

stated that this risk would increase if a custodial sentence was imposed upon the appellant.

In the circumstances of the Appellant’s case, the balance weighed clearly in favour of the suspension of the sentences

imposed.

R v Whyte 2017 EWCA Crim1311

Regulatory crime

The appellant was sentenced for two offences of engaging in an unfair commercial practice, contrary to regulation 9 of the Consumer Protection from Unfair Trading Regulations 2008 and one offence of engaging in an aggressive commercial practice, contrary to regulation 11 of the same regulations.

The Court of Appeal suspended a 12-month custodial sentence, for 18 months. The defendant and his wife ran a travel agency which used sales staff who were based at a call centre which was supposedly in Pakistan. Various customers paid for bookings which were not actually made and were unable to travel for this reason.£40,000 was involved The court viewed the appellant’s actions as merely incompetent and arising from him being “out of his depth” rather than out of any malicious intention. The appellant’s son suffered from medical difficulties and this fact, combined with the potential impact upon the appellant’s family following an immediate custodial sentence, led the court to view this case as “exceptional” and suspend the original sentence.

R v Anas Ahmed 2017 EWCA Crim 1281

In a case involving a “glassing” the presence of all the factors in the column suggesting that a

sentence might be suspended does no more than allow the judge a discretion

T v Tharmaratriam 2017 EWCA Crim 887

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Fraud

The fraud guideline applies to group offenders and so to conspiracies.

Culpability within a group can vary significantly. It is also proper to look at the overall

effect of the conspiracy.

A risk of harm can make a sentence move up a guideline, moving up a category when

the future amount likely to become involved cannot be quantified. The harm is not limited

to the moment the criminality is stopped by police intervention.

R v Samuriwo 2016 EWCA Crim1945

Sexual offences

Extreme Pornography

Category A still applied when there were large numbers within that category even though there were large numbers also in the lesser categories . The guideline took account of depravity and the judge should not add their own judgment The Child Abuse Image database should be used (CAID) and the judge need not view the material if adequately described in the evidence.

It could not be said that indecent images caused no harm but the level of harm was reflected in the guideline

R v Pinkerton 2017 EWCA Crim 38

Drugs

1. These cases are listed so that the court may consider a feature of the offending which is known as "cuckooing". Sometimes it is known as "running county lines". The phenomenon represents a development or adaptation in the drug supply market. This is unsurprising as markets inevitably adapt and mutate with time. It appears to have emerged since the publication of the Sentencing Council's Drug Offences Guideline in February 2012 and is not the subject of explicit reference there. This judgment considers how cuckooing should be addressed by sentencing judges.

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2. In general terms, cuckooing refers to retail drug dealers from large metropolitan centres who travel to a smaller provincial community to sell drugs and who set themselves up in premises locally from which they will operate. Very frequently, they will latch onto a local dealer and take over his network, or onto a local user, and take over his address as a base for operations. Sometimes it is a combination of the two. Often large supplies of the drug will not be maintained in the provincial centre, but will be the subject of a re-supply operation from the metropolitan base. Sometimes a manager will be placed in the local area to run operations. Sometimes, as in the case of Limby, young people will be sent or taken to a local centre with sufficient supplies to make inroads into local networks. They may often be lightly convicted or unconvicted.

3. This phenomenon attracted some comment from the National Crime Agency in its National Strategic Assessment of Serious and Organised Crime 2016, at paragraph 128, which states:

"Urban Street Gangs (USGs) continue to play an important role in the distribution of Class A drugs (heroin and crack cocaine) into county and coastal towns outside the major big cities where they normally operate. In these scenarios, groups from large cities are taking control of local markets outside the city, supplying high-frequency deliveries of mid-market quantities. This form of criminality almost always involves the exploitation of children and vulnerable adults coerced to assist with accommodation and supply."

4. Cuckooing may involve a number of variants in its operation, but ought to be recognisable by practitioners and judges from the general descriptions given above. We understand that the term is well understood in courts around the country. The attraction for those who move in is not merely the potential consumer base, but also reduced opposition from local dealers, who find themselves supplanted by incomers who take over local premises from which to operate, often occupied by a vulnerable, low-level user or dealer. An additional benefit is the perception of increased anonymity since such offenders will be operating away from their home areas.

5. The practice of cuckooing is commonly achieved by exploiting local drug users, either by paying them in drugs, or by building up drug debt, or by the use of threats and/or violence to coerce. The exploitation and use of young people as couriers of drugs or money, or as minders of drugs and money, as well as salespeople, is not uncommon. See the National Crime Agency's NCA Intelligence Assessment, published on 12th August 2015.

6. Neither of the two cases before us appears on the evidence to involve a person or persons organising such an operation from the metropolitan centre. Such a person would appear clearly to fall within a leading role in the drug supply guideline. It may be, however, that a person who does not operate at that level, but who operates as a local manager or enforcer of a drug supply operation of this sort, will also fall within a leading role within the guideline. Judges will need to consider carefully the evidence placed before them, considering such factors consistent with a leading role as expectation of substantial financial gain, substantial links to, and influence on, others in the chain, and directing or organising buying and selling on a commercial scale.

7. Those who do not fall within a leading role, but who are involved in the process of cuckooing will ordinarily fall into a significant role. Where there is evidence of involvement of others in the operation by pressure, influence, intimidation or reward, that should be given particular weight in the assessment of culpability and in determining whether a move upward from the starting point is appropriate. This particular type of offending carries with it the hallmarks of professional crime above and beyond that in ordinary street dealing, so that judges should pay particularly close attention to the assessment of role and the offender's place within a category range. Equally, those who work within such an operation and who seek to have a lesser role ascribed to them, should expect to have those claims (based, for example, on coercion or lack of awareness of the scale of the operation) examined with care.

8. None of these observations should be construed as tolerating or downgrading an approach to traditional forms of local street dealing. That remains a pernicious crime, seriously damaging individuals and society, and should continue to be recognised as such. However, the added sophistication of cuckooing operations reflects a further degree of criminality, which judges should be astute to recognise, and to reflect in a particularly careful examination of the three roles by which culpability in drug supply offending is assessed.

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9. None of this is to encourage a departure from the guideline. What is required is a careful focus on the evidence and on the terms of the guideline so that an appropriate categorisation of an offence or offences is achieved. If the offence before the court clearly establishes a cuckooing operation, the court should reflect that, where appropriate, in the assessment of role or by treating it as an aggravating feature at step 2 of the guideline. It may also, if the evidence supports such a conclusion, operate so as to mitigate the position of a vulnerable recruit who has clearly been exploited. The position of the co-accused, Prior, in the case of Ajayi is an example. The court should be alive to the dangers of double counting and the sentence should remain just and proportionate. Considerations of prevalence in a locality will only arise if the conditions identified in R v Bondzie [2016] EWCA Crim 552, [2016] 2 Cr App R(S) 28, are established.

10.Sentence of six and a half years against a range to seven years upheld

R v Ajayi 2017 EWCA Crim 1011

The term “street dealer” could apply to the supply of drugs in prison to other prisoners

and thus could be in category 3

R v Shahadat 2017 EWCA Crim 822

3 Ancillary Orders

Restraining Orders

A restraining order should not be used to prevent an offender living with the adult victim

of an assault who wishes in a freely given decision to live with him. Protection of any

children should be left to the family court

R v Herrington 2017 EWCA Crim 889

Compare R v Khellaf 2016 EWCA Crim 1297 where the views of the victim were not expressed

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Confiscation

The fact that a judge found in a Newton hearing that the cultivation of cannabis had been

for personal use, did not mean that there would inevitably be a risk of serious injustice

(s10POCA) if confiscation proceedings continued. The decision to proceed was for the

crown alone

R v Parveaz (Mohsin) 2017 EWCVA Crim 873

In a criminal lifestyle case (unlike in Waya) the property owned is taken in to account

even if it was funded by a fraudulently obtained mortgage. The value is the open market

and not a forced sale valuation

R v Gor 2017 EWCA Crim 3

When it could not be said that consent to an order, including the value of the benefit,

which consent was clear and unambiguous, was given as result of incorrect legal advice

the Court of Appeal would not interfere. If it did intervene the matter would be remitted to

the crown court whose powers would be at large

R v Morfitt 2017 EWCA Crim 669

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Travel restriction orders

A travel restriction order under s13A POCA 2002 is available to help make a confiscation

order effective. The statute does not require the order to be necessary but only justified

for a good reason and so appropriate. Proportionality is a relevant consideration in the

making of an order and an indefinite order will rarely be proper

R v Pritchard 2017 EWCA Crim 1`267

Company disqualification

Merely because an order was made in criminal proceedings does not prevent the civil

court , asked to allow involvement in the management of a company, from allowing that

to occur. Once the sentence is complete the punitive element is resolved. The order is

then for public protection and all relevant factors may be considered >it may still be an

uphill struggle

Re Liberty Holdings Unlimited 2017 BCC 298 (ChD)

4Particular offences

Historic sexual offences

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Apply Forbes 2016 EWCA Crim 1388 adjusting H 2011 EWCA Crim 2753

The principles are as follows

(a) The general principle is that the relevant maximum penalty is the maximum penalty available for the offence at the date of the commission of the offence.

(b) There is an exception to the general principle (that present day guidelines should be used – the Forbes exception) where the offender (because of age) could not have received any form of custodial sentence at the time he committed the offence.

(c) The exception is no licence for any broader inquiry. If custody was available at thetime of the offending for the offender, the age of an offender at the time of thecommission of the offence is relevant solely to the assessment of culpability. The onlyconstraint in those circumstances on the powers of the sentencing court is the statutorymaximum for the offence. The court should not analyse the nature of the custodyavailable for a young offender at the time, the maximum length of that custody, thecourt's powers to commit for sentence as a grave crime or the principles governingsentencing of young offenders, in so far as they go beyond the importance of assessingculpability and maturity. R v L 2017 EWCA Crim 43

Burglary

Whether premises are a dwelling for the purposes of burglary is essentially a matter of

fact and degree. The term does not require that the building to be occupied on the date of

the entry if it is still furnished and ready for use as a home even if owned on a buy to let

basis

Hudson v CPS 2017 EWHC 841 (Admin)

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Causing serious injury by dangerous driving~

When sentencing for such an offence it is proper to have regard also to less serious

injuries to other people by the same act of driving

R v Aziz 2016 EWCA Crim 1945

Causing or allowing death of a child or vulnerable person: s5 Domestic Violence Crime

and Victims Act 2004

T v Mills and others 2017 EWCA Crim 559

Assisting Unlawful immigration.

Including trafficking a single person

R v Roman 2017 EWCA Crim 6

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PART 8 EVIDENCE

Hearsay

Essential principles

Here a text was sent by the co-defendant to a third party (the defendant’s girlfriend) saying” this one is the face melter” (of a photograph of a chemical).

The essential questions as to what is hearsay were identified in R v Twist 2011 EWCA Crim 1143

1 identify the relevant fact/matter it is sought to prove; in this case to negative an innocent purchase of the chemical

2is there a statement or representation of fact of that matter “the matter stated”

3 If yes was one of the purposes of maker of the communication that the recipient or any other person should believe that matter or act upon it as true and so the text was not hearsay and could be admitted

Held

1 it established the defendant’s shared intention to use the acid for a criminal as opposed to an innocent propose

2 It was, on balance, an implied representation of intention not just a comment from which intention could be inferred

But

3 the third test was not met on the facts

R v Midmore 2017 EWCA Crim 533

A text message from a girlfriend of the defendant setting out an implication that the

defendant was in a certain place and had a firearm was not hearsay as it was not

intended that the defendant should believe it- he already knew- or act upon it.R v Noble

and Johnson 2016 EWCSA Crim 2219

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Res gestae

The appellants appealed by way of case stated against their convictions for assault and beating. The complainant was the daughter of one appellant and the half-sister of the other. The complainant unexpectedly did not turn up at the hearing and the justices admitted her evidence by way of res gestae.

In allowing the appeal the court noted that the admissibility of evidence by way of res

gestae is governed by section 118 of the CJA 2003 applying the common law which

requires that the statements are made by persons so overcome by the emotion of an

event that the idea it could have been distorted or invented was so remote as to be

disregarded. This is the test for such hearsay evidence. Prior to the application of such a

test however it is incumbent upon the judge to investigate why the complainant did not

attend to give evidence. At this stage it would be appropriate to consider whether this

was a case of a domestic violence victim who may be afraid to attend court, R v C [2007]

EWCA Crim 3463 considered. In the instant case the justices had not made any such

enquiries instead moving directly to consideration of the test of admissibility in respect of

res gestae. This was not an appropriate course of action. The reasons for a witness’

failure to attend must be given in particular in a case such as this where the defence of

self-defence was in play and as such the complainant’s evidence was of material

importance. .

Wills & Anor v Crown Prosecution Service (2016) EWHC 3779 (Admin)

Evidence admitted when an allegation was made an hour after the incident in issue. Relevant considerations include

The demeanour of the complainant

Content of 999 call and

Body worn camera film

Way complainant behaved in call and with police

Fact that she had remained for the hour outside the address f or fear the defendant was still there

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Morgan v DPP 2016 EWHC 3414 (Admin)

S41(3) Youth Justice and Criminal Evidence Act 1999

Sexual history

Whilst the similarity required need not be striking, there must be relevant similarity and a sufficient chronological nexus to render the evidence probative. Events a year before and some weeks after the incident were insufficiently probative (drugs and drink at a party)

R v G(G) 2016 EWCA Crim 1633

Good character

It will depend on the circumstances whether a person with a bind over is entitled to the full good character direction

R v B (E) 2017 EWCA Crim 35

Defendant’s evidence

It does not follow from s72 CJA 1982, requiring a defendant who gives evidence to do so orally and then to be cross examined, that the defence cannot give evidence in any other way. The hearsay provisions can be used to admit a proof under s 116 CJA 2003 when a defendant is too unwell to give evidence. This will seldom be necessary as court procedures can be adapted

R v Hamberger 2017 EWCA Crim 273

Memory refreshing: s139(1) Criminal Justice Act 2003

Where a person giving seeks to refresh his memory “from a document made or verified by him at an earlier time”, verification involves a question of fact as to whether the witness has at an earlier time when the matter was fresh in his mind satisfied himself that the document that he wishes to use as a memory-refresher accurately recorded his recollection of the events in question. Evidence of verification may typically include the witness’s signature on the document, but that is simply one form of evidence:

Cummings (Davina) v. CPS (2016) EWHC 3624 (Admin.)

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Inferences from silence at court (s35 CJPOA 1994)

It was permissible for an expert to assist a jury’s understanding of the defendant’s presentation in the witness box,. This must be contrasted with opinions about the credibility or truthfulness of their evidence

The use of an expert might prevent it being undesirable within s 35 for the defendant to give evidence as the jury would hear the expert’s evidence of mental illness,.

S79 PACE permits the expert to be called first as it is not evidence of fact and there is in any element a discretion

R v Mulindwar (16) SJ 37 (CA)

Distressed Witnesses

The power of the court to intervene

Contrast vulnerable and distressed witnesses

45. …. there are now a number of statutory provisions, Criminal Procedure Rules andPractice Directions directed to identifying vulnerable witnesses and enabling them to give thebest evidence they can. It is unnecessary to set these out in detail in this judgment since theyare conveniently summarised in Blackstone 2017 at 19-48 and Archbold 2017 at 8-217, see alsoWills (Practice Note) [2012] 1 Cr App R 16.46. CPD1 3D identifies people in court who may be 'vulnerable'. These include those underthe age of 18 and those with specified disabilities, but may also include others 'who are likely tosuffer fear or distress in giving evidence because of their own circumstances or those relatingto the case'. CPD1 3E refers to 'Ground Rules Hearings to plan the questioning of a VulnerableWitness or Defendant.'47. CPD1 3E.1 provides:The judiciary is responsible for controlling questioning. Over-rigorous or repetitive cross examinationof a child or vulnerable witness should be stopped. Intervention by the judge ... isminimised if questioning, taking account of the individual's communication needs, is discussedin advance and ground rules are agreed and adhered to.48. CPD1 3E.2-6 includes detailed provisions in relation to 'ground rules' for (among otherthings) cross-examination. CPD1 3E.4 sets out:All witnesses, including the defendant and defence witnesses, should be enabled to give thebest evidence they can. In relation to young and/or vulnerable people, this may mean departingradically from traditional cross-examination. The form and extent of appropriate cross examinationwill vary from case to case. For adult non-vulnerable witnesses an advocate willusually put his case so that the witness will have the opportunity of commenting upon it and/oranswering it. When the witness is young or otherwise vulnerable, the court may dispense withthe normal practice and impose restrictions on the advocate 'putting his case' where there is arisk of a young or otherwise vulnerable witness failing to understand, becoming distressed or

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acquiescing to leading questions. Where limitations on questioning are necessary and appropriate,they must be clearly defined. The judge has a duty to ensure that they are complied withand should explain them to the jury and the reasons for them. If the advocate fails to complywith the limitations, the judge should give relevant directions to the jury when that occurs andprevent further questioning that does not comply with the ground rules settled upon in advance.See also Lumemba [2015] 1 WLR 1579 [38]-[45] where the court made clear at [44]:The trial judge is responsible for controlling, questioning and ensuring that vulnerable witnessesand defendants are enabled to give the best evidence they can.49. … in addition to the provisions dealing with vulnerable witnesses, the court has themore general overriding objective of dealing with cases justly and in accordance with the principlesset out in CPR Rule 1.1(2). CPR Rule 3.2 sets out how the court may achieve this by activecase management; and CPR Rule 3.11(d), which deals with the conduct of a trial, includesthe power to limit examination, cross-examination or re-examination of a witness.50…., the exercise of the court's powers and the proper consideration of the advocate'sduties in relation to vulnerable witnesses generally presupposes that these are addressedat an early stage, sometimes with professional assistance. Thus, CPR Rule 3.2(3) requiresthe court to give directions which are appropriate to the needs of the case as early aspossible; and Rule 3.5 sets out the court's case management powers, which include giving directionson its own initiative or an application by a party.51. … the court has the power to restrain lengthy and immaterial cross-examinationwhich has the effect of unnecessarily prolonging proceedings, see for example Simmonds andothers (1967) 51 Cr App R 316, 320 and Kalia (1974) 60 Cr App R 200, 209-210, and the referenceto Mechanical & General Invention Co Ltd v. Austin and Austin Motor Co [1935] AC346, 349. In addition, advocates are under a professional duty to consider not only whether aproposed question is legally permissible but whether it is ethically justified, and should notmake statements or ask questions merely to insult, humiliate or annoy a witness (see for example,The Bar Standard Board Handbook r.C7)

The use of pre agreed questions

In this case a witness had become distressed while giving evidence, as opposed to one who is vulnerable

58. In deciding on the right course of action when a witness becomes distressed while givingevidence, it is important for the court to hold a balance. On the one hand the court must bear inmind the importance of a witness being able to give the best evidence they can (see CPD13E.4) without being harassed by the form or nature of the questioning. On the other hand, itmust also weigh in the balance the potentially conflicting interest of a defendant in being ableproperly to challenge a witness's account. There may be a number of reasons for signs of distress.Witnesses may find giving evidence in court (and reliving their experiences through theirevidence) to be highly stressful. On the other hand, there may be a reason which might be saidto favour the defence: a witness may have been caught out in a lie or may be apprehensiveabout being challenged in relation to an untruthful account given in evidence. Importantly in thepresent context, a witness exhibiting signs of distress is not necessarily to be treated as a vulnerablewitness.

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59. In our judgment the recorder elided the issues that arose. He concluded summarily thatNC's distress meant that she was vulnerable and that consequently the cross-examination fromthat point should be confined.

60. While we accept that in a case where the issue arises suddenly and unexpectedly, thetrial judge is in a better position than this court to assess the cause of distress and whether itmeans that a witness has become vulnerable, we were told by both counsel that NC 'was better'the next day. After a break in the court proceedings she no longer appeared distressed andwas ready to continue with her evidence.

61. Furthermore, as already noted, it does not follow from a conclusion that a witness is vulnerablethat the only course is to direct the form of the cross-examination. Advocates will beaware of the dangers of alienating a jury by the inappropriate tone or content of the questioning,and have a professional duty to treat witnesses with proper consideration; and judgesshould be willing to intervene to prevent over-rigorous or repetitive questioning.

62. Rulings that the defence must set out in writing the questions to be asked will be thenorm in those cases that are, and will become, subject to the 'section 28' procedure under theYouth Justice and Criminal Evidence Act 1999. However, in the generality of cases the courtshould bear in mind the disadvantages to the defence in prescribing the form of questioning,not least because it may inhibit the development of cross-examination in response to a particularanswer. This is particularly so if the ruling is made during the course of cross-examination.

63. This was not a case of a witness who had difficulty in understanding the questions; andwe consider that requiring an advocate to prepare a list of questions for the court's approvalduring the course of cross-examination in such a case should be regarded as an exceptionalcourse. The present instance (where there was no impropriety nor any likely confusion as tothe form of the questioning) was not such a case.

64. We would add that Mr Owen Edwards's suggestion during the course of argument beforeus, that the defence difficulties might be overcome in an appropriate case by the advocateseeking leave to depart from a prescribed form of questions, is not an adequate answer and islikely to create as many problems for proper trial management as it might solve.

R v SG 2017 EWCA Crim 617

Vulnerable witnesses: Inconsistent statements

If the defence wish to put before the jury a number of previous inconsistent statements

made by a witness, they do not have to confront the witness with each and every one of

them, in direct questions or by playing her achieving best evidence interviews, particu-

larly when the witness is as vulnerable as the complainant here; a list of inconsistent

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statements can be produced and agreed with the prosecution and adduced in evidence

by way of admission;

: R. v. Rehman, Rasheed and Ali . (2017) EWCA Crim. 106)

27.9.17 Recording of evidence

New guidance issued by the LCJ on the use of s.28 Youth Justice and Criminal Evidence

act 1999; pre‐recording of cross‐examination and re‐examination for witnesses captured

by s.17(4) YJCEA 1999

PART 9 COSTS AND LEGAL AID

Costs

Defence Costs Orders

A court may revisit a DCO where there had been a material non disclosure and then

revoke an order when a claim has been fraudulently inflated

R v Patel (Hitandra) 2017 Costs LR 77

Orders against a party

The principles in Evans and Cornish (which were preferred in this judgment as the test

for a s19 Prosecution of Offences Act*) apply to private prosecutions. Whilst there will

likely be more room for questioning the initiation and conduct of a private prosecution,

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neither the loss nor withdrawal of the proceedings will of itself be enough to justify an

order against the prosecutor

R. (Haigh) v. City of Westminster Magistrates’ Court and others [2017] EWHC 232

(Admin)

* the Denning test (1991 2QB 531) of whether the act or omission would not have occurred if the cases had

been properly conducted over R(DPP) v Sheffield CC 2014 EWHC 2014 (the professional impropriety test)

Special advocates

A special advocate appointed to deal with disclosure issues should be paid by the party

claiming public intetest immunity

Re R (Closed material procedure: Special advaoctes :Funding) 2017 EWHC 1793 (Fam)

Legal Aid

Contempt of court

Where there is a contempt of court (other than in the face of the court) in the county court

(Brown v London Borough of Haringey [2015] EWCA Civ 483) or the High Court (Kings

Lynn and West Norfolk Council v Bunning [2013] EWHC 3390 (QB)) or Court of Appeal

(Devon CC v Teresa Kirk 2016 EWCA Civ 1221), and whether the proceedings are

criminal, civil or family, criminal legal aid is available under the Criminal Legal Aid

(General) Regulations 2013, reg. 9(v)).

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Crime Lower

Reporting outcome codes

CN09 Released on bail : use for suspects released under investigation but not on bail

CN10 Bail varied/extended

CN11Bail not varied/extended

Standard crime contract 2017 specification 9.104(e ) claims may be submitted no earlier

than one month after the last work was carried out.

Graduated Fess

PPE

Graduated fees PPE

Service on the court; page count

i) The starting point is that only served evidence and exhibits can be counted as PPE. Material which is only disclosed as unused material cannot be PPE.

ii) In this context, references to "served" evidence and exhibits must mean "served as part of the evidence and exhibits in the case". The evidence on which the prosecution rely will of course be served; but evidence may be served even though the prosecution does not specifically rely on every part of it.

iii) Where evidence and exhibits are formally served as part of the material on the basis of which a defendant is sent for trial, or under a subsequent notice of additional evidence, and are recorded as such in the relevant notices, there is no difficulty in concluding that they are served. But paragraph 1(3) of Schedule 2 to the 2013 Regulations only says that the number of PPE "includes" such material: it does not say that the number of PPE "comprises only" such material.

iv) "Service" may therefore be informal. Formal service is of course much to be preferred, both because it is required by the Criminal Procedure Rules and because it avoids subsequent arguments about the status of material. But it would be in nobody's interests to penalise informality if, in sensibly and cooperatively progressing a trial, the advocates dispensed with the need for service of a notice of additional evidence before further evidence could be adduced, and all parties subsequently overlooked the need for the prosecution to serve the requisite notice ex post facto.

v) The phrase "served on the court" seems to me to do no more than identify a convenient form of evidence as to what has been served by the prosecution on the defendant. I do not think that "service on the court" is a necessary precondition of evidence counting as part of the PPE. If 100

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pages of further evidence and exhibits were served on a defendant under cover of a notice of additional evidence, it cannot be right that those 100 pages would be excluded from the count of PPE merely because the notice had for some reason not reached the court.

vi) In short, it is important to observe the formalities of service, and compliance with the formalities will provide clear evidence as to the status of particular material; but non-compliance with the formalities of service cannot of itself necessarily exclude material from the count of PPE.

vii) Where the prosecution seek to rely on only part of the data recovered from a particular source, and therefore serve an exhibit which contains only some of the data, issues may arise as to whether all of the data should be exhibited. The resolution of such issues will depend on the circumstances of the particular case, and on whether the data which have been exhibited can only fairly be considered in the light of the totality of the data. It should almost always be possible for the parties to resolve such issues between themselves, and it is in the interests of all concerned that a clear decision is reached and any necessary notice of additional evidence served. If, exceptionally, the parties are unable to agree as to what should be served, the trial judge can be asked whether he or she is prepared to make a ruling in the exercise of his case management powers. In such circumstances, the trial judge (if willing to make a ruling) will have to consider all the circumstances of the case before deciding whether the prosecution should be directed either to exhibit the underlying material or to present their case without the extracted material on which they seek to rely.

viii) If – regrettably - the status of particular material has not been clearly resolved between the parties, or (exceptionally) by a ruling of the trial judge, then the Determining Officer (or, on appeal, the Costs Judge) will have to determine it in the light of all the information which is available. The view initially taken by the prosecution as to the status of the material will be a very important consideration, and will often be decisive, but is not necessarily so: if in reality the material was of central importance to the trial (and not merely helpful to the defence), the Determining Officer (or Costs Judge) would be entitled to conclude that it was in fact served, and that the absence of formal service should not affect its inclusion in the PPE. Again, this will be a case-specific decision. In making that decision, the Determining Officer (or Costs Judge) would be entitled to regard the failure of the parties to reach any agreement, or to seek a ruling from the trial judge, as a powerful indication that the prosecution's initial view as to the status of the material was correct. If the Determining Officer (or Costs Judge) is unable to conclude that material was in fact served, then it must be treated as unused material, even if it was important to the defence.

ix) If an exhibit is served, but in electronic form and in circumstances which come within paragraph 1(5) of Schedule 2, the Determining Officer (or, on appeal, the Costs Judge) will have a discretion as to whether he or she considers it appropriate to include it in the PPE. As I have indicated above, the LAA's Crown Court Fee Guidance explains the factors which should be considered*. This is an important and valuable control mechanism which ensures that public funds are not expended inappropriately.

x) If an exhibit is served in electronic form but the Determining Officer or Costs Judge considers it inappropriate to include it in the count of PPE, a claim for special preparation may be made by the solicitors in the limited circumstances defined by Paragraph 20 of Schedule 2.

xi) If material which has been disclosed as unused material has not in fact been served (even informally) as evidence or exhibits, and the Determining Officer has not concluded that it should

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have been served (as indicated at (viii) above), then it cannot be included in the number of PPE. In such circumstances, the discretion under paragraph 1(5) does not apply.

In an attempt to assist those who have to operate the current graduated fee scheme in the digital age, I conclude by sounding two warnings about risks which are illustrated by the facts of this case. First, I would underline the need for all parties to be clear as to the status accorded to particular material: a litigator or advocate who wishes to contend that particular material should be counted as PPE should if at all possible resolve that issue at trial, and ensure that it is recorded in the appropriate notice, rather than leaving the point to be considered at a later stage by the Determining Officer or Costs Judge. Secondly, in a case in which the Lord Chancellor has not made any representations before the Costs Judge, but wishes to exercise her right of appeal to the High Court, any "fresh evidence" should be adduced as soon as possible: failure to do so may cause prejudice to the respondent (who may be given insufficient time to gather evidence in response) and may therefore lead either to the court refusing to admit the evidence or to a sanction in costs.

Paragraph 50 Secretary of state for Justice v SVS solicitors 2017 EWHC 1045 (QB)

*. The LAA publishes “Crown Court Fee Guidance”, which contains information as to howgraduated fee claims will be processed. The Guidance has most recently been updated inMarch 2017, but without alteration of the terms of the section which is relevant to this appeal. In paragraph 2 of Appendix D, “PPE Guidance”, there is a table which summarises the “PPE criteria”. In relation to documentary or pictorial exhibits served in electronic form (i.e. those which may be the subject of the Determining Officer’s discretion under paragraph 1(5) of the Schedule 2) the table indicates –“The Determining Officer will take into account whether the document would have been printed by the prosecution and served in paper form prior to 1 April 2012. If so, then it will be counted as PPE. If the determining officer is unable to make that assessment, they will take into account ‘any other relevantcircumstances’ such as the importance of the evidence to the case, the amount and the nature of the work that was required to be done and by whom, and the extent to which the electronic evidence featured in the case against the defendant.”At paragraph 38 of Appendix D, the Guidance gives examples of documentary or pictorial exhibits which will ordinarily be counted as PPE. They include –“Raw phone data where a detailed schedule has been created by the prosecution which is served and relied on and is relevant to the defendant’s case.Raw phone data if it is served without a schedule having been created by the prosecution, but the evidence nevertheless remains important to the prosecution case and is relevant to thedefendant’s case, eg it can be shown that a careful analysis had to be carried out on the data to dispute the extent of the defendant’s involvement.Raw phone data where the case is a conspiracy and the electronic evidence relates to the defendant and co-conspirators with whom the defendant had direct contact.”

The solicitors had represented

However, there are cases such as this where it is quite clear that the content of the disc was central to the case (as opposed to just central to the defence) as it constituted the evidential basis upon which the Crown were able to prepare and put together the telephone schedules used at trial.

Other extracts confirm the importance of the defence role

42. In Furniss, Haddon-Cave J – who, as trial judge, was in the best position to assess all relevant circumstances – concluded that the electronic material was clearly –

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“… integral to the prosecution case and required the defence to review and examine it in detail for the purposes of properly preparing the defence cases. The crucial nature of this material to the trial was not in any dispute.”He emphasised forcefully that the defence advocates had had to check all of thetelephone downloads with care if they were to agree to the schedule of calls and other details which the prosecution wished to put before the jury. He noted that it would have been open to the defence teams to refuse to agree the schedule until all relevant material had been properly served.

43Similarly, in the Edward Hayes case, Nicola Davies J noted that the prosecution relied on a schedule of text messages which were at the core of the Crown's case. She said, at paragraph 20 –

"Given the importance of the evidence it is unsurprising that the defence refused to agree to admission of the extracted data until it was able to examine all the data on the download. This was the defence application to the trial judge which he granted. The request was not only reasonable, it enabled the defendant's legal team to properly fulfil its duty to the defendant. It enabled the defendant's legal representatives to satisfy themselves of the veracity of the extracted date and to place the same in a context having examined and considered the surrounding and/or underlying data. It also enabled the defendant's legal team to extract any communications which they deemed to be relevant. Given the importance of the extracted material to the Crown's case and resultant duty upon the defendant's team to satisfy itself of the veracity and context of the same I am satisfied that this was additional evidence which should have been accompanied by a Notice in the prescribed form."

44I respectfully agree with those general observations as to the duties of the defence when asked to agree a schedule or some proposed agreed facts. The agreement of schedules and/or agreed facts, which reduce a mass of evidence and exhibits to a much more convenient and efficient form, is central to the proper progression of very many criminal trials. But it is important to bear in mind that the role of the defence lawyers is often not confined to checking the accuracy of the summaries of the material which the prosecution has chosen to include: it often extends also to checking the surrounding material to ensure that the schedule does not omit anything which should properly be included in order to present a fair summary of the totality of the evidence and exhibits which are being summarised. It may therefore often be necessary to review what has been omitted before being able to agree to the accuracy of that which has been included.

45It is of course also important to bear in mind that the prosecution are not obliged to call every witness who may have some admissible evidence to give about the facts of a case, and that the prosecution are obliged to follow the provisions of the CPIA in relation to disclosure of unused material. The distinction between evidence and exhibits which are served, and unused material which is disclosed, is a crucial one.

46I make those general observations because it seems to me that difficulty has arisen in the present case because both the CPS and the Determining Officer assumed that only the evidence and exhibits on which the prosecution rely can ever be "served", and that "served" evidence is necessarily identical to the evidence and exhibits on which the prosecution rely. Sometimes that will be so; but it is in my judgment a mistake to think

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that it will always be so. It is frequently the case that the prosecution evidence and exhibits include material which cannot realistically be said to be "relied upon" by the prosecution, for example because it is an irrelevant part of a statement or exhibit which also contains relevant material, or because it is a part of the material which is inconsistent with the way the prosecution case is put but is necessarily included in order to be fair to the defence. In the present case, as I have indicated, the prosecution exhibited the complete downloads of data relating to seven of the ten seized phones: it seems unlikely that they "relied on" every piece of those data.

47It will of course sometimes be possible for the prosecution to sub-divide an exhibit and serve only the part of it on which they rely as relevant to, and supportive of, their case: if a filing cabinet is seized by the police, but found to contain only one file which is relevant to the case, that one file may be exhibited and the remaining files treated as unused material; and the same may apply where the police seize an electronic database rather than a physical filing cabinet. Sub-division of this kind may be proper in relation to the data recovered from, or relevant to, a mobile phone: if for example one particular platform was used by a suspect solely to communicate with his young children, on matters of no conceivable relevance to the criminal case, it may be proper to exclude that part of the data from the served exhibit and to treat it as unused material. But it seems to me that such situations will not arise very often, because even in the example I have given, fairness may demand that the whole of the data be served, for example in order to enable the defence to see what other use the defendant was making of his phone around the times of calls which are important to the prosecution case. The key point, as it seems to me, is that if the prosecution do wish to rely on a sub-set of the data obtained from a particular source, it will often be necessary for all of the data from that source to be exhibited so that the parts on which the prosecution rely can fairly be seen in their proper context.

48This means, of course, that decisions as to the service of evidence and exhibits, and therefore as to the inclusion of material in the PPE, will be case-specific. Insofar as Haddon-Cave J in Furniss may have suggested a blanket approach (which I am not sure he did) I must respectfully disagree with him. But I agree with him that it will very often be the case that, where the prosecution rely on part of the data in relation to a mobile phone, and seek agreement of either those data or a summary of them, fairness will demand that all of the data be exhibited so that the full picture is available to all parties.

49As cases such as Furniss and Edward Hayes show, it is possible for the trial judge to be asked to make a ruling as to whether particular material must be served in evidence. I respectfully agree with those decisions that the court has that power as part of its case-management powers, though in a particular case it may decline to exercise the power. The court also has the power under section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence on grounds of fairness. But it would in my view be wholly undesirable if trial judges were routinely, or frequently, asked to make such rulings: this is an area in which it ought almost always to be possible for sensible agreement to be reached between the prosecution and the defence.

The Secretary of State for Justice, The Lord Chancellor v SVS Solicitors: [2017] EWHC 1045 (QB),

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If there is a doubt about whether material was served as PPE, this does not

mean it cannot be treated as PPE. Rather the authority must make a decision

As for disc x, it is common ground that most of the material on that disc should be treated as PPE. As for the unpaid balance, in my view the disallowance of any of the served material on the basis that it duplicates copies included in the Crown’s report runs directly contrary to the guidance given by Mrs Justice Nicola Davies DBE in Lord Chancellor v. Edward Hayes LLP. It was incumbent upon the Appellant to check the contents of the report against the data from which it was derived: that was not duplication but additional work.

The disallowance of other pages from the PPE count on the basis that the Appellant, in undertaking that checking exercise, identified some of the material as irrelevant (or on the basis, if such is the case, that it otherwise incorporated an element of duplication) also seems to me to be contrary to her findings, quoted above, on the importance of considering the material in context.

Bearing in mind the guidance of both Nicola Davies J and Holroyde J, it seems to me that something more is needed to exclude served evidence from the PPE count than a broad finding to the effect that some of it proved to be irrelevant or duplicativeR v McCarthy SCCO 36/17

Whilst it is desirable for the LAA to receive the disc of electronic evidence, it cannot in a

case where the crown has requested its return because of its sensitive nature of its

contents, refuse to consider the issue. The LAA must consider all the relevant factors to

decide on the PPE.

R v Walsh SCCO 197/16

Table published by LAA of PPE now includes SFR and expands on items not included

First Stage Streamlined Forensic Report (SFR1)

Paper or digital The SFR1 is a short report that details the key forensic evidence the prosecution intend to rely on. The prosecution’s aim is to achieve early agreement

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with the defence on forensic issues (or where this cannot be achieved, to identify the contested issues). Where an SFR1 does result in agreement of forensic issues, the SFR1 will be treated as PPE. Note, the SFR1 will be paid as PPE in circumstances where no SFR2 is for whatever reason rather than solely because the SFR1 is agreed

Other digital exhibits (e.g. CCTV, video evidence (including video interviews), and audio evidence).

N/A Included in the fee.

Number of cases

The severance of an indictment results in an additional case and if one case is ordered to

remain on the file, that is a cracked trial;

R v McCarthy SCCO 36/17

Categorisation

A trial commenced when there were discussions of significant evidential import with the

consent of the judge on the day of the listing for trial (which resulted in an unexpected

offer of a guilty plea to a lesser offence). In this case discussions around 13 time line

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documents involving a ten handed conspiracy were particularly important This was a

significant matter of case management within the decision in Henery (point 6)

R v Coles SCCO 51/16

Advocate’s fees on retrial

Guidance cannot override a statute and the Regulations do not prescribe when the

election is to be made as to the trial or retrial to which a reduction is to be applied. In any

case counsel specifically reserved the right to review their choice later

R v Luck SCCO 135/16

Disbursements

A bicycle mileage rate has been introduced of 20p per mile.

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