ICLR Criminal Law Updater (January – March 2015)
Welcome to the ICLR Criminal Law Updater for January to March 2015. Here’s our round up of the reportable criminal cases decided in the High Court, the Court of Appeal (Criminal Division) and the UK Supreme Court over the last four weeks. Where a transcript is available on BAILII, a linked reference has been provided.
Practice Direction Updated
On 18 March 2015, The Lord Chief Justice updated Practice Direction (Criminal Proceedings)  1 WLR 3146. The updates provide for new directions relation to:
- Security of prisoners at court
- Deployment of firearms in court
- Use of live text-based communications in court
- New annex dealing with terrorism cases
- New annex dealing with management of cases from the Organised Crime Division
New Case Law
Delaney v Secretary of State for Transport
ROAD TRAFFIC — Motor Insurers’ Bureau — Uninsured driver — Passenger in car injured in road traffic accident — Passenger and driver both found in possession of illegal drugs at time of accident — Driver’s insurance avoided — Motor Insurers’ Bureau avoiding compensating claimant on grounds of exclusion in compensation agreement where vehicle used in course or furtherance of crime — Claimant bringing claim for damages against Secretary of State — Whether Secretary of State in breach of European Union obligations — Whether claimant entitled to compensation — Council Directive 72/166/EEC, art 3(1) — Council Directive 84/5/EEC, arts 1(4), 2(1) — Council Directive 90/232/EEC, art 1 — Motor Insurers’ Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999, cl 6(1)(e)(iii)
Clause 6(1)(e)(iii) of the Motor Insurers’ Bureau (Compensation of Victims of Uninsured Drivers) Agreement 1999, made between the Motor Insurers’ Bureau and the Secretary of State for Transport, which provided an exclusion from liability for compensation for the Motor Insurers’ Bureau where the vehicle involved was being used in the course or furtherance of a crime, was incompatible with Council Directive 72/166/EEC, Council Directive 84/5/EEC and Council Directive 90/232/EEC.
R (Campbell-Brown) v Central Criminal Court
CRIME — Practice — Time limit — Court fixing trial date after expiry of custody time limits without consideration of extension of limit — Time limit extended by different judge at subsequent hearing — Whether decision extending custody time limit lawful — Prosecution of Offences Act 1985, s 22 (as amended by Crime and Disorder Act 1998, s 43(2)
Trials involving defendants remanded in custody were not to be listed for trial after the expiry of the custody time limits without proper and rigorous judicial consideration first having been given to the statutory questions posed by section 22(3) of the Prosecution of Offences Act 1985 in relation to the extension of custody time limits.
R (Chaudhary) v Crown Court at Bristol (No 2)
CRIME — Costs — Power to award — Claimant applying to Crown Court for return of items seized under search warrant — Judge concluding Crown Court having no jurisdiction to grant application — Crown Court making costs order against claimant — Whether power to make costs order — Criminal Justice and Police Act 2001, s 59 — Courts Act 2003, s 69 (as amended by Constitutional Reform Act 2005, Sch 18(2), para 1) — Crown Court Rules 1982 (SI 1982/1109), r 12 — Crim PR, r 76.1
The legislative changes effected by the introduction of the Criminal Procedure Rules revoked the Crown Court Rules 1982 in so far as they related to an award of costs in criminal cases in the Crown Court. Accordingly, there was no power under rule 12 of the Crown Court Rules enabling the Crown Court to make an order for costs in relation to an application under section 59 of the Criminal Justice and Police Act 2001 for the return of items seized pursuant to a search warrant.
R (James) v HM Prison Birmingham
CONTEMPT OF COURT — Committal order — Civil contempt — Breach of final gang injunction — Remand time not deducted from sentence — Whether judge obliged to deduct remand time from committal term — Contempt of Court Act 1981, s 14 — Policing and Crime Act 2009, s 43
There was no obligation on a judge to deduct from a term of imprisonment the time spent on remand by a person arrested under section 43 of the Policing and Crime Act 2009 for breach of a final gang injunction order under sections 34 to 36 of the 2009 Act, and subsequently imprisoned for contempt of court pursuant to section 14 of the Contempt of Court Act 1981 and section 120 of the County Courts Act 1984.
R (NE) v Birmingham Magistrates’ Court
CRIME — Sexual offences — Notification requirements — Appeal — Claimant sexual offenders unsuccessfully seeking review of orders requiring indefinite compliance with notification requirements — Magistrates dismissing claimants’ appeals — Claimants seeking judicial review — Whether judicial review appropriate route for challenge
An appeal by way of case stated to the High Court pursuant to section 111 of the Magistrates’ Courts Act 1980, rather than a challenge by way of judicial review, was generally the appropriate way in which to challenge a decision of a magistrates’ court dismissing an appeal under section 91E of the Sexual Offences Act 2003 against an unsuccessful review of an order requiring a sexual offender to comply with the notification requirements under the Act indefinitely.
R v ABC
CRIME — Common law offence — Misconduct in public office — Threshold level of misconduct required — Directions to jury in relation to threshold level — State of mind necessary for aiding and abetting offence — State of mind necessary for conspiracy to commit offence — Criminal Law Act 1977, s 1
In a prosecution for misconduct in public office it was necessary for the judge to make clear that the necessary conduct was not simply a breach of duty or a breach of trust and that the level was one where the conduct was calculated to injure the public interest so as to call for condemnation and punishment, the threshold of conduct being so serious that it amounted to an abuse of the public’s trust in the office holder, and being a high threshold. In relation to aiding and abetting the offence it was not necessary to establish that the office holder intended to cross the threshold: means of knowledge available to the defendant to make the necessary assessment of the seriousness of the principal’s conduct was sufficient. In relation to conspiracy to commit the offence it was not necessary that a defendant knew or intended that the misconduct concerned would meet the requisite threshold of seriousness.
R v Akhtar (Itzaz)
CRIME — Practice — Retrial — Abuse of process — Jury bringing in guilty verdict on one count but unable to agree on another count — Whether retrial on undetermined count abuse of process
Where a jury brought in a guilty verdict on one count but were unable to agree on another count, a retrial on that other count was not an abuse of process unless the two counts were true alternatives in that they were mutually exclusive alternatives.
R v Ali (Nazakat)
CRIME — Illegal immigrant — Assisting unlawful immigration — Solicitor having clients with limited leave to enter and remain in United Kingdom — Whether solicitor assisting clients to submit bogus applications for sham marriages — Whether solicitor doing acts to “facilitate” commission of breach of immigration law — Immigration Act 1971 (as amended by Immigration and Asylum Act 1999, s 28 and Nationality, Immigration and Asylum Act 2002, s 143), ss 24A(1), 25
A solicitor who had been instrumental in finding brides for non-European Union clients and advising the clients to make false applications for certificates of approval, which he submitted to the to the UK Border Agency, had facilitated a breach of immigration law by his clients.
R v Balogh Attorney General’s Reference (No 117 of 2014)
CRIME — Sexual offences — Sentence — Sentencing guidelines — Whether mental disorder of offender allowing exceptional departure from sentencing guidelines — Coroners and Justice Act 2009, s 125(1)(7)
A court’s obligation to follow any relevant sentencing guidelines unless satisfied that it would be contrary to the interests of justice to do so continued to apply where the offender was suffering from a mental disorder.
R v Boardman
CRIME — Practice — Case management — Prosecution failing to provide defence with essential evidence until shortly before trial — Whether judge entitled to refuse to adjourn to allow defence to obtain expert assessment of evidence — Whether judge entitled to exclude evidence thereby effectively ending prosecution — Crim PR r 1.1.(1)
A judge was fully entitled to refuse to allow the prosecution to adduce evidence of telephone data records where they had failed to progress the case properly or in accordance with the Criminal Procedure Rules or other direction even though such refusal effectively brought the prosecution to an end. The Court of Appeal would support trial judges in the exercise of their discretion in discharging their case management responsibilities.
R v Doran
CRIME — Sentence — Confiscation order — Importation of cigarettes by defendants under surveillance by Revenue and Customs officers — Defendants pleading guilty to conspiring fraudulently to evade duty chargeable on importation of cigarettes — Whether defendants holding goods at excise duty point — Whether defendants incurring liability to pay excise duty — Finance (No 2) Act 1992, s 1(4) — Proceeds of Crime Act 2002 — Tobacco Products Regulations 2001 (SI 2001/1712), reg 13
A surveillance operation mounted by Revenue and Customs because they suspected that a consignment of cigarettes were being imported with the purpose of evading the duty payable did not result in a disconnection between the goods and the importers. Revenue and Customs were thereby monitoring the import, not controlling it, so that a judge was entitled to find that the importers were “holding” the goods within the meaning of regulation 13(1) of the Tobacco Products Regulations 2001 and, by that means, were retaining their connection with the goods at the excise duty point.
R v Gurpinar
CRIME — Homicide — Loss of self-control — Partial defence — Evaluation of evidence of loss of control — Whether “sufficient evidence” for defence to be left to jury — Coroners and Justice Act 2009, ss 54, 55
Where a defendant was charged with murder and the issue arose as to whether the partial defence of loss of self-control should be left to the jury the trial judge had to undertake a much more rigorous evaluation of the evidence before that defence could be left to the jury than had been required under the former law of provocation.
R v Kakkad
CRIME — Sentence — Confiscation order — Defendant convicted of supply of cocaine — Calculation of defendant’s benefit from criminal conduct — Cocaine having higher value when cut with cutting agent — Defendant having insufficient cutting agent to reduce all cocaine in possession to purity required to sell — Proper approach to valuing cocaine
In confiscation proceedings, in relation to the benefit to be assessed, the market value of cocaine, to the extent that it was matched by an available cutting agent, was that which would have been obtained by cutting it with that available agent. However, the value of cocaine which was not matched by an equivalent amount of cutting agent in the defendant’s control could not properly be valued on any basis other than its undiluted wholesale form.
R v McDowell
CRIME — Sentence — Confiscation order — Defendants convicted of trading while unlicensed and unregistered — Whether property obtained as result of criminal conduct — Whether benefit acquired from criminal conduct or lawful trading — Proceeds of Crime Act 2002, ss 75(2), 76(4) — Scrap Metal Dealers Act 1964, s 1(1)(7)
Where trading receipts were obtained as a result of lawful trading activity rather than a failure to register particulars with the local authority under the Scrap Metal Dealers Act 1964 before carrying on business as a scrap metal dealer, the trading activity was not criminal conduct from which benefit accrued, and the trading receipts were excluded from the criminal lifestyle provisions under section 75(2) of the Proceeds of Crime Act 2002.
R v Quillan
CRIME — Conspiracy to defraud — Judge ruling defendants having no case to answer — Crown appealing against ruling — Guidance as to management of legal issues in complex cases — Criminal Justice Act 2003, s 58(4)
If it was likely that a judge would need to make a ruling on a question of law relating to a criminal trial, it would usually be better to order a preparatory hearing before the start of the trial rather than having to make such a ruling after the jury had been sworn and the trial commenced, when any appeal against such a ruling by the Crown would require an undertaking that the defendant was entitled to be acquitted if the appeal failed.
Compliance with the provisions of section 58 of the Criminal Justice Act 2003 and rule 67(2) of the Criminal Procedure Rules required that notice of the intention by the Crown to appeal be given immediately after a ruling by the trial judge, but the question what constituted “immediately” depended on the facts of each case and its complexity.
R v Thorsby
CRIME — Sentence — Imprisonment — Sentencing court failing to perform statutory duty to give defendant credit for half of time spent on qualifying curfew — Responsibility for failure lying with courts and legal representatives rather than defendant — Whether appropriate to grant significant extensions of time for applications for leave to appeal — Criminal Justice Act 2003, s 240A (as inserted by Criminal Justice and Immigration Act 2008, s 21(4))
Where the sentencing judge fails to perform his duty under section 240A of the Criminal Justice Act 2003 to give a defendant credit for half the time spent by him on qualifying curfew before sentence, and the defendant bears no responsibility for the failure, the Court of Appeal is likely to take steps to correct the error, even when a significant extension of time to appeal is required to achieve it.
R v Vowles (Lucinda)
CRIME — Sentencing — Indeterminate sentences — Psychiatric evidence before sentencing court for consideration of hospital order — Judge not making such order but defendant transferred to hospital from prison under direction of Secretary of State — Guidance for sentencing judges — Mental Health Act 1983, ss 37, 38, 41, 47
The Court of Appeal, Criminal Division, gave guidance on the approach to be adopted by a sentencing judge who had to consider passing an indeterminate sentence (either imprisonment for public protection or a life sentence) where there was a psychiatric issue which gave rise to the consideration of a hospital order under the Mental Health Act 1983.
R v Wells
CRIME — Plea — Fitness to plead — Determination of whether defendant did act or made omission charged — Whether what defendant said in interview admissible — Criminal Procedure (Insanity) Act 1964, ss 4, 4A (as substituted by Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, s 2)
Where a defendant’s disability impacted on his ability to take part in a trial but he was not otherwise affected by a psychiatric condition such as rendered what was said in interview unreliable, there was no reason why the jury should not hear such evidence albeit with an appropriate warning. When considering the extent to which evidence of the interview should be admitted, it remained relevant to consider all the circumstances.
About the citations in this Updater
There are four types of citation included in this updater:
- Neutral Citations (e.g.  EWCA Crim 1196) – these are publisher-neutral case references. These references, when clicked, will refer you to BAILII (where a transcript of the decision is available).
- References to published law reports (e.g.  1 WLR 123) – these are references to the various series of law reports published by ICLR. These references, when clicked, will refer you to the law report of the case on ICLR Online. Please note that you must be an ICLR Online subscriber to access these cases.
- References to the WLR Daily (e.g.  WLR (D) 265) – these are references to the case summary service provided by ICLR. The WLR (D) case summaries are reserved for those cases that appear to be reportable and are free to acess.
- ICLR Case Notes (e.g.  CN 973) – these are summaries of unreportable cases and are only accessible to registered ICLR Online subscribers.