Criminal

Strict Liability • R v Unah [2011] EWCA Crim 1837

– It is an offence for a person to have in his possession or under his control, without reasonable excuse— a false id document

– What if D has a genuine belief it is not false?

• JB v DPP [2012] EWHC 72 (Admin)

– s1(10) CDA 1998 does not require the Crown to prove a specific mental element on the part of D at the time he committed the acts which constitute the breach of an ASBO.

– However, if the issue of reasonable excuse arises in any given case D can raise his state of mind at the time of the alleged breach since the state of mind will usually be relevant to the issue of reasonable excuse.

Harassment – 1997 Act

• On a charge under s 4 – putting person in fear of violence on two occasions – it is necessary to show that D’s course of conduct also constituted harassment

– Curtis [2010] EWCA Crim 123

– Widdows [2011] EWCA Crim 1500

– Haque [2011] EWCA Crim 1870

[NB new Stalking offences in Parliament now.]

Curtis and Widdows... • “Harassment” ... describes conduct targeted at

an individual which is calculated to produce the consequences described in s.7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.”

• Lord Phillips MR, in Thomas v NGN [2001] EWCA Civ 1233.

But

• Inserts mens rea of intention

• Makes s 2 defences available to s 4

Joint enterprise • Gnango [2011] UKSC 59

– A and B agreed to shoot at each other + be shot at. A shot at B and missed, B is guilty as an accessory of his own attempted murder + by the doctrine of transferred malice guilty as an accessory to the murder of V.[55]

– D can be liable as party to a crime of which he is the actual or intended victim [52].

– “Parasitic accessory liability does not differ in principle from the more common basis for finding someone guilty of aiding, abetting, counselling or procuring the commission of a crime” *45+.

• NB persuasive dissent by Lord Kerr

New Diminished Responsibility

1. “abnormality of mental functioning”

2. Arising from “recognised medical condition”

3. “substantial impairment” of D’s ability

– to understand his conduct

– to form rational judgement

– to exercise control

4. Abnormality explains/causes D’s lethal conduct

Diminished Responsibility

• New Diminished responsibility defence not available to those who are voluntarily intoxicated

• Dowds [2012] EWCA Crim 281

– “although the medical manuals list many conditions including “acute intoxication” as “recognised medical conditions”, that does not mean that all such conditions are sufficient in law to found the s. 2 defence. The manuals are “primarily a diagnostic tool for doctors and a statistical tool for public health professionals.”

• What makes something “sufficient”

Loss of self control - ss 54-56 CAJA

• Loss of control that need not be sudden

• Not a considered desire for revenge

• Attributable to qualifying trigger

– D fears serious violence

and/or

– Things said or done (except mere sexual infidelity)

• Constitute extremely grave circumstances

• D has justifiable sense of being “seriously wronged”.

• Person of D’s age, sex etc in D’s circumstances with normal self restraint might have responded as D did

Loss of Control

• Loss of self control defence available to those who suffer sexual infidelity with some other trigger: Clinton [2012] EWCA Crim 2.

– What is sexual infidelity?

– Exclude only the fact of sexual infidelity

– If factors other than, but related to infidelity, defence remains available

– Sexual infidelity only excluded as a trigger, not as a circumstance

Child Abduction & kidnap • R v Wakeman [2011] EWCA Crim 649

– prosecution need only prove an intentional or reckless taking (or detention) the objective consequence of which is to remove (or keep) the child from the lawful control of any person having lawful control of child.

• R v Archer [2011] EWCA Crim 2252 – Kidnapping requires proof of force or fraud. Force can

include threat of force

• R v CS [2012] EWCA Crim – no defence of necessity to child abduction.

• R v Kayani [2011] EWCA Crim 2871 – Even if child abducted by parent a charge of kidnapping

may be appropriate.

Best of the rest • R v Hichins [2011] EWCA Crim 1626

– D can plead self defence if he uses violence on V in order to prevent an attack by X.

• R v Gregory [2011] EWCA Crim 1712

– Firearms offences not “absolute”, but “strict” -duress of circumstances is potentially available

• R v Leonard [2012] EWCA Crim277 – Criminal Justice Act 1988, s 160 – deleted images – ensure

charge dates avoid “deletion” problems

• Domestic Violence Crime and Victims (Amendment) Act 2012

• New offence of causing or allowing serious physical injury of child or vulnerable adult in the household

Best of the rest

• Section 46 Serious Crime Act 2007 – S and H [2011] EWCA Crim 2872

• CA reinterprets to make it workable

• R v SA [2012] EWCA Crim 434 – Prosecution for retraction of rape allegation not an

abuse. DPP prosecution policies do not and, as a matter of law cannot, create any immunity or defence.

• R v T [2011] EWCA Crim 729 – perverting the course of justice to wipe husband’s

memory stick of indecent child images.

Evidence

Hearsay

• Sole or decisive hearsay evidence to convict?

• Al Khawaja and Tahery in 4th Chamber: “Never”

• Horncastle in CACD: “Yes”

• Horncastle in UKSC: “Yes”

• Al Khawaja and Tahery in Grand Chamber: “sometimes” – Is it sole or decisive?

– Is there a good reason for witness absence?

– Are there sufficient safeguards?

– No anonymous hearsay

*If D has caused W’s absence sole or decisive is fine.+

Al Khawaja [2011] Grand Chamber

• “where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny.

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• Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, ... and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case.”*147+

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Satisfying Strasbourg (1)

• Is the evidence sole or decisive?

– Decisive is narrowly defined.

• Is there a reason for the absence of the witness?

– How strong a reason?

• Are there sufficient safeguards?

– Statutory conditions met?

– s 125 CJA, s 126 CJA, s 78 PACE discretions?

– s124 challenges to missing witness?

– Jury warning?

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Satisfying Strasbourg (2) Fear • If fear is “attributable to the defendant or those acting on

his behalf,” that can be admitted as hearsay even if such evidence was the sole or decisive evidence against the defendant.

– Proof to criminal standard?

– What to say to the jury?

• The same conclusion must apply when the threats or actions which lead to the witness being afraid to testify come from those who act on behalf of the defendant or with his knowledge and approval

• Receiving hearsay from frightened witnesses where the fear is not caused by the accused or those acting on his behalf is a “last resort”*125+ 18

• Where application is made in evidence to adduce a statement because its author has been frightened or intimidated so that he is unwilling to give oral evidence, and that has been done by or on behalf of the defendant in the case, the defendant in opposing the statement's admission should not generally be allowed to rely on weaknesses or inconsistencies in the statement to show that it would be unfair to admit the statement.

– R v Ford [2010] EWCA Crim 2250

Satisfying Strasbourg (3) - Anonymity • No anonymous hearsay

• CACD in Mayers [2008] EWCA Crim 2898

– never can anonymous hearsay be admitted

• SC in Horncastle [2009] UKSC 14 repeats that

• R v Fox (2010)

– CRIS recording inadmissible

• R v Ford [2010] EWCA Crim 2250

• document passed to police inadmissible

• AlKhawaja in Grand Chamber –

– No anonymous hearsay 20

Previous Inconsistent – s 119 • W silent – s 119 does not apply even if W is

hostile

• W adopts statement by admitting he made it and it was true no need for s 119: M (2011)

• W makes inconsistent statement and admits making earlier statement

– s119(a) applies

– Statement is evidence of truth

• W hostile?

– test of hostility as at common law: Gibbons (2009)

– Has inconsistency been proved?

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Previous consistent: s.120 • S 120(2) rebut allegations of fabrication

– Athwal (2009)– common law requirement of “recent” remains relevant as the trigger; s120 is about “uses”

• S 120(3) W refreshed memory and XX’d on that – Chinn [2012] EWCA Crim 501

• W confirms earlier statement as true (s 120(4) AND

– previous identification of person/place: s 120(5) – fresh statement which W now does not/could not be

expected to recall: s 120(6). – It was evidence of “recent” complaint: S 120(7)

• W successfully refreshes her memory from a document

– s.120(3) applies.

– several "statements“ may thereby become admissible as evidence of the matters stated

• W does not remember after reading statement

– S 120(3) has no application

• W identified a person/place/object (s 120(5))

– Statement and contextual narrative admissible

• W cannot be expected to recall – s 120(6)

– Ascertain why W cannot recall - D can XX on that

Section 120(7) – recent complaint

• s 120(7) - recent complaint evidence of truth. – V must confirm that complaint made and it was true:

AA – V must be a complainant in this case: Trewin (2008). – S 112 CAJA 2009 - no requirement that made as soon

as reasonably expected.

• Warn jury it is not independent evidence – AA [2007] EWCA Crim 1779. – Amrani [2011] EWCA Crim 1517. – AD [2011] EWCA Crim 1943. – H [2011] EWCA Crim 2344.

Section 118 – admission by agent

• Newell [2012] EWCA Crim 650

– Counsel has implied actual authority or ostensible authority to record matters on a PCMH Form

– “provided the case is conducted in accordance with the letter and spirit of the Criminal Procedure Rules, that information or a statement written on a PCMH Form should in the exercise of the court's discretion under s.78 not be admitted in evidence as a statement that can be used against the defendant. The information is provided to assist the court. “

Limits on s 114(1)(d) • R v Ibrahim [2010] EWCA Crim 1176

– CACD will not readily interfere with the judge's exercise of judgment

– S 114(1)(d) rarely appropriate to circumvent s 116

– caution must be exercised if D will be significantly disadvantaged ;

– the interests of justice test must be fully, realistically and not merely nominally met.

• But broad scope of s114(1)(d) cannot be avoided

– W has given oral evidence at an earlier trial and now refuses

• Sadiq (2008); Venn and Deakin (2009)

– Witness obstinately refuses even to come to court

• Burton [2011] EWCA Crim 1990 - V 14 had admitted cuddling D, 26. D denied sexual activity. V refused to cooperate.

• cf Tindle [2011] EWCA Crim 2341 999 call from V not admissible

• Witness unavailable for reasons other than s 116 • J [2011] EWCA Crim 3021 –mum’s report of statement by W, aged 3 s

114(1)(d) allows for evidence against H from Wife who is not compellable: R v Horsnell [2012] EWCA Crim 227

Bad Character - CA urging caution

• DF [2011] EWCA Crim 2168

– D charged with sexual assault and s 4 harassment

– D has apparent conviction for s4 against ex girlfriend; actually s 2 on a plea

– Ex-girlfriend also alleges sexual assault

– Judge admitted ex-gf’s evidence under 101(1)(d), (f) and (g)

– Jury told to put evidence of present V and ex-gf side by side

• CA quashed the conviction 27

Background - s 101(1)(c): avoid overuse

• D [2008] EWCA Crim 1156 – Background evidence not to be overused to admit

prejudicial evidence which should really have to satisfy higher test under s 101(1)(d)

– … the statutory test for gateway (c) should be applied cautiously where it is argued to overlap with a submitted case of propensity. Alternatively, section 78 might well require such evidence to be excluded where it really amounts to evidence of propensity which would not be admitted as such…” *36+

• R v Saint [2010] EWCA Crim 1924 • R v Lee [2012] EWCA Crim

Section 101(1)(d) • R v B [2011] EWCA Crim 1630

– Viewing or collecting child pornography was capable of being admitted under s101(1)(d).

– Bad character evidence post-dating an offence can be admissible at trial.

– D’s interest in making, possessing or distributing images did not mean D would commit sexual offences.

• R v D, U, P [2011] All ER (D) 224 (May)

– where such evidence is admitted, jury need direction not to proceed from viewing the evidence as demonstrating an interest in porn to viewing it as evidence of direct sexual abuse.

S 101(1)(e): caution – no judical discretion

1. Is bad character evidence of CoD is of “substantial” probative value.

– ie “enhanced” (ie “substantial”) capacity to prove or disprove a fact in issue.

– “Substantial” should not be diluted by equating substantial with “more than trivial”.

– ensure probative strength of the evidence removes the risk of “unfair” prejudice.

– Assess evidence in the round not in isolation from the rest of the evidence

– Does bad character evidence add significantly to other evidence on the same issue?

2. Consider, separately from probative value, whether the issue upon which the bad character evidence is substantially probative is also of “substantial importance” in the context of the trial as a whole

– not about whether the evidence itself is true – that is presumed under s 109.

– not (necessarily) about whether D2 has a propensity to commit similar offences or for untruthfulness.

– issue might be important only between defendants but not important in the case as a whole.

– The risk of satellite issues is increased under the 2003 Act and must be borne in mind. [40]

Bad character of non-defendants

• Is it evidence of bad character? (s. 98)

• Have all parties agreed to the admission of the

evidence? (s. 100(1)(c))

• If not, leave is required (s. 100(4))

• Is it important explanatory evidence?

If not

• Is it of substantial probative value in relation to a matter which-

– is a matter in issue in the proceedings, and

– is of substantial importance in the context of the case as a whole (s. 100(1)(b)).

Non- defendant’s bad character • R v Miller [2010] EWCA Crim 1153

– S100 prohibits kite flying and innuendo

– Unproven allegations should rarely be put to W

• R v Braithwaite [2010] EWCA Crim 1082

– CRIS reports, fixed penalty notices etc are unproven allegations; convictions & cautions can be within s100

• R v Brewster [2010] EWCA Crim 1194

– If evidence against W goes to credit alone, it is admissible under s 100(1)(b) if sufficiently persuasive to be worthy of consideration by a fair minded tribunal upon the issue of W’s creditworthiness.

Good Character • R v PD [2012] EWCA Crim 19

– There is no principle that a judge is justified in declining to give a good character direction merely because he foresees that Crown may be able to diminish its fact.

• R v Enrieu [2011] EWCA Crim

– Good character direction not to be diluted

• R v B [2011] EWCA Crim 867

– In historic sex cases consider

(i) person of good character less likely to have committed the alleged offence AND

(ii) Lack of offending since this alleged offence reduces likelihood he offended.