ue Iss 8 St Philips Criminal Law News “St Philips chambers is one of the largest sets in the country and receives universal praise for its “practice and forward thinking approach”. It houses an “excellent clerking team” as well as a deep bench of highly proficient barristers.” Chambers UK 2011
Welcome to Crime Brief Spring 2010 As you can see from the introduction on the front page, it has been another busy and productive year for the St Philips Criminal Group with a further two of our top junior barristers being elevated to the ranks of Queen's Counsel. A feat for which we jointly congratulate them. If that weren't excitement enough, this edition aims to tempt you with a veritable smorgash board of legal delights. We begin with a fascinating article by Stephen Linehan QC who provides an invaluable lesson in the history and use of Low Copy Number DNA evidence. This is followed by Ben Williams' analysis of recent case law regarding applications to adduce the bad character of a non-defendant and how those sections of the Criminal Justice Act 2003 interact with section 74 of the Police and Criminal Evidence Act 1984. The cases, at last, seem to provide some much needed clarity. Darron Whitehead will then enlighten you with an article about his recent involvement in an 'extreme porn' test case and how to best approach such offences under section 63 of the Criminal Justice and Immigration Act 2008. We conclude with Shane Crawford's very useful overview of the offences under the Identity Documents Act 2010 - an Act which came into force on the 21st December 2010 with, it seems, little fanfare.
Welcome A warm welcome to the Spring edition of Crime Brief. 2011 has got off to a flying start for the criminal group with the elevation of Francis Laird and Richard Atkins to the rank of Queens Counsel. Both were sworn in by the Lord Chancellor at a ceremony held at the Palace of Westminster on the 7th April. Their richly deserved promotions now brings the number of criminal silks at St Philips into double figures ensuring that we maintain our reputation as one of the leading criminal groups in the country. They join a team of experienced leaders all of whom are extremely effective and have a proven track record. They have been, and continue to be, involved in some of the most serious and high profile cases of recent times. As part of an award winning chambers they are ably supported by 50 criminal juniors. The ethos of our QC’s is to be approachable, open and responsive, all whilst seeking to achieve the best possible outcome by working with you and your clients as a team. All are willing to travel for consultations and to represent clients locally, nationally and internationally. All, along with the rest of the criminal group, undertake public and privately funded work and our approach to fees is to be flexible, straightforward and transparent at all times. Joe Wilson, Chief Clerk
Finally, those of you in the party going community may have noticed that there was no St Philips Post Christmas Blues party this year. But do not despair. Instead, this year we have decided to bring ourselves to you at a time outside of the busy festive period! So look out for a social event coming to you soon. Happy reading. Ben Mills, Editor
Richard Atkins QC, Alistair MacDonald QC (Family), Francis Laird QC, James Turner, Joe Wilson
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DeoxyriboNucleic Acid Heroes, Villains, Low Copy Number and the Latest Cases
By Stephen Linehan QC Although the purpose of this article is to look at the forensic use of Deoxyribonucleic Acid, DNA, and examine recent cases on the admissibility of Low Copy Number DNA I hope the reader will forgive me if I begin by offering a glimpse of the fascinating history that lies behind it. It was 1869 that a Swiss physician first isolated DNA as a microscopic substance in pus in discarded surgical bandages. It took 84 years before, in 1953, Crick and Watson published their paper explaining its double helix molecular structure, for which, in 1963, with Maurice Wilkins, they received the Nobel Prize for Medicine. The discovery revolutionised the research, leading to enormous scientific advances that continue today, including the use of DNA as a forensic tool. But it was the brilliant and heroic scientist, Rosalind Franklin, whose Photograph of the DNA molecule, taken using x-ray diffraction, showed the double helix and provided the key that opened the door for Crick and Watson. Her long hours selflessly exposing herself to x-rays as she strove to take the breakthrough photograph probably caused or contributed to her premature death from cancer in 1958, which, together with perhaps professional jealousy and rivalry, robbed her of her rightful place in the DNA pantheon. So I invite you to salute Rosalind known to her admirers as: The Dark Lady of DNA For criminal lawyers there is another hero Dr (now Professor Sir) Alec Jeffreys. It was Jeffreys, together with two scientists from the FSS, who developed the technique used to compare a DNA profile from a crime stain with that of the suspect. (How does that fact inform your opinion of the Government’s decision to disband the Forensic Science Service?) Its first use in evidence was in 1988 when it was instrumental in the conviction of the murderer of two fifteen year old girls. The case is hugely interesting, not only because it was the first time that DNA had been used
anywhere in the world to prove the identity of the perpetrator of a crime, in this case a double murderer, but also because it prevented a terrible miscarriage of justice. A young man had falsely confessed under police questioning to the second murder, whilst denying the first. His confession had included previously unpublished details of the second body. There is little doubt that, but for the DNA evidence, he would have been convicted instead of Colin Pitchfork, who was the real killer. There is no space here to go into any detail about that fascinating case but it is a source of proper pride for Midland Lawyers. Pitchfork carried out his crimes in the area of Narborough, Leicestershire. Leicestershire Police investigated the killings and consulted Alec Jeffreys. The legendary Brian Escott-Cox Q.C., who practised here in Birmingham, prosecuted it. SGM+DNA STR PROFILING Since 1988 very considerable advances have been made in the science of DNA profiling. The standard test now used in the United Kingdom is called SGM+ DNA STR Profiling. (Second Generation Multiplex DNA Short Tandem Repeat Profiling)The key words here are Short Tandem Repeat A common misconception is that the areas of DNA used to obtain the forensic DNA profile are those that carry the genetic information that determines our physical characteristics and directs all chemical processes in the body. This is not so. The DNA used is found in the ‘non-coding’ regions of the molecule. SGM+ • Targets the sex chromosome and 10 regions (sites or loci) of the DNA molecule which contain repeated blocks of DNA known as: • SHORT TANDEM REPEATS (STR’s). Each STR has 2 copies. One from Mother, one from Father. These are known as • ALLELES • SGM+ measures the Alleles at each locus and • A computer produces the results in a graphical form
The vertical scale measures the amount of DNA present in the sample. The number of repeat blocks making up the alleles of each STR is shown in the labels underneath each peak. In addition to the 10 STR loci, which each has a scientific reference, SGM+ analyses a marker called Amelgenin situated on the sex chromosomes. The result will be ‘XY’ for males or ‘XX’ for females. In this profile at locus ‘D16’ (again at FGA) there is one peak. This means that both alleles at that locus had the same number of blocks i.e. 11, therefore the father and mother both had an 11 block allele at that locus. (Single peaks are referred to as ‘Homozygote’, double peaks as ‘Heterozygote’.) Amel D3 VWA D16 D2 D8 D21 D18 D19 Tho 1 FGA
xy 16 17 11 17 11 11 16 22 14 15 31.2 32 18 20 13 15 67 25 25
What you are looking at is a ‘full profile’, i.e the analysis of the sample has identified the alleles at each of the targeted sites. However, for various reasons a sample may not provide a full profile, for example it has degraded over time and the alleles at one or more loci have been lost. However, an incomplete result or ‘partial profile’ may still be sufficient to enable a meaningful comparison with a complete profile obtained from a suspect and to provide a statistical analysis of the degree of probability of finding the partial profile in the population. You can see immediately that, if the analysis of a crime stain shows more than 2 alleles at any loci, the DNA in the stain must have been contributed to by more than one person and is a ‘mixed profile’. Sometimes there will be more than 2 contributors. The standard kit used to carry out the test is designed optimally to produce a full profile on one nanogram of DNA i.e. one billionth of a gram. In DNA that is approximately equivalent to 160 human cells and can be visualised as a tiny spot of blood. However, there are occasions, particularly where no identifiable body fluid is present, that the amount of DNA present in a crime stain may be as low as the equivalent of that contained in one body cell. LOW COPY NUMBER SGM+ (LCN SGM+) It was to deal with the production of DNA profiles from quantities less than one nanogram that the FSS developed the Low Copy Number process from 1999 onwards.
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(Once again the now doomed FSS was in the forefront of the research into and development of DNA profiling as a tool in criminal investigation.) So the analytical process selected will depend upon the quantity of DNA in the crime scene sample.
What is the difference between the standard test SGM+ Process and the Low Copy Number SGM+ Process?
the PCR Amplification regime from 28 to 34 cycles it was possible to routinely analyse profiles obtained from less than 100 picograms of DNA. However a further increase in the number of cycles did not improve the success rate without impairing the quality and reliability of the result. SGM+
STR regions copied 28 times
STR regions copied 32 times.
You may think that there is little difference between the two, but because the DNA is doubled in each cycle of copying the difference between 28 and 32 cycles is very great.
1. CRIME SCENE SPECIMEN 2. EXTRACTION 3. QUANTIFICATION
The non-jury trial took place in 2007. Part of the defence involved an attack upon the evidential value and reliability of the LCN DNA evidence, which, by 2007, had been accepted in evidence in many criminal cases. Amongst his reasons for acquitting the defendant the trial judge, Weir J, found that the DNA evidence could not be relied upon because he could not be satisfied as to the integrity of the items from which the DNA, said to have a profile matching Hoey’s, was recovered, i.e. their recovery, handling, storage and transmission. However in the course of the ruling he expressed concern about:
4. AMPLIFICATION 5. Gel Electrophoresis 6. DNA PROFILE QUANTIFICATION In this diagrammatic representation of the process Step 3 is ‘Quantification’ where the amount of DNA available is quantified and so the appropriate test can be selected. Where a crime scene stain is visible for example blood or obvious semen it is highly likely that, if DNA is present, it will be present in sufficient quantity for the standard SGM+ process. In such cases the standard practice, following the ‘Extraction’ stage, was to divide the extract into four portions or ‘aliquots’ one of which was used up in the ‘Quantification’ process, one was retained as a reference sample and two were used for analysis. However, where there was no visible stain, for example when speculative swabbing for DNA had been undertaken, it was thought undesirable to use part of the extract for quantification lest the amount of DNA remaining was insufficient for analysis.
“…the present state of the validation of the science and methodology associated with the LCN process and in consequence its reliability as an evidential tool.” That a judge in a criminal trial in the United Kingdom had expressed such concerns was of enormous importance to prosecutors and defenders alike, both in relation to past convictions and future trials. Weir J gave judgement on 20th December 2007. In August the same year two juries had convicted defendants in trials in England where part of the evidence had been LCN DNA. Brothers David and Terence Reed were convicted at Teeside Crown Court of murder. Neil Garmson was convicted at Stafford Crown Court of various offences of kidnapping, rape and sexual assault. The convicted men appealed following the Hoey judgement. Stephen Linehan Q.C. and Dennis Desmond prosecuted the appeal of Garmson.
In such cases the scientist moved straight to the Low Copy Number process. It is now the practise always to quantify the amount of DNA in the extract before selecting the process. AMPLIFICATION The next step, Step 4, ‘Amplification’, is undertaken in both the standard and Low Copy Number SGM+ processes. Since forensic stains are often very small, they may not intrinsically contain enough DNA to produce a complete profile. The technique of DNA profiling therefore uses a termed ‘DNA chemical process Amplification’ or ‘PCR’ (Polymerase Chain Reaction), which copies the targeted STR regions many times in order to greatly enhance their proportion/concentration relative to the non-STR regions. Scientists working in the FSS found that by increasing
and injured, his trial is generally referred to as ‘The Omagh Bombing Case’ and most people remain under the mistaken belief that his trial related solely to the Omagh bomb. In fact he was charged with a total of 58 counts relating to 13 bomb and mortar attacks, attempts at such attacks and the recovery of unexploded devices. Another mistaken belief about the case is that it rested solely or mainly upon LCN DNA evidence whereas there were a number of strands of evidence only one of which was the production of DNA profiles using the LCN technique. The prosecution argued that this evidence showed that Hoey had been in contact with parts of the explosive devices recovered from four separate incidents, none of which included the Omagh bomb.
R v Reed and Reed and R v Garmson  EWCA Crim 2698
LEGAL CHALLENGE TO LCN DNA Low Copy Number DNA entered the headlines in 2007 in the trial of Sean Hoey. Because he was charged in relation to the outrage in Omagh on 13th August 1998 in which twenty-nine men, women and children died and over 200 were maimed
Central to their appeals as launched was a challenge to the admissibility of the LCNDNA evidence, which had not been challenged at the trials. The appeals therefore involved applications to call fresh evidence. In preliminary hearings the Court of Appeal ordered that the appeals were heard together and made it clear that they were to be the vehicles by which the Court
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would rule on the controversy over LCN DNA stirred up by Weir J’s ruling and remarks. In both trials the prosecution had relied upon LCN DNA profiles. In the Reed case full profiles of each accused had been produced from speculative swabs of what were said to be the handles broken from the knives used in the killing, one in respect of each handle. Shortly before the hearing of the appeals the FSS pointed out that the peak heights showed that there was a large quantity of DNA present in each extract. As a result the retained third aliquots were put through the standard SGM+ process. It produced identical profiles to those produced by LCN. Thereafter their appeals concentrated upon whether the FSS scientist, who gave evidence at trial, was entitled to express an opinion upon the likelihood of the DNA arriving on the handles by secondary or tertiary transfer. Although the wind had been taken out of the defence experts’ sails the court required that they presented their attack upon the reliability of profiles produced by the LCN process so that it could give the guidance that was so keenly awaited by prosecutors and defenders alike. In Garmson’s case the DNA was below one nanogram and the evidence remained dependant upon the reliability of the LCN process. Scientists working in the area of forensic DNA, including those at the FSS, acknowledged that increasing the number of PCR cycles introduced the possibility of random effects, also referred to as stochastic and collectively known as artefacts, appearing on the DNA profile graph as a result of laboratory contamination causing allele drop-in, allele drop-out and an increase in the peak size of stutter. (Stutters are well characterised artefacts of the PCR process and appear in a position one STR unit shorter than the main alleles detected. A Scientist experienced in the interpretation of DNA graphs will have no difficulty in distinguishing stutters from true peaks.) Alan Jamieson, (who gave evidence for the defence at the Hoey trial and in the Court of Appeal in the Reed and Garmson cases) relied upon these stochastic/random artefacts produced in the LCN process for his assertion that LCN DNA could not be safely interpreted. The court also heard evidence from an American scientist to the same or similar effect. The prosecution called evidence that the practice of not placing any reliance upon a LCN DNA profile unless it was duplicated in a separate analysis together with the scientist’s ability to identify and exclude stochastic artefacts permitted of a safe interpretation of the results. The court took considerable care to get the defence witnesses to identify the quantity of DNA above which they would not suggest that the results of the LCN process were unreliable. In the course of the hearing this was referred to as the
stochastic threshold’. The court spent some time in its judgement dealing with Jamieson’s evidence and his qualification to give expert evidence in this field. Extracts from the judgement give a flavour of the court’s views:Para 110 “It is impossible to understand how he (Jamieson) had sufficient expertise to be able to give evidence in R v Hoey, let alone assist in the attack made in that case upon the LCN process.” Later “We retain clear reservations about the extent of his expertise in relation to DNA profiles.” I suggest that no-one should conduct a trial involving LCN SGM+ DNA evidence or indeed DNA evidence obtained as a result of the standard SGM+ test without having that judgement to hand because it remains the leading case on the admissibility of LCN DNA and • Provides a clear explanation of the SGM+ and LCN SGM+ processes. • Makes clear that the results of LCN SGM+ process are admissible. The conclusion of the court as to the admissibility of LCN SGM+ DNA is found at Paragraph 74(iii) “A challenge to the validity of the method of analysing Low Template DNA by the LCN process should no longer be permitted at trials where the quantity of DNA analysed is above the stochastic threshold of 100-200 picograms in the absence of new scientific evidence.” Of course the judgment in Reed and Reed was not the end of the matter and the court has been required to return to it: R v Broughton  EWCA Crim 549 (February 2010) R v Weller  EWCW Crim 1085 (March 2010) R v C  EWCA Crim 2578 (October 2010) It will not escape the reader’s eye that in Reed and Reed and Garmson and in each of these appeals the presiding Lord Justice is Thomas LJ. It is clear that the administration has decided that these arguments over the reliability of LCN DNA will receive a consistent approach. Practitioners will need to read these cases but reproduced below is an extract from R v C that encapsulates the principles set out both in that case and in Broughton concerning the admissibility of profiles obtained by the LCN process from a quantity of DNA below the stochastic threshold of 100-200 picograms identified in Reed and Reed. The conclusion is that they are admissible subject to safeguards. (Paragraphs 25 to 27)
“Counsel for the Crown was correct in the submission about paragraph 48 of Reed & Reed. In R v Broughton  EWCA Crim 549 (a decision not available to the judge or the parties at the voir dire because of the re-trial in a case which had attracted considerable publicity) this court had in fact made clear that the submissions advanced by the Crown in this case were entirely correct. In Broughton, the profiles were derived from unquantified samples of DNA of less than 100 picograms; the court concluded at paragraphs 34-36: ‘At these very low levels of DNA, the dangers presented by the possibility of stochastic effects, including allelic drop-out, drop-in and stutter are very real and must be fully appreciated, but they may often be addressed by repeating the process a number of times, as Professor Caddy recognised. (See the Caddy Report) There will of course be occasions where profiles generated from less than 200pg are wholly and obviously unreliable. We anticipate that the Crown would never seek to adduce such profiles in evidence. If it put forward such a profile, then the unreliability would be pointed out in the report of the defence expert and, if not accepted by the Crown’s expert in the exchange that must take place under Part 34 of the Criminal Procedure Rules, the judge would have to consider the dispute; if they were unreliable, he would exclude them. There will be other occasions where the probative value of the profiles is more debatable. In such cases the evidence may properly be adduced and it must then be addressed and its weight established by adversarial forensic techniques. But we do not accept that these are reasons for ruling out LTDNA evidence altogether. In our judgment, the science of LTDNA is sufficiently well established to pass the ordinary tests of reliability and relevance and it would be wrong wholly to deprive the justice system of the benefits to be gained from the new techniques and advances which it embodies, in cases where there is clear evidence (adduced in the manner discussed) that the profiles are sufficiently reliable.’ In our judgment, counsel for the appellant was wrong in his view that a “knockout blow” could be achieved if he persuaded the judge that the amount of DNA in the minor male profile was below 100-200 picograms. The sole question was whether, despite the low quantity, a reliable profile could be produced. The judge accepted the evidence of the FSS expert, uncontradicted as it was by any defence expert evidence. He reached the inevitable conclusion that the DNA results were sufficiently reliable as to be admissible.
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It was for the jury to hear the evidence and determine the weight to be attached to it. Although that is sufficient to affirm that the judge adopted the correct approach, we would add one further observation. In Reed & Reed there was no express consideration by the experts who gave evidence in that case as to whether the stochastic threshold of 100-200 picograms related to the amount subject to analysis or, where mixed profiles were obtained, the particular profile. However, it is clear from the whole of that decision that the court was referring to the total quantity of DNA in its reference to the stochastic threshold. Of course if, in the case of a mixed profile, the DNA relating to a particular profile comprises less than 200 picograms, problems may arise. But as was made clear in Reed & Reed and in Broughton, profiles obtained from less than 200 picograms can be reliable. It is reliability that is the issue, not the quantity, though plainly the quantity is relevant (as has been made clear) to the consideration of stochastic effects.” (Note LTDNA stands for Low Template DNA and means the same as LCN) Weller dealt with a different issue namely whether the LCN DNA evidence was sufficiently reliable for experts to have been able to express an evaluation of the possibilities of transfer, which was dealt with in Reed and Reed at paragraphs 111 to 113. It requires study in respect of that issue; for the necessity of strict adherence to Part 33 of the Criminal Procedure Rules and for the way in which the courts must deal with evidence relating to scientific research and experience that is not in published papers.
The Identity Documents Act 2010
By Shane Crawford False identity documents are more prevalent than ever due to the advance of computer software in graphics and photography. There are occasions when criminals lack the savvy to pull of their intended fraud for example a recent client was required to produce his insurance documents. When he handed in his certificate of motor insurance to his local police station the ink on the certificate had run slightly in the bottom right corner. For those of a more sophisticated slant the production and possession of fraudulent identity documents can give rise to the commission of serious crimes such as fraud and people trafficking. The Identity Documents Act 2010 (the 2010 Act hereafter) repeals the offences contained within its predecessor the Identity Cards Act 2006. The offences under the 2010 Act have been tweaked subtly. What are the offences? 1. Possession of false identity documents with improper intentions.4(1) It is an offence for a person (“P”) with an improper intention to have in P’s possession or under P’s control (a) an identity document that is false and that P knows or believes to be false; (b) an identity document that was im properly obtained and that P knows or believes to have been improperly obtained; or (c) an identity document that relates to someone else. The area around which issues will arise is the knowledge or belief that the article is false. The circumstances by which a person comes in to possession of the offending document will normally be a measure by which a tribunal of fact will decide their guilt or innocence. But the tribunal of fact is required to assess the knowledge and belief of the alleged offender not by an objective standard. s.4(1)(c) possessing an identity document that relates to someone else does not require the knowledge or belief element. The tribunal of fact will employ the tried and trusted means of assessment namely common sense and life experience.
“Improper intention” is defined under s.4(2). The act specifies that (a) the intention of using the document for establishing personal information about P; or (b) the intention of inducing another to use it for establishing, ascertaining or verifying personal information about P or anyone else, will amount to an improper intention. There is still a defence available to individuals who produce false documents in order to flee a life threatening tyrannical regime in a foreign state under the s.31(1) Immigration and Asylum Act 1999, by way of amendment under the Schedule paragraph 10 to the 2010 Act. “Personal Information” is defined at s.8(1) and includes an exhaustive list of examples which, apart from the obvious, also include such items as : external characteristics of an individual that are capable of being used for identifying that person; and information about numbers allocated to the person for identification purposes and about the documents (including stamps of labels) to which they relate. “External characteristics of an individual” must be referring to an incorrect photograph. If one found a bus pass and pasted a different photograph in order to use it the offence would be made out. The latter example of “Information and numbers allocated to the person for identification purposes” probably includes a National Insurance number, payslip or a bank statement. 2. Apparatus designed to make false identification documents In addition to possessing false identification documents with improper intent the 2010 Act seeks out the manufactures of such documents. Under s.5(1) any person who has or controls apparatus or materials which are designed for making false documents may be guilty of an offence. The accused must have the requisite knowledge that the apparatus or materials are specifically designed for manufacture of such documents. In addition, as with the definition of the offence of possession of false identity documents, the offence is only made out if it is proved that the perpetrator in possession of the apparatus or materials has the prohibited intention. This is defined at s.5(2). There are two limbs to the definition: (a) an intention to make a false identity document; and (b) that this document will be used by somebody for establishing personal information about a person. 3. Simple possession of false identity documents Where the “improper intention” is absent or cannot be proved any individual who possess false identification documents without “reasonable excuse” will still commit an offence. In fact s.6(1) which outlines this offence, lists a number of articles other than a false identification document, whose possession may constitute an offence.
These include identity documents that relate to another and identity documents that were improperly obtained. What is an “Identity document” s.7 provides a finite list of items which do not cause any surprises and includes a passport, a driving licence and an immigration document. The only point of note is a “document” includes a stamp or label. Therefore a false visa stamp in an otherwise legitimate passport amounts to document for the purposes of the Act. Sentences for this type of offending Where the offence involves “improper intent” the maximum sentence is 10 years custody. The offence of simple possession attracts a maximum of 2 years custody. The 2010 Act will still be guided by the case law on sentence that arose during the currency of its predecessors. Given the rise in this type offending and the potentially sinister context in which false documents offences are committed conviction even for simple possession almost always attracts an immediate custodial sentence. The leading case of Kolawole 2005 2 Cr App R (7) 71 has been tempered by Judge LCJ in his judgement in Ovieriakhi 2009 2 Cr App R (S) 607. Sentencing courts should distinguish between possession of false documents by a person who is lawfully in the country but has a false document for the purposes of obtaining employment or a bank account and instances where possession of a false document has been used to facilitate illegal
entry into the country. For the former is less serious than the latter. The former situation a custodial sentence is likely but not inevitable. The latter will normally attract between 12 – 18 months immediate custody. Considerations when approaching trial preparation The prosecution of such offences requires certain practical considerations. If you prosecute or defend these types of cases certain points should always be born in mind: Proving the document to be false. This is not such a straight forward aspect of the Prosecution case to fulfil. In my experience there is a statement from a civil servant which states the document is false because “I say so”. The questions are – how is the document false and how is that proved? In a trial in which I was involved the officer from the Home Office could not state why the document was false. Continuity of the main exhibit. A very basic but regular omission is proving the continuity of the offending document. The document is often intercepted by an agency far removed from the institution that can confirm or vitiate its authenticity. It is not uncommon for an authenticator to refer to the offending article as “the document” without securing the continuity of document that was seized at the initial stages of investigation. This very simple point is sometimes not obvious to the
authenticator since it is not an institution which regularly involves itself in criminal investigation. Proving that the Defendant knew or believed the document was false. At the lower end of the spectrum it is not uncommon for the Defendant to be in a position which might be considered vulnerable and furthermore gullible. In another case in which I was involved the Defendant was illiterate. The offending document was a Home Office letter giving indefinite leave to remain. The Defendant lost her Jamaican passport and sent a letter, written by her cousin, to the Home Office enclosing a copy of the letter giving indefinite leave to remain. Her letter requested help in obtaining a new passport. The Home Office investigated the copy of the letter and declared it to be a false document. But, for whatever reason, the Home Office did not communicate that to the Defendant. Three years later she presented the same letter to an officer at the Job Centre to make an application for Job Seekers Allowance. By the actions (or inactions) of the Home Office it was impossible to prove knowledge or belief of the documents falsity. The 2010 Act sneaked in under the radar on the 21st December 2010. The lime light was stolen by the abolition of ID cards but the bulk of the Act introduces these new offences which seek to prevent possession, production and manufacture false identification documents.
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Non - Defendants’ Bad Character
Credibility - 2 strands Pre-Brewster there were two identifiable strands to the case-law. In R v S (Andrew) (above) the CA said that evidence of bad character is only relevant to credibility if it demonstrates (a) a practical reason to doubt reliability, such as forgetfulness occasioned by drug abuse; or, (b) a propensity to be untruthful as explained in Hanson.
By Ben Williams Introduction On 25th & 26th May 2010, the Court of Appeal decided three cases in relation to Bad Character and Non-Defendants: R v Braithwaite  2 Cr App R 18 R v Miller  2 Cr App R 19 R v Brewster  2 Cr App R 20 I was counsel for the First Appellant in Brewster, and sat in court (waiting for my case) during the hearing of the appeal in Miller. They were decided by Pitchford LJ, Maddison & MacDuff JJ. Braithwaite was decided by Hughes LJ, Maddison and Thirlwall JJ the day before. All three appeals concerned applications regarding non-defendants. Braithwaite and Miller relate to the proof of alleged bad character, and the limits on speculative applications. Brewster concerns the test to be applied when deciding what sort of misconduct is relevant to a non-defendant’s credibility.
R v Goddard  EWCA Crim 3134 and R v Garnham  EWCA Crim 216, appeared to endorse the restrictive approach, but were of limited weight when looked at closely. The broader approach was primarily set out in a string of decisions of Hughes LJ. His lordship spoke of the need to allow greater latitude “when what is at stake is a defendant’s right to deploy relevant material to defend himself against a criminal charge” R v Stephenson  EWCA Crim 2325 (unreported). Rather than ‘untruthful’, Hughes LJ preferred the phrase ‘unscrupulous and/or otherwise unreliable’. Such a characteristic could be shown by “widely differing conduct”: R v Lawson  1 WLR 1191 (re co-defendant’s bad character). R v Brewster The Court of Appeal considered both of the above strands in R v Brewster  2 Cr App R 20. The court noted and affirmed the principle that bad character can be relevant by virtue of similarities between past behaviour and behaviour alleged against the person in the case, per S (Andrew).
Under s100(1)(b) such evidence is admissible if it is substantially probative of a substantially important matter in issue.
However, it went on to agree with the broader approach espoused by Hughes LJ as to credibility and to reject the narrower, S (Andrew) approach. The test was expressed as follows: evidence will be admissible if “it is reasonably capable of assisting a fair-minded jury to reach a view whether the witness’s evidence is, or is not, worthy of belief” (para 22). The court went on to emphasise the need to trust a jury’s intelligence.
A straightforward example: the defendant says it was the complainant who started the fight; the complainant’s convictions for violence, in showing his ‘propensity’ to be violent, would have substantial probative value of that issue, which would be substantially important in the case (per R v S (Andrew)  1 WLR 63).
There are limits to this of course: the section cannot be used to attempt “unfairly to diminish in the eyes of the tribunal the standing of the witness” (para 21). Nor can it be used to make “unsubstantiated attacks on credit” (ibid). The latter topic leads us onto the other two cases decided in May last year.
The less straightforward example: the defendant says the complainant is lying when he says the defendant was present at the fight. The complainant’s credibility is undoubtedly capable of being a substantially important ‘matter in issue’ covered by s100(1)(b)). But, prior to the Court of Appeal’s decision in Brewster, the test for what sort of bad character evidence would have ‘substantial probative value’ was unclear.
Evidence of Misconduct
Matters in issue Evidence of a non-defendant’s bad character can be admitted if it is important explanatory evidence (s100(1)(a)) or the parties agree (s100(1)(c)).
Section 109 CJA 2003 requires the court to determine the probative value of evidence on the assumption that it is true. R v Braithwaite  2 Cr App R 18 identifies an important caveat. It is the evidence which is assumed to be true, and so where the evidence is, for example, police intelligence that a person has been accused
of an offence, s109 merely requires the court to assume it is true that the allegation has been made. In the circumstances of alleged misconduct therefore, the court has to consider the evidence relied on. In Braithwaite, the Defendant had sought to adduce police intelligence logs. The Court of Appeal observed: 1) they were hearsay at best, 2) in some instances the complaint had been abandoned, or the prosecution dropped, 3) in some, there no was no direct information pointing to the subject as responsible. Far from having ‘substantial probative value’, the material was “no evidence at all”. The Court of Appeal expressly left open the possibility that “hard evidence”, or a witness making the allegation in court, might have substantial probative value, rendering the evidence of bad character admissible. In R v Miller  2 Cr App R 19 the Prosecution sought leave to ask a Defence witness about his remand in custody on serious charges as having specific factual relevance. The Crown undertook to be bound by his answers, but suggested that he might admit the allegations in evidence. In harmony with the reasoning in Braithwaite, the Court of Appeal held that questions about unproven allegations should rarely be allowed if the questioning party is not in a position to support the allegations by evidence. An example of the limited circumstances where questioning might be permissible was given as cross-examination on the discrete detail of admitted behaviour. Questioning about behaviour unproven and incapable of proof, would be a speculative exercise, risking unfair prejudice. If such questions were asked and the allegations denied, the judge would have to direct the jury to disregard the questions. Challenges to Convictions & Cautions In December 2010, two further Court of Appeal decisions reminded us that complexities in proving Bad Character are not confined to allegations. In C  EWCA Crim 2971 (17.12.10) the Court of Appeal considered the effect of s74(3) of the Police and Criminal Evidence Act 1984 which reads: "In any proceedings where evidence is admissible of the fact that the accused has committed an offence, if the accused is proved to have been convicted of the offence…by or before any court in the United Kingdom…he shall be taken to have committed that offence unless the contrary is proved." The court said at para 9: Section 74(3) is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely
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because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the cur rent trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial. The court acknowledged concerns about satellite litigation, but said that denial of the right enshrined in s74(3) would be likely to result in an unfair trial. In relation to non-defendants, s74(2) is the relevant section; its terms are equivalent. However, the balance of fairness must be different where it is a question of a non-defendant denying his guilt of an offence. R v Olu  EWCA Crim 2975 (21.12.10) confirmed that the same principles apply to cautions. Deceased Witness Where, as is inevitable with the victim in a murder case, the ‘non-defendant’ is dead, particular difficulties arise. Convictions are rarely challenged by a complainant or other witness; but if the Defence seek to deploy material supporting alleged bad character, it obviously cannot be assumed that there would have been admissions, had the person concerned been alive to be asked. A careful approach is required, tailored to the issues and the material involved in the particular case. No Discretion Both Brewster and Braithwaite confirm that, once the court has decided that the evidence meets the criteria for admissibility, it has no discretion to exclude it. This is of course in contrast to applications re defendants under s101(1)(d) and s101(1)(g). Conclusion In light of the three cases decided last May, it can be hoped that the position is now quite clear. In principle evidence of bad character will be admitted if it would make
the jury think twice about believing a witness (Brewster). But the word ‘evidence’ is important. The applying party must be able to back up the suggestions put in questioning, and not be reliant on the possibility that a witness will simply admit something in the witness box (Miller; Braithwaite). The author would tentatively suggest that both of these principles represent common sense.
Extreme Porn... not everyone’s cup of tea
By Darron Whitehead Rightly or wrongly, the festive break was spent researching Hansard, decoding legislation and viewing extreme pornographic images in preparation of presenting a test case. On the 26th January 2009, offences under section 63 of the Criminal Justice and Immigration Act 2008 came into force. It’s worth pointing out that this awkwardly drafted piece of legislation received a great deal of debate and discussion before being approved, 90 whole seconds to be precise. It’s not as complex as it first looks. An extreme pornographic image is an image which is both pornographic (subsection 2 (a)) and an extreme image (subsection 2 (b)). So far so good. Pornographic is defined under subsection 3 and is an image which is of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal. Emphasis has been placed upon a reasonable assessment of the image having been produced for the purpose of sexual arousal (and no doubt for some sexual gratification). The intention of the producer is just one factor to consider, as is the overall context of the image including the nature and form of publication. From the images you will be asked to review, it will be immediately obvious what market they are intended to accommodate. An extreme image is defined under both subsections 6 and 7. The image must portray in an explicit and realistic way any of the following four sub-categories: (a) an act which threatens a person’s life;
(b) an act which results, or is likely to result; in serious injury to a person’s anus, breast or genitals; (c) an act which involves sexual interference with a human corpse; or (d) a person performing an act of intercourse or oral sex with an animal (whether dead or alive). In addition, the Act requires two further elements to be satisfied. First, that a reasonable person looking at the image would think that any such person or animal (depicted within the image) was real. This will therefore preclude the prosecution of cartoons or computer generated material. Secondly, it must then be established that the image is grossly offensive, disgusting or otherwise of an obscene character. The use of this terminology echoes repetition of the legislation contained with the Obscene Publications Act 1959. Interpretation of all the elements of these offences is not as daunting as it first appears. The (a) to (d) categories are not particularly problematic as I demonstrate below. I anticipate that it will be the pre and post conditions that will cause the most angst. Category (a) images which depict life threatening acts will invariably capture acts of suffocation, drowning, hanging and mutilation. Serious injury under Category (b) is unhelpfully undefined. It is most likely to cover depictions of stabbing or mutilation, and invariably will show the obvious use of weapon. Do not forget that the serious injury must centre upon breasts, anus or genitalia. A knife sticking out of the abdomen of a well endowed lady tied to a bed rack will not fulfil this test. Category (c) speaks for itself and is in my view unlikely ever to be used by the prosecution. In reality there will be great difficulty in actually proving a human corpse has played a role. Bear in mind the post condition which needs to be established, namely the person was real. It’s not as if you could ask them! I suspect this may only be utilised where the producers are actually caught in the act of making the image, but other legislation would be best utilised in such a prosecution. Lastly Category (d) which I anticipate will become quite familiar to those in the Courts. Sexual activity with animals. The image of choice (and don't ask how I know) at present seems to be young ladies engaging in a variety of sexual acts with over excited horses. Dogs and kittens are a close second, and even an octopus gets a headline. Animal lovers beware, these images are not easy viewing. Having identified the appropriate category of image, we must turn our attention to the additional conditions to be established.
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The pre-condition involves the interpretation of ‘portrayal’, ‘explicit’ and ‘realistic’. None of these key words are defined by the statute. Dictionary definitions are helpful. ‘Portrayal’ – to make a likeness of; ‘explicit’ – expressing in detail, leaving nothing merely implied; and ‘realistic’ – simulating real or imaginary things in a way that seems real. It is common knowledge (and appears to be an accepted view) that the majority of Category (a) and (b) images are staged scenes featuring repeat & well known performers, performers chosen for their attributes rather than ability to act, colourfulprops and fake blood. This does not prevent a prosecution, but it does call for careful consideration (prolonged viewing of the actual image) so as to make an assessment as to the captured realism or otherwise. It was quickly apparent to me that there was a need to view all the images recovered by the police, not just the favourite ones selected. They invariably consist of story boards and a single image may be out of context. There are academics that are prepared to assist. They come with titles of Professor of Sex, Communication & Culture and authors of publications such as One For the Girls! The Practices & Pleasures of Reading Women's Porn. You would be right to question at first whether extensive viewing of pornography really can qualify someone to regard themselves as an expert. However, assuming the competency test is fulfilled, it is important to stress that the principal issue of whether the particular image is realistic is entirely a matter for the jury to determine. You can fairly assume
that the jury have the necessary experience and knowledge to decide if the scene/ depiction was realistic. Remember, the image does not have to be real in the sense that someone is actually being drowned, just realistic in its portrayal of such an event. The experts’ value will arise from their experience of the context of the image and the websites that they appear upon. For example, certain US sites have disclaimers which must be completed and signed before the viewer pays his/her fee to see the image. They may also have experience of staged sets and be able to offer expert opinion as to the narrative & artificiality behind particular images. It was evident that such images have a niche, and profitable market according to one such expert. The post condition requires the image to be grossly offensive, disgusting or otherwise of an obscene character. Ordinary definitions apply, and so it may be worth asking whether the particular image leaves you with a sense of nausea, repulsion or repugnance. But again, this is a matter entirely for the jury. The pressing opinions or comments for example of an interviewing police officer are irrelevant and should be excluded. Equally, what the accused thought about the image, namely how pleasing it was to the eye........ is similarly irrelevant. It is a defence under section 65 if an accused can prove that he / she had a legitimate reason for being in possession of such an image; or had not seen, nor knew or had any cause to suspect they were in possession of an extreme pornographic image; or was sent such an image without prior request and did not keep it for an
unreasonable period of time. If for example, an image had been recovered from a computer seized under warrant, any good computer expert would be able to retrieve data which would show the movements of such an image. If it could be proved that whilst an accused was surfing a legal adult pornographic website, a pop-up thumb nail image appeared on screen falling within one of the four categories above, which was only momentarily viewed (data can tell you file creation time and last viewing time), immediately deleted and binned into the unallocated clusters of the computer (so non-retrievable without specialist software), presumably a defence exists to such a charge. Controversy and a great deal of media attention surround this legislation. From what I can gather, the purpose of this section is an attempt to regulate the use and portrayal of images that glorify sexual violence. It is thought such regulation is necessary to protect individuals from shock or offence, and in certain cases, outrage. Moreover academics comment that it is to protect the dignity and integrity of certain sections of society in an attempt to stamp out the use of violence against women and to protect them from discrimination or degradation. Conversely, a group calling themselves “Backlash” feel their human rights are being infringed and members of society should have freedom of choice and expression. Whatever the backgrounds or justifications, I suspect more and more extreme pornographic images will flash before our Courts and result in hotly contested cases.
AN ASIDE ON “THE HANGMAN’S FRACTURE” By David Crigman At the excellent dinner recently held to mark the closure of Warwick Crown Court I was approached by a member of the judiciary who demanded to know why the characters in my books were so profoundly unpleasant. I suspect that what he really meant was why were some of the judges in the books so profoundly unpleasant. It was fair comment because the fact is that we have a judiciary of the very highest quality, probably unrivalled in any other country. But, this is the world of low-level fiction where you need big characters to sell the books and, ironically, in these kinds of novels big is not always beautiful. Consequently there are one or two controversial judges in the latest offering. Back in 1963 Mr. Justice “Vicious” Vishney ruled the Old Bailey. He was an autocratic, self-satisfied despot with an acid tongue and a fierce temper who presented himself as the patrician, born to rule and issue orders. He handed out a dock brief in a murder case to a very junior barrister and steamrollered the case to conviction. An innocent man was hanged while the defending barrister never recovered and left the Bar. His daughter becomes the driving force in the story that follows. And the Court of Appeal makes an appearance. Does this scene ring any bells? “Heavy oak walls lined with law reports up to the ceiling. A caged dock pinned on a side wall like a box at the theatre, although the usual occupants were seldom given to applause. At the far end, three thrones, high on a giant platform, from where the Appeal Judges could look down at the advocate targets and decide whether to snipe with single shots or open up with a full machine-gun barrage. When the three Appeal Judges entered the room and were helped on to their thrones by a clerk each, all movement stopped, all voices were rendered mute and it was as if creatures from an alien planet had descended to declare whether earthlings should perish or survive. The acute intelligence from the three pulsating brains lasered down in one direction, poised either to deliver ten thousand volts into the barrister’s heart or to spare him. Lord Justice Sellister, in his black robes, was the central commander. A double first from Cambridge, Law and Mathematics. A brilliant commercial practice. Overtly disdainful of anyone whose intelligence did not reside in the stratosphere and a slavish defender of the system. He loved English Law. It was his life. It was as near perfect as the human condition would allow.” So, all in all, I have probably let down my judicial inquisitor yet again. But that’s the beauty of fiction. They can’t actually pin anything on you. “The Hangman’s Fracture” is being launched on 11th May 2011 at St Philips Chambers.
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