SWEET & MAXWELL
CRIMINAL LAW TODAY THE MAGAZINE FROM SWEET & MAXWELL DEDICATED TO CRIMINAL LAW AND PRACTICE
WINTER 2012
FREE
IN THIS ISSUE EU CRIMINAL JUSTICE David Ormerod
THE DUTIES OF A PROSECUTOR Robert S. Shiels
CASE COMMENT: R V BLACKWOOD P Hungerford-Welch
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Jeffrey Lamb reviews the brand new title Court of Appeal Criminal Division by Susan Holdham and Alix Beldam. How Sweet & Maxwell are working with the Criminal Bar Association in supporting new practitioners through their Bursary Award Scheme. Read the background to the scheme and the winning article by Stephanie Varle of Harrington Street Chambers.
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NEW EDITION
September 2012 £55
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WELCOME… …to the new issue of Criminal Law Today from Sweet & Maxwell.
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For solicitors and barristers working in criminal law, Criminal Law Today focuses on the developments and issues that matter to you. We’ve got some great articles as usual in this edition. David Ormerod discusses the impact of the ECHR on the English criminal justice system, while Robert Shiels ponders the duties of a prosecutor. We have two interesting case comments from Peter Hungerford-Welch and Dr David Thomas QC, and Jeffrey Lamb very kindly reviews our brand new publication Court of Appeal Criminal Division. If you’d like to order any of the products you read about in this magazine you can do so by visiting our new-look eStore at sweetandmaxwell.co.uk. As usual, please feel free to contact me at the email address below with any feedback you might have about the magazine, I’d love to hear it. If you’d like to write an article for us then we’d love to hear from you, again contact me on the email below. A little news of my own is that I recently got married so my name has now changed to Lisa Cox, and my email address has followed suit.
CONTENTS
I hope you enjoy the issue.
5. Latest News 6. Article: EU Criminal Justice by David Ormerod
Lisa Cox Editor lisa.cox@thomsonreuters.com
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8. Archbold 2013: Behind the scenes of this year’s publication 10. Article: Duties of a Prosecutor by Robert S Shiels 18. Feature: The inaugural CBA Bursary Awards Scheme and its winning entry 21. Case Comment: R v Blackwood by Peter Hungerford-Welch 24. Book Review: Court of Appeal Criminal Division by Susan Beldam and Alix Holdham 26. Bookshop Cover image: REUTERS/Toru Hanai
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GREAT PRAISE FOR THE NEW COURT OF APPEAL TITLE BY SUSAN HOLDHAM AND ALIX BELDAM Our brand new criminal law title, Court of Appeal Criminal Division is an invaluable new book that will ensure that every step you take through the Criminal Court of Appeal is as stress-free as possible. The beauty of the book lies in its ability to show you at a glance exactly what is necessary for each right of appeal. Details on applications to the Supreme Court are included with any forms you might need and time limits you’ll need to consider. The book published in September to great reviews. Take a look at the review by Jeffrey Lamb on pages 24 and 25.
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ARTICLE
REUTERS/John Kolesidis
EU Criminal Justice David Ormerod
The impact of the ECHR on the English criminal justice system over the last 15 years is undeniable. It has been so voluminous and dramatic that no criminal practitioner or academic working at any level could have failed to recognise its pervasive effect. However, the cumulative effect of European Union instruments on the criminal justice process in England and Wales has not been perceived in the same light. Indeed, there is good reason to believe that a significant number of mainstream criminal practitioners have not appreciated the full impact of European Union measures, other than in the most obvious forms such as the European
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Arrest Warrant. It is an impact that ought not to be overlooked, still less, ignored. See E. Baker “Taking European Criminal Law Seriously” [1998]. In fact, EU measures have affected matters dealing with arrest, surrender, bail, confiscation, procedural safeguards for defendants, as well as offences dealing with matters as diverse as cartels, child sexual abuse, consumer protection, people trafficking and environmental crimes. Equally important, though probably equally unfamiliar to many, are the decisions of the Court of Justice of the European Union on criminal justice matters that impact on decisions in the domestic courts.The breadth
and depth of EU influence on UK domestic criminal law should come as no surprise. First, all courts in EU Member States must interpret domestic law in the light of any EU criminal law measures and in the light of general principles of EU law. But, secondly, we must face the reality that many offences and prosecutions have cross-border elements, whether in the nature of the proscribed conduct, and/or the investigation and evidence gathering (on which see e.g. R. Loof, “Obtaining, Adducing and Contesting Evidence from Abroad: A Defence Perspective on Cross-border Evidence” [2011]).
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ARTICLE
The precise scope of EU jurisdiction over matters of criminal justice has been a complex, changing and highly political issue. See E. Baker, “The European Union’s ‘Area of Freedom, Security and (Criminal) Justice’ Ten Years On” [2009]. In short, prior to the Lisbon Treaty in 2009, the third pillar from the Treaty of Maastricht, (amended by the Treaty of Amsterdam) included provisions on police and judicial co-operation in criminal matters. Significantly, under those Treaties, Member States retained control over the manner in which the instruments took effect; the control of the EU institutions was limited. With the entry into force of the Lisbon Treaty in December 2009 EU criminal law took on an even greater significance. The Lisbon Treaty subsumed EU action in criminal matters under the control of the EU institutions, and gave the Court of Justice of the European Union full jurisdiction in criminal matters. Under Protocol 21 to the Lisbon Treaty, until December 2014 the UK may decide to participate in new, post-Lisbon measures on a case-by-case basis. The United Kingdom is also entitled at any time before June 2014 to opt out of old third pillar law, i.e. those measures concerning police and criminal justice created before the Lisbon Treaty and which were unamended by it. If the UK does opt-out, those pre-Lisbon measures will cease to have effect after December 2014 unless the UK government requests to opt back in to any of them on an individual basis, but that will be on such tverms as the EU imposes. The opt-out would not affect any post Lisbon measures, nor any future measures and would not impact on the general jurisdiction of the CJEU. The range of measures that would cease to apply would include: the sharing of investigative information under the Schengen information system, the European Arrest Warrant in its present automatically enforceable form, rules governing transfers of prisoners, membership of Europol and Eurojust which coordinate information exchange and investigations, various rules by which the UK authorities automatically receive and share information and co-operation on people, biometric data and a range of offences and activities from vehicle crime to drug misuse and terrorism.
Kolesidis
Whatever the decision, it is important that the full implications of the optout are understood, particularly by criminal practitioners. There are over 130 arrangements that would be affected, ranging across many aspects of the criminal justice system. A comprehensive and accessible discussion of these issues has been produced by the Cambridge Centre for European Legal Studies (A. Hinarejos, J. Spencer and S. Peers, Opting Out of EU Criminal Law: What is actually involved? (2012) http://www.cels.law. cam.ac.uk/publications/working_papers. php). The authors consider not only the potential “misunderstandings” about the scope of the opt-out but the practical effects for the UK. The paper considers (pp.48–51) four options for the future: retaining full participation; retaining full participation subject to such conditions as the UK can successfully negotiate; exercising the opt-out but opting back in to most of the measures in full either instantaneously en bloc or incrementally over time; and opting out in full without opting back in to any pre-Lisbon measures. The authors strongly support full retention and provide a comprehensive catalogue of the EU instruments that would cease to have effect if the opt-out occurs. They list all 134 measures that would be lost with short and often ironic summaries of what they consider to be the positive and negative consequences of withdrawing from each. There is a lot for criminal practitioners and politicians to consider. It is not a decision to be taken lightly or in haste. It is no surprise therefore that the Bar Council and Law Societies of England and Wales, Scotland and Northern Ireland have called for a consultation on whether the UK should opt-out. There is an irony in the fact that the threat of opt-out from these measures may cause criminal justice professionals to realise just how profoundly English and Welsh law has been shaped by EU regulation. Article featured in Criminal Law Review 2012. To subscribe to Criminal Law Review for 2013 call 0845 600 9355.
At present the Government is considering whether to exercise this opt-out. Whether that decision ought to be made is, ultimately, a political one.
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FEATURE ARTICLE
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archbold 2013 Your Archbold. For over 190 years it has been serving criminal lawyers in its own inimitable way. Supporting your case load through every stage of a case, it’s the place to turn for the answers you need. But we can’t take all the credit. Archbold is as much yours as it is ours. After all, it’s written by practitioners... like you, for practitioners... like you. The pages are ingrained with the knowledge and wisdom of those who are or were once in your position and know exactly what it is you need to build your latest case. Unmatched in its depth and authority, and with each section laid out in the same logical way as your brain, Archbold is designed to save you time wherever possible. Covering both substantive law and the practice and procedure of the Crown Court, each indictable offence is covered in depth in its own separate chapter. This is to provide you with the kind of enhanced understanding of the law relevant to your current cases that brings utmost confidence and credibility in court. For the 2013 edition of Archbold there have been extensive revisions made across the text stemming from all the latest changes to criminal law and practice. For the full list of updates visit sweetandmaxwell.co.uk/Archbold
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ARCHBOLD GIVES YOU EXTRA Archbold has been honed over the years by the feedback you’ve given us about the service and how we provide it to you. We’re always looking at ways to improve and add value to your subscription. Over the last few years we’ve added the eUpdate to the service, enhanced the look and feel of Archbold on Westlaw UK and launched Archbold as an eBook on Thomson Reuters ProViewTM.
THE ARCHBOLD eUPDATE The Archbold eUpdate is a weekly email containing the latest updates to your Archbold content. Cross-referenced through paragraph to the mainwork, the changes are presented in the style of Archbold so that you can see at a glance exactly which parts have been affected by changes to the law as they happen, in a format you can take to court. Each week’s email is archived online and organised in chapter and paragraph order, so you can access the current legal state of play at any time. And it’s absolutely free as part of your Archbold subscription. Register for your eUpdate at sweetandmaxwell.co.uk/Archbold
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FEATURE
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PLUS! ARCHBOLD REVIEW This insightful bulletin provides a regular review of some of the latest key case and sentencing decisions and more. With Cases in brief, Sentencing case, Comment and In Practice sections as well as a Feature article Archbold Review provides views from your peers on cases and issues that matter to you. With 10 issues a year our readers says it’s a great perk to the service and a must-read when it lands on their desk. As an enhancement to your service this year Archbold Review is now also accessible in PDF format on the Archbold eUpdate site, so you can view past issues with ease.
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ARTICLE
THE DUTIES OF A PROSECUTOR by Robert S Shiels
Prosecutors have professional standards as well as obligations to the courts. It seems comparatively rare, however, for an appeal to include a complaint about the conduct of a prosecutor but that was so in the Scottish appeal of Beggs v HM Advocate.1 Crown Counsel was said to have failed to proceed with the restraint that is appropriate when commenting on an accused exercising his right to silence. In the speech to the jury it was alleged that the prosecutor turned towards the accused and, at critical points in the narrative, with “a melodramatic gesture” asked: “why did you do that?”2 The appellant suggested that the comment actually made by Crown Counsel was not made “with the necessary care and restraint”.3 The appeal court accepted that Crown Counsel did adopt a technique of posing rhetorical questions, and advanced on that form of question by suggesting answers.4 The appeal court observed5 : “Posing a rhetorical question and thereafter suggesting the answer to it is a recognised and legitimate oratorical technique in a criminal trial …. Manner of presentation and delivery of a jury speech is essentially a matter for the counsel undertaking the task.”
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The court concluded that the words of Crown Counsel were part of the general rhetorical approach adopted and on the face of the transcript were unobjectionable. The court noted that the words seem to have been accompanied by a gesture towards the appellant in the dock6 : “While we do not know the precise nature of the gesture, and while we would not wish to be taken as encouraging the deployment by prosecutors or indeed defence counsel or solicitors of melodramatic gestures to supplement their oratory (gestures not being a matter free from difficulties of interpretation and not recordable in a form amenable to review by the appeal court) we are not persuaded that in this case the gesture made by the trial [prosecutor] should be construed as a comment by the prosecutor on the failure of the appellant to give evidence, let alone a comment of that nature ‘without restraint’.” The appeal court also referred to part of the speech to the jury by senior defence counsel at the trial in which he “skilfully responded” to disavow what had been done by the prosecutor so that the matter had been put before the jury.7
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ARTICLE
REUTERS/Yannis Behrakis
General principles governing prosecutors’ conduct There are numerous authorities dealing with general principles governing prosecutors’ conduct. Paramount amongst the rules is the duty of prosecuting counsel not to obtain a conviction at all costs but to act as a Minister of Justice.8 The attention of the jury or tribunal of fact must not be distracted from its central task of deciding whether, on all the evidence adduced before it, and on all the submissions made, and on the judge’s legal direction and summing up of the evidence, the guilt of the defendant is or is not established to the required standard.9 This overriding duty is well expressed in the Canadian case of Boucher v The Queen for example, in which the court stated10 :
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Beggs v HM Advocate 2010 S.C.C.R. 681 at [15]. Beggs 2010 S.C.C.R. 681 at [59]. 3 Beggs 2010 S.C.C.R. 681 at [63]. 4 Beggs 2010 S.C.C.R. 681 at [66]. 5 Beggs 2010 S.C.C.R. 681 at [67]. 2
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“It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction: it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.”
The adversarial format of the criminal trial is designed to ensure a fair opportunity for the prosecution to establish guilt and a fair opportunity for the defendant to advance his defence: Randall v The Queen. 11 To safeguard the fairness of the trial, a number of rules have been developed to ensure that the proceedings, however closely contested and however highly charged, are conducted in a manner which is orderly and fair. These rules are well-understood and are not in any way controversial.12
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Beggs 2010 S.C.C.R. 681 at [68]. Beggs 2010 S.C.C.R. 681 at [69]. 8 Puddick (1865) 4 F. & F. 497 at 499; Banks [1916] 2 K.B. 621 at 623. 9 [2002] 1 W.L.R. 2241 at [10(2)]. 7
Within these general rules, the limits on prosecution counsel making allegations against the defence, or defence counsel, are clearly explained in the reports of Commonwealth appeals to the Judicial
Boucher v The Queen (1954) 110 Can. C.C. 263 at 270. Randall v The Queen [2002] UKPC 19; [2002] 1 W.L.R. 2237. 12 Randall [2002] UKPC 19; [2002] 1 W.L.R. 2237 at [9]- [11]. 11
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Committee of the Privy Council. In Johnson v The Queen 13 there was a complaint that Crown Counsel had made “improper and unfounded allegations” against defence counsel on numerous occasions during the trial which were of such character and frequency as to prejudice the fair trial of the appellant. The court observed, allowing the appeal14 : “Counsel must not cast aspersions or make improper imputations on the integrity of opposing counsel, unless in the most extreme circumstances, and then only in the absence of the jury. Such conduct emanating from prosecution counsel in the presence of the jury creates prejudice in the minds of the jury and inhibits a fair and impartial trial.” Similarly, restrictions on prosecution counsel’s use of prejudicial language have been clearly expressed. In Mohammed v Trinidad and Tobago15 the prosecutor had advised the jury of his personal view and he had made an emotional speech with inflammatory passages. The trial judge was criticised for his failure to say anything to the jury to counteract the prejudice which the speech of the prosecutor was calculated to generate in the minds of the jurors.16 That is not to say that the prosecutor must be unduly timid in expressing him or herself. Juries need to be spoken to in a language and style that they will understand, and there is nothing wrong with a prosecutor 12
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delivering a robust but respectful speech. There is, however, an obvious difference between a robust speech and one which is xenophobic, inflammatory and seeks to make use of inadmissible and irrelevant material as the Board observed in Benedetto v The Queen. 17 It must be borne in mind when considering the authorities from other jurisdictions that the principles which determine the proper role of the prosecutor have to be applied in the context of his or her own environment. That was made clear in Benedetto and reiterated in Ramdhanie v Trinidad and Tobago.18 The complaint forming the ground of appeal there was that the closing speech by the prosecutor was improper and prejudicial. It was observed by the court that allowance must be made for context and environment when considering the language used, its style and robustness. In that case, the speech by the prosecutor was, in accordance with local practice, made after the speeches of all defence counsel. Allowing for local practice, there are, no matter what the context and environment, fundamental limits which prosecutors should observe. The appellate committee in Ramdhanie considered the prosecutor’s final speech not only included: (a) passages in which counsel in effect told the jury or strongly implied that there was incriminating material which had not been put before them, but that it
also contained; (b) emotive and unjustified comments on the defence case and evidence or on defence counsel; and (c) a number of passages where counsel improperly vouched for the soundness of the prosecution’s case.19 A further principle made clear in Ramdhanie is that the high standard to be expected of prosecuting counsel does not diminish simply because the defence advocates are failing to maintain the standards to be expected of them. The appellate committee noted that the speeches by defence counsel in Ramdhanie included personal views or beliefs regarding facts, evidence or the appropriate outcome of the trial. These too were considered at appeal but were held to be far less prevalent and striking than those in the speech by prosecuting counsel. The overall tenor and effect of the speeches by defence counsel was quite different from that of prosecuting counsel. Further20 : “Whatever may be said about the defence counsels’ speeches could be no justification for impermissible and unfair comments by prosecuting counsel. The high standards required of prosecuting counsel, as a ‘Minister of Justice’, do not depend on defence counsels’ compliance with the rules governing their conduct of the defence.” The appeal was allowed as it was held that the
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ARTICLE on, for example, the closing speech of the prosecutor.23 Moreover, it is entirely possible that defence counsel will also be required to consider how, generally speaking, a defence might properly be presented under wide, that is to say public and potentially global, scrutiny. It was said, admittedly some time ago24 : “When speaking of the English trial, the metaphors into which one naturally slips are those of combat, the hunt or the game. Forensically, the element of sport has always been present: the broad notion of fair play which underpins so much procedure and evidence and the pronounced tendency to jig the rules in favour of the quarry help to emphasis this sporting philosophy.”
REUTERS/Philippe Wojazer
speech by prosecuting counsel could amount to a material irregularity and unfairness in the trial which made the conviction unsafe. This is perhaps one dimension of the broader principle in regard to the question of fairness and the conduct of the prosecutor: the principles set out are not the rules of a game, as was emphasised clearly in Randall v The Queen.21 Future developments? The first principles governing prosecution advocacy might require to be revisited as the era of televised trials looms.22 As that event might not be too far off it may be worth recalling that there are general statutory provisions and other authorities bearing
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Johnson v The Queen (1996) 53 WIR 206. Johnson (1996) 53 WIR 206 at 215. 15 M ohammed v Trinidad and Tobago [1999] 2 A.C.111; [1999] 2 W.L.R. 552 PC. 16 Mohammed [1999] 2 A.C. 111 at 125-126. 17 B enedetto v The Queen [2003] UKPC 27; [2003] 1 W.L.R. 1545 at [55]. 18 R amdhanie v Trinidad and Tobago [2005] UKPC 47; [2006] 1 W.L.R. 796 PC. 19 Ramdhanie [2005] UKPC 47; [2006] 1 W.L.R. 796 at [26]. 14
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the prohibition to the use of tape recording other than for making official transcripts.27 An indication of how matters might develop may be gleaned from the recent draft legislation. The Lord Chancellor and Secretary of State for Justice made a written statement28 on September 6, 2011 confirming his intention to allow, in limited circumstances and with certain safeguards, the recording and broadcasting of certain aspects of court proceedings. That led to certain provisions being included in the Crime and Courts Bill [HL Bill 4] that was introduced in the House of Lords on May 10, 2012.
Whether that remains the position is a matter for reflection. What is now certain is that the solemnity of the subject-matter of a major criminal trial, the very one most likely to be most interest to television companies, suggests strongly that every effort is required to be made to avoid anything, behaviour or words that cheapen or trivialise or otherwise reduce the standing of the court and the event.
Clause 22 of the Bill as introduced has the purpose of permitting the filming and the broadcasting of proceedings in courts and tribunals in certain circumstances. It is expected that such circumstances will be set out in secondary legislation and where appropriate in non-statutory guidance. Clause 22(1) once enacted will allow the Lord Chancellor “by order made with the agreement of the Lord Chief Justice” to disapply the existing prohibitions in the Criminal Justice Act 1925 s.41, and the Contempt of Court Act 1981 s.9.
In Scotland, as a matter of practice, television cameras were not allowed within the precincts of the courts. That strict policy was partially ameliorated as it was recognised in a Practice Note of August 7, 1992 that the absolute rule was an impediment to the making of programmes of an educational or documentary nature and in other cases where there would be no risk to the administration of justice.25 There is no presumption in favour of granting consent to televising proceedings.26
Where such an order has been made a court or tribunal may, in terms of cl.22(3), direct that the disapplied enactments may continue to apply, or will only be disapplied if certain conditions are satisfied. The court may only give such a direction if this is necessary to ensure the fairness of any particular proceedings or to ensure the fairness of any particular proceedings or to ensure that any person involved in the proceedings is not unduly prejudiced.
For England and Wales, legislative change will be required to amend or repeal or otherwise have regard to s.41 of the Criminal Justice Act 1925 (1925 Act) which, by s.49(3), did not extend to Scotland or Northern Ireland. Section 41 of the 1925 Act in short prohibited photography or drawing in court of persons involved in proceedings, and no publication of contravening images. It may be worth emphasising that by s.41(2)(a) of the 1925 Act the meaning of “court” to which the prohibition applies is “any court of justice, including the court of a coroner”. That provision also has to be read with the Contempt of Court Act 1981 s.9 which extends
The degree of change or the ambit of new legislation will of course depend on the policy adopted as to the extent of televising (that is to say a visual or sound recording on any medium) to be allowed. It seems reasonable, however, to assert that there ought to be no departure from the established good practice that has long been regarded by the courts as necessary to ensure a fair trial and that suggests no risk to the administration of justice.
20 Ramdhanie [2005] UKPC 47; [2006] 1 W.L.R. 796 at [33]. 21 Randall [2002] UKPC 19; [2002] 1 W.L.R. 2237 at [11]. 22 The Times April 12, 2012 p.47. 23 See J. Richardson et al, Archbold: Criminal Pleading, Evidence and Practice (London: Sweet & Maxwell, 2012), para.4-419 et seq., and R.W. Renton and H.H. Brown, Criminal Procedure according to the Law of Scotland, 6th edn (Edinburgh: W. Green, 1996), para.18-78. 24 R. Munday “The Duties of Defence Counsel” [1983] Crim. L.R. 703, 707.
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Featured in Criminal Law Review 2012. To subscribe to Criminal Law Review for 2013 call 0845 600 9355.
See Renton and Brown, Criminal Procedure according to the Law of Scotland (1996), para.C1-07.1 where the note is reproduced. 26 BBC, Petitioners (No.1) 2000 J.C. 419; 2000 S.L.T. 845 per Lord Macfadyen at [57] and BBC, Petitioners (No.2) 2000 J.C. 521; 2000 S.L.T. 860. 27 This contempt provision does apply to Scotland and Northern Ireland: see the 1981 Act s.21(4)-(5). 28 House of Commons, Official report, cols 17WS and 18WS.
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Case Comment
R. V KOLI: SENTENCING
BREACH OF SERIOUS CRIME PREVENTION ORDER - APPROACH TO SENTENCE by Dr David Thomas QC
The appellant was convicted of two offences of failing to comply with a serious crime prevention order. The appellant was convicted in 2011 of money laundering and sentenced to three-and-a-half years’ imprisonment with a serious crime prevention order prohibiting him for five years from possessing mobile telephones, communication devices and motor vehicles without notifying the Serious Organised Crime Agency. The appellant was convicted of possessing one or more mobile telephone handsets, a ThinkPad and a motor vehicle without giving the required notification. Sentenced to 24 months’ imprisonment. Held, Parliament had set a maximum of five years’ imprisonment for a breach of a serious crime prevention order. The sentencing court would have to take into account the lapse of time between the imposition of the original order and the date of the breach; the history of non-compliance and the issue as to whether non-compliance had been repeated and had come in the face of warnings and requests for information. The sentencing court must take into account whether the non-compliance was inadvertent or deliberate, and it was of particular importance to consider whether the breach was related to the commission of further serious offences or might lead to the conclusion that the non-compliance added to the risk that the person subject to the order was likely to commit further offences. The court would also have to consider the harm caused by non-compliance or breach. Protective orders were usually designed to protect members of the public who had
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either previously suffered at the hands of the subject of the order or in respect of whom it was feared they might suffer in the future. It was submitted for the appellant that many of those considerations were absent. There was no particular member of the public or class of members of the public that the order had in mind. The sentencing judge who imposed the order subsequent to passing a sentence of three-and-a-half years’ for money laundering feared that the appellant might be tempted to commit further serious offences. On the facts of the case, nothing the appellant possessed or did could afford a basis for showing that that risk was coming to pass. Most of the breaches appeared to have been the result of the appellant’s failure to take the order seriously. As a result of breaching his licence, in respect of which conditions were imposed similar to the obligations under the order, the appellant’s licence was revoked and he served a further period of 256 days. As the conditions of the licence mirrored the conditions of the order, it was submitted that that was sufficient punishment and it was unwarranted for the judge to pass a longer sentence. The court agreed that the 24 months’ sentence was manifestly excessive and gave the appearance of being designed to overcome the difficulty that it was not possible for the judge to pass a sentence to run consecutively to the date of the appellant’s release by virtue of the Criminal Justice Act 2003 s.265. In the court’s view the correct approach was to have regard to
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the reality and significance of the breaches in the particular circumstances of the case. The court did not think that there was merit in the argument that having been recalled for breach of licence conditions identical to those imposed under the order, no further punishment was warranted. The whole point was the necessity of not leaving it to those responsible for the sentence to decide whether the licence condition should contain obligations of notification. In those circumstances the consequences of failure to notify were twofold: recall and punishment. In considering the appropriate punishment, the court had to consider the factors the court had already mentioned. There was no material to suggest that the breaches concealed some further criminal activity which the order was designed to prevent. In the court’s judgment the defendant fell to be punished for flouting the orders and for not taking them sufficiently seriously. In the court’s view, to reflect that gravity, the correct sentence would have been 12 months’ imprisonment. J. Hodivala for the appellant. W. Hughes for the Crown. Commentary This was said to have been the first case in which the offence of breach of a serious crime prevention order has been considered, and it
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might have been more helpful if the judgment had set out the facts in a little more detail (the judgment on the sentence appeal followed a longer judgment on an unsuccessful appeal against conviction). It seems that the judge who passed the original sentence of three-and-a-half years’ imprisonment for money laundering may have recommended the insertion of conditions relating to possession of mobile phones and other items in the appellant’s licence, under the Criminal Justice Act 2003 s.238(1), and added to this recommendation a serious crime prevention order containing similar restrictions, as there is no guarantee that a judicial recommendation under s.238 will be followed. In the event, the appellant’s licence was revoked apparently on the ground that he had breached these restrictive conditions and he was required to serve a further period of 256 days under the original sentence as a result. It seems that he was still serving this outstanding period of the original sentence when he was convicted of the offence of breaching the conditions of the order. The sentencing judge dealing with the appellant for this offence was prevented by the Criminal Justice Act 2003 s.265 from ordering the sentence for the offence to run consecutively to the period served following the appellant’s recall under the revoked licence.
The effect of the sentence imposed by the trial judge seems to have been that the appellant would have served 12 months from the date of sentence, and about 10 months from the date on which he would otherwise have been released from the original sentence. The court was not impressed by the argument that to add a fresh term of imprisonment to the revocation of the appellant’s licence amounted to the imposition of a second punishment for the same misconduct, but the sentence was reduced to 12 months’ imprisonment, which would require the appellant to serve six months from the date of the sentence, or about four months beyond the date on which he would otherwise have been released on the expiration of the original sentence. The main value of the case lies in the discussion of the general considerations which a sentencing court should take into account in considering the gravity of a breach of a serious crime prevention order, and in particular the question whether or not the breach was related to the commission of further offences. Reports and commentaries by Dr David Thomas QC Featured in Criminal Law Review 2012. To subscribe to Criminal Law Week for 2013 call 0845 600 9355.
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DECEMBER 2012
CROWN COURT LAW CLARITY CROWN COURT INDEX 2013 His Honour Ian McLean and His Honour Judge John Dixon
• • • • • •
Gives a concise and accurate statement of the law Includes all recent developments on practice and formalities in the Crown Court Arranged in an easy-to-navigate A-Z format Provides tables of cases, statutes and SI’s for easy reference Helps you locate the information you need quickly via tinted thumb tabs Includes cross-references to SI’s in the margin on each section
Visit sweetandmaxwell.co.uk or call 0845 600 9355 to order your 2013 edition. AVAILABLE IN PRINT, Visit sweetandmaxwell.co.uk or call eBOOK AND ONLINE AT 0845 600 9355 to order your 2013 edition. WESTLAW.CO.UK PRINT eBOOK ONLINE CD-ROM
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FEATURE
THE NEW CBA BURSARY AWARD SCHEME HOW THE CRIMINAL BAR ASSOCIATION AND ARCHBOLD ARE SUPPORTING NEW PRACTITIONERS
Tuesday 6th November 2012 saw the inaugural awards presented to the winners of the new bursary award scheme created by the Criminal Bar Association and sponsored by Sweet & Maxwell. Four award winners were presented with their prizes by Sir Anthony Hooper at the Old Bailey. The Bursary Fund has been set up this year in response to the worrying level of debt that new practitioners face when starting out in practice and is principally intended to assist those from financially disadvantaged backgrounds. Edmund Vickers, Treasurer at the CBA says; “The Profession is in the midst of unprecedentedly difficult times, so it is hoped that the CBA Bursary Fund is something of a good news story. The Fund has been set up to assist new practitioners, especially those from financially disadvantaged backgrounds, who would otherwise find it difficult to survive the early years of practice at the Criminal Bar. We are all aware of the financial problems faced by an increasing number of practitioners together with uncertainty about the future, but the
burden of debt that most young practitioners now carry is eye-watering. Figures well in excess of £30,000 of debt in the first years of practice are common. Many will not be able to afford to continue to practice. This has particularly worrying consequences in terms of future recruitment: access and diversity are areas where the Criminal Bar has made great progress over the last 25 years. The CBA exists to support and promote the interests of all members but these awards underline our commitment, in the face of government cuts and legal aid upheaval, that the Criminal Bar should be open to all, not just to those who can afford to practice. We want to ensure that the publicly funded Bar continues to recruit practitioners on merit, to ensure a strong and diverse profession - for the benefit of all those who need our professional services – victims, witnesses, defendants, the government itself. This must surely be to the benefit of society as a whole, both now and in the future.” Sweet & Maxwell are very excited to be supporting this new award scheme and have pledged support for three years sponsoring
the top two awards. The first of which is a bursary of £3000, together with an iPad and Archbold eBook and a subscription to Westlaw Crime (worth £1500); and the second bursary, awarded jointly with the CBA, of £2,000 together with an iPad and Archbold eBook. Katherine Brewer of Sweet and Maxwell writes: “Archbold has been established as the leading criminal law text for nearly 200 years, and with an author team of practitioners and judges who have come exclusively through the bar we are pleased to be able to play a role in the new CBA bursary scheme. As the publishers of Archbold, Sweet & Maxwell is delighted to show their continuing support for the criminal bar by awarding two bursaries this year and would like to offer their warmest congratulations to the winners.” The Bursary is also being financially supported by 8 leading criminal chambers: 9 Bedford Row, 23 Essex Street, Garden Court, 2 Bedford Row, 18 Red Lion Court, 3 Raymond Buildings, 25 Bedford Row and 9-12 Bell Yard.
THE WINNERS The application process for the bursary prizes involved assessment in 3 stages: a written piece on the image of the criminal bar, participation in an advocacy competition (a 10 minute speech at the Young Bar Conference on the theme ‘What Price Justice?’) and the assessment of a detailed breakdown of financial means. The CBA is delighted to make the following awards to the very worthy winners:
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1. The Archbold Award presented to Stephanie Varle of Harrington Street Chambers, Liverpool. Stephanie received a cheque for £3,000, an iPad with Archbold eBook and a year’s subscription to Westlaw Crime. 2. The Archbold/CBA Award presented to Briony Molyneux of Furnival Chambers. Briony received a cheque for £2,000 and an iPad with Archbold eBook.
Two further awards were awarded from Oxford University Press to Jodie Woodward of 187 Fleet Street; who won £1000 and an iPad with Blackstones Criminal Practice eBook; and Helen Randall of Iscoed Chambers, Swansea who won an iPad with Blackstones Criminal Practice eBook. Sweet & Maxwell would like to congratulate all the winners.
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FEATURE
THE WINNING ENTRY Stephanie Varle 7 Harrington Street Chambers
‘What do you call fifty barristers at the bottom of the ocean?’ ‘A good start.’ It’s an old, well-worn joke, but the sentiment is clear: the general public have never really liked those hailing from our mysterious bewigged profession, with many outside the Bar traditionally believing us to be privileged snobs possessing questionable moral fibre. Despite this, the latest buzzword of the Bar hails itself a ‘meritocracy’; promising that the Bar has moderated its once-VIP door policy to welcome any candidate who is talented, hardworking and dedicated enough to practise, irrespective of background. So, has this paradigm shift seen the modern Criminal Bar shrug off its former stereotypical image as a domain for the socially advantaged
few? Moreover, given the current financial stranglehold on the profession, have public perceptions towards barristers softened? Looking to a recent online article1 penned by Michael Mansfield QC regarding the latest round of Legal Aid cuts, the mood of nonlawyers does little to inspire confidence:
1
2
Legal Aid Cuts: If Lawyers Don’t Defend Justice For All, Who Will? By Michael Mansfield QC, published in the Guardian Online, May 2012; http://www.guardian.co.uk/commentisfree/2012/ may/22/legal-aid-cuts-what-price-justice
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“Oh boo bloody hoo. Less of my tax money being given to lawyers to represent terrorists and murders. If you think the legal profession offer such a great service and such moral integrity why don’t you stop taking the Government’s money and see if you and your lawyer friends can survive on your own. Perhaps you should consider lowering your rate like everyone else not subsidised by the taxpayer when business dries up. Lawyers are not gods.2 ”
Ibid, comment by ‘Mouseelephant’, 22/05/12.
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FEATURE This comment would indicate that far from improving, the climate of public resentment towards our profession is gaining momentum. If this bile-infused rhetoric is to be taken as the barometer of social opinion, what belies the heart of this perceived contempt aimed at the Criminal Bar? Given that we are a clientfocused profession, dealing with some of the most challenging and vulnerable cross-sections of society, why do we not enjoy the same social adoration enjoyed by our equivalently-qualified, handsomely rewarded cousins in the medical profession? One consideration is the public assumption that we are but one step removed from our criminal clients. In a climate where crime and disorder stirs up such public emotion, it seems that a body of professionals who represent alleged criminals may be disliked by association. Being paid from the public purse only serves to incense the public, who resent our often nonworking clients being represented at the cost of millions of pounds to the taxpayer. We are seen as both facilitators and beneficiaries of a system which openly benefits those who break the law, at a cost to those who don’t. The press does little to help improve our misaligned image, instead choosing to sensationalise stories about overly-lenient sentences, ‘legal technicalities’ and ‘fat cat lawyers’. Ironically, those once-heavyweight felines have been replaced by much slinkier versions; forced to crowd an ever-atrophying saucer of milk alongside thirsty solicitor advocates, whose firms’ job it is to pour the cream. Despite misconceptions of vast wealth, those at the coal face of criminal practice know that it is an infinitesimally small, but widely-publicised proportion of criminal barristers3 who enjoy the trappings of a lavish publically-funded income. After significant deductions and expenses, the majority of practitioners face daily financial hardship simply to stay afloat. As one former barrister said: ‘Don’t go to the Criminal Bar. It’s not a proper job. It’s a hobby, and a pleasant one for those with an independent income - but you simply cannot make a living from it in the first four or five years’.4 The head of the Criminal Bar Association, Max Hill QC, recently confirmed that financial adversity is now a widespread reality of practice: “We may be [Rumpole’s] successors but we spend our days worrying about paying the mortgage; worrying about how we can ever afford a pension.”5
3 The Times’ annually-published top earning Legal Aid barristers list. 4 Crime Doesn’t Pay by Alex Deane, November 2009; http://www.legalweek.com/legal-week/ analysis/1563292/crime-doesn-pay#start-of- comments 5 http://www.guardian.co.uk/law/2012/may/18/ barristers-strike-legal-aid-fees 18 May 2012, Owen Boycott, The Guardian barristers list.
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6
Entry to the Bar – Working Party – November 2007 –The Rt Hon Lord Neuberger of Abbotsbury; http://cms.barcouncil.rroom.net/assets/documents/ FinalReportNeuberger.pdf 7 Black and Minority Ethnic 8 In 2007/2008, 62% of pupils were from the top two socio-economic groups according to the Neuberger Report.
Joe Public remains blissfully unaware of the changing landscape; instead still imagining the average barrister to be an Oxbridge-educated, port-quaffing, middle class aristocrat whose existence has been comfortably buttressed by the cushion of a generous private income. Irrespective of the veracity of such an image, few people will either reconsider or warm to such a stereotype; especially in times of austerity. So, is this public image deserved? According to the Neuberger report of 20076 , it would seem so. Despite headway made in respect of the number of entrants drawn from BME7 groups, the majority of pupils have traditionally been drawn from the top two socio-economic groups.8 Would-be lawyers from socially disadvantaged backgrounds may have been priced out of qualifying, or, could have been dissuaded from even considering the Bar as a career because they didn’t fit the customary stereotype of the pupil habitually selected by chambers. More controversially, some pupillage committees may have steered away from candidates who originated from backgrounds which were dissimilar to their own. ‘People like people who are like themselves’ one senior practitioner privately admitted. ‘The question we ask is ‘are they one of us?’’ Nevertheless, the Bar Council has been proactive in implementing some of the recommendations of the report, more recently publishing a guide promoting social mobility and equality of access to the profession. Chairman of the Bar, Desmond Browne QC, suggests: ‘The perception of a privileged profession, narrowly drawn and recruiting in its own image, is progressively more outdated.’9 As outdated as it might be; the grim reality remains that those without a private or second income will find it impossible to survive at the Criminal Bar in the first years of practice; irrespective of talent. The combined countervailing pressures of increased university tuition fees, the proliferation of HCA’s and the reduction in publically funded remuneration now threatens to reverse many years of effort by the Inns, the CBA and the Bar Council to improve access to the profession, with only the wealthy few being able to qualify, enter and remain in practice. Ironically, this will only seek to reinforce public perceptions that the Criminal Bar is the inaccessible province of the social elite; an image from which the Bar has worked so hard to distance itself.
9
No Bar to the Bar, Barristers Promoting Social Mobility, published by The Bar Council.http://www.innertemple. org.uk/downloads/general/No-bar-to-the-Bar-final. pdf
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ARTICLE CASE COMMENT
R. v Blackwood (Romaine): criminal procedure - appeal conviction quashed on appeal Peter Hungerford-Welch
On February 8, 2012 the Court of Appeal allowed the defendant’s appeal and quashed his conviction on a count of rape. At the conclusion of the hearing the court asked counsel whether there were any further applications. Counsel indicated that there were none. Since there was no basis for the defendant’s continued detention, he was told by the court that he was free to go. The court’s order was communicated immediately to those in charge of the cells at the Royal Courts of Justice and the defendant was duly released. An application was subsequently made by the Crown for a retrial. The application was listed for hearing before the same constitution on February 14, 2012. Between the time of the application and the date when it was heard, however, a formal order recording the court’s decision to allow the appeal and quash the conviction had been sent out by the Criminal Appeal Office. That led counsel for the defendant to submit at the hearing, relying on Cross (Patrick Vernon) [1973] 1 Q.B. 937, that the appeal proceedings were at an end, the court was functus officio and it no longer had power to order a retrial. Held, that in the present case, by contrast with Cross, there was no question of altering a previous decision: the court’s decision to allow the appeal and to quash the conviction pursuant to s.2(1) and (2) of the Criminal Appeal Act 1968 was not in issue. The court was concerned with the separate power under s.7 to order a retrial. Nevertheless, the reasoning of the court in Cross was important because it established the point at which an order on an appeal became final, namely
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when it was recorded by the proper officer of the court of trial. Counsel for the defendant submitted that that was the point at which the appeal proceedings were concluded and the court was functus officio, so that it no longer had jurisdiction to exercise the power to order a retrial. Applying Cross to the present case where, on the information available to the court, the order notified to the Crown Court had to be taken to have been recorded on the CREST system (which contained the court records in computerised form) before the hearing of the application for a retrial, the order had become final by the time of that hearing. But the matter did not end there. By s.2(3) of the 1968 Act, the order operated as a direction to the Crown Court to enter, instead of the record of conviction, a judgment and verdict of acquittal. It followed that there was in place a final order to which effect had been given at the court of trial by entering a verdict of acquittal. It could not possibly be open to the court to order a retrial after the defendant’s acquittal had been recorded in that way. The terms of the 1968 Act in any event leant towards the conclusion that the question of a retrial had to be considered before an order quashing the conviction was notified to the Crown Court. Section 2(3) established a link between the power or duty in s.2(2) to quash a conviction and the power in s.7 to order a retrial: an order quashing a conviction “shall, except when under s.7 below the defendant is ordered to be retried, operate as a direction to the court of trial …”. It suggested that there was to be one order, which would either quash the conviction (in which case it operated as a direction to
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the court of trial as specified in s.2(3)) or quash the conviction and order a retrial (in which case it did not of course operate as such a direction). Per curiam: It is highly desirable that prosecuting counsel appearing at the hearing of a conviction appeal should have clear instructions as to whether to apply for a retrial in the event of the appeal being allowed and the conviction or convictions being quashed. F. McGrath for the defendant. C. Purnell for the Crown. Commentary The Criminal Appeal Act 1968 s.7(1), as amended, provides that: “Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.” This provision has to be read in the context of s.2(1) (a), which states that the Court of Appeal “shall allow an appeal against conviction if they think that the conviction is unsafe”; otherwise the appeal has to be dismissed ( s.2(1)(b)). Where a conviction is held to be unsafe, the Court of Appeal is required to quash that conviction ( s.2(2)). Unless a retrial is ordered under s.7, the quashing of the conviction operates as a direction to the Crown Court to enter a verdict of acquittal in place of the conviction ( s.2(3)). The effect of these provisions is that the ordering of a retrial (as opposed to simply quashing the conviction) is discretionary, and that a retrial can be ordered only if the Court of Appeal has first quashed the conviction on the basis that it is unsafe. The issue in the present case was a straightforward one: when is it too late to order a retrial once a conviction has been quashed (or, put another way, when does the Court of Appeal become functus officio)? Rule 65.7(2) of the Criminal Procedure Rules requires the Registrar of Criminal Appeals to serve decisions of the court on the parties and on the Crown Court. The Court of Appeal read the effect of Cross (Patrick Vernon) [1973] 1 Q.B. 937 as being that, once the decision has been recorded (currently, this is done on the Crown Court Electronic Support System) by the relevant officer of the Crown Court, it is too late for that decision to be altered.
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It follows that it is incumbent on the prosecution to consider, in advance of the hearing of the appeal, whether they wish to seek a retrial if the conviction is quashed, and then to take the initiative in asking for a retrial in the event that the conviction is indeed quashed. There is only a limited window of opportunity in which to ask the Court of Appeal to reconvene so as to amend the order to include provision for a retrial if one was not ordered at the time the conviction was quashed. Given the need for certainty, this would seem to be an appropriate approach to take. If an order for a retrial has been made, the defendant has to be arraigned within two months; after that time, he can only be arraigned with the leave of the Court of Appeal ( s.8(1)). Where a period of two months has elapsed from the date of the order, the defendant may apply to the Court of Appeal to set aside the order for retrial and to direct the Crown Court to enter a verdict of acquittal in respect of the offence for which he was ordered to be retried ( s.8(1A)). Where two months have elapsed from the date of the order for retrial, the Court of Appeal cannot give leave for the defendant to be arraigned unless satisfied that the prosecution have “acted with all due expedition”, and that there is “a good and sufficient cause for a retrial in spite of the lapse of time since the order [for retrial] was made” ( s.8(1B)). This means, in effect, that the prosecution have two months in which to decide whether or not to proceed with the retrial. It follows that if, for some reason, the prosecution are (at the time of the original hearing in the Court of Appeal) uncertain whether or not they want a retrial to take place, the best course of action may well be to ask for a retrial—assuming that it would be in the interests of justice to do so—and then (assuming a retrial is ordered) to use the next two months to decide whether to go ahead with the retrial. The disadvantage from the defendant’s point of view is that he may have to apply to the Court of Appeal for the retrial order to be set aside, if he is not arraigned within two months, in order to be certain that a fresh trial will not take place. Report by K. O’Hanlon, Barrister Commentary by P. Hungerford-Welch Featured in Criminal Law Review 2012. If you would like to subscribe to Criminal Law Review for 2013 call 0845 600 9355.
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REVIEW
BOOK REVIEW Court of Appeal Criminal Division A Practitioner’s Guide By Susan Holdham and Alix Beldam Reviewed by Jeffrey Lamb
If you are like me and practice your profession in the criminal courts, the Court of Appeal is a frightening spectre haunting your every tactical move and speculative submission to a recalcitrant and unyielding judge. We always have to have one eye on what can or might happen if either we or our opponent is successful, or otherwise, in legal argument. Well finally, help is at hand. Alix Beldam and Susan Holdham, two senior lawyers, with 28 years of combined experience of working at the CACD have written a book to end all our woes, and perhaps theirs. If we follow closely the contents and advice in the book, and understand the helpful flowcharts, of these two extremely knowledgable guides through the sometimes labyrinthine processes of the CACD, what will remain for us will be the comparatively simple task of convincing the appeal judges that we are right. Given the size, scope and complexity of the various appeal procedures, it might be said that the hardest part is getting one’s case in front of the tribunal. The book purports to be - and who is in a position to doubt it - a comprehensive guide to appealing to the CACD by both the defence and the prosecution, with a chapter devoted also to appeals to the Supreme Court. If nothing else, Chapter One is enormously helpful in setting
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out each and every pathway to appeal, ranging from the comparatively straightforward - with the emphasis very much on the word “comparatively” - rights afforded by the 1968 Criminal Appeal Act, to the more arcane right of prosecutors to appeal the non-imposition of a football banning order permitted under s. 14A of the Football Spectators Act 1989. I heartily recommend that all practitioners read that chapter alone. An understanding of the various paths to appeal would, I am sure, save many advocates a great deal of time and stress in seeking to assess whether an avenue of appeal for their client even exists in the first place. The book comprises 19 chapters and 6 appendices and, when one considers the breadth of information contained within it, I found it quite staggering to discover from the Preface that this is only the third book devoted exclusively to the CACD and the previous two were published only in 1969 and 1979 whereas the first permanent Court of Criminal Appeal was established in 1907! It is difficult to imagine any other field of criminal law and/or procedure that has been ignored for so long. The authors have done fantastically well to recognise the various topics for consideration and address each of those topics under easy to understand - and perhaps more
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REVIEW
“An indispensible book for any practitioner who wishes to institute proceedings in the Court of Appeal Criminal Division” Lord Justice Hooper “Comprehensive, practical and easily accessible guidance” HHJ John Phillips CBE, Judicial College
“My own copy will be kept readily to hand” Lord Judge CJ
“I have longed for a book like this. It is a must for every chambers’ library” Michael Turner QC,
Chairman of the Criminal Bar Association
important, locate - sub-headings. The index alone is a revelation in itself. Most of us will only approach the CACD when appealing convictions or sentences, but the opportunities (if that is the right word) to appeal decisions of the lower courts are surprisingly legion. It will come as an enormous surprise to me if I discover that the authors have missed out any point pertaining to appeals to the CACD. But in addition to processes, the book is a mine of fascinating information about how the CACD approaches the cases that come before it. I once heard the CACD described as the most dishonest of courts because the judges focus more on principle and precedent than on justice. In essence, that speaker’s hypothesis was that the judges of the CACD would decide whatever they thought was more appropriate in the circumstances, not of the case before them, but, with regard to the effect of their decision. That is all very well looking forward, but what of the issue of stare decisis? We all know that the judges of the CACD have brains the size of planets and are able to explain away (they would say ‘justify’) their decisions in terms of previous decisions of the Court if that fits with their argument, or not if it does not. It is easy enough for
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them to conclude that any earlier decisions were obiter or decided per incuriam if it so suits them. I was reminded of this argument when reading Chapter 2 of the book and the ‘notorious controversy’ revolving around procedural failures in 2003. The case of Palmer extended the principle that a procedural failure deprived the court of the jurisdiction to make a confiscation order whereas Sekhon reversed that principle and decided that the decision in Palmer was wrong. 2003 concluded with the case of Simpson and Lord Woolf (leading a five-judge court) concluding that, “the court undoubtedly had a residual discretion to look behind a decision in considering whether it was binding where there were grounds for saying that it was wrong.” Lord Woolf did not make it clear where that “residual discretion” came from, when the Court of Appeal is entirely a creature of statute - nor did he truly take full account of Lord Diplock’s opinion in Merriman in the House of Lords when he said that “the liberty of the CACD to depart from precedent it considered was erroneous was restricted to cases where the departure would be in favour of the accused”. What Lord Woolf did, to my mind, make abundantly clear was that, without such a decision, many people might avoid
being made the subject of a confiscation order because of the incompetence or ignorance of lower court judges. This is a book that explains clearly many such intriguing topics that might be discussed and debated by those who wish to do so for many years to come, but it is a book primarily about process and procedure - yet it is so much more than that also - and it is an enormously helpful resource for any practitioner in the criminal courts to have near at hand. JEFFREY LAMB Court of Appeal Criminal Division is out now. Order your copy at sweetandmaxwell.co.uk
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BOOKSHOP ARTICLE
BOOKSHOP ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2013 James Richardson QC • Provides comprehensive coverage of the practice and procedure of the Crown Court including jurisdiction, bail, evidence, costs and appeals, setting out what to do at each stage of a trial • Includes detailed coverage of all indictable offences and explains the elements of each offence • Extensive cross-referencing and a detailed index • Covers both substantive law and practice and procedure • Includes a new weekly eUpdate service and access to a consolidated online archive November 2012
ARCHBOLD MAGISTRATES’ COURTS CRIMINAL PRACTICE 2013 General Editor: District Judge Barbara Barnes • Covers all criminal matters dealt with in the magistrates court (including Youth Courts) • Structured to mirror proceedings, covering pre-trial matters, specific offences, trial and sentencing • Includes information on sentencing, costs and legal aid 2013 edition, August 2012
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BOOKSHOP ARTICLE
COURT OF APPEAL
NEW CRIMINAL DIVISION: A
PRACTITIONER’S GUIDE
Susan Holdham and Alix Beldam • Covers general practice and procedure of the Court of Appeal Criminal Division, providing guidance in all aspects of the process • Helps you prepare well drafted grounds of appeal • Identifies the principles underlying the various jurisdictions and the court’s practice • Covers the various specific applications and appeals, outlining the rights of appeal and the relevant legislation and rules • Covers general Principles and Case Management, commencement of proceedings and pre-trial work September 2012
HUMAN RIGHTS AND CRIMINAL JUSTICE Ben Emmerson QC, Andrew Ashworth QC and Alison McDonald • Shows you how your work is affected by human rights considerations • Deals in turn with the practical impact of human rights principles on each area of criminal practice • Provides a full and systematic analysis of UK human rights law and the criminal justice system • Covers the ECHR and the principles of interpretation and the HRA 3rd edition, August 2012
SHAW’S DIRECTORY OF COURTS IN THE UNITED KINGDOM 2012/2013 • Contains accurate and up to date details of contact names, telephone and fax numbers, addresses, document exchange numbers, court codes and normal times and sittings of courts • Includes a Numerical Index to enable any court – whether current, abolished or combined – to be easily identified by its Court Code Number • Contains full details of the major restructuring of the Scottish Court Service – brought about by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 – which includes the disestablishment of local authority administered district courts and their replacement by the new Justice of the Peace courts, administered by the Scottish Court Service August 2012
WILKINSON’S ROAD TRAFFIC OFFENCES General Editor: Kevin McCormac Consultant Editor: Peter Wallis • The definitive authority on road traffic offences in England and Wales • Explains what the law is, covering specific offences chapter-by-chapter • Covers both substantive law and procedure • Follows through to sentencing and appeals, covering every aspect in chronological order • Provides practical tools including diagrams, checklist, flowcharts and tables, plus materials 25th edition and 2nd supp, September 2011 2nd supplement only, December 2012
CROWN COURT INDEX 2013 His Honour Ian McLean, His Honour Judge Sam Katkhuda & His Honour Judge John Dixon • Provides an index of common penalties and formalities in cases tried on indictment or committed for sentence in the Crown Court, as well as appeals in criminal proceedings • Light, portable and easy to use - ideal for use in court • Alphabetical arrangement and crossreferences in the margins to statutory instruments make the content clear and quickly accessible while in court December 2012
SENTENCING REFERENCER 2013 Dr David A Thomas QC • Gives guidance on 100 different sentencing topics in a clear and practical layout and all in one book • Uses a practical A-Z layout for easy navigation and quick answers in court • Revised and updated throughout with new further changes to existing legislation January 2013
POLICE AND CONSTABULARY ALMANAC 2013 Helen Gough • The most comprehensive reference work of its type for the police and all other public authorities and for those who have dealings with them • The standard reference work for UK police forces • Widely distributed to individual police force personnel and a large range of other criminal justice and service organisations December 2012
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CRIMINAL LAW TODAY • ISSUE 4
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YOUR time YOUR client YOUR reputation your archbold
archbold 2013 Your Archbold. For 190 years it has been serving criminal lawyers in its own inimitable way. Supporting your case load through every stage, it’s the place to turn for the answers you need. But we can’t take all the credit. Archbold is as much yours as it is ours. Written by those who are or were once in your position, the pages are ingrained with the wisdom of those who know exactly what it is you need to build your latest case.
This year we’ve frozen the price of Archbold in print, CD and eBook formats, so you’ll pay no more for your fully updated edition than you did last year.
Order at sweetandmaxwell.co.uk/Archbold
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