Archbold R eview Cases in Brief

Issue 9 November 18, 2014
Cases in Brief
Abuse of process—more serious charges following conviction
for lesser charges arising out of same facts—inappropriate
initial charging—expectation of defendant—speed of further
charges—whether “special circumstances” (Connelly v DPP
[1964] A.C. 1254)
ANTOINE [2014] EWCA Crim 1971; October 15,
When A was arrested for another matter, he was found
to be in possession of a loaded revolver. He subsequently
pleaded guilty to counts of possession of a firearm and ammunition without a certificate contrary to the Firearms Act
1968 s.1(1) in the magistrates’ court, and was sentenced
to four months’ imprisonment. The following day the CPS
wrote to the Magistrates and sought to reopen the sentence
pursuant to the Magistrates Court Act 1980 s.142, although
the basis was not available to the Court of Appeal. The application was refused. The CPS then charged A with further
counts, and following the rejection of his application for the
indictment to be stayed as an abuse of process, A pleaded
guilty to a count of possessing a prohibited firearm contrary to s.5(1)(aba) of the 1968 Act, and possessing a firearm
following a detention and training order (s.21(2)). On appeal, he contested the abuse of process ruling. The appeal
was rejected. The Court could not understand the initial
charging decision. The purpose of s.1 was to regulate and
license the use of firearms. It was generally considered to
be the default category where a weapon was not dealt with
elsewhere. A revolver being a prohibited weapon (s.5), the
much more serious offence under s.5 applied and should
have been charged. The claimed abuse of process was of
the second kind identified in Beckford [1996] 1 Cr.App.R. 94,
which, as subsequently refined, was now understood to apply where the continued prosecution offended the court’s
sense of justice and propriety or public confidence in the
criminal justice system (Curtis Warren v HM Attorney General of the Bailiwick of Jersey [2011] 2 Cr.App.R. 29, [25], per
L Dyson). A’s case fell into the subset of cases where an
aggravated offence was charged after conviction or acquittal of a lesser offence—see Elrington [1861] 1 B & S 688;
Connelly v DPP [1964] A.C. 1254; Beedie [1998] Q.B. 356;
and Dwyer [2013] EWCA Crim 10. In those cases the Court
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found that it was for the Crown first to demonstrate “special
circumstances” (as identified in Connelly) and then to demonstrate that to proceed would not be an abuse of process,
as opposed to the conventional approach where the burden
was on the defendant (Consolidated Criminal Practice Direction [2002] 3 All E.R. 904 Pt IV, [36] and the Criminal
Procedure Rules). This subset did not constitute a different
category of abuse of process, but fell within the second category identified in Beckford. It would be surprising were the
requirement to prove special circumstances to lead to a different conclusion from the one reached where the question
was whether to permit the case to continue would offend
the court’s sense of justice and propriety. True it was that
the sentence was the catalyst for the prosecution reviewing
this case, but here, unlike in Beedie and Dwyer, no one with
the responsibility for prosecuting this case correctly applied
their minds to the appropriate charges and how they should
be prosecuted. This was not an escalation from minor
charges to more serious charges, contrary to the general
rule described in Elrington, but a move from misconceived
charges to correct charges. A further consideration was
that A had committed a serious crime, and, as was apparent from a statement he made before the first trial, he was
expecting a long sentence. The sentence of four months’
detention was an unexpected, astonishing and undeserved
windfall. A was aware that appropriate charges were to be
brought nine days after the sentence was imposed and only
19 days after arrest. The facts were quite different from
those in Beedie and Dwyer. The court’s sense of justice and
propriety was not offended nor was public confidence in the
criminal justice system undermined. On the contrary, a stay
would have brought the criminal justice system into disre-
Cases in Brief.........................................................1
Sentencing Case....................................................3
Issue 9 November 18, 2014
pute. Serious mistakes were made, but there was no bad
faith and the mistakes were rectified within a very short
time. The fact that the fault lay with the CPS did not require
the grant of a stay, given the circumstances of the case. The
Court described as “highly regrettable” the lack of information from the CPS available to it, including the failure of the
CPS to appear behind counsel on the appeal, or to make the
original file available to counsel.
[Comment: It is difficult to believe that Lord Devlin would not
have been surprised to find that a high degree of prosecutorial incompetence combined with a knowledgeable defendant
amounted to “special circumstances” justifying a second trial
on these facts. If the first charges had been less inapt, but still,
say, unfortunate or ill-advised (it was not argued that he was
not, in law, guilty of the s.1 charges), or if the defendant had
had a less realistic understanding of the likely sentence on the
counts that should have been (but were not) charged, presumably there would have been an abuse of process. Or perhaps
the same would be true if the instant level of incompetence
had still been apparent, but had been rectified less speedily.
The Court is taking its oft-stated renunciation of a role in
disciplining the prosecution very seriously indeed.]
Procedure—magistrates’ courts—adjournment refused at
second hearing not listed for trial—whether decision reasonable—need for review of case management sanctions
(Admin); June 25, 2014
The district judge had been wrong, on a second hearing,
to refuse the CPS an adjournment, continue to trial and
dismiss the charges when the CPS offered no evidence.
At a hearing a week before, the police summary had been
served and an adjournment requested for the CPS to obtain witness statements and review the charges. By the second hearing, the associate prosecutor did not have witness
statements, and nor had the charges (it appeared) been
reviewed. The district judge refused the application for a
further adjournment as “inimical to the interests of justice”.
In his case stated, he relied on Criminal Procedure Rules
rr.2 and 3; the initiative known as Stop Delaying Justice, the
aim of which was that all contested trials in the Magistrates’
Court would be fully case-managed in the first hearing and
disposed of, by way of trial or otherwise, at the second; and
DPP v Picton [2006] EWHC 1108 (Admin) and Visvaratnam
v Brent Magistrates’ Court [2009] EWHC 2017 (Admin). The
reference to those cases was misplaced. They were authority for the proposition that the fault of a party requesting
an adjournment was a factor to be taken into account, but
both concerned an application at a hearing that was listed
as a trial, and thus the prosecution were aware of the need
to produce evidence and failed to do so. In the instant case,
there was no obligation on the prosecution to have their witnesses available. Rather it was to be in possession of enough
material to enable the case to be advanced sufficiently and
without the need for a further interlocutory hearing. As the
district judge well knew, the prosecutor was not authorised
to conduct trials, making it clear that the trial could never
proceed and thus the decision was purely disciplinary. The
result was that those who complained about the conduct of
R were deprived of their opportunity to pursue the matter
and the case was brought to a premature and abrupt end,
requiring the prosecution to proceed in a way and at a time
that was entirely unjustified. The Court discussed the pos-
sibility of other remedies, such as costs orders and ordering a senior prosecutor to explain what had happened, but
none were satisfactory. A review was needed, for the court
required mechanisms to ensure that the objectives of the
Criminal Procedure Rules were met and failures, including
by the defence, adequately admonished and subject to sanction. The case was remitted to the magistrates so that the
matter could proceed.
Seizure and retention of property—application by interested
party for retention of material seized under warrant subsequently quashed— jurisdiction to entertain (Criminal Justice
and Police Act 2001 s.59(5)(b))
[2014] EWHC 2821 (Admin); August 14, 2014
Applying the general analysis set out in R. (El Kurd) v Winchester Crown Court and SOCA [2011] EWHC 1853 (Admin), the Court rejected the argument that there was no
jurisdiction to permit an application to the Crown Court for
the retention of material pursuant to the Criminal Justice
and Police Act 2001 s.59(5)(b), where the material had originally been seized under warrants subsequently quashed.
The submission was made on the narrow linguistic grounds
that the words “purported exercise of a relevant power of
seizure” were absent from s.59(5)(b) (but not s.59(6)(a)).
Whilst the section could have been more felicitously drafted, the wording of the section read as a whole and the plain
intention of Parliament was to the contrary effect (adopting
the account of the difference in wording in El Kurd at [46]).
The seizures concerned were those dealt with in Windsor
[2011] 2 Cr.App.R. 7, R. (Panesar) v Bristol Crown Court
and HMRC [2011] EWHC 842 (Admin) and Windsor v Bristol Crown Court [2011] EWHC 1899 (Admin).
Trial—proceedings in camera—open justice and national
security—principles—test—anonymity of defendants where
trial in camera—reporting restrictions (Contempt of Court
Act 1981 s.4(2))
September 24, 2014
I and R were charged with offences contrary to the Terrorism Act 2006 ss.5 (preparation of terrorist acts) and 58
(collection of information) and the Identity Documents Act
2010 s.4 (possession of false identity documents etc with
improper intention). The Court of Appeal reconsidered (R.
(Telegraph Group Plc) v Sherwood [2001] 1 W.L.R. 1983, at
[3]) on appeal under the Criminal Justice Act 1988 s.159 a
ruling at first instance that the entire trial be heard in camera (i.e. with the public and media excluded), that the identities of I and R be not disclosed and that publication of the
ruling itself be postponed until the conclusion of the trial.
Both at first instance and on appeal, part of the hearing was
in open court, part in private (in the presence of I and R,
their legal representatives and media representatives), and
part ex parte. There were three judgments on appeal, mirroring those distinctions.
(1) The rule of law was a priceless asset of our country and
a foundation of our Constitution. One aspect of the rule of
law was open justice. Exceptions to open justice were rare,
and must be necessary and proportionate. No more than
the minimum departure from open justice would be countenanced (Scott v Scott [1913] A.C. 417; Att.-Gen. v Level-
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Issue 9 November 18, 2014
ler Magazine [1979] A.C. 440, at pp.449–445; In re Trinity
Mirror Plc [2008] EWCA Crim 50; [2008] Q.B. 770; Marine A [2013] EWCA Crim 2367; [2014] 1 Cr.App.R 26 at
[83]–[85]). The Court had a common law power to hear a
trial (or part of a trial) in camera: Re A [2006] EWCA Crim
4; [2006] 2 Cr.App.R. 2, especially at [11], [41] and [42];
Wang Yam [2008] EWCA Crim 269, especially at [6]; Bank
Mellat v HM Treasury (No.2) [2014] A.C. 700, especially
at [2] (judgment on jurisdiction issue). The Court did not
require a party to destroy the right it was seeking to assert
or protect as the price of its vindication. There was no difference of substance in this regard between the common
law and European Convention on Human Rights art.6. A
hearing in camera involved a departure from the principle
of open justice, not from natural justice. The same concerns
with natural justice that arose in closed material procedures
did not arise in in camera proceedings.
(2) The law sought to resolve the inevitable tensions between the principle of open justice and the needs of national
security. First, considerations of national security would not
by themselves justify a departure from the principle of open
justice (Att.-Gen. v Leveller Magazine, p.471). Secondly, open
justice must, however, give way to the yet more fundamental
principle that the paramount object of the Court was to do justice (Scott v Scott, pp.437–439; Att.-Gen. v Leveller Magazine,
pp.450–471; Al Rawi, [27]; Bank Mellat, [2]). Accordingly,
where there was a serious possibility that an insistence on
open justice in the national security context would frustrate
the administration of justice, for example, by deterring the
Crown from prosecuting a case where it otherwise should
do so, a departure from open justice may be justified. The
“serious possibility” test was derived from the authorities: Re
A especially at [11] and [42]; and Wang Yam especially at [7].
In both, the test was expressed in terms of risk and possibility; neither suggested a balance of probability test. Given the
Court’s view on the facts of this case, further consideration of
the desirability of some higher test could be left for another
day. Thirdly, the question of whether to give effect to a ministerial certificate, such as those relied upon by the Crown
in the instant case, was ultimately for the Court, not a minister, but in the field of national security, a Court would not
lightly depart from the assessment made by a Minister (The
Secretary of State for Foreign and Commonwealth Affairs v Assistant Deputy Coroner for Inner North London [2013] EWHC
3724 (Admin) at [28]–[36]).
(3) The Court rejected an argument that, absent express
statutory permission, the Court had no power to consider
material ex parte; and the Criminal Procedure Rules, rr.65.6,
69.5 and 69.6 did not disclose any such permission. Were
the submission correct, it would lead to absurdity, given the
uncontested ability of the judge at first instance to do so; the
same considerations applied to the Court as to the Supreme
Court (Bank Mellat at [44], rejecting a similar submission);
the nature of re-hearing implied a requirement to consider
all material that would assist the Court, including, if necessary, ex parte; and the submission was contrary to the intent
of s.159—the media’s concerns were not wholly private to
them, and so were distinguishable from ordinary civil proceedings, but the jurisdiction did not make them parties to
the criminal proceedings (see Ex p. Telegraph Group, [2]).
(4) As to trial in camera, on the facts there was a significant
risk—at the very least, a serious possibility—that the administration of justice would be frustrated were the trial to be con-
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ducted in open court. Indeed, on all the material, the case for
the core of the trial to be heard in camera was compelling. A
split trial—part in camera, part public—was not practical, but,
while the core of the trial must be held in camera, the swearing of the jury, reading of the charges, part of the judge’s introductory remarks, part of the prosecution opening, the verdict
and (if relevant) sentencing (subject to the possible need for a
confidential annex) could be held in open court. The position
as to publication should be reviewed at the conclusion of the
trial, thus permitting a further application for leave to appeal
under s.159. Further, in accordance with suggestions made by
the relevant Secretaries of State (but rejected at first instance),
10 “accredited journalists” would be permitted to attend the
bulk of the trial on terms which compelled confidentiality until review at the conclusion of the trial. Disputes about who
should attend would either be agreed by the appellant media
organisations or referred to the Court.
(5) Once trial largely in camera was agreed, anonymisation
of the defendants was not necessary. More generally, the
Court expressed grave concern as to the cumulative effects
of (a) holding a criminal trial in camera and (b) anonymising the defendants. It was difficult to conceive of a situation
where both departures from open justice would be justified.
(6) As to reporting restrictions under the Contempt of Court
Act 1981 s.4(2), there was no good reason to impose restrictions on either the first instance open hearing or the open
hearing in the Court of Appeal (although the first instance
hearing remained subject to the automatic restrictions on
preparatory hearings under the Criminal Procedure and Investigations Act 1996 s.37).
Confiscation order; benefit from criminal conduct
CLARK v R. [2014] EWCA Crim 1973
The applicants sought leave to appeal against a confiscation
order made following their conviction on counts of conspiracy to defraud (counts 14 and 15) and attempted money
laundering (count 16).
They had been involved in three fraudulent mortgage transactions.
The first involved Julie Clark’s purchase of Canister Hall
through a mortgage provided by KML and was charged as
count 10 on the indictment against her. On this count she
was acquitted.
The second transaction concerned Julie Clark’s sale of
Canister Hall. The property was purchased from her with
a mortgage from BMS, the mortgage application containing various falsehoods and improperly suppressing the fact
that part of the purchase-price was coming from another
defendant, Downes. At this point the original mortgage
from KML was redeemed and the remaining money paid
into Julie Clark’s bank account. These dealings were the
basis of count 14.
The third transaction, on which count 15 was based, was
Julie Clark’s purchase of Mitchell Hall, which was funded
through the sale of Canister Hall. Julie Clark had obtained
a mortgage from BMS after providing false particulars and
misrepresenting the price of the property. The difference
between the mortgage advanced and the purchase price
was paid to Julie Clark.
At the confiscation hearing, the court had to decide whether the sum to be confiscated should be calculated on the
Issue 9 November 18, 2014
basis of the defendants’ benefit from their general criminal
conduct, or their benefit from particular transactions. As
regards count 15 it was accepted that the second basis was
appropriate and so the benefit was the increased value in
the property resulting from the use of unlawful funds to be
calculated according to the principles enunciated in Waya.
This was not disputed on appeal. In relation to the calculation of benefit in respect of Canister Hall (count 14), Julie
Clark had indeed been involved in a conspiracy to defraud
a lender, BMS, but here BMS’s contractual relationship was
not with her, but with the purchaser. So in respect of count
14 the judge decided that the alternative “general criminal
conduct” basis was applicable. The defendants disputed
this and it was against this part of the judge’s decision that
the defendants sought leave to appeal.
Applying to count 14 s.10(2) of POCA, which requires certain assumptions to be made, the judge had to examine property transferred to Julie Clark after the “relevant day”. To
this end, documents relating to the sale of Canister Hall and
the purchase of Mitchell Hall were considered together as
they were back-to-back transactions. The judge was satisfied
that the payment to Julie Clark of the sum outstanding once
the mortgage and other payments had been met and the
money transferred to her by Downes constituted criminal
benefit, and further, that it would not be disproportionate to
treat these sums as the proceeds of crime.
The applicants argued that the judge had erred in this. Their
argument was that Julie Clark had used legitimate funds to
purchase Canister Hall and had a beneficial interest in the
proceeds of sale which she retained at the point of sale. The
sale was for the market price, and therefore the money which
remained after the repayment of the mortgage and other payments was her money and should not have been deemed a
benefit from criminal activity. These monies therefore should
not count as tainted. The assumptions the court is required
to make by s.10(2) of POCA, they said, do not deem money transferred to a defendant after the relevant day to be a
benefit, but merely require them to be treated as obtained
through the defendant’s criminal conduct; and they only
apply when the source of the funds is unknown. Here, the
source was known and the issue was whether it was properly
to be considered as a benefit. Whether it was a benefit or not
involved considering what proportion of the increased value
had resulted from illegality. These sums should not have
been treated as a benefit because Julie Clark would have obtained them even had the sale been legal.
The Court of Appeal rejected this argument. It said the
concept of benefit must be determined by applying the language used by Parliament and not its ordinary meaning.
But for the conspiracy, the applicants would not necessarily
have received the mortgage as they did. The profits made
through selling the house were therefore the direct consequence of the criminal activity. The fact that they would
have made a profit on the sale without criminal conduct was
irrelevant. Once it is established that property has been obtained from criminal conduct it is a relevant benefit.
The only issue was whether it was disproportionate and an
infringement of the right to property guaranteed by ECHR
Protocol 1 for the confiscation order to be assessed by reference to these sums. The judge was right to conclude that
it was not.
Permission to appeal refused.
Non-State Agent Entrapment—The X Factor
By Jeremy Dein QC and Laura Vernon Collier1
On Monday July 21, 2014 it was suddenly and widely reported that the case against Tulisa Contostavlos, former NDubz singer and X Factor Judge, had collapsed. This was
as a consequence of His Honour Judge Alistair McCreath,
the Recorder of Westminster, having acceded to Miss Contostavlos’s re-opened application for a stay on the grounds
of an abuse of process. Yet, only days before in a detailed
and reasoned judgment, the judge had declined to stay proceedings, rejected all applications to exclude evidence and
ruled that a fair trial was feasible. This article outlines the
circumstances in which a unique course of events unfolded,
culminating in the stay of the proceedings against both defendants and (as the newspapers would say) legal history
being thereby made.
The essence of the defence arguments in the original applications were in the background of the prosecution being
a product of a Sun on Sunday “sting”, with the well-known
“Fake Sheikh”, Mazher Mahmood, as the principal witness.
It was in this context that, by a ruling of July 3, 2014, the
defence were initially unsuccessful in their attempts to persuade Judge McCreath to treat Miss Contostavlos’s case as
necessitating a stay in circumstances of non-state agent entrapment. On July 21, however, the learned judge—following
a renewed defence application which the prosecution did not
support, but equally did not oppose—dramatically reversed
that ruling. Even Michael Coombs, the co-defendant, who
had pleaded guilty following the original ruling, was permitted to vacate his plea. So what was the extraordinary course
of events that triggered this development?
At the heart of the arguments throughout was reliance
upon the judgment of Goldring J in The Council for Regulation of Health Care Professionals v Gurpinder Saluja,2 and
the relationship between the principles applicable to state
and non-state agent entrapment. As summarised below, the
1 Jeremy Dein was defence counsel in this case. Laura Vernon Collier is a pupil at 25 Bedford
2 [2006] EWHC 2784 (Admin); [2007] 1 W.L.R. 3094.
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Issue 9 November 18, 2014
defence attack upon Mahmood was wide-ranging, with allegations of gross misconduct at the core. In Saluja, Goldring
J reaffirmed the framework for abuse of process in state
entrapment cases, and further observed:
[…] the position as far as misconduct of non-state agents is concerned, is
wholly different. By definition no question arises in such a case of the state
seeking to rely upon evidence which by its own misuse of power it has effectively created. The rationale of the doctrine of abuse of process is therefore
absent. However, the authorities leave open the possibility of a successful
application of a stay on the basis of entrapment by non-state agents. The reasoning I take to be this: given sufficiently gross misconduct by the non-state
agent, it would be an abuse of the court’s process (and a breach of Article 6)
for the state to seek to rely on the resulting evidence. In other words, so serious would the conduct of the non-state agent have to be that reliance upon
it in the court’s proceedings would compromise the court’s integrity. There
has been no reported case of the higher courts, domestic or European, in
which such ‘commercial lawlessness’ has founded a successful application
for a stay. That is not surprising. The situations in which that might arise
must be very rare indeed.
Ultimately, in Miss Contostavlos’s case, Judge McCreath
was indeed persuaded that Mahmood’s actions were sufficiently “gross” to cross the seemingly impenetrable “private” threshold into the realms of abuse.
The basic facts, which were not seriously disputed by the
journalist, can be summarised as follows. In the spring of
2013 Tula Contostavlos, better known as Tulisa, was the
subject of a Sun on Sunday “sting” by the investigative journalist Mazher Mahmood or “the Fake Sheikh” as he has
become known. The trap was elaborate; first class flights
to Las Vegas, limos, suites in a top hotel, talk of multi-million pound film contracts, sumptuous dinners and copious
amounts of alcohol. The plot continued back in London,
reaching its pinnacle in London’s Metropolitan Hotel on
May 10, 2013 where Mazher Mahmood, posing as a wealthy
film financier, succeeded in obtaining a series of on-tape
“admissions” by Miss Contostavlos concerning her involvement in the supply and consumption of cocaine. Mahmood
was later supplied 13 grams of the class A drug by a close
friend of the star, Michael Coombs.
For her part, Miss Contostavlos maintained throughout
that she was not knowingly concerned in the supply of
the drug, either on that occasion or at all. In her prepared
statement to police in the summer of last year, Miss Contostavlos said that Mahmood and his largely anonymous
team had lured her into auditioning for a film role. She said
she was told that she would be cast opposite her childhood
crush Leonardo DiCaprio and her fee for the film, which
might rival to the success of Slumdog Millionaire, would be
£3.5 million. There was to be no formal audition. The audition process for this life-changing opportunity was to be
her performance at social encounters, notably the dinner
of May 10. The part which was provisionally on offer to her
was that of a rough, bad, ghetto girl; a girl who knew her
way around street talk and life on the fringes of society and
who knew the world of drugs. Throughout, Miss Contostavlos said that she was prompted and encouraged to play this
part and it was against this background that on-tape “admissions” about drug use were gathered.
It was in the context of these extraordinary offers of fame
and fortune, in a backdrop of whispered conversations and
duplicity, and in the context of being liberally plied with
alcohol, that Mahmood obtained apparently incriminating
audio and video tapes, purporting to evidence Miss Contostavlos confessing to involvement in Class A drugs. These
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were presented to the police and on the basis of this evidence Miss Contostalvos was charged, alongside her friend
Michael Coombs, with being knowingly concerned in the
supply of cocaine.
From the start the defence made representations at all levels to the effect that the CPS should be wary of relying on
the investigative processes of Mazher Mahmood, whose
methods have frequently been criticised. Nevertheless, the
matter proceeded and a trial date was set for July 14, 2014
at Southwark Crown Court. Prior to trial, the defence made
a three-day application to stay proceedings as an abuse of
the Court’s process. Miss Contostavlos, it was argued, had
been entrapped and importantly, entrapped by an agent provocateur with a questionable track-record. This was crime
created pure and simple, the defence argued.
In summary, it was argued on behalf of Miss Contostavlos
that evidence of Mr Mahmood’s misconduct in past cases
demonstrated a propensity to manipulate evidence, to contrive incriminating but ultimately fictional narratives and to
present a distorted version of events. With that in mind the
Court, it was argued, should not allow a case to proceed
where the integrity of the investigator (albeit a non-state
agent) and key prosecution witness was so much in question.
Mazher Mahmood was called to give evidence on a voir dire
and vigorously denied that he had ever shown a lack of integrity insofar as his journalistic methods were concerned.
He invoked journalistic privilege to shield other protagonists in the plot from scrutiny. In cross-examination he was
questioned about, among other things, his part in the exposure of a supposed plot to kidnap Victoria Beckham (resulting in a trial which collapsed when the prosecution offered
no evidence)3 and the conviction of Besnik Qema (a case
which eventually ended in the defendant’s favour following
a reference by the CCRC),4 and about issues raised as to
the accuracy and integrity of aspects of his evidence at the
Leveson inquiry, which had resulted in his recall for further
questioning. At the end of all this, in a 20 page ruling dated
July 3 Judge McCreath ruled that:
The existing law on this topic is clear. …Where entrapment is relied on, the
affront to the conscience of the court arises from state misconduct and the
inappropriateness of the court allowing its processes to be utilised so as to
condone and further the misconduct. Although it cannot be ruled out that
there may be cases in which misconduct by those who are not state agents
might found an application for a stay, they are likely to be very rare and are,
on present experience, unknown.
Applying those principles to this case, I am unable to find any evidential
basis upon which I can properly find that Mr Mahmood behaved in such an
offensive way as to justify a stay. There is a world of difference between the
court feeling a sense of distaste at the journalistic methods of Mr Mahmood
and others like him on the one hand and, on the other, the court being so
outraged by his conduct as to be driven to stay the indictment.
And so a jury were sworn on July 15. Mahmood was called
again to give evidence in front of the jury and it was during his cross-examination that the case turned dramatically.
Mahmood had largely invoked journalistic privilege to hide
the identities of others at the heart of the sting. However, the
identity of one individual, who had seemingly played a very
peripheral role as Mahmood’s driver, had been made known
to the defence. Alan Smith had driven Miss Contostavlos
3 BBC News, Monday June 2, 2003.
4 The complex course of the criminal proceedings are described in Sharp J’s judgment in
Qema v News Group Newspapers [2012] EWHC 1146 (QB).
Issue 9 November 18, 2014
and her associates home from the Metropolitan Hotel meeting on May 10, the dinner at which Miss Contostavlos had
made several seemingly incriminating “admissions” about
her involvement in class A drugs. “Admissions” which, to
repeat the point, Miss Contostavlos always maintained to
have been made at the behest of Mahmood and his team
and brought about by her desire to land the part of this bad,
ghetto girl.
The defence caused a statement to be taken from Mr Smith.
When a draft statement was handed to the defence on June
26 (day 2 of the abuse hearing), it contained a passage in
which Mr Smith stated that the topic of drugs had been
raised in the car and that Miss Contostavlos talked about
drugs in a negative way. She made reference to a family
member with a drugs problem and firmly condemned the
use of hard drugs. This was followed by a handwritten,
anonymous, scribbled note questioning the accuracy of
the above and when the final signed version of Mr Smith’s
statement was disclosed to the defence, the passage dealing
with Miss Contostavlos’s negative attitude towards drugs
had gone. In light of this change in his statement, Mr Smith
was then interviewed by the defence solicitors, the prosecution having refused to tender Smith for cross-examination.
In interview it emerged that Smith had emailed his statement to Mahmood, and discussed the passage with him
and, importantly, it was after this discussion that the passage was removed from his statement. Crucially however,
at the abuse hearing some few weeks earlier, Mahmood
had given evidence to the effect that he was unaware of Mr
Smith’s statement and that he had no knowledge of its content. He claimed not to know that Smith had heard Miss
Contostavlos express negative attitudes towards drugs.
In the context of the above, during cross-examination Mazher Mahmood was exposed as having earlier given false
evidence before the judge. Mahmood had no choice but to
accept that, contrary to his evidence on the voir dire, he had
dealt with Smith and had knowledge of the statement and in
particular the drugs passage.
Following the reopening of the abuse of process application on behalf of Miss Contostavlos, the judge found that
there were strong grounds for belief that Mahmood lied to
the court during the abuse of process hearing and also for
believing that the purpose of these lies was to conceal the
fact that he had been manipulating the evidence by getting
Smith to change his account. This, he said, now cast a shadow over Mahmood’s decision to use journalistic privilege to
suppress the identities of the other persons involved in the
“sting”. Taken together with the fact that Mahmood was the
“sole progenitor” and “sole investigator”, these further matters had now caused the “landscape” of the case to change.
At this point, the proceedings were now shown to be so
tainted by serious misconduct that the integrity of the court
would be compromised by allowing them to go ahead. As
regards Miss Contostavlos the case must now be stayed. In
relation to Coombs the judge went further and concluded
that “the clock has been put back”. His guilty plea could not
wipe out the improper conduct, of which he was the victim
too. So Coombs was permitted to vacate his guilty plea, and
the case against him was also stayed.
The Recorder of Westminster’s ruling has extensive implications, both factually and legally. One consequence is that
a number of prosecutions in which Mahmoud was involved
are to be reviewed by the Crown Prosecution Service ur-
gently. Whether he can ever again be relied upon as a witness of truth is now open to question. Moreover, whether
similar operations can ever again be tolerated as triggering
prosecution in the criminal courts is surely a matter that
needs to be reviewed.
As for the substance of Judge McCreath’s ruling, whilst he
did not expressly state that Mahmood’s behaviour amounted to “… sufficiently gross misconduct by the non-state
agent” as to render it an abuse and breach of art.6 for “…
the state to seek to rely on the resulting evidence”,5 it seems
fair to interpret this as being the basis upon which the original abuse of process ruling was reversed. Goldring J had
“left the door open” in cases of private entrapment and in
Miss Contostavlos’ case, the threshold was clearly crossed
in the judge’s view. A combination of lies, interference with
evidence and the potential impact upon the defence was inevitably a combination fatal to the propriety of prosecution
reliance upon the Sun on Sunday’s tainted investigation.
The Recorder of Westminster evidently felt that the integrity of the court, and the criminal justice process, had been
For now, the bar still remains a high one for a stay on
the basis of misconduct in non-state agent cases. Surely, however, Miss Contostavlos’s case should ser ve as a
platform for scrutinising the ver y framework for proper
investigation and prosecution of such cases. Whilst the
authorities of Loosely,6 and more recently Moore,7 ser ve
to closely regulate the conduct of state agents, no such
guidance exists in private entrapment cases. Such cases
remain prosecuted in a background of newspaper-led
investigation, journalistic privilege, resultant non-disclosure and both prosecution and judicial “sidelining”. With
a complete absence of any legal framework for regulating the evidence gathering process, scope for abuse is
over whelming.
Following her arrest, Miss Contostavlos’s case provided
the Sun on Sunday with front page headlines for days.
But for the sensational course of events that unfolded at
trial, and Judge McCreath’s welcome interpretation of
Goldring J’s “sufficiently gross misconduct” test, a very
different outcome could have followed. That is what currently flows from a structureless non-state agent entrapment approach, one fundamentally in conflict with the
modern regime, where transparency and disclosure are
deemed to characterize the adversarial system. In staying
Miss Contostavlos’ case, therefore, it is to be hoped that
the Recorder of Westminster brought an end to non-state
agent generated prosecutions in their existing form. It
should not be for the defence to have to expose the lies of
an agent provocateur to avoid unsafe conviction. While undercover journalists are essentially permitted to be “a law
unto themselves”, the risks are overwhelming; not least
that of miscarriage of justice. It is therefore noteworthy
that the CPS have decided not to proceed with outstanding
Mazher Mahmood-led prosecutions, whereby, at least for
the time being, Miss Contostavlos’s case appears to have
had the X Factor where the vexed topic of private entrapment is concerned.
5 The Council for Regulation of Health Care Professionals v Gurpinder Saluja [2006] EWCA
2748 (Admin) para.81.
6 [2001] UKHL 53.
7 [2013] EWCA Crim 85.
© Thomson Reuters (Professional) UK Limited 2014
Issue 9 November 18, 2014
The Search for Efficiency—Yet Another Review
By HH Judge Denyer QC
In October 2001, Sir Robin Auld produced his report entitled “Review of the Criminal Courts of England and Wales”.
He was appointed to conduct the review in December 1999.
One of his terms of reference was to enquire into “the practices and procedures….of the criminal courts at every level,
with a view to ensuring that they deliver justice fairly, by
streamlining all their processes (and) increasing their efficiency.” Previous enquiries and reviews had pursued similar
objectives. They include the Royal Commission on Criminal
Procedure in 1981 chaired by Sir Cyril Phillips1 and the “Review of the delay in the Criminal Justice System” in 1997 by
Martin Narey. On the July 31, 2014, Lord Thomas LCJ announced that he had asked Sir Brian Leveson, President of
the Queen’s Bench Division “to conduct a review to identify
ways to streamline and modernise the process of criminal
justice and reduce the total length of criminal proceedings.”
One might be forgiven for having a sense of déjà vu! A similar feeling was aroused when reading the following passage
from the judgment of the President in Radiwilowicz2(a case
where a robust District Judge refused to grant an adjournment to the prosecution for failing to serve witness statements in time thereby causing the prosecutor to throw his
hand in). Quashing the decision (after referring to other
possible remedies) he said:
14-None of these solutions is ideal and there is a similar problem in relation
to defence failures to comply with judicial directions or rules. All this needs
review for the court does require mechanisms to ensure that the objectives
of the Criminal Procedure Rules are met and failures adequately admonished and subject to sanction.
This sounds suspiciously like the old cry that “something
must be done”. In this context it is perhaps worth bearing in
mind what Sir Robin Auld himself said about these matters:
I have anxiously searched here and abroad for just and efficient sanctions
and incentives to encourage better preparation for trial. A study of a number
of recent and current reviews in other Commonwealth countries and in the
USA shows that we are not alone in this search and that, as to sanctions at
any rate, it is largely in vain.3
So far as defence failures are concerned, in the absence of
statutory backing for a sanction, there is not a great deal a
court can do. The combined effects of s.81 of the Police and
Criminal Evidence Act 1984 (PACE), s.20(3) of the Criminal
Procedure and Investigations Act 1996 (CPIA ), and r.33.4
of the Criminal Procedure Rules empower a court to refuse
to admit expert evidence where the same has not been disclosed. This is a power that the court has deployed—see
Ensor4 and Writtle.5 Section 132 of the Criminal Justice Act
2003 specifically empowers the court to refuse to admit
hearsay evidence where the notice provisions of r.34 of the
Criminal Procedure Rules have not been complied with.
Musone6 makes it clear that this power extends to preventing a defendant from introducing such evidence. Beyond
this, there are few meaningful sanctions available to be deployed against defendants to assist efficiency and enforce
1 Cmnd 4135 (1981).
2 [2014] EWHC 2283 (Admin), summarised at p.2 above.
3 Para.231 of his Report.
4 [2009) EWCA Crim 2519.
5 [2007] EWHC 236 (Admin).
6 [2007] EWCA Crim 1237.
© Thomson Reuters (Professional) UK Limited 2014
compliance with rules and orders. Section 5(5) of the CPIA
imposes an obligation on a defendant to file a defence statement once the prosecution has complied or purported to
comply with its initial disclosure obligations. The only sanction for non-compliance is that provided for by s.11, namely
comment and inference.7 Section 6A(2) of the CPIA provides that a defence statement that discloses an alibi must
include details of any witness whom the accused believes
is able to give evidence in support of that alibi. In Ullah8
the judge refused to allow the defence to reopen their case
when an alibi witness not named in the defence statement
unexpectedly turned up:
12 The judge erred seriously in principle in taking the view that the fact that
he had not been mentioned earlier was a basis upon which he could refuse
to allow him to be called…..The failure to mention those facts would have
been a basis…for comment both by the prosecution and the judge.
Section 18(1) of the Prosecution of Offences Act 1985 as
amended (hereinafter the 1985 Act) which empowers the
court to make an order for costs against a defendant who
has been convicted cannot be regarded as a case management tool (quite aside from the fact that most defendants do
not have any money).
Leaving aside the question of wasted costs (which, of
course, bites on lawyers rather than defendants) it would
seem that the relative inadequacy of the powers of courts
to impose sanctions on recalcitrant defendants is implicitly
recognised in r.3.5(6) of the Criminal Procedure Rules:
3.5(6). If a party fails to comply with a rule or direction the court may—
(a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;
(b) exercise its powers to make a costs order; and
(c) impose such other sanction as may be appropriate.
As is apparent from what has been set out above, (b) and
(c) are largely meaningless insofar as they relate to defendants. In truth, if there is a real desire to improve efficiency
it can only happen if greater discipline is imposed on the
Crown, something which the senior courts seem often to
have shied away from.
As to what is meant by the “Crown” the author respectfully
refers to the following passage from the judgment of Bean
J in Singh9 (a case which will be dealt with hereafter). He
5. All too often when a mistake is made in the preparation or conduct of a
CPS prosecution, the police and the CPS blame one another. But for the purposes of section 19 no distinction can be drawn between them: the ‘party’ on
the other side from the accused in such a case is the Crown.
The attitude towards certain Crown failures in some areas
has been remarkably benign. Part 35 of the Criminal Procedure Rules imposes requirements both as to time and form
in respect of bad character notices. Various egregious prosecution failures did not meet with any adverse sanction. In
Culhane10 on the first day of trial the prosecution sought to
introduce the previous convictions of both defendants albe7 Rochford [2010] EWCA Crim 1928. It is not open to a judge to commit the non-compliant
defendant to prison for contempt of court.
8 [2011] EWCA Crim 3275. See also Tinnion [2009] EWHC 2930 (Admin).
9 [2014] EWHC 1443 (Admin).
10 [2006] EWCA Crim 1053.
Issue 9 November 18, 2014
it no notice had been given. Leave to appeal on this ground
was refused. In Chapman,11 having written a letter indicating that they would not be making any bad character application the Crown had a change of heart shortly prior to trial.
The evidence was admitted. Conviction upheld. In Hassett12
not only had there been no compliance with Part 35 but also
a complete failure to comply with an order from a judge to
serve the bad character evidence within 21 days. The failure was as a consequence of “inefficiency” and “oversight.”
Again, the conviction was not quashed. In all these cases
the Court applied a “prejudice” test namely the inability of
the defence to be able to highlight any particular prejudice
suffered as a consequence of the failure/non-compliance.
No doubt that was the case but such an approach does not
encourage a more compliant attitude on the part of prosecutors. It is of course true that Part 35 itself contains a power
(discretion) to extend time limits but no proper attempt
has been made to lay down any disciplined approach to the
exercise of the discretion. Indeed such an approach has
been expressly disavowed. In Sutton Coldfield Magistrates13
a bad character application was made in circumstances
where there had been complete non-compliance with the
rules. The evidence was admitted. The conviction was not
quashed. The following passages are of interest.
14 The first point to make is that time limits must be observed. The objectives of the Criminal Procedure Rules....depend upon adherence to the
timetable set out in the Rules. Secondly, Parliament has given the court a
discretionary power to shorten a time limit or extend it even after it has
expired. In the exercise of that discretion, the court will take account of all
relevant circumstances, including the furtherance of the overriding objective. I am not persuaded that the discretion should be fettered in the manner
for which the claimant contends, namely that time should only be extended in
exceptional circumstances.
15 In this case there were two principal material considerations; first the reason for the failure to comply with the Rules. As to that, a party seeking an
extension must plainly explain the reasons for its failure. Secondly, there was
the question of whether the claimant’s position was prejudiced by the failure.
16...any application for an extension will be closely scrutinised by the court.
A party seeking an extension cannot expect the indulgence of the court
unless he clearly sets out the reasons why it is seeking the indulgence.
[Emphasis added]
If “inefficiency”, “oversight” and non-compliance with judicial orders can amount to reasons for exercising indulgence, it is hard to see any situation where relief will not be
granted. Were it not disrespectful (probably amounting to
lèse-majesté ) it might be thought that the foregoing extracts
amount to little more than judicial “hot air”.
Another possible way in which the Crown might be punished in respect of failures to comply with rules or court
orders is by reference to the abuse of process doctrine. In
CPS v LR14 the defence needed access to allegedly indecent
images said to have been downloaded by the defendant.
The judge so ordered. The Crown failed to comply in any
meaningful way so the judge stayed the proceedings as an
abuse. Lord Judge LCJ upheld his decision. He said:
16 The starting point is simple. Orders made by Crown Court judges must
be obeyed. The normal consequences of disobedience by the prosecution
to an order made by the judge in the interests of a fair trial is either the exclusion of any evidence to which the order relates or, as in this case, when
the entire case depended upon the 240 images which were covered by the
order, the stay ordered by the judge.
11 [2006] EWCA Crim 2546.
12 [2008] EWCA Crim 1634.
13 [2006] EWHC 307 (Admin).
14 [2010] EWCA Crim 924.
However, in DPP v Gowing15 (where admittedly, the failures
in respect of Crown disclosure were hardly heinous) the
magistrates had stayed the proceedings as an abuse and
their decision was quashed. The following two paragraphs
from the judgments are interesting:
21 While the overriding objective includes at (e) the requirement to deal
with cases efficiently and expeditiously, the use of the court’s powers to stop
a prosecution must not be used save in the most exceptional cases to, in effect,
punish the prosecution for its inefficiency.
31 The court’s concern for the efficient dispatch of business and equal concern, if not irritation, with what are seen as failures on the part of prosecutors should not be used to punish prosecutors where a fair trial remains
possible. [Emphasis added]
It would seem from Gowing that what should have happened was the granting of an adjournment. This seems also
to be the consequence of Radiwilowicz.16 As pointed out earlier, this was a case where there had been a failure to serve
witness statements and where on the relevant day the person appearing for the Crown had no authority to conduct
a contested hearing. By insisting that the case went ahead
the District Judge effectively ensured that the Crown would
have to offer no evidence. It is quite obvious from the detailed case stated provided by the Judge that he very much
had his case management obligations at the forefront of his
mind. His decision was quashed. Leveson P said this:
12 (Counsel) has referred to authorities which make it clear that faced with noncompliance by the prosecution with the duty to provide advanced information,
now ‘initial details’, the magistrates could do no more than adjourn; see Dunmow Justices ex parte Nash’17 and King v Kucharz18 in which cases were stayed
as an abuse rather than forced on and then dismissed. He readily concedes
however that these cases predate the case management powers conferred by
the Criminal Procedure Rules but, in my judgment, the requirements of the
overriding objective to deal with cases justly do not call for any other approach.
(The inference drawn here is that the stay for abuse simply
means that the case is stayed until the failure is rectified, i.e.
stands adjourned.)
Unfortunately an adjournment cannot be regarded as a tool
for promoting efficiency or economy in the criminal justice
system. Accordingly, this article now turns to the question
of costs. These are governed by the Prosecution of Offences Act 1985 as amended.
There seems to be, on the part of the profession, an inability
to distinguish s.19 “costs against a party” and s.19A “wasted
costs orders against legal representatives”. The lawyers involved in the case are not “parties” to that case.19
Section 19A is in these terms:
19A (1) In any criminal proceedings
(b) the Crown Court may...order the legal or other representative concerned to meet the whole of any wasted costs...
(3) Wasted costs means any costs incurred by a party—
(a) as a result of any improper, unreasonable or negligent act or
omission on the part of any representative or any employee of a
In Ridehalgh v Horsefield20 (a civil case) Lord Bingham analysed what is meant by “improper, unreasonable or negligent.” He said:
15 [2013] EWHC 4614 (Admin).
16 Supra.
17 (1993) 157 JP 1153.
18 (1989) 153 JP 156.
19 CPS v Bolton Crown Court [2012] EWHC 3570 (Admin).
20 [1994] Ch 205.
© Thomson Reuters (Professional) UK Limited 2014
Issue 9 November 18, 2014
‘improper’ means what it has been understood to mean in this context for
at least half a century. The adjective covers, but is not confined to, conduct
which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct.
‘unreasonable’...aptly describes conduct which is vexatious, designed to
harass the other side rather than advance the resolution of the case, and it
makes no difference that the conduct is the product of excessive zeal and
not improper motive....
‘negligent’ should be understood in an untechnical way to denote failure to
act with the competence reasonably to be expected of ordinary members of
the profession. In adopting an untechnical approach....we would wish firmly
to discountenance any suggestion that an applicant for a wasted costs order
under this head must prove anything less than he would have to prove in
an action for negligence.
Given that the order is being sought against the lawyers, it
is perfectly proper that the applicant for such costs faces a
heavy burden. The making of such an order may form the
basis for a subsequent finding of professional misconduct
against the lawyer concerned.
Section 19 reads as follows:
19(1) The Lord Chancellor may by Regulations make provision empowering...the any case where the Court is satisfied that one party to
criminal proceedings has incurred costs as a result of an unnecessary or
improper act or omission by or on behalf of another party to the proceedings, to make an order as to the payment of those costs.
For many years understanding of the word “improper” in this
section derived from what Nolan LJ said in DPP v Denning21:
The word ‘improper’ in this context does not necessarily connote some
grave impropriety. Used as it is in conjunction with the word ‘unnecessary’
it is, in my judgment, intended to cover an act or omission which would
not have occurred if the party concerned had conducted his case properly.
Singh22 is an excellent illustration of the use of the s.19
power. The first hearing of the case was entirely abortive
because the prosecution had failed to serve any papers.
Subsequently, the defendant applied for the costs of that
hearing to be paid by the prosecution. The Divisional Court
held that he was entitled to his costs. In his judgment, Bean
J specifically refers to Denning as being the leading case.
He went on as follows:
9 (Counsel) submits that the sanction under section 19 is ‘punitive’ and that
the court’s discretion under section 19 should not be exercised where ‘the
fault is the result of a mistake.’ He distinguishes a mere mistake or oversight from improper conduct of the case. He points to the fact that the mistake in the present case was an isolated one, in the sense that there was no
repetition of it and that it only caused one adjournment.....Counsel reminds
us that in these days of budget cuts the resources of the CPS and the police
are more stretched than they were at the time of Denning, and mistakes can
easily be made.
21 (1992) 94 Cr.App.R. 272.
22 Supra.
© Thomson Reuters (Professional) UK Limited 2014
10 We reject the submission that a mere mistake without repetition cannot be
grounds for an order under section 19. There is no doctrine in this area that
every dog is entitled to one bite. If the act or omission giving rise to the application consists of someone on the prosecution side not conducting the case
properly, and it causes the defendant to incur additional costs, the discretion
arises.... A single mistake, if it can be shown to have caused the defendant
to incur costs is enough to trigger the court’s discretion to make an order...
11 We also reject counsel’s argument based on current pressure on resources. Anyone working in the criminal justice system is aware of that pressure...
But another change since Denning was decided is the introduction of the
Criminal Procedure Rules in 2005. These state that the overriding objective
of this new code is that criminal cases be dealt with justly; that dealing with a
criminal case justly includes dealing with it efficiently and expeditiously.... The
culture of adjournment which still plagues the criminal justice system will not
be defeated unless in appropriate cases courts are prepared to use their powers
to make orders for costs under section 19 of the 1985 Act.” [Emphasis added]
Unfortunately, it would seem that the Denning test may no
longer be regarded as correct. In DPP v Sheffield Crown
Court23 the judge was trying a death by careless driving
case. At an early stage he formed the view that another person involved in the fatal accident should also be prosecuted
as well as the defendant in the dock. He made various requests/suggestions to the prosecuting authorities (including
to the DPP) to this effect. The view of the Crown remained
unchanged. The defendant was acquitted. The judge said
that the failure to prosecute the other driver amounted to “an
improper act or omission” and that the CPS should pay the
costs of the case pursuant to s.19. No one could quarrel with
the decision of the Divisional Court to quash that order—it
clearly amounted to an impermissible attempt to impugn the
discretion vested in the Crown in and about the decision to
prosecute. However, Lord Thomas LCJ went on as follows:
28 the judge....relied upon the definition of ‘improper’ set out in the decision
of the Divisional Court in DPP v Denning. Although we have determined
that the order must be quashed as the judge had no jurisdiction to make it,
it is important to draw attention to the later decision of the Court of Appeal
in Ridehalgh v Horsefield...
His Lordship then went on to quote the passage from Ridehalgh where Lord Bingham had given his definition of “improper.” He continues thus:
30 We therefore wish to express our agreement with the view recently expressed by Simon J in his ruling in R v Geoffrey Counsell given at the Crown
Court at Bristol on 13th March 2014 when he made clear that the test for
impropriety is the rigorous test as set out in Ridehalgh and not the test set
out in Denning.
It would seem to follow therefore that many mistakes, such
as happened in Singh, which it would be difficult to categorise as “improper” within the meaning of Ridehalgh, will
now escape any costs consequence.
It may be that Sir Robin Auld was indeed right; the search
for sanctions is “largely in vain”.
23 [2014] EWHC 2014 (Admin).
Issue 9 November 18, 2014
District Judge Barbara Barnes
New to the 2015 edition
• Amendments of the Crime and Courts Act 2013 affecting sentencing
• Amendments by the Anti-Social Behaviour , Crime and Policing
Act 2014, introducing offences of low-level theft by shoplifting and
amendments to the Dangerous Dogs Act 1991
• Inclusion in the Youth Court chapters:
– Anticipated changes resulting from the Criminal Justice and Courts
Act 2014 affecting sentencing
– Civil Injunctions for Youths brought in by the Anti-Social Behaviour,
Crime and Policing Act 2014
– Youth Gang Injunctions under the Crime and Courts Act 2013
• New sentencing guidelines for Sexual Offences
• Completely updated and revised Criminal Procedure Rules and Codes of
Practice under PACE
• New Criminal Practice Direction issued in October 2013
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Issue 9 November 18, 2014
HH Judge Peter Rook QC, Robert Ward CBE
• SENTENCING: A full analysis of all changes to the sentencing
regime, including the new sexual offences sentencing guideline
issued by the Sentencing Council which applies to all adult sex
offenders sentenced on or after April 1, 2014.
• NON-CONSENSUALOFFENCES: A close examination of
important case law since December 2010, which has
– given a wider interpretation to the definition of consent
– stressed that context is all-important
– illuminated how evidence of grooming may be relevant
– clarified that deceptions falling short of s.76 deceptions may
entitle a jury to conclude there was no genuine consent
– taken a restrictive view of s.76
– illustrated the operation of the s.75 evidential presumptions and
– shed further light on the extent to which a defendant’s mental
disorder may be relevant to whether he had a reasonable belief
that the complainant was consenting.
• OTHERSEXUALOFFENCES: Consideration of all relevant cases
including on the offences relating to indecent images of children
and the significant developments in the law as regards the
prosecution of those who may have been the victims of trafficking.
• THELAWOFEVIDENCE: An analysis of the large number
of Court of Appeal decisions in sex cases.
important new case law including on the practical operation of
the complainant anonymity provision, and of the latest
developments on defendant anonymity pre- and post-charge.
• HISTORICCASES:An explanation of the important developments
relating to the trial of historic sexual offences.
Now published
• VULNERABLEWITNESSES: A survey of the plethora of useful
guidance and Court of Appeal authority of the last three years.
© Thomson Reuters (Professional) UK Limited 2014
Issue 9 November 18, 2014
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