Update: crime

A fortunate accident arising from a lamentable state of affairs

The exchanges between counsel and the judgment in Chambers [2008] EWCA Crim 2467 are a reminder and a warning to all practitioners to be aware of changes in the law. In a particularly severe criticism of the morass of legislation the court described the absence of a unified database as a 'lamentable state of affairs'.

A confiscation case had been proceeding quite normally, following the appellant's guilty plea to involvement in a tobacco conspiracy. The prosecution proceeded on the basis that the appellant's financial benefit was the full amount of the unpaid duty, pursuant to the 1992 regulations. The Court of Appeal granted leave to appeal the Crown Court judge's findings and heard full argument. Judgment was reserved. A draft judgment was released to both sides, dismissing the appeal. However, per Toulson LJ, 'by a fortunate accident the draft came across the desk of a lawyer in the RCPO asset forfeiture office. . . who was aware that the 1992 regulations no longer applied to tobacco products. They were superseded by 2001 regulations, which came into force over five years before the current prosecution'.

The 2001 regulations were drawn to the court's attention before the judgment was formally given.

These regulations are 'materially different' from the 1992 regulations. The appeal was allowed and a confiscation order for £66,000 was quashed. The appeal was thus allowed on grounds not argued initially by either side. The court also referred to a case heard in the same week where a confiscation appeal had proceeded on the same false premise. Paragraph 64 of the judgment merits publicity:

'This case also provides an example of a wider problem. It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it.'

The court identified reasons for this problem: the sheer volume of legislation (over 20,000 pages issued in 2005); the huge amount of secondary legislation; the 'patchwork' of primary and secondary legislation; and the fact that there is no 'comprehensive statute law database that would enable an intelligent person . . . to find all legislation on a particular topic'.

The Law Commission, for some time, has been advocating access to legislation in a 'straightforward and freely available electronic search'. As the court noted, there is a long way to go to achieve this 'laudable, indeed imperative' aim.

In the meantime, Toulson LJ described the problem as being of substantial constitutional importance, and reinforced the view that it is a serious state of affairs when the government's own website is incomplete and the court is unintentionally misled by the prosecution.

Until there is a single point of reference, it seems inevitable that the above situation will recur. It will be a small consolation to defendants who have paid orders or served prison sentences in default to know that a review is currently underway of all orders that may have been obtained where the court hasn't been informed of the relevant law.

Practitioners are advised to review any of their own confiscation cases involving tobacco products and to compare them with the above judgment in order to establish if their clients may have been subjected to a similarly flawed order.

No defence of 'panic' in English law

The macabre and hopefully unique facts of R v Skidmore [2008] EWCA Crim 1464 illustrate a point of principle. It is a common law offence to prevent the lawful and decent burial of a corpse. A baby died shortly after his birth. Unfortunately two employees of the funeral services forgot to put the body in a coffin, and only realised this after the cortege set off. In panic, they put the baby in the coffin of an elderly lady who was due to be and was cremated that day. Many years later these matters came to light and the defendants were charged.

Following a ruling in the Crown Court, both defendants pleaded guilty, and then sought to challenge that ruling in the Court of Appeal. The court ruled that the fact that both defendants acted in panic does not mean that an offence was not committed, although it may be mitigation.

Discount from a custodial sentence for time spent on conditional bail

In what may well be seen as an attempt to justify lesser custodial sentences and to ease the strain on the prisons, s.240A of the Criminal Justice Act 2003 has been brought into force by the Criminal Justice and Immigration Act 2008, and is of considerable importance to practitioners. It applies where a court sentences a defendant to imprisonment for an offence committed on or after 4 April 2005.

Qualifying criteria are (briefly) that the defendant was remanded on bail after the 2008 Act came into force, and that such bail was subject to 'the relevant conditions'. These conditions are curfew and electronic monitoring. The sentencing court must direct that time spent subject to qualifying conditions is to count towards the time to be served in prison. The credit period is, broadly speaking, half of the number of days on which the defendant's bail was subject to the qualifying conditions. Thus, on bail for 60 days would lead to a 30-day reduction in the prison sentence. There are also Remand on Bail (Disapplication of Credit Period) Rules, which empower a court to disallow credit if it is just in all the circumstances not to give such a direction. One example would be where there had been breaches of bail conditions. The decision of the court must be announced in open court.

Significant changes in the sentencing of dangerous offenders

The Criminal Justice Act 2003 introduced a new scheme of custodial sentences for dangerous offenders and was heralded by parliament (in the explanatory notes to the statute) as providing a 'clear and flexible' sentencing framework. The Court of Appeal took a rather different view, describing the new provisions as 'labyrinthine' and 'astonishingly complex' when issuing guidance in R v Lang [2005] EWCA Crim 2864.

Parliament attempts to lead us out of the labyrinth with the Criminal Justice and Immigration Act 2008, which brought about significant changes to the dangerous offender provisions as of 14 July 2008:

A 'seriousness threshold' is introduced so that the dangerousness provisions do not apply to an offender unless a sentence of four years' determinate or two years' tariff is merited (or, in the case of an adult offender, there is a previous conviction for one of a specified list of very serious offences);

The rebuttable presumption of dangerousness in relation to offenders with a previous conviction for a violent or sexual offence is removed: the court must make its own assessment of whether the offender poses a significant risk of serious harm.

The obligation to impose a sentence of imprisonment for public protection where all conditions are met is replaced by a discretion to pass the most appropriate sentence according to the circumstances of the case.

These changes are an attempt to achieve the original aims of clarity and flexibility and certainly free the sentencing judge's hands to react to the circumstances of the case before the court, rather than being railroaded towards IPP. Whether the provisions themselves are any less unwieldy is debatable.

By introducing the seriousness threshold, parliament limits the class of offenders who will be sentenced to indeterminate custody. When promoting the bill that became the 2008 act, the secretary of state for justice was insistent that this change was not an attempt to address the problem of overcrowded prisons. His stated concern was that dangerous offenders sentenced to short tariffs were not being given the opportunity to persuade the Parole Board that they were no longer dangerous at the end of serving their minimum term because there was insufficient time for them to complete courses and training.

However, the decision in Secretary of State for Justice v Walker and James [2008] EWCA Civ 30 suggests that the problem is not time, but money. The Court of Appeal upheld a declaration that the secretary of state had acted unlawfully by failing to provide the necessary resources for these training courses to be run. As a result prisoners could not show that they were not dangerous and were remaining in prison for longer than was necessary.

Fewer indeterminate sentences means less funding is required for rehabilitation and, in the long term, more prison spaces. It would seem that the amendments brought about by the 2008 Act not only address the criticisms of the Court of Appeal, but attempt to relieve some of the pressure from an overcrowded and underfunded prison system.

Witness anonymity

In Davis [2008] UKHL 36 the House of Lords ruled that there was no common law power enabling the prosecution to call a witness whose identity had not been disclosed to the defence. Such unfairness breached a defendant's Art.6 rights and made the trial unfair. Within weeks of this decision the Criminal Evidence (Witness Anonymity) Act 2008 was passed. This act provides a statutory basis for a court to grant a witness anonymity order where is satisfied that relevant conditions and considerations are met. 'Conditions' include protection of the witness, and harm to the public interest. 'Considerations' include the right of a defendant to know the identity of a witness, whether the witness's evidence could be properly tested without his or her identity being known, whether the witness has a tendency to be dishonest, and whether any other measures could protect the identity of the witness. The Lord Chief Justice has handed down a practice direction, which is now incorporated in the Criminal Procedure Rules.

There are no appeal cases yet on the implementation of the act. In a relatively straightforward case, such as an undercover police officer making test drugs purchases, it is felt that there will be no real problem, because the primary facts usually aren't in dispute and subject to redacted disclosure of relevant material (for example disciplinary records) a fair trial can take place. Proportionality would suggest that the public interest in detecting drug dealers justifies both the use of undercover investigative officers and anonymity. Of far more serious concern is the situation where witnesses to a gangland killing are in genuine fear for their lives if they testify, and yet the defence are potentially kept in complete ignorance of their true identity.