Update: crime

All solicitors at police stations have the problem on occasion of advising a suspect on whether to accept a caution or go to court and contest the charge. Both options have their attractions and disadvantages. An example of the damage a caution can cause later on in life is demonstrated in the case of Woodhouse (CA 9 February 2009), where the Court of Appeal considered the admissibility of a caution as part of a prosecution bad character application.

Bad character: be careful about cautions

In Woodhouse the appellant was convicted of sexual activity with a child. The Crown Court judge had admitted evidence of a caution for a similar offence that was 11½ years old. The defence arguments against admissibility were that such a 'single, distant' incident couldn't constitute evidence of propensity and, even if it did, it would be unfair to admit it. The Court of Appeal upheld the judge's ruling, finding that the jury could reasonably consider the facts of the old incident in assessing the defence of 'accidental' touching. Most defendants, at police stations, will grasp an adult caution for all sorts of reasons; it is not beyond the bounds of possibility that an entirely innocent individual will accept a caution (perhaps to avoid embarrassment, or shame, or the trauma of a contested trial), but it will be prudent to advise clients that in years to come they may well reappear.

Convictions founded only on hearsay evidence

In Al-Khawaja and Tahery v the United Kingdom [2009] ECHR 110 the European Court of Human Rights considered the legality of convictions founded on hearsay evidence.

This ruling contrasts markedly with recent decisions in English law. Objections to admissibility were usually based on unfairness (s.78 PACE 1984). The Court of Appeal had formerly held that the Art.6 requirements of a fair trial did not preclude the admission of hearsay evidence where it was the only '“ and potentially decisive '“ evidence (see e.g. Keet [2008] 1 Cr.App.R. 5).

The court in Strasbourg stated that hearsay evidence (where a witness is unavailable) is admissible pursuant to s.116 of the Criminal Justice Act 2006. In neither of the cases considered had witnesses been kept from giving evidence by the defendant's actions, and at para.37 of the judgment the court held that 'in the absence of such special circumstances the court doubts whether any counter balancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant'.

It remains to be seen how our domestic courts will apply this ruling, but practitioners must be alert to the possibility of challenges where the only evidence is hearsay.

Sentencing burglars: a tougher approach

On 16 January the Court of Appeal issued 'fresh' guidance on the sentencing of adult domestic burglars in R v Saw [2009] EWCA Crim 1. The guidance previously issued in R v McInerney; R v Keating 2 Cr.App.R.(S) 39 in December 2002 had proved to be controversial (because of its apparent leniency) and difficult to apply. The division of a seemingly comprehensive list of aggravating features into higher and medium levels had been a significant problem: this approach was inflexible and the omission of potentially aggravating but unspecified features from the list had created a danger that a defendant's true criminality might not be fully addressed by the sentencing court.

The Court of Appeal in Saw reiterated that the starting point for sentencers was that burglary of a home was a serious criminal offence, and returned the focus to the assessment of the seriousness of the individual offence considering (a) the defendant's culpability and (b) the impact of the offence upon its victim. Particular emphasis is placed upon the latter of these considerations. The court explained that the distinction previously drawn between high-level and medium-level aggravating features was artificial '“ what were described as medium-level aggravating features very frequently had a significant impact on the victim. The question to be answered therefore was where the particular aggravating feature should be placed on the scale.

The court identified non-exhaustive lists of aggravating and mitigating features (in paras.19 and 26 respectively) and reached the following conclusions:

• Any domestic burglary which reflected any of those aggravating features should normally attract a custodial sentence.
• Cases of limited raised culpability and/or impact should ordinarily involve a custodial sentence between nine and 18 months.
• In cases of seriously raised culpability and/or serious impact, the starting point should be a custodial sentence of two years and upwards. For a single offence the range would ordinarily be 18 months to four years, but sentences beyond the range might be appropriate where the culpability and/or impact was at an extreme level. Community orders for this class of case would only begin to arise for consideration in the most extreme and exceptional circumstances.
• The minimum term of three years' imprisonment after conviction for a third dwelling house burglary might be exceeded where the offence was characterised by significant or seriously raised culpability or impact.

The tone of these new guidelines will encourage the Crown Court to 'get tough' on domestic burglars; the Court of Appeal has tackled head-on the notion that the previous guidelines were too lenient. The most important (and beneficial) change however is likely to be the move away from pre-determined high-level and medium-level aggravating features. This allows for individual consideration of what is more and less important in the instant case, with an emphasis on the financial and emotional consequences for the victims of domestic burglary.

The new dangerousness provisions in practice: moving away from IPP

Giving judgment in Attorney General's Reference No.55 of 2008 (R. v C and others) [2008] EWCA Crim 2790 on 26 November 2008, the Court of Appeal had an early opportunity to consider parliament's amendments to the regime for the sentencing of dangerous offenders which came into force on 14 July 2008. The removal of the 'prescriptive and unhelpful statutory assumption' as to the risk of future harm when sentences of imprisonment for public protection were being considered was welcomed warmly. The court went on to insist that such sentences remain an important option for the judge sentencing for a serious specified offence when at least one of the preconditions mentioned in s.225(3) of the CJA 2003 was satisfied.

Guidance was offered on when and how this option might be exercised:

1. The condition in s.225(3A) makes a sentence of Indeterminate Public Protection (IPP) available irrespective of the seriousness of the latest offending when the offender has previously been convicted of one of the 'very grave' offences listed in sched.15A. Of course a sentence of IPP can only be imposed if there is also a significant risk of serious harm to the public.

2. The condition in s.225(3B) requires that the notional minimum term for the latest offending should be imprisonment for at least four years determinate or two years tariff:

a. where condition (3A) is not satisfied, a judge cannot impose a sentence of IPP under (3B) unless the latest offending warrants such a notional term even if there is a significant risk of serious harm. In such cases, the courts must be careful not to impose longer than appropriate sentences in order to avoid the restriction in (3B);

b. where an offender has been convicted of or admitted a number of offences, the question under (3B) was whether the totality of the offending required a sentence in excess of the notional minimum '“ the condition in (3B) might be satisfied notwithstanding the absence of an individual offence for which a four-year term or two-year tariff would be appropriate.

3. It is important to remember that even where one (or both) of the statutory pre-conditions was established, the power to impose a sentence of IPP was discretionary.

The court also considered the new scheme of extended sentences. The new conditions mirrored those for sentences of IPP and the mandatory requirements had been replaced by a discretion. The most important change was that extended sentences are now also available for serious specified offences, so that, when the necessary conditions for a sentence of IPP are met, a sentencing judge has the choice to impose an extended sentence instead. The court positively encouraged a judge faced with this choice to opt for an extended sentence whenever possible. If an extended sentence, perhaps made in conjunction with other orders (e.g. a Sexual Offences Prevention Order) can protect the public against the risk posed by the individual offender, then a sentence of IPP should not be imposed.

In this judgment, the Court of Appeal has taken up parliament's invitation to move away from sentences of IPP (which have proved difficult for the prison system and parole board to manage '“ see Update: crime, Solicitors Journal, 16 December 2008). As a result, despite the Court of Appeal's assertion that sentences of IPP are to remain an important option for the sentencing judge, far fewer such sentences are to be expected in the Crown Court.