Update: crime

R v Wilkinson; R v Ali and Others; R v Olawaiye and Others; R v Bennett [2009] EWCA Crim 1925 is likely to become most widely known for its impact upon sentencing in firearms cases and its updating of the principles set out in Avis 1998 2 Cr App R(5) 178.

Just as important, however, is the guidance given generally in relation to the imposition of indeterminate sentences under section 225 of the Criminal Justice Act 2003 (dangerous offenders).

A life sentence, as opposed to an IPP, should be passed only in cases where the gravity of the instant offence justifies it; where the imposition of such a sentence serves as a 'denunciation' of the conduct involved in the commission of the offence and to reflect public abhorrence of that conduct.

A fair indication of a case in which it may be called for is one in which the minimum fixed term imposed is towards the highest end of the scale. Strange as it may seem, therefore, once a court has decided that an indeterminate term must be imposed for the protection of the public, the type of indeterminate term then selected is not itself based upon considerations of public protection.

The effect, so far as the imposition of a life term is concerned under section 225(2)(c), seems to be, as the court itself appears to acknowledge, that this will arise in much the same circumstances as previously applied in the regime relating to the use of discretionary life sentences before the coming into force of the 'dangerous offender' provisions of the 2003 Act (see R v Chapman 2000 1 Cr App R77).

Turning specifically to the sentencing of gun crime, the paramount objective is stated to be the protection of the public. Thus the 'dangerous offender' provisions may often be engaged. The case primarily addresses a level of criminality arising from the large scale importation, manufacture, or distribution of firearms not considered in Avis, though the judgement proceeds from the basis that even crimes of simple possession are to be regarded as grave, and it is stated that where the minimum sentence provisions introduced by section 51A of the Firearms Act 1968 apply, the circumstances must indeed be truly 'exceptional' if, at the least, the minimum term of five years is not to be imposed following conviction for a relevant offence.

The court draws attention to a startling anomaly. Whereas the maximum sentence for the importation of Class A drugs is life imprisonment (and 14 years for Class B and C) the maximum for the importation of firearms is only ten years. Furthermore, no offence exists in relation to firearms which mirrors the 'possession with intent to supply' offence in relation to prohibited drugs.

The offences created by section 3 of the 1968 Act, entitled 'Dealing in Firearms', are regulatory in nature, designed to apply to an apparently legitimate dealer who trades without the relevant registration, or to the sale of a firearm to a person without a certificate entitling him to possess it, rather than to a person who sets out to supply firearms to criminals. In such a case, even the minimum sentence of five years 'would be wholly inadequate'.

Prosecutors presently attempt to overcome this problem by charging large-scale suppliers to criminals with an offence contrary to section 16 of the Act or a conspiracy to commit such an offence, as in fact happened in the three cases addressed in this judgement which concerned firearms. However, this requires proof of the specific intent in section 16 which, even in the case of a large-scale dealer, is no formality (R v Jones (I.F.) 1997 1 Cr App R 46). The court made clear its position in relation to this difficulty: '.....the availability of a discretionary life sentence should not be dependent on proof of the specific intent required by section 16 of the Firearms Act'.

It is reasonable, therefore, to expect significant change to our existing law on firearms to be introduced in the near future, not only in relation to sentencing powers but also to the definitions of prohibited conduct involving guns and ammunition.

Judicial misconduct

Michel v The Queen [2009] UKPC 41 revisits the topic of misconduct by the trial judge. The unusual facts raised the usual issues in an acute form. On the one hand, it seems plain from the judgement that the prosecution case was very strong. It was described in the judgement as 'formidable', though it may seem especially revealing in this regard that the judgement points out 'that the right to a fair trial was one to be enjoyed by the guilty as well as the innocent'.

On the other hand, the hostility of the judge to the defendant and to his case was made frequently manifest. It is sufficient for this purpose to note that it led to the judgment of the court expressing 'deep dismay' upon having recited to it the full detail of the appellant's complaints.

A review of other previous similarly based appeals shows that in order for such a ground of appeal to succeed the appellate court needs to be satisfied that the misconduct complained of, once established, be shown to be of a kind likely to have had some prejudicial impact on the outcome of the trial. Recent examples where such was the court's approach to the matter are R v Copsey and Copsey [2008] EWCA Crim 2043 and R v Cole [2008] EWCA Crim 3234. However, in R v Cordingley [2007] EWCA Crim 2174, the court stated: 'The safety of a conviction does not merely depend upon the strength of the evidence that a jury hears. It depends also on the observance of due process.'

In this case, all of the incidents of misconduct complained of took place in the absence of the jury. Even there, however, the court noted that it was likely to have had some prejudicial effect upon the defendant himself and thus in turn on the impression he made with the jury in his evidence.

The Privy Council now appears, without qualification, to have stated that judicial misconduct may be of a type and degree as to render, of itself, a conviction unsafe, even in a case where the court may be certain that a fairly conducted trial would have led to the conviction of the accused. Such cases, however, will obviously be rare as a reading of these facts will demonstrate. In most appeals based upon such a ground, an advocate should still prepare upon the basis that he or she expects to have to demonstrate some likely prejudicial effect upon the result of the trial.

It should also be noted that although the court in Michel warned against the use of 'advocacy by a judge', it also made plain that it remains part of a judge's function 'to assist the jury to arrive at the truth' and 'to see that justice was done... by way of a carefully crafted summing up.'

A distinction must be drawn between comment, appropriately expressed, which does no more than properly reflect the judge's view of the competing weight of the parties' arguments, and 'joining in the fray'.

Facial mapping

R v Atkins [2009] EWCA Crim 1876 is the latest of a long series of cases dealing with the proper use of 'facial mapping' evidence. The case is concerned not with admissibility, long since established, but its presentation to a jury, by means in particular of the use of a range of comparative expressions designed so that a jury may be informed of the expert's opinion of the significance of any match or similarities which he finds.

The contention on the part of the appellant in the present case was that use of such a presentational technique ought not to be permitted because it cloaked what was in reality a subjective statement with spurious objective and scientific authority '“ because there is no database nor other sound statistical basis to support it.

The court rejected that submission. The judgement of the court rightly pointed out that this disputed technique of using a table of comparative terms to express varying degrees of support has long been used in other fields of expertise; for example, fibres, handwriting, glass fragments and footwear patterns.

One area not referred to in the judgment, however, and therefore most probably not in argument was DNA, a science where the mathematical likelihood of a match can be and is assessed using a very extensive database. For a time, scientists did express to juries their opinion of the significance of the likelihood of matching DNA profiles, using precisely the technique objected to in Atkins, until the Court of Appeal disapproved of such a practice in that context in R v Doheny and Adams 1997 1 Cr App R369. The rationale of that part of the ruling was that the scientist 'should not overstep the line which separates his province from that of the jury... The scientist should not be asked his opinion on the likelihood that it was the defendant who left the crime stain, nor when giving evidence should he use terminology which may lead the jury to believe that he is expressing such an opinion.'

This prohibition has since been faithfully complied with in the presentation of DNA evidence to a jury.

In the case of facial mapping, however, the Court of Appeal has previously rejected a submission that such an expert be prohibited from expressing an opinion on the 'ultimate question', i.e. the significance of the likelihood of a match (R v Stockwell 1993 97 Cr App R260) and has now also given its clear approval to the use of the technique rejected as inappropriate in Doheny and Adams.

At first glance, it might appear illogical and inconsistent that in a field of expertise where there is abundant objective data with which to assess the incidence of general occurrence the expert may not express his view on the significance of that likelihood, whereas in a field where there is little or none he may.

The answer to this apparent conflict is probably based not on scientific principle, but upon an understanding of the practicalities of a jury trial. It is essential to be able to convey to a jury in an understandable way the findings of the expert and their potential significance in the case. The ability to express that significance using simple statistics in a case involving a DNA match precludes the need for further subjective explanation. Assisted by a judge, a jury is capable, without more, of reaching its own conclusion on the significance of the match, especially in the context of the other evidence in the case. Where, however, such a database does not exist, evidence merely of a match or of a series of points of similarity will be meaningless unless some reliable means can be found to explain their significance. The only means is through the opinion of the expert himself derived from his long experience of working in that field. Here, the necessary expertise required to assist the jury lies not merely in the technical work involved in undertaking the comparison, but also in assessing the significance of any similarities or matches which are discovered. The safeguards which exist to prevent juries being misled are the availability of experts in such fields to all parties and the rigorous forensic examinations of their findings and opinions.

To prevent experts from commenting or expressing such an opinion, based upon their experience in their field of expertise, would be to deprive all parties, not merely the Crown, of the possibility of putting before a jury crucial information which may assist not only in convicting the guilty but also acquitting the innocent.