Update: crime

The Safeguarding Vulnerable Groups Act 2006 is being brought into force in stages. The most significant provision, for criminal practitioners, is the abolition of a Crown Court judge's power, and sometimes duty, to impose orders disqualifying convicted defendants from working with children. This power was repealed in October 2009.

On conviction for a specified offence '“ see the schedule to the Act for details '“ a judge merely has to indicate to a defendant that he or she will be included on a list when the case is considered by the Independent Safeguarding Authority. The list that a defendant is placed on depends on the offence committed. Broadly speaking, the individual's entry on the list will be disclosed on application by a prospective employer. It is designed, as the Act's title suggests, to protect vulnerable people (children, patients) and was passed following concerns about, inter alia, the Soham murders.

A detailed consideration of the niceties of the lists '“ and privacy/article 8 considerations '“ is beyond the scope of this article. However, in some cases, individuals have the right to have their entries reconsidered, and even to make written representations to the authority before their name is placed on a list.

There is a tension between the rights of individuals and the interests of the community at large, and in appropriate cases application can be made to an Information Tribunal or the High Court. The Supreme Court has recently reported on these issues in R (L) (FC) v Commissioner of Police of Metropolis [2009] UKSC 3. This case '“ and the Act '“ is essential reading for any practitioner with a client facing difficulties with employers or prospective employers following a criminal conviction.

Late service of expert evidence

R v Ensor [2009] EWCA Crim 2519 is a salutary warning about the failure to comply with procedural rules. The trial judge made the following findings:

(1) There was an issue between the parties as to whether the appellant suffered from a current psychiatric condition and, if so, the extent of it.

(2) The service of the report so late was a grave breach of the Criminal Procedure Rules.

(3) The decision to serve the report only after a final decision had been made not to call a witness was 'a deliberate tactical ploy by the defence'. He therefore refused the defence application to adduce the report in evidence or to allow the defence to call the psychiatrist as a live witness.

The Court of Appeal reviewed the facts of the case, the relevant rules, and in dismissing the conviction appeal concluded:

'We entirely agree with the judge's view that the defence was in grave breach of the Criminal Procedure Rules. We also agree with his view that the decision not to serve his psychiatric report until a final decision had been taken not to call the appellants to give evidence as a witness was a 'deliberate tactical ploy' by the defence. It was nothing less than an attempt to ambush the prosecution.'

There is a clear and timely warning in this case that in order to achieve the overriding objective of a criminal trial, and to be fair to both sides, flouting the rules will be met with short shrift. Given that there are new 2010 rules, solicitors must ensure that they are followed.

Resisting unlawful arrest

In Cumberbatch v CPS and Ali v DPP [2009] EWHC 3353 (Admin), Miss Cumberbatch and Mr Ali appealed to the Divisional Court by way of case stated following Crown Court decisions to uphold convictions for, respectively, assaulting and resisting a police officer in execution of his duty. The facts of these cases were almost identical: both Cumberbatch and Ali protested when a police officer arrested a third party; both were asked to leave the scene of the arrest by other officers; Cumberbatch was restrained and moved away when she lunged at and injured the officer who had taken hold of her; Ali was arrested by one of the other officers.

In both cases, it was assumed or found that the original arrests of the third parties had been unlawful. The court considered the implications of section 24(2) of the Police and Criminal Evidence Act 1984 which provides: 'If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.'

In Ali's case, the officer that arrested him was not involved in the investigation of an alleged offence and could not form any opinion as to whether he was guilty of an offence; he was simply assisting his colleague who was unlawfully arresting the third party. At common law, a person had a right to use reasonable force to resist an unlawful arrest (Christie v Leachinsky (1947) AC 573) and Ali could not be expected to distinguish between resisting the officer unlawfully arresting the third party and those other officers who joined to assist in that unlawful arrest. On that basis, Ali's arrest was unlawful and he was entitled to resist it.

In Cumberbatch's case, the court held that if the officer unlawfully arresting the third party had been assaulted, Cumberbatch would not have been guilty of an assault on an officer in the execution of his duty. The position was no different where she assaulted an accompanying officer who tried to prevent her from interfering with or protesting against the unlawful arrest.

A final point considered was whether a police officer's duty to prevent a breach of the peace could legitimise the arrests of Cumberbatch and Ali. The court held that the conduct of the officers arresting Cumberbatch and Ali was so bound up with the unlawful arrest of the third parties that it was impossible to say that the conduct was in the course of duty for the distinct reason of preventing an actual or threatened act of breach of the peace. Neither Cumberbatch nor Ali posed a threat to any member of the public at the scene.

In practice, it will be important to investigate whether an arrest of a third party was entirely lawful before advising a defendant accused of some interference. If the initial arrest is unlawful and there is no threat to the wider public capable of making the defendant's protest a breach of the peace, there may be a viable defence to any charge of resistance or assault.

Firearms offences and consecutive sentences

In R v Ralphs [2009] EWCA Crim 2555, Mr Ralphs had entered guilty pleas to nine firearms offences (two counts of possessing a firearm, possessing a silencer and six counts of possessing ammunition). He was sentenced to six years' imprisonment on each firearm count concurrently and three years' imprisonment on each other count to run concurrently to each other and to the firearms counts: a total of six years' imprisonment. The Attorney General referred the sentence to the Court of Appeal as unduly lenient.

In giving judgment, the Lord Chief Justice commented that: 'The effect of complicated legislation is that on conviction on indictment offences contrary to section 5(1) and 5(1A) of the Firearms Act 1968, as amended, are subject to a statutory maximum sentence of ten years' imprisonment. At the same time [such offences]'¦ are subject to an appropriate custodial period for a minimum term of five years' imprisonment.' The AG had argued that in this case the total sentence should have been at least ten years' imprisonment and that consecutive sentences should therefore have been imposed.

The LCJ continued to say that 'in the vast majority of cases of possession of a firearm and ammunition, the range of sentence available to the judge is very limited'¦ the range is between five years and ten years' imprisonment'¦ This leaves remarkably little room for case-specific flexibility.'

The court increased the sentences on the firearms counts to eight years' imprisonment but refused to allow the restriction on the ranges of sentences to be 'circumvented' by an order for consecutive sentences in cases where the offender is (on the same occasion) found in possession of more than one gun, or a combination of guns and ammunition.

Expressing dissatisfaction with the current statutory regime, the LCJ described the AG's argument as 'tempting' and specifically invited Parliament to address the problems with the current sentencing structure. For now, however, the problem remains that the current scheme provides little incentive for an offender in a similar position to plead guilty before trial because a substantial reduction in sentence is unlikely.