Update: police and criminal evidence

Keeping abreast of the rapid changes to criminal law and procedure that have been brought about by successive Acts of Parliament can seem at times like white-water rafting '“ hazardous and unpredictable.

Confiscation

The House of Lords in R v May [2008] UKHL 28 1 AC 1028 reviewed the law relating to the approach that should be taken to the confiscation of proceeds of crime. In a last-minute twist to their report, which seemed to do no more than to restore common sense to confiscation, the lords intriguingly left the door open for money laundering cases to be dealt with in a different way.

Practitioners in this field have been waiting for further guidance on this topic, and this has come in the form of R v Allpress and others (2009 EWCA Crim 8) which was determined in January. Allpress suggests that the door has been firmly closed to an alternative approach to money launderers in confiscation applications. The Court of Appeal considered five appeals against confiscation orders made against defendants convicted of various offences of involvement in the transfer or protection of funds that represented the proceeds of crime.

After hearing arguments that money laundering offences formed a special category needing a special approach, and that cash as opposed to other forms of property meant that different considerations applied, the Court of Appeal decided to reject them and applied the principles determined in May and several associated recent authorities to the cases before it. Applications for confiscation of the proceeds of money launderers will not, it seems, be approached in a different way from any other offence that can result in confiscation proceedings after conviction.

Statutory amendments and new offences

Part 5 of the Criminal Justice and Immigration Act 2008 (CJIA) continues to come into force, and has made amendments to the law of pornography, self-defence and offences concerning personal data. On 26 January 2009, ss 63 to 67 came into force. Section 63 created the new offence of possessing an extreme pornographic image. The type of image covered is of such a nature that it must be reasonably assumed to have been produced solely or mainly for the purpose of sexual arousal '“ but it must be an 'extreme' image. This is defined by s.63(6) as one which is grossly offensive, disgusting or of an obscene character and which depicts a series of acts defined by s.63(7) namely: acts which threaten a person's life; acts which result in, or are likely to result in, serious injury to a person's anus, breasts or genitals; or acts of necrophilia or bestiality. With regard to the first two classes of act, s.66 creates a defence of consensual activity. It has to be proved by the defendant upon a balance of probabilities that he directly took part in the act or acts and that these did not involve the infliction of non-consensual harm upon anyone.

Section 65 sets out the statutory defences available in relation to this offence. They are the same as those available in the case of possession of indecent images of children contrary to s.160(2) of the Criminal Justice Act 1988; that is, having a legitimate reason for possession, lack of sight or knowledge of the image, or lack of a request for an image that had not been kept for an unreasonable period of time.

The maximum period of imprisonment is three years on indictment for possession of extreme pornographic images involving life-threatening acts or serious injury and two years for images of necrophilia or bestiality (s.67).

The maximum penalties for two offences under the Obscene Publications Act 1959, namely the publication of obscene material and the possession of obscene material for gain, has been raised by s.71 from three years to five years imprisonment on indictment. This provision does not apply to offences committed before 26 January 2009, which is the date it came into force.

Sexual offences against children

Section 72 of the CJIA took effect from 14 July 2008 and replaced s.72 of the Sexual Offences Act 2003, which made the commission of sexual offences committed abroad against children under 18 by British citizens or UK residents a criminal offence. The main difference between the old and new sections is that the prosecution will no longer have to prove that with regard to UK nationals (i.e. British citizens, subjects or protected persons) the act committed must have been illegal in the country where it took place. In respect of British residents, this requirement will remain.

The statutory offence of meeting a child following sexual grooming is widened in scope by s.73, which also came into force on 14 July 2008. It will now be an offence if a child under 16 travels to meet an adult over 18 who has arranged that meeting following two previous communications. It will also now be an offence for an adult over 18 to arrange a meeting with a child under 16 after two previous communications if he intends to commit a sexual offence against that child during or after the meeting.

Self-defence

The judgement of the House of Lords in R v Palmer [1971] AC 814 is well known to everyone who has raised the issue of self-defence in criminal trials. Self-defence at common law, and the use of force to prevent a crime or to make an arrest, set out in s.3 of the Criminal Justice Act 1967, are the defences covered by s.76 of the CJIA. After many years of hot debate about the status of householders facing burglars and the extent to which they could defend themselves and their property, it was decided that the position should be further clarified. Section 76, which came into force on 14 July 2008, reproduced many of the words used in the speech of Lord Morris of Borth Y Gest in Palmer. Self-defence is available to a defendant who honestly believed it was necessary to use force and that the degree of force used was not disproportionate in the circumstances as he viewed them. In the heat of the moment, a defendant cannot be expected to have judged exactly what action was called for as long as he did what he honestly and instinctively thought was necessary. Whether this provision actually adds anything of value to the existing law in this area is questionable.

Causing a disturbance on NHS premises

Among other things, Part 8 of the CJIA created the offence of causing a nuisance or disturbance on NHS premises. Sections 119 to 122 took effect from 1 January 2009. Section 119 made it a summary offence for a person without reasonable excuse to cause a nuisance or disturbance to an NHS staff member while on NHS premises in England and Wales. The behaviour complained of can be verbal aggression or the use of intimidating gestures towards staff while they are working at NHS premises. Under s.120, anyone reasonably suspected of committing an offence contrary to s.119 can be asked to leave the premises by a police constable or an authorised member of staff. Any refusal to leave without reasonable excuse may result in the commission of the s.110 offence.

'NHS premises' are defined as hospitals managed by the relevant NHS body or the hospital grounds. The definition also includes any buildings, structures or vehicles associated with the hospital and in the hospital grounds, whether or not these are managed by a relevant NHS body. At the time the offence is committed, the NHS staff member concerned must either be at work, on a break or travelling either to work or between buildings at the premises.

What can constitute a 'reasonable excuse'? People who have suffered a bereavement or other sad news may be able to rely on this defence. These provisions do not cover a patient or someone attending a consultation or collecting test results or medication, for example. Once a person has received the advice, treatment or care sought at the NHS premises, he or she stops being on those premises for those purposes. If a person has been refused advice, treatment or care during the eight-hour period prior to them being present on NHS premises, they are also not deemed to be there for those purposes.

It is interesting that nearly ten months after Royal Assent, there are still parts of the CJIA that have not been brought into force. Whether these as yet unused provisions are yet further examples of the gulf that sometimes exists between legislative intent and the reality of having to implement the new law is yet to be seen, but those of us who remember Custody Plus for example will not be holding our breath (and for those who don't, Custody Plus was a scheme that was introduced via previous Criminal Justice Act that was supposed to allow for weekend release of prisoners etc who would serve part of their terms in prison, It was never enacted by the government).

PACE

1 January 2009 saw the coming into force of some changes to Code A, effected by the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revisions to Code A) (No. 2) Order 2008 (S.I. 2008 No. 3146). Firstly, paras 2.2 and 2.3, which relate to searches requiring reasonable grounds for suspicion, have been amended. It states that reasonable suspicion must rely upon intelligence or information about, or behaviour by, the suspect. Other than in a witness description of a suspect, a person's age, race, appearance or previous convictions cannot be used alone or in combination with each other or with any other factor as the reason for a search.

Changes have been made to para.4.10A and a new para.4.10B has been inserted to clarify the position regarding receipts for stops or stop and searches, and to enable police officers and Police Community Support Officers to provide a receipt rather than a full record when they undertake an encounter in accordance with paras 4.12 to 4.19. There is new 'Note for Guidance' number 25 that covers para.4.10B, and Annexes D and E are deleted. The effect of all of this is to lessen the requirements so that only the ethnicity of a person who is stopped has to be recorded.