Crimes of violence

In R v Holley [2005] 3 All ER 371, the Privy Council effectively overruled the decision of the House of Lords in R v Morgan Smith [2001] AC 146, preferring its own earlier decision in Luc Thuan v The Queen [1997] AC 131 and the older cases of R v Camplin [1979] AC 705 and R v Morhall [1996] AC 90.


The case concerned the circumstances in which the defence of provocation was available when charged with murder, so as to reduce the allegation to one of manslaughter. The council held that the jury must assess the gravity of the provocation by reference to the individual defendant's peculiarities (a subjective test), but were to apply a uniform objective standard to the degree of self-control to be expected of an ordinary person (the objective standard) of the defendant's age and sex when judging whether a loss of self-control was sufficient to satisfy this defence.


The extent of the Protection from Harassment Act 1997 has been substantially extended by provisions of the Serious Organised Crime & Police Act 2005, which came into force for crimes committed on or after 1 July 2005. It is now an offence for a person to harass two or more people on separate occasions when the purpose is to persuade those people or any other person either to do something that he is not under an obligation to do or not to do something that he is entitled to do; in such circumstances 'course of conduct' now means conduct on at least one occasion in relation to each person.


Brooker v DPP (2005) The Times, 5 May, confirms that even a knife without a cutting edge (in this case a butter-knife) could be a bladed article. However, a person's fingers could not amount to an imitation firearm whatever their appearance; they were part of the defendant and not in his possession R v Bentham (2005) The Times, 11 March (House of Lords).


The significance of section 20 of the Offences Against the Person Act 1861 for those who have sexually transmittable diseases was considered in R v Konzani, 2005, 5 Archbold News 5. It was held that a person knowingly suffering from such a disease is guilty of a section 20 offence if there was no informed consent to the sexual contact and the disease is passed on. An honest belief in informed consent will be sufficient if there is evidence to support it, but such evidence in the absence of protective measures seems unlikely to be established




Case management


The thrust of the Criminal Procedure Rules 2005 &150; that the court is to take firm management control of a case &150; is now beginning to take effect more generally.


Thus even prior to the implementation of section 8(A) and 8(B) of the Magistrates Courts Act 1980 (which came into force on 5 April 2005), magistrates were held to have power to make binding preliminary rulings on points of law that did not require any findings of fact (R (Thames Water Utilities) v Bromley Magistrates Court, 2005, 7 Archbold News 3). In R (Watson) v Dartford Magistrates Court [2005] EWHC 905 (Admin), the Administrative Court went further, holding that an application to adjourn by the Crown should not, absent new circumstances, be granted when it had already been refused by an earlier court.


These decisions tend to indicate that one magistrates' court does now bind another constitution, not only on issues


of law but of procedure also. In Essen v DPP [2005] EWHC 1077(Admin), applying the earlier judgment in R (Walden & Stern) v Highbury Corner Magistrates Courts [2002] EWHC 708 (Admin), the Administrative Court held that magistrates must identify a good reason when adjourning a case. A failure by the Crown to warn witnesses could not amount to such a reason and the Crown should have been directed to proceed.


The basis for the issue of a witness summons was amended from 1 July 2005 by section 169 of the Serious Organised Crime Act 2005. No longer is it necessary to show that a witness is unwilling to attend court. The only question is now whether it is in the interests of justice to issue a summons. Given the drive against adjournment, solicitors may be wise to obtain witness summonses for critical defence witnesses.





By Anthony Edwards, TV Edwards, London