LEGISLATION UPDATE


Terrorism



Significant provisions of the Terrorism Act 2006 were brought into force on 13 April 2006. Section 1 creates a complex offence summarised as the encouragement of terrorism, but in relation to which solicitors will need to study the precise detail of the statute before advising a suspect under arrest. It is an offence to publish a statement likely to be understood by members of the public as a direct or indirect encouragement or other inducement to engage in the commission, preparation or instigation of acts of terrorism, intending thereby or being reckless that the public would be encouraged or induced to commit, prepare or instigate such acts.



Statements likely to be so understood include every statement that glorifies the commission of such acts, and is a statement from which the public could reasonably be expected to infer that what is being glorified is being glorified as conduct that should be emulated by them in existing circumstances. The offence carries seven years' imprisonment. It is a defence (when it is not proved that there was an intention to encourage terrorism) to show that the statement neither expressed the maker's views nor had his endorsement.



A new offence, carrying life imprisonment, is created by section 5, of engaging in any conduct in preparation for giving effect to an intention to commit acts of terrorism. New offences (section 6), carrying ten years' imprisonment, are created of providing or receiving instruction or training in skills, knowing that the person involved intends to use them in connection with acts of terrorism. A number of offences are created in relation to radioactive devices and materials. Preparatory hearings have become obligatory in cases involving a terrorism offence.



Racial hatred



The Racial and Religious Hatred Act 2006 has been enacted to create offences in relation to incitement to religious hatred. A new part 3A is introduced into the Public Order Act 1986. Religious hatred is widely defined as being hatred against a group of persons by reference to their religious belief or lack of religious belief (section 29A).



It is an offence to use threatening words or behaviour or to display material that is threatening if the defendant intends thereby to stir up religious hatred (section 29B). Abusive, insulting, or disorderly behaviour is not criminalised in this context, and there is a specific mental element required, namely an intention to stir up religious hatred.



Section 29J provides that nothing should be read or given effect in a way that prohibits or restricts discussion, criticism, or expression of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of their adherents, or proselytising or urging adherents of a different religion or belief system to cease practising that religion or belief system.



The Attorney-General's consent is required for proceedings under this part, and the maximum penalty is seven years.





DEFENCES



In R v Jones & Others (2006) 2 ALL ER 741, the House of Lords has significantly restricted the ambit of the defence provided by section 3 of the Criminal Law Act 1967, which allows a person to use reasonable force to prevent a crime from being committed. This has been of particular significance to those who committed acts with a view to preventing the continued maintenance of the war in Iraq, claiming that this is the international war crime of aggression.



The Lords has held that, in construing the section 3 defence, the word 'crime' must be restricted to offences that are crimes in English law. The international war crime of aggression did not fall into that category.



On occasions, when protesters trespass on land, they are prosecuted under section 68 of the Criminal Justice and Public Order Act 1994, as they commit an offence in these circumstances if they intend to stop persons carrying out a lawful activity. A lawful activity plainly does not include the commission of a crime. However, once again, the Lords defined a crime as meaning only a crime in English law, and therefore the war in Iraq did not avail these protesters as a defence to their aggravated trespass.



Self-defence



Clients who claim that they were so drunk that they do not remember what occurred often fail to understand the significance of what they are admitting. If they face allegations of crimes of general intent, such a comment is effectively a guilty plea. In a case where the allegation is murder (a crime of specific intent), the same danger arises when the client clearly intends to cause death or serious injury but believes he is acting in self-defence.



If it is only because of his self-induced intoxication that a defendant failed to appreciate the true nature of the attack he was under, the defence is no longer available to him and he effectively admits the crime of murder. A drunken mistake of fact is not a defence (see R v Hatton (2006) Crim LR 353). However, the mere fact that a defendant went somewhere to exact revenge would not, of itself, rule out the possibility of self-defence, although the defendant could not act in self-defence while acting as the aggressor (see R v Rashford (2006) Crim LR 547).



Reasonable chastisement



From 15 January 2005, a fundamental change in the law as to the defence of reasonable punishment was made by section 68 of the Children Act 2004. This provides that, in relation to any offence specified in the section, battery of a child cannot be justified on the ground that it constituted such punishment. The offences included are: offences under sections 18 or 20 of the Offences Against the Person Act 1861, an offence under section 47 of the Offences Against the Person Act, and an offence under section 1 of the Children and Young Persons Act 1933.



Therefore, the defence of reasonable chastisement remains a defence to common assault, and this will raise some difficult decisions for prosecutors as to how properly to charge particular acts. Representations will need to be made in accordance with published guidance when acts do not amount to actual bodily harm.



Horseplay



R v P (2005) 10 Archbold News 2 helpfully analyses the so-called defence of horseplay to an allegation of manslaughter. The true defence is that there is no unlawful act where the assailant might genuinely have believed that the person killed consented to what occurred.



Thus, there is a true defence in the situation where members of the armed forces all willingly take part in initiation ceremonies and one dies. However, in this case, the defendant took the victim onto a bridge over a river, knowing that the victim could not swim, and threw him into the river. The jury was perfectly entitled to come to the view that he could not have had a genuine belief that the other boy would have consented to such an act. There is no test of whether the act is truly criminal or not.





CRIMES OF VIOLENCE



Manslaughter



In R v Carey (2006) EWCA Crim 17, it was made clear that not every unlawful act that kills will lead to a conviction for manslaughter. Not only must the unlawful act be shown to have caused the death, but the act must itself be dangerous. Thus, an affray did not necessarily lead to a conviction for manslaughter.



In R v Yaqoob (2005) 9 Archbold News 2, the court considered the position in relation to gross negligence manslaughter. It held that the risk envisaged by the defendant who owed the duty of care must not just be that of bodily injury or injury to health but of death. A lesser anticipation would result in a conviction for manslaughter.



However, on the facts, the court had no difficulty in holding that Yaqoob must have had such an anticipation in mind. The test was whether the defendant had such a disregard for life and safety that a reasonably prudent person would have seen a serious and obvious risk, not merely of serious injury, but of death.



In R v James; R v Karimi (2006) 1 All ER 759, the Court of Appeal confirmed that the English courts should follow the decision of the Privy Council in Attorney General of Jersey v Holly (2005) UKPC 23, effectively overruling the Lords' decision in R vMorgan Smith (2000) UKHL 49. Thus, while the defendant must be subjectively provoked by the words or acts in question, the test as to whether the reaction amounted to the defence of provocation was an objective standard tested against the standards of a reasonable person sharing the age and sex of the defendant.



Actual bodily harm



In DPP v Michael Smith (2006) 2 ALL ER 16, it was argued that the cutting of a woman's hair without a consent could not constitute actual bodily harm because hair was dead tissue. The court held that bodily harm included any hurt or injury calculated to interfere with the health or comfort of the victim.



The cutting of someone's hair could be more than transient and there is no requirement for pain. The case was remitted to the magistrates' court to take evidence on the degree of upset caused.



Indecency



In R v Dooley (2006) Crim LR 544, the defendant was prosecuted for possession of indecent photographs of a child with a view to their being distributed or shown by himself to others under section 1(1) of the Protection of Children Act 1978.



The defendant was aware that, because of the way his computer was set up, others could gain access to the photographs that were stored on it. However, he gave evidence that that was not his intention and that was not one of the reasons that he remained in possession of the photographs. The court held that, in those circumstances, the awareness that the photographs were likely to be seen by others was not enough and he was entitled to be acquitted.



In R v Porter (2006) Crim LR 748 Crim 560, the defendant was prosecuted under the provisions of section 1(1)(a) of the Protection of Children Act 1978 and for possessing indecent photographs of children, contrary to section 160 (1) of the Criminal Justice Act 1988. Under section 160(1), it is an offence for a person to have any indecent photographs of a child in his possession. The issue arose whether the defendant was in fact in possession of the photographs when he was in possession of a hard drive on which the photographs remained, although he had deleted them from his system.



The court held that the issue is whether he remained in custody or control of the photographs and that would not necessarily apply to items deleted but remaining on the hard drive where he was not able to retrieve them. To make out the common law offence of outraging public decency, the relevant act had to be seen by more than one person; thus, the observation of the act the following day on a video film by an individual did not suffice (see Rose v DPP (2006), The Times, 12 April).



Public order



However insulting or unjustified a defendant's comments, a criminal prosecution should not be brought because of the right to freedom of expression, unless it could be established that such a prosecution was necessary to prevent public disorder. Thus, a notice placed in a temple calling a preacher a hypocrite was not sufficient to involve the criminal law (see Dehal v DPP (2005) 10 Archbold News 2).



On racially aggravated public order offences, the phrases 'immigrant' and 'foreigner' could both give rise to an allegation of racial aggravation. For the latter, the defendant must have formed the view that the victim was a member of a racial group that included a group defined by race, colour, and nationality, including citizenship or ethnic or national origin, and must have said something to demonstrate the hostility to the victim based on that fact. However, the court urged that prosecution should not be brought where vulgar abuse had included racial epithets. That did not indicate hostility to the race in question (see R v Rogers (2006) Crim LR 351).





Anthony Edwards, TV Edwards, London