By Anthony Edwards, TV Edwards, London


Criminal investigations



Legislative changes

Once implemented, the Police and Justice Act 2006 will:

l Allow bail to be granted from the moment of arrest. There will be a right of appeal to the court against the conditions imposed but breach, though justifying an arrest, is not itself a criminal offence.

l With effect from 15 January 2007, allow detention under section 37 of the Police and Criminal Evidence Act 1984, while the Crown Prosecution Service considers whether, and if so which, charges should be preferred.

l Allow conditional cautions to be used as punishment to impose 'prosecutional fines' of up to a quarter of the statutory maximum for the offence or £500, whichever is the lesser



Cautions

The House of Lords in Jones v Whalley [2007] Crim LR 74 considered the extent to which it was an abuse of process to prosecute someone for an act for which he had already accepted a caution. The Law Lords held that such an abuse of process would exist if the caution had explicitly been accepted so as to avoid prosecution. It was not prepared, on the arguments placed before it, to consider whether an abuse would arise in every case where a caution had been accepted.



This decision will place an obligation on solicitors, when advising clients about cautions, to ensure that they accept this expressly as an alternative to prosecution, to protect their future position.



TICs

Much misleading information is given by police officers to suspects about matters taken into consideration (TICs). The decision in R v Miles (2006) The Times, 10 April, is particularly helpful in that it makes clear that sentencing will reflect the defendant's overall criminality.



TICs have a relevance to that. While the court will have regard to the fact that there has been assistance to the police, the overall effect will depend on the particular circumstances, and the TICs may well aggravate the sentence where they show planning or offences committed on bail.



Privilege

The giving of any reason for a decision to make no comment, whether by the solicitor or client, will potentially waive privilege in the meeting at which such advice was given.



In R v Loizou (2006) 150 SJ 1187, the court held that there had been such a waiver where the defendant indicated that her lawyer had advised her to make no comment because he could find no reason why there had actually been an arrest. However, once there had been a waiver of privilege, the court held that the extent to which the defence could be required to disclose further details of the legal advice would be a question of fairness.



The crucial question was whether there would be a misleading impression created by the partial disclosure. If a prepared statement is used at the police station, its production at court does not waive privilege in the consultation at which it was drafted, as it will have been produced to rebut an allegation of recent fabrication (see R v Wishart [2005] EWCA Crim 1337). The leading authority on issues of privilege at the investigation stage remains R v Bowden [1999] 2 Cr App R 176.



Bad character

Any attempt by the police to question a suspect about previous convictions or conduct should, at the police station stage, be avoided unless the police are able to prove the specific factual background that has such an impact that a failure to deal with it could lead to serious inferences from silence. It will be rare that such a comment is required. In normal circumstances, it is wholly inappropriate for the defence to assist the Crown to prove, by admission, the facts of old convictions.



The Court of Appeal in R v Ainscough [2006] Crim LR 635 (upholding R v Humphris [2006] EWCA Crim 2030) has held that this detail could not be proved from the criminal record and the evidence would have to be called afresh. The practical difficulties in doing so are obvious.



However, suspects must always be careful that they do not unnecessarily put their own character in issue, so that it might be used at trial. In R v Ullah [2006] EWCA Crim 2003, the appeal court held that by claiming never to have acted dishonestly in a prepared statement, a client with a conviction for dishonesty gave a false impression and opened gateway (f) to character. In this case, it appears that the defence did not make the Crown aware that it had resiled from that impression and thus withdrawn it as it is entitled to under section 105(3) of the Criminal Justice Act 2003.



Controlling the prosecution

In two recent cases, attempts have been made to stay proceedings on the basis of abuse or unfairness.



In R v G [2006] Crim LR 930, a 15-year-old boy was prosecuted for the strict liability offence of rape of a girl who was in fact younger than 13 &150; although he was led to believe she was 15 &150; and consented. It was argued that it was a breach of article 6 of the European Convention on Human Rights (ECHR) to proceed in so unfair an allegation. The court held that article 6 provides for procedural fairness and could not be used to challenge the statute, however disproportionate its provisions might be regarded.



However, the appeal court made interesting comments that a prosecution in these circumstances may infringe the boy's right to a private life under article 8 of the convention. This would suggest that a judicial review of the Crown's decision to prosecute or refusal to review that decision might be a better way forward. But it will be a difficult course to follow where it is not apparent &150; until the trial itself is under way &150; that the boy was immature and misled, and that the intercourse was consensual. The case is now subject to an appeal to the House of Lords.



In R v Levey (2006) The Times, 24 August, the court held that a criminal trial could not be stayed merely because, in linked Family Division proceedings, the High Court judge had been unable to be satisfied that one parent rather than the other was the cause of the injuries that killed a child of the family.



However, an issue again arises as to whether a better approach might not have been to review the decision of the prosecution to proceed in face of such a finding in linked proceedings, although the particular circumstances would be affected by the coming into force of section 5 of the Domestic Violence Crime and Victims Act 2004.



Young offenders

The Crime & Disorder Act 1998 laid down clear rules, so as to avoid the continuous 'cautioning' of young people. Once a youth had been reprimanded, a further reprimand could not be imposed. Once a youth had been warned, a reprimand was no longer available, and no further warning could be given unless two years have elapsed.



A charge would have to be brought. However, this procedure may be burdensome in the case of minor offending, and if a fixed penalty notice can be used, the difficulties are avoided.



Terrorism

On 25 July 2006, code H of the codes made under the Police and Criminal Evidence Act 1984 came into force to provide a comprehensive guide to conduct in relation to those arrested under the terrorist legislation. Reference to terrorism has been removed from code C.



Anniversary

The anniversary of one of the critical dates for the implementation of the Criminal Justice Act 2003 falls on 5 April. It is always essential that solicitors identify whether a crime &150; whether on initial sentence or on sentence for breach of a penalty earlier imposed &150; was committed before 5 April 2005 or on or after that date.



It has a significant impact on the following matters: the form of any community order; the powers available to the court on breach of such an order; the ability to impose a suspended prison sentence otherwise than in exceptional circumstances (with the need to add a requirement to the order); and the length of the licence period following release from prison. Only for offences on or after 5 April 2005 does the licence period last for the full term of the sentence (see R (Stellato) v Secretary of State (2006) The Times, 6 December (CA)).



In addition, section 116 of the Powers of Criminal Courts (Sentencing) Act 2000 ceases to have effect. For crimes prior to 5 April 2005, this had allowed the court to re-impose any period of custody remaining outstanding at the date the new crime was committed by a defendant on licence, with any new penalty being added consecutively. For crimes on or after 5 April 2005, it is not possible for the court to re-impose the old sentence as that is merely a matter for recall and then the Parole Board. Furthermore, under the provisions of section 265 of the Criminal Justice Act 2003, the court may not impose any new sentence consecutively to the period of recall.



In addition, R v Drewett [2006] Crim LR 770 makes clear that a commensurate sentence could not be increased merely because the sentence would run concurrently to the recall period.



Bail

Important amendments to the Bail Act 1976 are made by the Criminal Justice Act 2003, but only in relation to a limited number of serious offences committed on or after 1 January 2007.



The new provisions apply only to offences carrying life imprisonment. In relation to all other offences, the existing law continues in its present form. The changes are made by sections 14 and 15 of the 2003 Act.



For offences carrying life imprisonment, where it appears that defendants are 18 years or older, then:

l If they committed the offence while on bail, they will not be granted bail unless the court is satisfied there is no significant risk of their committing a further offence while on bail;

l If defendants have failed to appear in those proceedings, then they may not be granted bail unless the court is satisfied that there is no significant risk that they would again fail to appear.



Less severe amendments are made in relation to defendants younger than 18 years. In deciding whether such defendants would commit an offence on bail, the court is required to give particular weight to the fact that they were on bail at the time of the offence; in deciding whether such defendants will fail to surrender, the court is required to consider the fact that a defendant has failed to appear in the past.



Throughout, failing to appear includes failing to appear as soon as is reasonably practicable, if there was a reasonable cause for the original failure.



Custody time-limits

Section 25 of the Criminal Justice & Public Order Act 1994 was considered by the House of Lords in R (Owen) v Harrow Crown Court [2006] 3 All ER 1157.



This requires that if defendants have already been convicted of homicide or rape, and are again charged with any such offences, they shall be refused bail unless there are exceptional circumstances. The Law Lords held that the existence of exceptional circumstances would allow for a situation where detention might otherwise be in breach of article 5 of the ECHR. It held that the meaning of the section was to require a court to exercise caution when dealing with such a person.



The court gave particular consideration to the position in a section 25 case where a custody time-limit would otherwise have expired and the total length of detention was excessive within the meaning of article 5. At that point, the section could be read down to allow bail to be granted.



In R (Thomas) v Central Criminal Court [2006] Crim LR 1061, the court considered the relevant issues when the Crown was making a further application to extend a time-limit that had already been extended. It held that the court could have regard only to matters relevant to the particular extension sought. It did not consider to be relevant matters raised on earlier applications.



However, a defendant might rely on delay prior to a grant of earlier extensions if such delay was the root cause of the need for the further extension.



The court has again emphasised that routine listing problems involving a routine case cannot amount to a good and sufficient cause for extending the custody time limit (see R (M) v Snaresbrook CC [2006] EWHC 2873 (Admin).