By Anthony Edwards, TV Edwards, London


Power to the people

Every citizen enjoys the power and a duty to seek to prevent by arrest or lesser action any breach of the peace. However, this power only exists when the breach is imminent or is occurring in the presence of that person or is likely to be renewed.



For a police officer to be acting in the execution of his duty, in advance of any action, the risk must be one of imminence and not just of reasonable anticipation, see R v Laporte v Chief Constable of Gloucestershire [2007] Crim LR 577, applying Albert v Levin [1982] AC 546.



Officers have an implied power to use all lawful methods to enforce an express power given to them. Reasonable force could be used to execute a search warrant, even though the statute made no provision for such force to be available, see Connor v the Chief Constable of Merseyside (2006) The Times, 4 December.



Public order

Where an allegation is brought under the Public Order Act 1986 alleging distress, the word is linked to harassment and alarm. It requires emotional disturbance or upset. The degree does not have to be grave but must be something that amounts to real emotional disturbance, R (R) v DPP 170 JP 661. However, harassment, unlike distress, does not require emotional upset; the words 'fuck you' and 'fuck off' are potentially abusive. Whether they are abusive will depend on the context and circumstances. The harassment must be real as opposed to trivial.



Police officers are expected to be stoical. However, in this case an arrest was made impossible and, provided there is an awareness that the word would abuse the person at whom it was directed, the offence can be made out, Southward v DPP [2006] EWHC 3449 (Admin). A police cell is not a dwelling house within section 8 of the Public Order Act 1986 and so offences of public order could be committed in the police station, R v CF [2007] Crim LR 575.



The House of Lords has now confirmed that not being of British origin is to belong to a racial group; thus the phrase 'bloody foreigners' is capable of being racially aggravating, R v Rogers [2007] Crim LR 588.



Sexual offences

Self-induced intoxication does not provide a defence on the basis of lack of intent where the allegation is of sexual touching, contrary to section 3 of the Sexual Offences Act 2003. This is now held to be a crime of basic intent, R v Heard [2007] Crim LR 654. However, an accidental touching should still not be caught by the section, however drunk the defendant.



Dishonesty

A conditional discharge is not a conviction, and thus failure to disclose it could not give rise to an allegation of obtaining a job by deception (or now of making a false representation under the Fraud Act 2006), even when the Rehabilitation of Offenders Act 1974 does not apply. However, it does depend on the particular question asked, and a different result would have occurred had the employer asked whether the person had ever pleaded or been found guilty by a court, R v Patel [2007] Crim LR 476.



Money laundering

Once a defendant being prosecuted under section 329 of the Proceeds of Crime Act 2002 (being in possession of criminal property, knowing or suspecting that it is criminal property) raises the defence of having given adequate consideration for the monies paid, the burden of proof to disprove the adequacy of that consideration falls on the Crown to the full criminal standard, Hogan v DPP (2007) The Times, 21 February (although the matter is to be reviewed by the Lords).



In R v Gabriel [2006] Crim LR 852, the court held that the proceeds of a legitimate business could not become criminal property because of a later intention by the defendant not to pay tax on that income. However, the case was distinguished in

R v IK [2007] Crim LR 645, where the trading itself constituted the offence of cheating the Revenue. The whole business had been carefully set up to avoid disclosing the true tax liability of the company. On that basis, the entire income amounted to criminal property.



Procedure

The Criminal Procedure Rules 2005 continue to have a significant impact on the way in which criminal cases are conducted. Technical defences of all kinds are now unlikely to succeed. Thus in Malcolm v DPP [2007] EWHC 363 (Admin), the court even allowed, in the special circumstances, evidence to be called after the bench had retired to consider its verdict. The court indicated that there was a duty on the defence to identify all the issues in a case prior to the Crown closing its case. If the defence did not do so, the sanction would be that the Crown would be allowed to call further evidence now virtually without limit of time.



This is despite the absence of any statutory obligation under the Criminal Procedure and Investigations Act 1996 to identify a defence in the magistrates' court. A failure to obtain the Director of Public Prosecutions' consent to a prosecution for which it was required is no longer a fundamental failure but one that can be put right under the rules, applying the rule in R v Ashton [2006] EWCA Crim 794 (R v D (Mark Gordon) (Crown Court decision) [2007] Crim LR 239). Similarly, an error in the mode of trial procedure in the Crown Court following the termination of indictable-only proceedings did not, absent prejudice, invalidate the proceedings, R v Thwaites 150 SJ 1568.



The coming of simple speedy summary justice to all magistrates' courts will result in additional pressure on the defence to have everything ready for the first hearing, notwithstanding that the police may well have bailed a client back to the police station on several occasions while they put their case in order. It is critical that the defence does not allow standards of disclosure to slip to the disadvantage of its clients.



In S v DPP 170 JP 707, the Divisional Court held that an adjournment must be granted, however inconvenient and regrettable, where the interest of justice so require. This is notwithstanding that magistrates have a wide discretion in case management, and the need to have regard to the efficient dispatch of business. Here there had been a failure to disclose to the defence. The defence was not to be criticised when it had done everything that it could to assist the Crown, even being willing to accept disclosure on the day of trial.



In CPS v Picton 170 JP 567, the court identified the relevant issues in considering an application for an adjournment. They include:

l The need for expedition;

l The balance of the defendant's and the public interest;

l The extent to which the defence could fully present its case;

l The consequences of an adjournment to a much later date when memories are less fresh;

l The reason for the adjournment;

l If a party is at fault, militating against a grant; and

l Having regard to the history of the case, including earlier adjournments.