Criminal law


Sentencing



Undue leniency

On 16 May 2006, the Criminal Justice Act 1988 (Reviews of Sentencing) Order 2006 (SI 2006 No1116) came into force. It lists all the offences for which the Attorney-General has power to seek a reference as to whether a sentence imposed in the Crown Court is unduly lenient.



The list is of particular significance in situations where solicitors seek a Goodyear indication as to the sentence that a judge would impose if the client were immediately to enter a guilty plea. Goodyear held that such indications are not binding on the Attorney-General; solicitors will therefore wish to be very careful in cases subject to this order before advising the client to enter a guilty plea when they initially maintain their innocence. The offences now covered include:



Any indictable-only offence;

Cruelty to a child;

Threats to kill;

Indecent assault*;

Any case transferred under section 4 of the Criminal Justice Act 1987 or voluntary bill preferred following dismissal under section 6 of that Act;

The importation of drugs or indecent obscene material;

The production and/or supply of drugs;

Unlawful sexual intercourse with girl under 16*;

Incitement of girl under 16 to have incestuous sexual intercourse*;

Indecency with a child under 16*;

Racially or religiously aggravated assaults;

Racially or religiously aggravated criminal damage;

Racially or religiously aggravated harassment;

Sections: 3 (sexual assault); 4 (causing a person to engage in sexual activity without consent); 7 (sexual assault of a child under 13); 8 (causing or inciting a child under 13 to engage in sexual activity); 9 (sexual activity with a child); 10 (causing or inciting a child to engage in sexual activity); 11 (engaging in sexual activity in the presence of a child); 12 (causing a child to watch a sexual act); 14 (arranging or facilitating commission of a child sex offence); 15 (meeting a child following sexual grooming, etc); 25 (sexual activity with a child family member); 47 (paying for sexual services of a child); 48 (causing or inciting child prostitution or pornography); 49 (controlling a child prostitute or a child involved in pornography); 50 (arranging or facilitating child prostitution or pornography); 52 (causing or inciting prostitution for gain); 57 to 59 (trafficking for sexual exploitation); 61 (administering a substance with intent); and an offence of attempting to commit, or inciting the commission of, any of those offences.

*Offences now replaced for offences on or after 1 May 2004 by the Sexual Offences Act 2003





Drug offences

Relevant provisions of the Drugs Act 2005 were brought into force on 1 January 2006. These provide that it is an aggravating circumstance if drugs are supplied near a school while it is being used as such, or if a courier younger than 18 years is used to supply the drugs. Solicitors will need to take specific instructions on these issues in every case involving drug supply.



In R v Woods and Collins (2005) Crim LR 982, the court emphasised that a drug treatment and testing order (now a community order with a requirement for drug treatment) remains an appropriate disposal even for a prolific offender, provided there was a likelihood they would engage successfully with the treatment. The court retained intensive control and, in the event of a breach, a significant prison sentence would result.



The case of Afonso (2005) Crim LR 72 continues to receive attention in the courts. In R v Evans (2005) 149 SJ 1222, the court emphasised that the tariff of 24-30 months in Afonso for drug supply by a street-level dealer, supplying to feed his own habit, was only appropriate where there were no previous convictions. While for those with minor convictions, including custody, the tariff is within the range of 24-30 months, for those with more serious convictions 36-60 months were imposed.



However, in R v Wade (2005) 2 Cr App R (s) 434, it was held that even for cases not meeting the Afonso criteria, the fact that the defendant was a user and indebted for his own drugs and did not own the drugs supplied enabled the sentence to be reduced from six to three years. He was primarily a user rather than a commercial dealer.





Obligatory sentences

Absent exceptional circumstances, minimum sentences have to be imposed for firearms offences falling within section 51A of the Firearms Act 1968. If the defendant is 16 or 17 years old, the minimum is three years' detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. If the defendant is 18 years or older, the minimum is five years' imprisonment.



However, the draftsman appears to have been unaware that the provisions allowing a defendant of 18 but younger than 21 to be imprisoned have not been brought into force. The only available order is detention in a young offenders institution.



The problem was considered in R v Campbell (2006) Crim LR 654. The court held that, because imprisonment could not be imposed, there was no minimum sentence prescribed and the court should impose the appropriate sentence - in this case of four years' detention.



In R v Rehman and R v Wood (2005) The Times, 27 September, the court held that the circumstances are exceptional if the imposition of five years' imprisonment would result in an arbitrary and disproportionate sentence when looking at all the circumstances. The fact that an offender was unfit to serve a five-year sentence and that he or she was of advanced years may be relevant.





Anti-social behaviour orders

In R v Wadmore and Foreman (2006) EWCA Crim 686, the Court of Appeal consolidated its guidance on making anti-social behaviour orders.



Its terms must be precise and capable of being understood by the offender. The conditions must be enforceable so that a breach can be readily identified and capable of being proved. There should be no generic prohibitions. Each separate part of the order must be necessary to protect persons from anti-social behaviour by the offender. Each order must therefore be specifically fashioned to the defendant.



Not all conditions need to run for the order's full term, although at least one part must last for two years. It must be proportionate in all the circumstances.





Sentencing compendium

The Sentencing Guidelines Council has now published the second update to its sentencing compendium (visit: www.sentencing-guidelines.gov.uk).





Evidence



Bad character

The courts continue to give guidance on the changes to the law on bad character introduced by the Criminal Justice Act 2003.

However, in R v Manister (see R v Weir (2006) Crim LR 433; 435), the court held that if the defendant's behaviour does not fall within the new statutory definition of 'misconduct', in that it is neither a crime nor reprehensible behaviour, common law rules as to admissibility remain relevant.



In this case, a 34-year-old man had shown a persistent interest in 16-year-old girls. On two previous occasions, he had been involved in either a relationship or sexually suggestive conversations with girls of that age. This conduct was neither a crime nor, the Court of Appeal held, reprehensible behaviour. However, given that he faced allegations of indecent assault involving a girl of that age, the evidence was admissible as more probative than prejudicial at common law.



If either party wishes to introduce evidence as to the bad character of a witness who is not the defendant, leave must be obtained under section 100 of the Criminal Justice Act. In R v Yaxley-Lennon (see R v Weir), it was accepted that a witness could be cross-examined as to their character if it went to the issue of their credibility.



Where it is alleged that a witness has been guilty of reprehensible behaviour, their character may be introduced if it has substantial probative value to a matter in issue in a trial. However, in R v He (see R v Weir), it was held that neither being involved in an attack on oneself, nor then refusing to make a statement to the police, nor being arrested, without any further evidence being produced by the Crown to justify that arrest, could amount to reprehensible behaviour. Thus the common law and not the statute applied but did not allow the evidence in the particular case.



In dealing with gateway (d), the introduction of evidence of a propensity to commit crime, the court in R v Hanson, Gilmore &Pickstone (2005) Crim LR 787 identified three possible ways in which the Crown could begin to justify an application to admit the defendant's character under section 101 of the 2003 Act.



The first route is by showing that the allegation now made is in the same category as a previous conviction. However, these categories are limited to the offences actually listed in them (both under the Theft Act category and the category of sexual offences against those younger than 16). Additional offences could not be added if they were not in the lists, although other routes to admissibility could be examined (R v Weir).



The second route is if the allegation now contained in the indictment is of the same description as that set out on the occasion of an earlier conviction. This will be a narrow group.



However, the third route is where the facts of a previous offence bear such a relevance to the allegations now being made that they should be admitted.



In R v Samanathan (see R v Weir), the court confirmed that this is not to be interpreted as a reintroduction of the similar fact rules. Issues of fairness could be dealt with by the discretion to exclude under section 101(3). Rape in this case was entirely denied, as was any impropriety. Therefore, it was relevant to an important matter in issue, namely the credibility of the defendant and of the complainant, for the Crown to show that the behaviour exhibited a pattern and that the defendant was untruthful on other issues.



However, in R v Nguyen (2005) EWCA Crim 1985, the court held that previous convictions for shoplifting, caused by the need to feed a drugs habit, were not sufficiently relevant to an allegation of the cultivation of cannabis. That the defendant had previously used heroin was not more likely to mean that he was able to identify the cannabis as an unlawful drug. But evidence of the use on a number of occasions of a knife during crime was relevant to an allegation of stabbing where the defence was mistaken identification (see R v Brima (2006) EWCA Crim 408).



The position of defendants under section 101 as to the admissibility of previous 'bad' behaviour is very different to that of other witnesses. The Crown may, if it meets the admissibility criteria set out in Hanson, introduce the fact that a defendant had previously been arrested, even if subsequently acquitted or the allegation is stayed for abuse, or otherwise not pursued (R v DavidSmith (2006) The Times, 2 January, applying the principles in R v Z (2002) AC 483 (HL)). Conduct leading to a caution may be reprehensible behaviour (see R v S (2006) EWCA Crim 756).





Procedure rules

In R (Robinson) v Sutton Coldfield Magistrates Court (2006) Crim LR 742, the court emphasised, as it had in R v Bovell &Dowds (2005) Crim LR 790, that all parties should comply with the rules as to the service of character notices. However, there was a discretion available and regard should be had to the overriding objective in the rules. Exceptional circumstances were not required to extend a time limit. Careful consideration must be given to whether the defence suffered any prejudice.



In the absence of admissions, which the defendant should be slow to make, the Crown must prove the facts behind relevant convictions and the detail cannot be obtained from the criminal records office. The court should avoid numerous satellite issues (see R v Ainscough (2006) Crim LR 635, confirming R v Humphries (2006) EWCA Crim 2030).





Hearsay

In R v Singh (2006) Crim LR 647, the court accepted that the Criminal Justice Act 2003 provided that an implied assertion of fact was not now subject to the hearsay rules at all in proving a 'matter stated' unless the person making the statement intended someone to rely on it. Thus evidence from police officers that they had received telephone calls to the same number asking for drugs to be supplied could be introduced for a jury and the jury might, if it chose, infer from such assertions that the person telephoned was indeed a supplier of drugs.



In R v Singh, an allegation was being made of joint enterprise crime and the defendants had, in the memories of their mobile telephones, a record of the mobile telephone numbers of the others. The court could infer that they must, in those circumstances, be known well to each other. The court held that the evidence could also be admitted at common law under the joint enterprise rule and in the interests of justice under section 114 of the 2003 Act.



In R v Xhabri (2006) 1 All ER 776, the court held that section 114 is not incompatible with the need for a fair trial. The hearsay was evidence of recent complaints and the complainant was available for cross-examination. If there was unfairness, the hearsay evidence could be excluded either under section 126 of the Act (putting a wide interpretation on that section) or under section 78 of the Police and Criminal Evidence Act 1984.





Identification

In West Yorkshire Probation Board v Boulter (2005) EWHC 2342 (Admin), the Divisional Court held that it was a matter of fact and degree whether the name and date of birth in the memorandum of conviction was prima facie evidence that the conviction related to a particular defendant.



Identical conclusions were reached in R v Burns (2006) CRIM LR 832 and R v Pattinson (2006)168 JP 51.