Criminal law

Offences and defences
Corporate liability

Statements and documents created by the ‘directing mind’ of a company, such as emails and diaries, are admissible evidence against the company under the identification principle, whether or not the ‘directing mind’ is prosecuted. Hearsay issues do not arise (R v A Ltd, X, Y [2016] EWCA Crim 1469).

Perverting the course of justice

There may be an attempt to pervert the course of justice when one person carries out for another the requirements of a community order or suspended sentence. While those proceedings have concluded, the court may infer that there will be proceedings for breach of the order (DPP v SK [2016] EWHC 837 (Admin)).

Making an indecent photograph of a child

There were two types of mens rea required to prove an offence under section 1(1)(a) of the Protection of Children Act 1978. One was when making by downloading to a computer or telephone. The other was by photographing or filming the image. The former alone required proof of an awareness as to what was being downloaded (R v PW [2016] EWCA Crim 745).

Stalking: section 4A of the Protection from Harassment Act 1997

This stalking offence is made out if a person, whose course of conduct amounts to stalking, causes another to fear on at least two occasions that violence will be used with the necessary intent or awareness. This is wide enough to cover a person who is caused to fear on a particular occasion that violence will be used on an uncertain future date. This does not need to be a specific threat of violence, but the requirement is that they fear that violence will be (rather than may be) used (R v Qosja [2016] EWCA Crim 1543).

Duress

The law of duress was clarified in R v Brandford [2016] EWCA Crim 1794. The court confirmed that it does not matter whether a threat is directly or indirectly relayed, in this case by a man telling his girlfriend that he was at risk of serious harm if he did not provide drugs. The relevant issues are:

• the potency, immediacy and imminence of the threat;
• the possibility of taking evasive action;
• the question of whether the defendant reasonably believed the threat; and
• the response of a sober person of reasonable firmness sharing the defendant’s characteristics.

Mere pressure based on the exploitation of a relationship but without a relevant threat of death or serious injury of sufficient potency, will clearly not found duress. Contrast, a credible threat of death to a husband, conveyed also and directly to the wife. The husband then exploits his relationship with his wife to overcome her resistance to committing with him a serious crime to avoid the threat being carried out. Subject to the considerations above, the defence might exist.

Self-defence

The ‘householder’ version of self-defence (was the act grossly disproportionate?) applies to all lawful occupiers of a property and not just to the owner. A student, visiting as a guest of one occupier, pushing an unwelcome caller from the room she occupied, was entitled to take advantage of it (R v Day [2015] EWCA Crim 1646).

Forensic and expert evidence

Streamlined forensic reports (SFRs)

A article in Expert Witness Journal  – The forensic marketplace, by John Owen, ArroGen Forensics Ltd – cautions against the too ready acceptance of these cost-cutting reports. Vulnerable clients should not be pressured in to accepting the conclusions in these reports when they deny the relevant facts.

SFRs often do not provide any detail of how the findings have been arrived at or describe the conditions under which the tests were commissioned. A DNA match report could have been generated and reported automatically as part of an administrative process. Accredited procedures may not have been used. It may therefore not be easy for the defence to discover whether the evidence is robust.

Sentencing – guidance and guidelines

Drug driving

The Sentencing Council has issued guidance as it is not appropriate to carry over the guidelines for sentencing offences involving excess alcohol. The limits for illegal drugs are set in line with a zero-tolerance approach but ruling out accidental exposure. The limits for drugs that may be medically prescribed are set in line with a road safety risk-based approach, at levels above the normal concentrations found with therapeutic use. This is different from the approach taken when setting the limit for alcohol, where the limit was set at a level where the effect of the alcohol would be expected to have impaired a person’s driving ability.

Although the guidance does not carry the same authority as a sentencing guideline, and sentencers are not obliged to follow it, it is likely that most courts will tend to do so and practitioners will need to have copies of the full guidance available to them.

Issues of breach

Breach of community order

Courts should be wary of too strong a statement as to what would happen if a community order was breached. Putting an offender, subject to a community order, before the court for breach was an important tool available to the probation service to ensure that orders work effectively. Critical to the outcome however was whether there had been any reoffending; whether the risk had reduced; and whether the probation service felt the order could usefully continue (R v Aslam [2016] EWCA Crim 845).

Breach of Crown court suspended sentence

When summary-only offences were committed, in breach of a Crown court suspended sentence, and were committed to the Crown court, there was no restriction on the court’s powers to activate the sentence consecutively to the new sentence, which was limited to the magistrates’ court maximum (R v Hester-Wox [2016] EWCA Crim 1397).

Restraining orders

In R v Khellaf [2016] EWCA Crim 1297, the court held that four principles should be applied in deciding whether, and in what terms, to make a restraining order (given the frequency that these orders are made in domestic violence proceedings, considerable care should be taken over the final principle).

1. In normal circumstances the court should take account of the views of the person to be protected. Those views are not conclusive, though an order may be impractical if the complainant does not want one. Their view may be inferred.

2. An order should only be made where it is necessary to protect the person affected.

3. The terms of the order must be proportionate.

4. Care is needed when children are involved so that there can be proper contact between parent and child.

Legal aid costs

Litigators’ graduated fees: pages of prosecution evidence

Where it is ‘ambiguous’ whether the papers comprised in a disc sent by the Crown Prosecution Service are unused or prosecution evidence, there is no requirement for a formal notice of additional evidence. The court can find the material was ‘served prosecution documents’ if it played a material part in the prosecution’s case requiring analysis by the defence. This was telephone data going to the part played by each defendant and the degree of their involvement. It was the basis of the prosecution schedules. It was not unused or material of peripheral interest (R Dinu SCCO ref 146/16).

Anthony Edwards, TV Edwards