While an offence of possessing an offensive weapon does not occur if a person is lawfully in possession of an article when it is suddenly used in the heat of an altercation, R v Tucker [2016] EWCA Crim 13 confirms that it is otherwise if a person leaves the scene to collect a weapon.

A belt buckle that comprises a knuckleduster but has additional items to secure the belt closed, is not necessarily offensive per se. Rather, the court must make findings of fact whether the buckle had been made (as a knuckleduster) for the purpose of causing injury, and had then been adapted by the belt manufacturer, or whether it had in fact been manufactured as a buckle for a belt as a fashion item (R v Christof 2015 EWHC 4096 (Admin))

In R v Henderson [2016] EWCA Crim 965, it was held that no offence under section 139 of the Criminal Justice Act 1988 was committed when the knife was in a car in a public place but the defendant was in a private flat. In determining whether a person has a weapon ‘with him’ in a public place, the court should ‘bear in mind’:

(a)    that ‘possession’ of an article is a wider concept than that of a person ‘having an article with him’, but that in turn is broader than ‘carrying’ an article;

(b)    the propinquity between the person and the weapon;

(c)    whether the weapon was immediately available to the person;

(d)    the accessibility of the weapon;

(e)    the context of any criminal enterprise embarked upon; and

(f)    the purpose of the legislation.

In this case there was no evidence that the defendant had shortly left or was shortly to return to the car. There was no evidence that the knife in the car was linked in any way to his presence in the flat on that day or at all. There was no close geographical, temporal or purposive link between the knife, which was in a public place, and the appellant, who was in a private flat; the knife was not ‘immediately available’.

Sentencing

Sexual offences

R v GB [2015] EWCA Crim 1501 considered the position that when a sexual offence is committed at the time the defendant is a youth, the current sexual offences guideline should not be used. Rather the old guideline from 2007 should be used. For youths this is more concerned with welfare and rehabilitation.

Youth sentencing

In B v Leeds Crown Court and CPS [2016] EWHC 1230 (Admin) it was held that where an adult magistrates’ court would on the facts be limited to a six-month sentence (there being only one either-way offence that would have been dealt with summarily) it was unlawful to impose a greater sentence on a youth. This was because of the provisions in the overriding guideline that a youth should be dealt with less severely than an adult.

Newton hearings

In KK v DPP [2016] EWHC 1976 (Admin) the court confirmed  that  in magistrates’ and youth courts it was not proper for the trial of one defendant and a Newton hearing in relation to the other to take place at the same time. It meant that the inadmissible evidence of the defendant who had pleaded guilty was used at the trial of the co-defendant. In this case a Newton hearing was ordered in front of a different district judge but the court appears to have ignored the possibility that the same district judge could have dealt consecutively with both matters.

Disqualification

In R v Needham and others [2016] EWCA Crim 455 the court gave assistance in dealing with sections 35A and 35B of the Road Traffic Offenders Act 1988 which provide for the disqualification period for those receiving sentences of immediate custody. The aim of these provisions is that the effective disqualification should be served while at liberty. The court recommended the following steps:

Step 1 – does the court intend to impose a disqualification under sections 34 or 35 for any offence? If YES – go to step 2.

Step 2 – does the court intend to impose a custodial term for that same offence? If YES – section 35A applies and the court must impose an extension period for that same offence and consider step 3.

Effect (subject to step 3): Discretionary period + extension period = total period of disqualification.

If NO – section 35A does not apply at all – go on to consider section 35B and step 4.

Step 3 – does the court intend to impose a custodial term for another offence (which is longer or consecutive) or is the defendant already serving a custodial sentence?

If YES – then consider what increase (‘uplift’) in the period of ‘discretionary disqualification’ is required to comply with section 35B(2) and (3).

In accordance with section 35B(4) ignore any custodial term imposed for an offence involving disqualification under section 35A.

Effect: discretionary period + extension period + uplift = total period of disqualification.

If NO – no need to consider section 35B at all.

Effect: discretionary period + extension period = total period of disqualification.

Step 4 – does the court intend to impose a custodial term for another offence or is the defendant already serving a custodial sentence?

If YES – then consider what increase (‘uplift’) in the period of ‘discretionary disqualification’ is required to comply with section 35B(2) and (3).

Effect: discretionary period + uplift = total period of disqualification.

Interim disqualifications should be avoided where there is a custodial remand. Time on remand does not count towards a disqualification. If the total becomes disproportionate the ‘discretionary’ term can be reduced (but not below a minimum term). At present the global term is used to calculate the date on which an application can be made for the return of a licence.

Costs

There are increasing numbers of appointments to cross-examine  under section 38 of the Youth Justice and Criminal Evidence Act 1999. There was concern that the costs involved, paid from central funds at private client rates, would be reduced by a change in part 23(4) of the Criminal  Procedure Rules 2015, which provides that:

(4) Where an advocate is appointed by the court –

    (b) the appointment terminates at the conclusion of the cross-examination of the witness.

However, In Abbas v CPS [2015] EWHC 579 (Admin), the court held that to allow for effective cross- examination there was a need for a pre-trial conference and also for presence at pre-trial applications such as over bad character or disclosure. Thus firms could be paid for all preparation and preparatory meetings. Under the amended rule payment is possible until the conclusion of cross-examination.

In R v Andrews [2016] 4 Costs LO 705 the costs judge held that cross-examination of a witness continues until such time as any such witness might be recalled, noting that trials involving defendants who self-represent tend to be chaotic. Thus attendance until at least after the completion of the defendant’s evidence seems to be authorised.

In a separate decision of a costs judge, an important point of principle has been established in relation to electronic page count where a firm of solicitors provides both the litigator and advocate. R v Lennon SCCO 186/15 held that in this situation, where a case goes to trial, there is no requirement to prove the number of hours that each worked but rather the graduated fees should be based on the same page count.

Each lawyer has a separate professional duty. An in-house advocate cannot be distinguished from independent counsel. Other cases holding otherwise could be distinguished as having a guilty plea entered or the same person acting as advocate and litigator.

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