Evidence

Miller v DPP 2018 EWHC 262 (Admin) emphasises the importance of appropriate adults at the police station in relation to those with mental health disabilities and provides a welcome example of s78 Police and Criminal Evidence Act 1984 (PACE) being used to exclude all evidence obtained in breach of the relevant provisions of the PACE Codes. In relation to an allegation of failing to provide a specimen, where a man was seriously disturbed so that a test for the proportion of alcohol in his body could not be carried out, and for whom appropriate adults had been called on other occasions because he had learning difficulties and was autistic, it was wrong not to do so again. In the absence of an appropriate adult the evidence of the drug-drive procedure should have been excluded under s78 PACE 84 and the defendant acquitted. He case differed from one where a positive test had been given and it was then sought to exclude the result. A specimen might have been provided had an appropriate adult been present with the necessary communication skills. It is thought that the outcome might have been different if the police had attempted to find an appropriate adult but the delay in their attendance had become too great.

The case also dealt with an important procedural point, where a court had given a binding ruling on the law under s8A Magistrates Courts Act 1980, but the trial had been concluded much later. The 21 days for the application to the court to state a case ran from the date of conviction and not the earlier hearing.

Concerns about disclosure of items that may reasonably assist the defence are now widespread. The content of Facebook accounts can be particularly important and may not be accessible by the defence. This issue was explored in K v R [2017] EWCA Crim 2214 where an appeal very substantially out of time was allowed. The appellant appealed his conviction for raping A. The prosecution had produced evidence of his Facebook messages with A. A had accepted that these conversations were edited, as she had deleted some of the messages. The appeal was allowed because fresh evidence in the form of the full record of the Facebook messages had only become available after the trial when the appellant had become aware of, and sought assistance to locate, a message archive on his Facebook account. The selective excerpts of the messages which were available at trial had given the jury a misleading impression of the appellant’s interactions with A.

In R v R Ahmed 2017 EWCA Crim 1515, the court held that the judge had been wrong to hold that bad character material could not be admitted about a person who was not a witness in the case. It provided a possible motive for the complainant, that person’s sister, to lie about her sexual allegations.  

Sentencing – burglary

The identification of a dwelling house burglary is of great significance because of the minimum sentence that is required for a third such offence, unless it would be unjust in all the circumstances. In Hudson v CPS 2017 EWHC 841 (Admin) the court held that this is essentially a matter of fact and degree. The term does not require that the building be occupied on the date of the entry if it is still furnished and ready for use as a home, even if owned on a buy-to-let basis. However, a different conclusion might be reached if there had been no letting for a substantial time.

It is now very unclear whether the communal area of a block of flats is to be regarded as a dwelling house. It certainly is less serious than an entry to a residential area and could make a minimum term unjust. The court thought it was not a dwelling in R v Ogungbile 2017 EWCA 1826. This means that solicitors will need to check criminal records carefully with their clients to ensure that a burglary has not been incorrectly recorded. An offence that may appear to be indictable only may, in fact, remain an either-way offence.

Sentencing guidelines

For terrorist offences sentenced on or after 27 April a new guideline is in force. The additional guidance on ancillary powers is particularly helpful, For cases sentenced on or after 1 June the guideline on offensive weapons and bladed articles will apply. It is in three parts. It deals with possession offences in Part 1. Part 2 deals with threats with such items and Part 3 contains a self-contained code for sentencing children and young people. A second such offence carries an obligatory minimum sentence, unless it would be unjust in all the circumstances. The guidelines contain specific guidance on when such circumstances, as to the offence or the offender, may arise.

Confiscation

In R (Gibson) v Secretary of State for Justice 2018 UKSC 2 the Supreme Court considered the default term for non-payment, when interest had accrued to the original amount of the order. The correct starting point for the giving of proportionate credit for part payment is the sum stated in the Crown court order and not that figure with accumulated interest. The liability for the interest remains but cannot be enforced by a default term.

In R v Mills [2018] EWCA Crim 944, while strongly disapproving of the judge’s reasoning, the Court of Appeal held that it does not have jurisdiction to amend the default term of 18 months imposed because that term and the confiscation order itself, as to which there is right of appeal, are separate from each other. S31 Proceeds of Crime Act 2002 was enacted with knowledge of earlier decisions to that effect.

The court should not have issued a warrant of commitment in the case of (R (Sanghera) v Birmingham MC 2017 EWHC 3323 (Admin). The enforcement provisions of the Magistrates Courts Act 1980 applied and there had been no finding of culpable neglect or wilful refusal; other methods of enforcement had not been considered. The realisation of the assets behind the confiscation order could often not be achieved within the extended three months period and was known to be a long process.

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