Bad character

R v Wallace [2007] EWCA Crim 1760

W was charged with several offences of robbery and attempted robbery. The evidence on some counts relied on circumstantial evidence relating to other counts in order to prove guilt. The issue arose as to whether the circumstantial evidence was bad character evidence.
It was held that the principle in paragraph 14 of R v Chopra [2007] 1 Cr App R 16 applied equally to circumstantial evidence:
“We agree that means that where a defendant is charged upon several counts, the evidence which goes to suggest that he committed count 2 is, so far as count 1 is concerned, bad character evidence within the Act. Accordingly, the evidence relating to count 2 can be admissible through one of the gateways in section 101. The same applies vice versa and however many counts there may be.”
The Crown therefore should have applied to admit the circumstantial evidence under s.101(1)(d) of the Criminal Justice Act 2003. The convictions were safe.

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R v Musone [2007] EWCA Crim 1237

Where a defendant sought to rely on evidence of a co-defendant’s bad character and it was ruled that the evidence was of substantial probative value and deemed admissible under s.101(1)(e) of the Criminal Justice Act 2003, a judge had no express power to exclude that evidence on the grounds of unfairness or by placing reliance on the co-defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights. However, where there had been a failure to comply with the requirements of Part 35 of the Criminal Procedure Rules 2005, the court could (in limited circumstances) exclude the evidence.

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Goodyear directions

R v Kulah [2007] EWCA Crim 1701

A sentencing judge was not bound to impose a sentence previously indicated to the defendant in accordance with the procedure established in R v Goodyear [2005] EWCA Crim 888. Such an indication was a maximum and the sentencing judge was bound not to impose a heavier sentence. It was for the sentencing judge to form his own view of whether the requirements of s.225(1)(b) of the Criminal Justice Act 2003 were satisfied.

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Sexual offences

R v Lamb [2007] EWCA Crim 1766

The appellant was convicted of sexual activity in breach of trust with two 17 year old girls whom he taught. The pupils had discussed the incidents at length and together decided to complain. The Court held:
“The judge’s failure to warn the jury about the danger of innocent contamination was a material misdirection, which went to the heart of this case. We do not suggest that the judge was wrong not to have stopped the case himself, something that was never suggested, but we do think that in the circumstances the jury’s verdicts are as a result of the judge’s misdirection themselves unsafe. In this connection, the manner in which the judge dealt with the question of similarity, although it would not in our view by itself have called the verdicts into question, did not assist. As R v Hanson [2005] EWCA Crim 824 and R v Chopra [2007] 1 Cr App R 16 have emphasised, sufficient similarity raising the issue of the likelihood or unlikelihood of innocent coincidence is a relevant and sometimes critical test. It is therefore necessary for the judge, if he outlines the similarities to the jury, to give a balanced and accurate account of them, so far as they evidence a propensity which makes it more likely that a defendant has committed an offence.
The appeal was allowed.

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Defence of insanity

R v Johnson [2007] EWCA Crim 1978

Although there was a persuasive argument for extending the scope of the defence of insanity to include acts that a defendant knew to be legally wrong but considered morally justified, the strict position remained as stated in R v Windle [1952] 2 Q.B. 826.
The court could only assess verdicts of not guilty by reason of insanity in light of the M'Naghten Rules. The issue was the meaning of "wrong" in the context of J's behaviour. There were only two cases that had touched upon the issue and both were decided in the context of a defendant knowing that his conduct was morally wrong, but not appreciating that it was against the law and was, therefore, the issue in the instant case reversed, Windle applied and R v Codere (1917) 12 Cr App R 21 considered. Although there had been a highly persuasive argument for extending the scope of the defence in the Australian High Court in Stapleton v R 86 CLR 358, it was unequivocally held in Windle that the meaning of "wrong" was that it was contrary to law and did not have a vague meaning that might vary according to the opinion of different persons whether a particular act might or might not be justified. Further, despite there being evidence that on some occasions the courts had been willing to adopt a more flexible approach to the issue, the strict position remained as stated in Windle.

Sentencing updates:

CAUSING DEATH BY DANGEROUS DRIVING

R v Murray [2007] EWCA Crim B8 (09 October 2007)

The appellant pleaded guilty to four counts of causing death by dangerous driving. He was sentenced to six years' imprisonment on each count to run concurrently. He appealed against that sentence by leave of the single judge. Held: Sentence of six years was excessive and reduced to four and a half years.

STREET ROBBERY

R v Hardware [2007] EWCA Crim B5 (04 October 2007)

The appellant was convicted after a trial of a street robbery. The level of criminality was judged by the Court of Appeal to be somewhere between Level 1 and Level 2. The Court of Appeal upheld the sentence of four years as being correct.

POSSESSION OF DRUGS

R v Vella [2007] EWCA Crim B2 (01 October 2007)

A sentence of 16 weeks imprisonment suspended for 18 months (comprising 8 weeks for possession of Class B, amphetamine and 16 weeks concurrent for Class A, ecstasy) was held to be manifestly excessive. The sentence of imprisonment was set aside leaving the community requirements of 150 hours of unpaid work and a six week curfew order.

RAPE OF A CHILD – CONSENT AS MITIGATION

Attorney General’s References (74 and 83 of 2007), The Times 16 November 2007

In relation to rape of a child under 13, actual consent may in some rare cases provide mitigation. When considering culpability, actual consent was capable of being a mitigating factor. Careful consideration had to be given in all cases, but particularly where there was a significant discrepancy in age, to the extent to which ostensible consent had been obtained opportunistically, or by means of coercion, which might be subtle, or exploitation, which would be particularly relevant in cases where there might have been an element of grooming. In those cases ostensible consent might well have little value as mitigation. In all cases the difference in age between the offender and the child would be of great significance.
As far as apparent age was concerned, the definitive guideline only referred to it as being capable of being a mitigating factor in the case of an offender under the age of 18, where such an offender reasonably believed the other person to be 16 or over.
However, that did not mean that a reasonable belief that the victim was 16 or over could not be a mitigating factor for a person over the age of 18 but the older the offender the less relevant a mistake as to age, even if reasonably held, would be.
Four years should be the minimum starting point with a sentencing range of three to seven years. Their Lordships did not wish, however, to exclude the possibility of a non-custodial sentence in exceptional circumstances. The general guidance given in R v Corran ( The Times March 8, 2005; [2005] 2 Cr App R (S) 453)) remained valuable.

DOWNLOADING IMAGES

R v Langham, CA, 14 November 2007

The downloading of images for “research” purposes, if that mitigation was believed, provided the offender with only minimal mitigation. That factor would not be sufficient in itself to warrant the finding of exceptional cases warranting a non-custodial sentence.

R v Breeze, 11 December 2007

The appellant, of good character, downloaded over 4,000 photos/pseudo photos of a child over a period just short of 3 years. The Crown proceeded by way of 20 specimen counts, 4 at level 5 and a small number at level 4. It was accepted that the offender fell at the extreme end of possession for purely personal use. 2 years imprisonment was reduced to 15 months.

MISSING TRADER FRAUD

R v Namer [2007] EWCA Crim 2749

N pleaded guilty to 3 charges of conspiracy to cheat (missing trader fraud). Loss to the revenue was over £2.5 million and the defendant enjoyed a substantial benefit from the crime. He appealed against a sentence of 6 years imprisonment. Held: The sentence was indeed severe but not one that the court was prepared to interfere with. Comment: The court helpfully considers and analyses a number of authorities and thereby provides a helpful summary for such cases.