Police Officers on Juries

R. v. Alan I [2007] EWCA Crim 2999

In this case the CA appears to have gone further than the HL in R.v. Abdroikov [2007] 1 W.L.R. 2679 or the CA in R.v. Pintori [2007] EWCA Crim 1700 and held that since it is the appearance of bias rather than actual bias that is the proper test to apply that where a police officer juror, or indeed any other juror, personally knows police officers who are to give evidence he or she should be asked to stand down even if there is no obvious challenge to their evidence.

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Concerns of Jurors’ expressed after a verdict do not render a conviction unsafe

R v Moran [2007] EWCA Crim 2947

The appellant was found guilty of murder by a unanimous jury. During their deliberations, this jury had sent a note to the trial judge explaining that they were split on whether the defendant was guilty of murder or manslaughter. The judge explained the route that the jury should adopt in order to reach a lawful verdict without giving a majority direction. A unanimous verdict was subsequently delivered. Following the trial, two jurors wrote to the court explaining that they felt they had erred and had been pressured into agreeing to a guilty verdict. The appellant submitted that this suggested a miscarriage of justice. The Court held there was no evidence of any impropriety or undue influence; the jurors’ changes of heart were no basis to interfere with a conviction.

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Inferences from silence – Solicitor Advocates having acted at the Police Station

T v. D.P.P. [2007] EWHC 1793

The appellant , a 15 year old boy, was convicted of using violence to secure entry to premises, contrary to section 6 of the Criminal Law Act 1977. When he was interviewed he had a solicitor present. On the advice of his solicitor, the appellant, through the solicitor, had read into the interview record a pre prepared statement. Thereafter, the appellant declined to answer questions. The same solicitor then represented the appellant at his trial. At trial an issue under section 34 Criminal Justice and Public Order Act 1994 arose concerning inferences that could be drawn from the appellant’s decision not to answer questions in interview.
This case therefore serves as a reminder that solicitor advocates will have to give careful consideration as to whether they might be called to give evidence about what happened at the police station when considering whether they will be able to properly act for a defendant at trial.
Lord Justice Hughes stated that; “In every case solicitors have necessarily to judge for themselves, first of all, whether an issue under section 34 is likely to arise and, secondly, if it does, whether they are likely to have to become a witness of fact.

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Conviction in Absence of Defendant

R v. Amrouchi 2007 EWCA Crim 3019.

The appellant refused to come out of his cell and attend for court. There was some confusion as to whether the appellant knew that the case was listed for trial, but the Judge declined to adjourn for twenty-four hours and the appellant was convicted in absence. In allowing the appeal the court held: “Our universal experience is that in this kind of situation the proper course is to adjourn for twen-four hours and to ensure that an explicit warning is delivered to the defendant that his trial is going to take place without him if he is not there tomorrow morning. There are a number of ways in which that might be done. It does not require, necessarily, the hearing of the evidence of the Prison Officer who delivers the message. It does not require sending for the Prison Governor, which tends in any event to disrupt the administration of the prison. But the judge needs to satisfy himself that the explicit warning that he gives is delivered. We would suggest that most Crown Court judges would require written confirmation from the prison that the warning had been delivered and preferably in writing.

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Section 41(5) Youth Justice and Criminal Evidence Act 1999; Opportunities for the defendant to call evidence in rebuttal.

R v. Hamadi [2007] EWCA 2038

This is an interesting case on section 41(5) Youth Justice and Criminal Evidence Act 1999. It was accepted that the complainant's evidence that at the time in question she was faithful to her boyfriend and would not have sexual intercourse with anyone else amounted to evidence about her sexual behaviour. The question for the appeal was whether this was evidence adduced by the prosecution that fell within the remit of subsection (5).
It was submitted that any evidence given by a prosecution witness, whether in chief or in cross-examination, fell within the scope of the subsection. It was argued that it was necessary to construe the subsection in that way because it might adversely effect the fairness of the trial if a defendant were prevented from calling evidence to rebut an unexpected assertion made by a prosecution witness in cross-examination.
It was held that the expression "evidence adduced by the prosecution" naturally refers in this context to evidence placed before the jury by prosecution witnesses in the course of their evidence in chief and by other witnesses in the course of cross-examination by prosecuting counsel. It does not naturally extend to evidence obtained from prosecution witnesses by the defence in the course of cross-examination. We are unable to accept the submission that it extends to all evidence given by the prosecution witnesses, however it comes to be given.

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Sentencing Update

NEW SENTENCING GUIDELINES

A set of definitive sentencing guidelines for violent offences is now available. The guidelines will apply to adult offenders convicted of offences covered by the guidelines who fall to be sentenced on or after the 3rd March 2008.

The guidelines can be obtained from the Sentencing Guidelines Council website:
www.sentencing-guidelines.gov.uk and include two sets of text:

• Assaults and other offences against the person
• Assaults on children and cruelty to a child

INDETERMINATE SENTENCES

Secretary Of State For Justice v David Walker: Secretary Of State For Justice v Brett James [2008] EWCA Civ 30

Judgement given regarding the lawfulness of continued detention where there had been systematic failure to provide the means necessary for a prisoner to show that he was no longer dangerous.

It was held that the Secretary of State had acted unlawfully by failing to provide measures to allow and encourage IPP prisoners to demonstrate to the Parole Board that they were no longer dangerous, by the time of minimum term expiry.

However the Court of Appeal ruled that the continued detention of such prisoners was not unlawful even where there had been such failings. Detention will only cease to be justified under Art.5(1)(a) when the stage is reached that it is no longer necessary for the protection of the public or if such a long time elapsed without a meaningful review that their detention became disproportionate or arbitrary.

R v Pressdee [2007] EWCA Crim 1289

IPP was quashed where the period during which the serious specified offence was committed spanned dates before and after the provisions came in force. Section 229 of the CJA 2003 (relating to the determination of the date of commission) was held to apply only to the assessment of dangerousness.

MINIMUM TERM OF LIFE SENTENCE

R v Hogg [2007] EWCA Crim 1357

Only in a rare and exceptional case will it be appropriate not to impose a minimum term. The imposition of the life sentence is intended to protect the public from the offender; the minimum term specified under s82A PCC(S)A 2000 is meant to reflect the degree of punishment, retribution and deterrence appropriate for the offence.

BREACH OF NOTIFICATION REQUIREMENTS

R v Daly [2007] EWCA Crim 1293

Sentence reduced from 3 years to 18 months where the appellant had repeatedly failed to comply with the notification requirements. Had there been a deliberate intention to conceal his whereabouts from the authorities the higher sentence would have been appropriate.

CULTIVATION OF CANNABIS

R v Xiong Xu & Others [2007] EWCA Crim 3129

The Court of Appeal indicates the appropriate bracket to achieve consistency in sentencing those involved in commercial cultivation operations:

For organisers, who set up and controlled individual operations, the starting point should be six to seven years depending on the quantity of cannabis involved (before taking into account guilty pleas and personal mitigation). The starting point for managers would be between three and seven years, depending on the level of their involvement and the value of the cannabis being produced. More severe sentences might be appropriate for those who controlled a larger number or network of such operations.