CASE UPDATES  

THE BURDEN OF PROOF IS ON THE PROSECUTION TO DISPROVE REASONABLE EXCUSE IN ASBO TRIALS

 R. v Charles (Chuks Emmanuel) [2009] EWCA Crim 1570; [2010] 1 Cr. App. R. 2; (2009) 173 J.P. 481; Times, August 25, 2009 

The appellant (C) successfully appealed against a conviction for breaching an antisocial behaviour order because at trial the judge held that for the purposes of s.1(10), the legal burden was on C to show that he had a reasonable excuse for his actions.  C had been made the subject of an ASBO which prohibited him from engaging in any behaviour which caused or was likely to cause harassment, alarm or distress to any person not of the same household as himself. He was later charged, under the Crime and Disorder Act 1998 s.1(10) , with breaching that order without reasonable excuse after he allegedly used a screwdriver to scratch a man's back.

 

Appeal allowed. Parliament had not specified the terms in which ASBOs were to be made where the breach of an ASBO was to be an offence under s.1(10). It was difficult to see how Parliament could have thought that there would therefore be the sufficient degree of specificity that was required to place a burden of proof on the defence.  The effect of s.1(10) would often be to make criminal actions that would not otherwise be criminal. Therefore, it could not have been intended by Parliament to place any burden of proof on C under s.1(10) which criminalised conduct that Parliament itself had not criminalised and had not prescribed the terms in which that could be done. If a defendant raised the issue of reasonable excuse, and adduced evidence in support, it was for the prosecution to show that a defendant acted without reasonable excuse.

  

PLEA TO INDICTMENT THAT HAD NEVER BEEN PROPERLY AMENDED IS A NULLITY

 R. v Leeks (David Edward) [2009] EWCA Crim 1612; [2010] 1 Cr. App. R. 5 

Abstract: The appellant (L) appealed against his conviction (after a guilty plea) for causing death by careless driving when unfit through drink, contrary to the Road Traffic Act 1988 s.3A(1)(a).  After the disposal of the case, court staff realised that the indictment had never properly been amended and drew the matter to the attention of the judge. L subsequently launched his appeal, arguing that the count to which he had pleaded guilty was invalid. L submitted that he had pleaded guilty to an indictment that never lawfully existed, and that the proceedings had to be treated as a nullity. The Crown submitted that by allowing the admission of the roadside breath test, the judge had either already made an order permitting the amendment or was proposing so to do, or that he was implicitly making such an order.

 

Appeal allowed. Amendment of an indictment was a serious matter and not a mere matter of formality, R. v Clarke (Ronald Augustus) [2008] UKHL 8, [2008] 1 W.L.R. 338 followed. L's plea and his subsequent conviction were founded on a nullity and had to be quashed. That left in place the original, valid, indictment upon which the prosecution might wish to proceed, with or without a further application for amendment.

  

AFFIRMATION OF LAW ON A SECOND RE-TRIAL

 R v Bell [2010] EWCA Crim 3 

This was an appeal against conviction for murder following jury disagreements at two earlier trials and the dismissal of an application that the third trial should be stayed as an abuse of process.

 

Appeal dismissed.  The jurisdiction which permits a second re-trial after two jury disagreements in circumstances like the present must be exercised with extreme caution. The broad public interest in the administration of criminal justice leads us to the clear view that a second re-trial should be confined to the very small number of cases in which the jury is being invited to address a crime of extreme gravity which has undoubtedly occurred (as here) and in which the evidence that the defendant committed the crime (again, as here), on any fair minded objective judgment remains very powerful.

 

Unlike the judge, who was making his decision in advance of the second re-trial, we have examined not only the basis of his decision (about which in our judgment there can be no criticism whatever) but also whether, in the result, the effect of his decision was to produce an unfair trial or, to use more familiar language, oppressive or unjust.  We can see none. The second re-trial was, of course, different in some respects from the first re-trial, and indeed the original trial. The Crown's case was better focussed, and there was less unnecessary reliance on expert evidence. But the more efficient presentation of the critical evidence did not deprive the defence of any evidence which it may have sought to obtain from the expert witnesses, and as we have said, we can see no criticism whatever on the grounds of unfairness or oppression in the expert witnesses called to give important evidence making further investigations into matter of apparent concern and interest to the defence.

           SENTENCING  

THEFT FROM THE PERSON: MEANING OF VULNERABLE VICTIM FOR THE PURPOSES OF THE SENTENCING GUIDELINE.

 R. v De Weever (Rawle) [2009] EWCA Crim 803; [2010] 1 Cr. App. R. (S.) 3 

The appellant (D), who had pleaded guilty to theft, appealed against his sentence of 18 months' imprisonment. D had stolen a purse from the shoulder bag of the victim (H) when she was on a train. The purse had contained a driving licence, an NHS identity card, a debit card, a credit card, a store card, correspondence, photographs and £20 in cash. None of the property was ever recovered. D initially denied the offence, but pleaded guilty after the Crown served CCTV evidence. He had 22 previous convictions for 41 offences, including attempted murder, offences of violence, robbery, theft from the person and attempted theft from the person. The recorder found that H was a vulnerable victim, within the meaning of the Sentencing Guidelines Council's guidelines, and took a starting point of 12 months' imprisonment. He added nine months for the aggravating features, such as D's criminal record and the inconvenience caused to H, but gave a 14 per cent discount for the late plea.

 

Appeal allowed. H was not a vulnerable victim for the purposes of the guideline. She was targeted because she was carrying a bag which enabled D to effect the theft without her realising in time, not because she was of an age or suffering from a disability that made her unlikely or unable to resist the theft. Therefore, the starting point should have been a medium-level community order with a range from a fine to 18 weeks in custody. However, there were a number of grave aggravating features which took the offence out of that lower bracket: the offence was planned and carried out in a highly professional manner; it involved pushing H, which was a use of force short of robbery; it involved a high level of inconvenience to H; D had previous convictions for theft and attempted theft from the person; and he had failed to respond to his most recent sentences. The appropriate sentence in the next bracket was 12 months' imprisonment, which would be reduced to 10 months to reflect his last-minute plea.

  

CRIMINAL CONDUCT NOT CHARGED CAN BE TAKEN INTO ACCOUNT IN SENTENCING WHERE IT HAS BEEN RELEVANT TO ANOTHER CHARGE AND SCRUTINISED AT TRIAL

 R. v Khan (Imran Mohammed) [2009] EWCA Crim 389; [2009] Crim. L.R. 744 

The appellant (K) appealed against a sentence imposed following his conviction of doing an act tending or intended to pervert the course of justice. Whilst being interviewed for the purpose of a pre-sentence report, K had offered the probation officer (P) a sum of money to give him a good report, showing her a carrier bag full of cash.  Although he was not charged in relation to alleged threats made on a later date, evidence concerning them was admitted as evidence rebutting his defence that his offer had been a joke. K argued that the judge had been wrong to treat the threats, which he had denied, as an aggravating feature in sentencing him.

 

Appeal dismissed in part. Where conduct capable of founding a criminal charge but denied by the defendant was relevant to another charge being considered by a jury and where such conduct had been the subject of specific scrutiny at trial, then unless reliance on that conduct was inconsistent with a verdict, a judge could take it into account in relation to sentence, provided he was satisfied that it had been established to his satisfaction to the criminal standard, R. v Davies (Tarian John) [1998] 1 Cr. App. R. (S.) 380 CA (Crim Div) and R. v Cooke (Paul Adam) (1987) 9 Cr. App. R. (S.) 116 CA (Crim Div) considered. There could be areas of uncertainty as to the applicability of that principle, such as where a person in a position of trust was convicted of sexual activity. The absence of consent, although irrelevant to guilt, would be a seriously aggravating feature in relation to sentence, but its treatment as such where consent had not been an issue specifically addressed at the trial might be thought to contravene the general principle that a defendant should not be punished for conduct with which he had not been charged and which he denied. In the instant case, the relevant aggravating feature was not only addressed but was a specific issue at trial, having regard to the nature of the defence. It was that fact which permitted the judge to take it into accoun