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Summer 2011

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IN THIS ISSUE HEARSAY EVIDENCE ANONYMOUS WITNESS

David Ormerod analyses the Court of Appeal decision in R. v Ford on whether a judge had erred in admitting anonymous hearsay evidence in criminal proceedings

THE THIRD TIER

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A CHANGE OF PACE

How Wilkinson’s new 25th edition differs from all the rest

His Honour Ian McLean revisits the Auld report and its implementation Joanne Clough, Solicitor and Senior Lecturer in Law at Northumbria Law School, writes about the changes to the PACE Codes of Practice.

Criminal Law Week’s fresh new approach to CPD

Patricia Lynch’s review of the 4th edition of Rook & Ward on Sexual Offences

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KEEP UP WITH THE PACE OF CHANGE MISUSE OF DRUGS AND DRUG TRAFFICKING OFFENCES

By Rudi Fortson QC From the production, supply, possession and use, as well as the importation and exportation of controlled drugs, to the rules of evidence and police powers, Misuse of Drugs and Drug Trafficking Offences provides clear explanation of the concepts and principles of law on drugs.

The new edition is jam-packed with anything and everything you can think of relating to the law of drug offences, from all the most recent legislative developments and case law, to updated sentencing powers and sentencing decisions, ensuring it’s the most informative and helpful textbook you’ll lay your hands on this year.

Here is just a snippet of the great new content for the 6th edition.

• Current and prospective law in relation to ‘Legal Highs’ • Impact of the ‘bad character’ and hearsay provisions of the Criminal Justice Act 2003 on drug prosecutions • The inchoate offences of “encouraging” and “assisting” an offence • Impact of the Medicines Act 1968 • Discussion of the changes of policy and strategy in relation to drugs

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WELCOME… …to the first issue of Criminal Law Today from Sweet & Maxwell.

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Focussing on criminal law and practice in the UK today, this new magazine brings you articles from leading practitioners in the field, as well as the latest news from us.

In this issue, His Honour Ian McLean revisits the Auld report, written in 2001 by Sir Robin Auld, and how the recommendations put forward in it have been implemented. Joanne Clough takes us through the changes to the PACE Codes of Practice, and David Ormerod analyses the Court of Appeal decision in R. v Ford on whether a judge had erred in admitting anonymous hearsay evidence in criminal proceedings.

We focus on the new 25th edition of Wilkinson’s Road Traffic Offences, due to publish in September, and take a look at the free Archbold e-update service, giving those of you not registered for the service a little glimpse of what you’re missing.

There’s also a review by Patricia Lynch QC of the new 4th edition of Rook & Ward on Sexual Offences which published in December.

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CONTENTS 5. Latest News

I hope you enjoy the issue.

6. Article: Hearsay evidence anonymous witness by David Ormerod

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Previously published by Shaw’s, the Directory of Courts provides the definitive source of information on HM Courts Service and related offices. Supplying accurate, up-to-date details of contact names, telephone and fax numbers, addresses, document exchange numbers, court codes and normal times and sittings of courts, it’s the essential reference guide for all legal service shelves.

The new edition publishes in August and reflects changes to the structure of Her Majesty’s Courts and Tribunals Service as well as details of actual and planned court closures.

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CRIMINAL LAW WEEK MAKES FULFILLING YOUR CPD EASIER WITH IMMEDIATE PASS OR FAIL RESULT AND NEW ONLINE FEATURE! If you are a Criminal Law Week convert, you might have noticed a brand new section on the website called My CPD, under the CPD tab. This is a new feature that will make completing your CPD papers easier. It enables you to keep track of your points easier, by recording which papers you have answered, the number of points attained so far and the schedule for the remaining papers.

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See page 18 for more on Criminal Law Week.

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Case Comment

REUTERS/Mick Tsikas

hearsay evidence anonymous witness

By David Ormerod

The appellant was charged at a retrial of three offences of making a threat to kill (counts 1-3), two of possessing a firearm with intent to endanger life (counts 4 and 8), one of possessing a prohibited firearm (count 6), one of possessing ammunition without a firearms certificate (count 7), three of doing acts tending and intended to pervert the course of public justice (counts 10, 11 and 12), one of conspiracy to possess a firearm with intent to endanger life (count 13), and one of conspiracy to pervert the course of public justice (count 14).

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The appellant had been charged in connection with counts 1-4, 6-8, and 10-12 and had been remanded in custody on February 5, 2007.

On September 12, 2007, while the appellant was still in custody, there was a shooting. When the police arrived at the scene an unknown female handed one of the officers a piece of paper bearing a vehicle registration number, T921 RJK, and a note which said that the woman had “heard gun shots and saw them getting into this car but I don’t want to get involved”. Six days after the shooting, police came upon a car with the registration plate T921 RJK. The four male occupants were apprehended. Telephone evidence

showed that they had been in contact with each other at various times and that their mobile phones had been in the vicinity of the shooting. The appellant had made contact with two of them, on September 6, 2007 and on September 13, 2007. The Crown’s case was that the appellant was the controlling mind behind the shooting and that formed the basis of counts 13 and 14. At the retrial the judge let in the anonymous hearsay evidence of the woman who had produced the car registration number and the note.

By s.114(1) of the Criminal Justice Act 2003 hearsay evidence was admissible in criminal proceedings if, but only if, any one or more of four conditions listed at s.114(1)(a)-(d) applied. The

At a glance Legislation: Criminal Justice Act 2003 s.114 (1) Criminal Evidence (Witness Anonymity) Act 2008 Cases: R. v Mayers (Jordan) [2008] EWCA Crim 2989; [2009] 1 W.L.R. 1915 (CA (Crim Div)) R. v Horncastle (Michael Christopher) [2009] UKSC 14 (SC) R. v Ford (Kamahl) [2010] EWCA Crim 2250 (CA (Crim Div))

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Case Comment

Tsikas

There is no such explicit restriction in other sections, and it is easy to see how such evidence might be almost routinely admitted under some of them.

Crown relied on s.114(1)(d): “the court is satisfied that it is in the interests of justice for it to be admissible”. The appellant was convicted. He appealed against conviction, on the ground that that evidence, being anonymous hearsay evidence, should have been excluded. He relied on Mayers [2008] EWCA Crim 2989; [2009] 1 W.L.R. 1915, and Horncastle in the Court of Appeal [2009] EWCA Crim 964; [2009] 2 Cr. App. R. 15, but particularly in the Supreme Court [2009] UKSC 14; [2010] 2 A.C. 373.

Held, on the face of it the cases relied on by the appellant appeared to demonstrate that it was inescapable that anonymous hearsay evidence could not be admitted under the present statutory regime. Hearsay evidence was of course admissible under the 2003 Act, but if anonymous evidence, whether hearsay or not, was to be admitted that could only be done by reference to the provisions of the Criminal Evidence (Witness Anonymity) Act 2008. Quite plainly the statement of the unknown woman giving the car registration number was or would be anonymous hearsay evidence. The argument that, in a case where the statement was made not by a known witness whose identity was sought to be withheld but by a person whose identity was not known at all, the 2008 Act was simply not in the picture, could not prevail. The Court of Appeal in Mayers said: “No surviving common law power to

CRIMINAL LAW TODAY • ISSUE 1

allow for witness anonymity survives the 2008 Act. The 2008 Act addresses and allows for the anonymity of witnesses who testify in court. This jurisdiction is governed by statute, and any steps to extend it must be taken by Parliament.” ([2008] EWCA Crim 2989 at [113])

have set aside the obvious force of the many matters relied on by the Crown on those earlier counts. Accordingly, the appeal was allowed only to the extent that the convictions on the last two counts, 13 and 14, were quashed.

The reality was then that a statement which was sought to be adduced in evidence in circumstances where the anonymity of its maker was sought to be preserved could only be so adduced if it fell within any of the provisions of the 2008 Act which permitted that to be done. The statement of the unknown lady in the present case did not fall within any such provision and it had not been contended that it did. In those circumstances it was inescapable that the evidence was not admissible, and the judge should not have let it in. It was clear that the convictions on the last two counts could not stand. Those were the counts of conspiracy and they related only to the shooting on September 12 to which the anonymous witness’s evidence was directly related. However, the convictions on the remaining counts were safe. First, it was clear that there was extremely powerful evidence to support each and every one of those counts. Secondly, if one asked, so to speak, the notional question, what would have been the jury’s thought process if they were going to acquit on those counts, not having heard the evidence of the anonymous witness, it was very difficult to see how they could

J.C. Dawes appeared for the Crown.

F. Dunkley (Solicitor Advocate) appeared for the appellant.

Report by Kate O’Hanlon, Barrister

Commentary This is not the first time the Court of Appeal has held that, as a result of the witness anonymity provisions in the Criminal Evidence (Witness Anonymity) Act 2008, as now replaced by the Coroners and Justice Act 2009, no anonymous hearsay is to be admitted under the Criminal Justice Act 2003. See also Fox [2010] EWCA Crim 1280 where F was convicted of robbing M of cash. A bystander who witnessed the incident made a twominute 999 call reporting the actions, gave his name and address, but insisted on remaining anonymous. This interpretation poses several problems in practical terms. Was it necessary for the court to take this interpretation?

The 2003 Act. Examining the terms of the 2003 Act alone, there is no express exclusion of hearsay from anonymous sources provided the terms of the particular hearsay exception are satisfied. Some of the exceptions exhaustively listed in s.114 clearly do not allow for anonymous hearsay:

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Case Comment

s.116(1)(b) explicitly requires that the identity of the person who made the statement is known. There is no such explicit restriction in other sections, and it is easy to see how such evidence might be almost routinely admitted under some of them. For example, there is no explicit requirement imposing any such restriction in s.114(1)(c). If the parties choose to admit anonymous hearsay why should that not be permitted? Under s.118, various common law exceptions are retained.

Some of those should permit anonymous hearsay to be admitted. Similarly, under s.114(1)(d), there is no explicit prohibition on the admissibility of anonymous hearsay. The factors to which the judge is to have regard are those contained in s.114(2) and include s.114(2)(e)--that the court considers the reliability of the maker.

It is submitted that the judge “can have regard to” that factor without having to be satisfied of the identity of the maker.

Moreover, it is clear that it was intended that anonymous hearsay ought to be capable of being admitted under the s.114(1)(d) exception. The Law Commission certainly envisaged that eventuality, even on the narrower form of the inclusionary discretion it proposed, “… the declarant need not have been competent at the time the statement was made. The declarant need not even be identified.” (Law Commission, Evidence in Criminal Proceedings: Hearsay and Related Topics (1997) Report No.245, para. 8.143) Given the breadth of the exception, and the many integral safeguards, it is submitted that in principle the section ought to be capable of being applied to admit reliable anonymous hearsay evidence. In this case the evidence of the person who handed over the note was, as the court observed, “untainted”.

It “cannot have been motivated by any animus against the applicant” because it related to a car in which he was not present and which, and with which, at that time it was not known, that he had any association. There were many other indicia of reliability--it was in writing and it was handed directly to the officer shortly after the incident. The officer would have been permitted to testify as to the apparent sobriety and physical state of the witness.

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Similarly, under s.117 relating to business documents there is no requirement that the person who supplied the information is identified. It is not clear whether an argument was made to adduce the evidence under s.117 in the present case.

There was a document, it was received in the course of a trade and created with a view to a criminal investigation, so ordinarily the supplier (anonymous reporter) would have to give evidence unless the supplier is unavailable for one of the reasons specified in s.117(4).

The supplier of the information is in fact unavailable for one of those reasons since he cannot be found (s.116(2)(d)).

If the manner in which *Crim. L.R. 478 the anonymous report was supplied demonstrates that the reporter was likely to be a competent witness, the evidence is admissible subject to the discretion to exclude under s.117(6) and (7).

The 2008/2009 Acts. As is well known, the Criminal Evidence (Witness Anonymity) Act 2008 was hastily implemented to meet the problems created by the House of Lords decision in Davis [2008] UKHL 36; [2008] 1 A.C. 1128. That Act was replaced with only minor amendment in the Coroners and Justice Act 2009. See D. Ormerod, A.L.-T. Choo and R.L. Easter, “The ‘Witness Anonymity’ and ‘Investigative Anonymity’ Provisions” [2010] Crim. L.R. 368. The provisions of the 2009 Act follow those of the 2008 Act so closely that the case law under the 2008 Act may be regarded as binding under the 2009 Act. The interrelationship of the Acts. In Mayers [2008] EWCA Crim 2989; [2009] 1 W.L.R. 1915 Lord Judge C.J. rejected the “ingenious” prosecution argument that anonymous hearsay could be adduced if the witness was in fear (2003 Act s.116(2) (e)) and the court was satisfied of the need for an anonymity order (2008/2009 Act). His Lordship stated, “… we are being invited to re-write the 2008 Act by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury.

We cannot do so. Neither the common law, nor the 2003 Act, nor the 2008 Act, permits it. The 2003 Act contains its own express limits on the circumstances in which a witness statement may be read.

No surviving common law power to allow for witness anonymity survives the 2008

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Case Comment

Lord Judge’s statements in the Supreme Court are, admittedly, broader and suggest a complete prohibition on anonymous hearsay in all cases Act. The 2008 Act addresses and allows for the anonymity of witnesses who testify in court.” ([2008] EWCA Crim 2989 at [113]) In Horncastle [2009] UKSC 14; [2010] 2 A.C. 373, Lord Judge reiterated his view (Annex 4, at [13]).

The present court rejects an argument that the reasoning in Mayers, and that of Lord Judge in Horncastle, is limited to cases where the statement is made by a known witness whose identity is sought to be withheld.

Arguments against that interpretation could be made as follows. On a narrow argument, the 2009 Act could be read in such a way as not to impose a complete prohibition on hearsay evidence under the 2003 Act. The 2009 Act regulates the circumstances in which the court can make protective orders for “a witness in relation to criminal proceedings”. However, by s.97 of the 2009 Act “‘witness’, in relation to any criminal proceedings, means any person called, or proposed to be called, to give evidence at the trial or hearing in question” (the same definition applied under s.12 of the 2008 Act). There is no application for a witness anonymity order in a case where the witness is unidentified and her statement is to be read as hearsay. Since the person in a case such as the present one (and Fox ) is not “someone it is proposed to call”, the 2009 Act could be argued not to apply.

More broadly, it could be argued that if Parliament had intended to prevent the use of anonymous hearsay in the 2003 Act that would have been specifically provided for in that Act. It has not. Nor has it been specifically provided for in any subsequent Act (including the 2008 and 2009 Acts). As the Lord Chief Justice acknowledged in Mayers, the 2008 and 2009 Acts are entirely silent, “… about the use of anonymous hearsay evidence, or evidence made in the form of a statement by an unidentified and unidentifiable witness which is simply read to the jury as part of the evidence.

This procedure is not authorised by any express statutory provision.” ([2008] EWCA Crim 2989 at [104]) Since the Acts are silent, it would be possible to interpret them so as to admit anonymous hearsay under the 2003 Act. This would not involve a

CRIMINAL LAW TODAY • ISSUE 1

conflict with the 2008 and 2009 Acts which do not relate to anonymous hearsay but the anonymity of non-hearsay witnesses. The purpose of the 2008/2009 Acts was to provide protection to witnesses whose identity would otherwise be known. A witness whose identity is never known needs no such protection and therefore lies outside the scope of the 2008/2009 Acts. The regulation of the admissibility of the evidence of such a person is governed by the 2003 Act. That Act permits anonymous hearsay to be admitted.

The statement to the contrary in Mayers --that the common law and 2003 Act do not permit anonymous hearsay to be read at trial--may, it is respectfully submitted, be overbroad. As set out above, there are numerous exceptions under which such hearsay evidence can be admitted.

Lord Judge’s statements in the Supreme Court are, admittedly, broader and suggest a complete prohibition on anonymous hearsay in all cases.

That judgment was dealing with the question of sole or decisive evidence and was designed to demonstrate the strength of the safeguards in English law and their compatibility with art.6 of the ECHR. It has been argued before (see [2010] Crim. L.R. 496) that it creates difficulties with the ECHR case law and that some of the statements regarding the 2003 Act were overbroad.

What next?

Any retreat from the current position of a complete prohibition will have to come from the Supreme Court or Parliament. If the argument above is adopted, a distinction would need to be drawn between (a) cases in which a witness is called and seeks to give hearsay evidence when testifying subject to an anonymity order (prohibited), and (b) evidence given at trial by a witness not subject to an anonymity order, who under a recognised exception in the 2003 Act reports hearsay evidence from an anonymous source whom it was never proposed to call because she could not be identified.

The Supreme Court would need to address the important differences of principle between these categories. One practical difficulty would be that the protections of the 2009 Act could be circumvented by a witness refusing to identify himself from the outset so that his statement could be read. That would not be the end of the

matter. According to the House of Lords in Davis [2008] UKHL 36; [2008] 1 A.C. 1128 different considerations will apply if the evidence of the anonymous absent witness is sole or decisive; according to the Supreme Court in Horncastle no different considerations apply ([2009] UKSC 14 at [50] per Lord Phillips). We await a decision from Strasbourg in Al-Khawaja and Tahery v UK to provide an answer.

Frightened witnesses Finally, the court in the present case offers (at [25]) the following important statement regarding the practical consequences of adducing evidence of frightened witnesses: “Where application is made in evidence to adduce a statement because its author has been frightened or intimidated so that he is unwilling to give oral evidence, and that has been done by or on behalf of the defendant in the case, the defendant in opposing the statement’s admission should not generally be allowed to rely on weaknesses or inconsistencies in the statement to show that it would be unfair to admit the statement. To accede to arguments of that kind would allow the defendant the benefit of his own wrongdoing or that of his associates in having intimidated the witness. It is his fault, not the witness’s, that the weaknesses in the statement cannot be explored in cross-examination. Such weaknesses accordingly cannot be said to give rise to a want of fair procedures for the purposes of Article 6 of the European Convention on Human Rights.”

Reproduced from Criminal Law Review 2011, published by Sweet & Maxwell.

Criminal Law Review is available in full-text on Westlaw UK. Visit westlaw.co.uk for a free trial Professor David Ormerod was appointed Law Commissioner with effect from 1 September 2010. He is Professor of Criminal Justice at the School of Law Queen Mary University of London and a practising barrister and Bencher at Middle Temple. Nothing in this comment reflects the views of the Law Commission.

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FEATURE

WILKINSON’S ROAD TRAFFIC OFFENCES WELCOMES IT’S 25TH EDITION

Now in it’s 25th edition, Wilkinson’s Road Traffic Offences remains the definitive authority on road traffic offences in England and Wales.

Providing an unbeatable combination of in-depth analysis with a user-friendly format, Wilkinson’s covers every facet of road traffic law you are likely to encounter, whatever the situation.

It provides for practitioners the security that comes with the knowledge that they always have the latest and most accurate version of the law, legal principles and procedure relating to traffic offences, to hand.

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As usual, the new edition of Wilkinson’s will show both what the law is and how to proceed with prosecuting or defending a case, setting out the basic principles and clarifying key terms. Covering specific offences chapter-by-chapter, it ensures the relevant information is easy to find, and guides you through every aspect of a case in chronological order through to sentencing and appeals, and sets out the implications of legislative and case law developments.

Whether it’s a standard driving offence, or a trickier one-off case, Wilkinson’s can help. It goes through typical and unusual situations and provides advice on the law relating to them. In addition, it provides easy access to core statutory and related primary materials, with annotation to clarify complex areas, and gives full consideration of the Sentencing Guidelines Council’s revised Magistrates’ Court Sentencing Guidelines as regards each road traffic offence.

WHAT’S NEW? The new 25th edition updates the 24th edition which published 2 years ago with analysis of recent developments in evidence and procedure. There is in-depth commentary on ther latest drink/driving decisions, and authoritative consideration of the effect of sentencing guidelines on cases of causing death by dangerous and careless driving.

CRIMINAL LAW TODAY • ISSUE 1

FEATURE

25th edition special!

REUTERS/Jason Lee

What’s more, you can expect a raft of new case law on key aspects of road traffic law including:

• R. (on the application of Herron) v Parking Adjudicator (2010) (obstruction and parking)

• R. v Oughton (2010) (motor manslaughter)

• Harris v Registrar of Approved Driving Instructors (2010) (registered driving instructor; fit and proper person)

• R. v Holman (2010) (careless and inconsiderate driving) • R. v Hall (2010) (death by careless cycling) • R. v Martin (2010) (death by dangerous driving: aiding and abetting) • R. v Girdler (2009) (causing death by dangerous driving) • Jones v DPP (2011) (speed limits on restricted roads) • Connell v Crown Prosecution Service (2011) (speed limits; evidence and corroboration)

• Vehicle and Operator Services Agency v Clayton (2010) (goods vehicles operators’ licences: exemptions); • Smit Reizen BV v Minister van Verkeeren Waterstaat (2010) (definition of operating centre) • R. v Jamalov (2010) (fraud: false driving licence) • Warring Davies v DPP (2009) (special reasons)

There’s also note of relevant statutory instruments including changes to law as regards construction and use; lighting of vehicles; type approval; driving tests and licences; keeping a vehicle not meeting insurance requirements; carriage of dangerous goods; immobilisation and removal of unfit or overloaded vehicles; detention of goods vehicles and public service vehicles and fixed penalty offences Latest statutory developments in the UK and in Europe are covered, including the Coroners and Justice Act 2009, the Driving Instruction (Suspension and Exemption) Powers Act 2009, Equality Act 2010 (disabled passengers), new EU Regulations on access to the international road haulage market and the international carriage of passengers by coach and bus, as well as full updating in Noter-up to Volume 2.

Visit: sweetandmaxwell.co.uk/wilkinson CRIMINAL LAW TODAY • ISSUE 1

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REUTERS/Michaela Rehle

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Case Comment

AULD REVISITED: “THE THIRD TIER”

By His Honour Ian McLean REUTERS/Rafael Marchante

Introduction At the end of 1999, Sir Robin Auld, then a judge of the Court of Appeal, was asked to take, in his own words, “ a “radical and long-term look at the working of the whole of the criminal courts system and to make broad recommendations, where necessary, for their improvement”. He reported in October 2001.

His Report contained some 328 recommendations, some of which have been implemented, some not.

Perhaps the most radical and exciting recommendation was for the replacement of our fractured criminal court system, divided as it is into separate and distinct systems, by a single criminal court with, so far as practicable, common practices and procedure and a common administration. He considered the existing differences in practice, procedures, and management and their respective administrative cultures to be inefficient and harmfully divisive.

In their place he recommended the establishment of a single, unified Criminal Court, accommodating all levels of jurisdiction and supported by a single and nationally funded administrative structure. The establishment of such a court would bring some feeling of unity of function and purpose between judges in the Crown Court and magistrates, and encourage and facilitate more

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consistency in their respective approaches to trial and sentencing (para. 7.9 of the Report). At the same time the existing large and widely perceived gap between lay magistrates and the Crown Court would be removed by bringing all members of the judiciary, whether lay or professional, within the responsibility of the local Resident Judge and the judicial hierarchy of which he is part.

(7.10).

The unified criminal court Auld envisaged his unified court consisting of three levels of jurisdiction: (1) The Crown Court as we know it, as the “Crown Division” exercising jurisdiction over all indictable-only matters, together with such ‘either-way’ cases as were allocated to it;

he existing magistrates’ courts, (2) T as a “Magistrates1 Division” with jurisdiction over all summary-only matters and such keither-way’ cases as were allocated to it; and a novel (3) “ Third tier” which he called the “District Division “ with jurisdiction over such ‘either-way’ matters as were allocated to it.

The Crown and Magistrates’ Divisions would be constituted as are the Crown Court and magistrates’ courts respectively today. The “third tier” would consist of a judge and at least two experienced magistrates. A defendant might, with the consent of the court opt for trial by judge alone.

The jurisdiction of this third tier over *either-way’ offences would be limited to those within a likely maximum sentence in the circumstances of

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Case Comment

the case viewed at its worst (as distinct from the legal maximum for a case or cases of that category) of, say, two years custody, a maximum financial penalty to be determined and/or a maximum of community, or combination of custody and community, sentences to be determined in the light of any future reforms of the sentencing framework.

This division, sitting as a youth court, would also try grave cases against young defendants presently dealt with in the Crown Court.

One argument against the creation of such a unified court, made mostly by lay magistrates, was that it would be a ‘judge dominated’ system and would “thereby remove appropriate tensions between the professional and lay judiciary at their different levels, particularly when one heard appeals from the other”. Auld argued that different jurisdictional levels, including a route of appeal within the same court structure were common-place in various of our jurisdictions. and there was no reason why lay magistrates, any more than judges, should be insulated from the oversight and guidance of judiciary at the next level up (7.15).

Too rigid boundaries There remains today, despite many attempts made to “tinker” with it, a rigid line between summary trial and trial at the Crown Court. This is particularly so in the case of that broad swathe of “eitherway” offences. Their seriousness may vary considerably according to their nature and circumstance. Many such cases now dealt with in Crown Court, are neither sufficiently serious nor difficult to warrant the use of what is a relatively slow, cumbersome and very expensive process. From contemporary statistics examined in the Review there was a readily discernible tendency in the Crown Court to give much the same sentence that magistrates could have done, or at least not to give a significantly heavier sentence below a threshold of about 12 months. In those cases remaining in the magistrates’ courts, some might be essentially ‘jury’ issues where a panel of magistrates might be thought by some to be more appropriate.

Some might be legally or factually complex where a District Judge would often be the preferred tribunal. Some might fall into both categories where a mix of judge and magistrates would be ideal. (7.16-18).

For many cases around the borderline, Auld considered that a mixed tribunal would be a more appropriate and acceptable forum than consigning them to one or other of the existing two very different forms of proceeding (7.20). In his view

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there should be a third tier for the middlerange of cases that do not warrant the cumbersome and expensive fact-finding exercise of trial by judge and jury, but which are sufficiently serious or difficult, or their outcome is of such consequence to the public or defendant, to merit a combination of professional and lay judges, working together in a simpler way. He saw the introduction of this intermediate tier not so much as a re-drawing of a line, but of spanning two systems of trial with one that drew on the strengths of both and allocated cases between all three according to the individual circumstances of the offence and offender.

Cases eligible for such a jurisdiction might be those where, in the opinion of the court, the defendant could face a sentence of imprisonment of up to, say, two years or a substantial financial or other punishment of an amount or severity to be determined.

(7.26). A District Judge would determine disputed issues of venue subject to an appeal, thus providing an objective way to matching cases to the appropriate tribunal.

Arguments in favour of the “mixed” tribunal ‘Mixed’ tribunals are not as novel or radical as at first appears While commonplace in many civil law jurisdictions they are less so in common law jurisdictions, where the trend has increasingly been to rely on professional judges. There are, however, comparisons close at hand. District Judges already sit with lay magistrates in the youth courts, the Crown Court , in its appellate jurisdiction, consists of a judge and two or more magistrates, and. courts-martial under the Services Acts are mixed tribunals, at least in so far as the Army and the Air Force are concerned.

Auld considered that mixed tribunals combine the advantages of the legal knowledge and experience of the professional judge, with community representation in the form of lay, or at least non-professional members, These skills could be put to good use as part of a tribunal of fact in cases of medium seriousness. (7.23)..

Arguments against There were those who claimed that such a system would not work because the presiding judge would tend to dominate the magistrates sitting with him. But there is little evidence that such complaints are made of the existing system. Magistrates sitting on appeals and in the youth court can and often do out-vote the judge.

Of course, much depends on the

CRIMINAL LAW TODAY • ISSUE 1

Case Comment

Many such cases now dealt with in Crown Court, are neither sufficiently serious nor difficult to warrant the use of what is a relatively slow, cumbersome and very expensive process. personality of the judge and the experience and calibre of the magistrates. I confess it was not always so. I can recall a Chairman of London Sessions who, on appeal days, retired from the court with the magistrates, whom he left sitting in the corridor while he went to his room, and, so it was said, had a quick gin and placed a bet over the phone with his bookie. On his return, he collected the magistrates from their bench in the corridor, remarking casually, “Then we’re all agreed, appeal dismissed?”.

But those days are long gone, and one of his successors was noted for the care and courtesy with which he treated the magistrates.

Magistrates are, nowadays, much better trained and less likely to be brow-beaten. Their introduction to structured decision-making as part of the move to reasoned decisions has strengthened their competence and their confidence in this respect. (7.24). Nor is the problem entirely one sided. I recall sitting in a train listening to two indiscreet magistrates recalling their day on appeals. “The old judge wanted to send him to prison” said one “but we’d have none of that” added the other. “He wanted to disqualify him too” said the first, “but we scotched that” said the second. It is, of course, a valid argument that it might be difficult to find sufficient magistrates to sit in such courts, because few would be willing to commit themselves to trials lasting for several days. Auld did not see this as an insuperable problem. He pointed out that there are many magistrates who, for one reason or other, are not restricted by their employment or other commitments and who might well relish the opportunity to sit on longer and more substantial cases. He added that there was a strong case for introducing greater flexibility into magistrates’ sitting patterns, for example, to enable and encourage block sittings and to enable some to sit more than they do at present (7.25).

The procedure of the mixed tribunal Those models of mixed tribunals in the common law jurisdiction, and available for scrutiny, seem to be of three different models; (1) In the appellate jurisdiction of the Crown Court, and in the case of District Judges sitting in the youth court, the three members act as a court in all making the decisions, both as to law and fact and sentence;

CRIMINAL LAW TODAY • ISSUE 1

(2) in modern army and air force courtsmartial, where the Judge-advocate sits alone to decide matters of law and Sentence (though in earlier days the entire court dealt with such matters, on the advice of the Judge-advocate; and (3) the tribunal in certain British territories overseas where a judge might sit with “assessors” but was not bound by their opinions on the facts.

In R v Orpin (1974) 59 Cr.App.R.231, it was held that in so far as the appellate jurisdiction of the Crown Court was concerned, interlocutory decisions were to be taken by the court as a whole, though on questions of law the magistrates were likely to defer to the judge’s views. In Cook v DPP [2001] Crim LR 321 it was held that in discretion cases, as, for example an issue of admissibility in relation to a confession, the matter fell for decision by the whole court, but where the discretion could only be exercised in one way, the magistrates were bound by the decision of the judge.

Auld opted for the second model whereby; (a) a ll rulings and orders at the pre-trial stage, would be made by a professional judge, who would also conduct any necessary case management and rule on bail. (b) a ll questions of law, procedure and evidence, arising in the course of the trial would be dealt with by the judge, where necessary in the absence of the magistrates; (c) for all other purposes the mixed bench would constitute a single tribunal; it would hear all the evidence together and, at the close of the trial, the judge and magistrates would retire together to consider the question of guilt;` (d) at the close of their deliberations, the judge and magistrates would make their decision, by a majority if necessary, each having an equal vote, the judge announcing the reasoned decision of the court. (e) Matters of sentence would be reserved to the judge.

Personally, I think that (1) is a better model.

Both in the Crown Court, and earlier, at Quarter Sessions, I have sat with justices on sentence, and provided they receive proper guidance from the judge, I have found that they often have a lot to contribute. They also sometimes act as brake on the enthusiasm of the judge who is inexperienced in criminal matters. Reading between the lines of Auld’s report, he seems to have been influenced by the (often unnecessary) complexities of modern sentencing practice, but there would little need for complexity in the sort of cases envisaged for the third tier. There is, of course, the practical problem of getting the same justices back again after and adjournment for sentence, but this is not insurmountable.

The level of judge assigned; the magistrates Auld envisaged the judge in the District Division being normally a District Judge; indeed he considered that the district judges were, if anything, undervalued, but, but, depending on the case and its circumstances, he foresaw cases in which a judge of any level, from High Court Judge to Recorder might be assigned.

There might be cases, for example, a particular case or block of cases, perhaps involving young children or complex legal issues, in the division’s jurisdiction as an “assise de mineurs” in grave cases against young defendants beyond the jurisdiction of the youth court, where the presiding judge might a High Court Judge or a Circuit Judge experienced in such work.

As to the magistrates assigned to sit in this division, they would need to be experienced so as to hold their own with the judge and, would probably need to be able to give more time for continuous sittings than is now normally required in summary proceedings. Some system of selection would have to be devised to ensure a sufficient panel of experienced, available and, so far as possible, broadly representative magistrates for the task. There is nothing new in this, a similar system is already in place for magistrates who sit on appeals.

Auld recommended that this function should be exercised under the ultimate control and oversight of the local Resident Judge.

Clearly the judge would take the leading role in guiding the discussion in areas in which the law, or the application of the law to the facts, was in any way uncertain. But he would not need to give magistrates the sort of elaborate directions Crown Court judges give to juries.

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ARTICLE

A CHANGE OF PACE Joanne Clough Solicitor and Senior Lecturer in Law, Northumbria Law School

Criminal law specialist Joanne Clough, outlines the key changes to the Police and Criminal Evidence Act 1984 Codes of Practice and how they will impact on practitioners.

Revisions to Codes of Practice A, B and D of the Police and Criminal Evidence Act 1984 (PACE) came into force from midnight on 6th March 2011. These amendments took effect alongside the enactment of ss.1-7 of the Crime and Security Act 2010 and s.117 Serious Organised Crime and Police Act 2005 which amend PACE in relation to police powers of stop and search, and the ability to take and record fingerprints and samples.

All three amended Codes make explicit reference to the Equality Act 2010. The Act requires those in public office, including police authorities, to have regard to the desirability of reducing “socioeconomic inequalities” which arise from strategic decisions in the exercise of their functions. The Act also purports to eliminate discrimination on prescribed grounds known as protected characteristics - disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation. Codes of Practice A, B and D now specifically remind the police of their duty not to discriminate, harass or victimise any person on grounds of that person having or belonging to one of the protected characteristics.

CODE OF PRACTICE A Code A governs police powers of stop and search.

The rule 1 principles governing stop and search now make specific reference to the Equality Act 2010 which widens the scope of potential discriminatory behaviour when compared to the Race Relations (Amendment) Act 2000 which was previously referred to.

Searches authorised under s.60 CJ&POA 1994 Search powers under s.60 are designed to prevent serious violence and widespread carrying of weapons which might lead to serious injury, and are there to deal with specific and localised incidents. These powers are separate from and additional to the usual powers of stop and search

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which require “reasonable grounds” to suspect that a person is carrying or in possession of a prohibited item. Code A2.12 listed two situations where authority for a stop and search under s.60 may be given. An additional situation now exists where the authorising officer (Inspector or above)) reasonably believes that an incident involving serious violence has taken place in the officer’s police area, a dangerous instrument or offensive weapon used in the incident is being carried by a person in any locality in that police area, and it is expedient to use these powers to find that instrument or weapon (A 2.12(c)).

Ordinarily authorisation for a s.60 search must be given in writing however authorisation under this new power can initially be given orally but must be recorded in writing as soon as practicable thereafter (Code A 2.13). Additionally, the selection of persons and vehicles to be stopped and searched under s.60 should reflect an objective assessment of the nature of the incident or weapon in question and the persons or vehicles likely to be involved in the incident (A2.14A). The driver of a vehicle or any person stopped under s.60 is entitled to a written statement if they request it within 12 months of the search (A2.14B).

Searches under s.44 Terrorism Act 2000 Paragraphs 2.18A – 2.26 of the amended Code A have in fact ceased to have effect. The amended provisions attempted to rectify the issues with police stop and search powers under ss.44-47 of the Terrorism Act 2000, which were ruled incompatible with the European Convention on Human Rights in Gillan and Quinton v. United Kingdom (Application no 4158/05). These particular Code A provisions have now been superseded by the interim provisions laid out in the Terrorism Act 2000 (Remedial) Order 2011 which came into force on 18th March 2011. The Order repeals ss.44-47 of the Terrorism Act

2000 and inserts replacement stop and search provisions within the new ss.47A-C and Schedule 6B to the Act. Where previously such a stop and search could take place when it was “expedient” to prevent terrorist activity, it must now only take place where a senior officer reasonably suspects that a search is “necessary” to prevent terrorist acts.

Steps to be taken prior to a search The information to be given prior to a search remains largely unchanged although it has been re-organised into a more accessible list in paragraph A3.8. However, a suspect must now be told that they are entitled to a copy of the record of the search if they ask within 3 months from the date of the search (previously within 12 months) (A3.8(e)). If the person is not arrested and taken to a police station as a result of the search and it is practicable to make the record on the spot, they should be told that they will be given, upon request, either a copy of the record of search or a receipt explaining how to obtain such a record immediately after the search is completed (A3.8(e)(i)). If the person is arrested and taken to a police station as a result of the search, the person must be told that the record of search will be made at the station as part of their custody record and they will be given, on request, a copy of their custody record which includes the search record, as soon as practicable whilst they are at the station (A3.8(e)(ii)).

Recording requirements The recording requirements for searches have been simplified having been divided into searches which do not result in an arrest and those that do. When an officer carries out a Code A search which does not result in arrest, a record of the search must be made straight away either electronically or on paper, unless there are exceptional circumstances which make this

CRIMINAL LAW TODAY • ISSUE 1

ARTICLE

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wholly impracticable (A4.1). Where this is the case, the officer must record the search as soon as practicable after the search is completed.

Records no longer have to be provided automatically; the amended Code A requires the officer to ask whether the person wants a copy, and if so, either the record or details of how to obtain it should be provided immediately (A4.2).

There is no requirement to provide a copy of the full record or receipt if the officer involved is called to an incident of higher priority (A 4.2A).

Where a search results in an arrest, the officer carrying out the search must ensure that a record is made in the suspect’s custody record. The custody officer must ask if the suspect wants a copy of the record of search and if so, must ensure that they get this as soon as practicable (A 4.2B).

The information to be recorded following a search has been reduced (A4.3). There is no longer any requirement for an officer to request the name, address and DOB of the person being searched and there is no requirement to record the name (or a description) of the person searched on the record (A4.3A). The record no longer needs to contain the registration details of any vehicle searched, details of any injury or damage to property resulting from the search or the time, date and place the person was first detained (where this differs from the time, date or place of the search itself) or indeed the outcome of the search. Where an officer stops a person to search them but subsequently determines there is no need to search them, officers are no longer required to record that encounter (A4.7).

Furthermore, officers are no longer obliged to record or provide a receipt for encounters which require a person to account for their presence or behaviour (A4.12). Interestingly, the police are entitled to monitor the ethnicity of persons stopped but not searched where there are local concerns in this regard (Code A NfG 22A-22B).

CRIMINAL LAW TODAY • ISSUE 1

The new Annex F to Code A provides guidance on establishing the gender of a person where the Codes of Practice require a search/procedure to be conducted by someone of the same sex as the subject. Gender is considered the person’s gender at birth unless they possess a gender recognition certificate stating the contrary.

Where doubt exists, the person should be asked how they wish to be treated, and they should confirm that preference in writing.

CODE OF PRACTICE B Code B governs the search of premises and seizure of property on persons or premises.

There is no change to the procedures involved in making an application for a search warrant or production order and generally, there is no change to the procedures of the search/seizure itself. However, in giving written authority for a PACE section 18 search, the Inspector (or above) must not only ensure that the necessary grounds exist to conduct a search, but must now also be satisfied that the premises are in fact occupied or controlled by the arrested person (B4.3).

In addition to statutory powers of search, the police may search a property with the consent of the occupier under paragraphs B5.1–5.4. Before seeking such consent, the officer in charge must provide certain information to the person entitled to grant entry and this now includes the fact that any consent given may be withdrawn before the search starts or during the search (B5.2). Where the police propose to search a lodging house or similar accommodation, every reasonable effort should be made to obtain the consent of the tenant, lodger or occupier, and such a search should no longer be undertaken solely on the landlord’s consent (Code B NfG 5A).

A new section 10 to Code B governs searches of premises of persons subject to control orders under section 7A-7C of the Prevention

of Terrorism Act 2005 and it updates other provisions within the Code to read in such a way that accommodates the control order provisions.

CODE OF PRACTICE D Eye witness identification and recognition: The first key alteration to Code D is the distinction made between “eye witness identification” (formerly referred to as “identification by a witness”) which arises “when a witness has seen the offender committing the crime and is given an opportunity to identify a person suspected of involvement in the offence in a video identification, identification parade or similar procedure” (D1.2) and evidence of recognition “where any person, including a police officer, is asked if they recognise anyone they see in an image as being someone they know...”(D 1.2A).

Separate provisions of Code D now apply for each situation.

Eye witness identification procedures are activated when the conditions in Code D3.0 are satisfied and they are “to be used to test the ability of that eye-witness to identify a person suspected of involvement in the offence as the person they saw on the previous occasion”.

There is no change to the general identification procedures; nevertheless, officers are now specifically reminded that they must inform suspects of their entitlement to legal advice before any particular identification procedure is offered (D3.14).

Where officers need to trace a suspect or obtain evidence of recognition, they may show films, photographs or other images to the public through the national or local media (D3.28).

If this is to be undertaken, new procedures in Part B of section 3 are now effective. Broadly, witnesses should still be asked if they have seen any publication or broadcast relating to the offence, which now includes information on social

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ARTICLE REUTERS/Luke MacGregor

networking sites and all relevant information must be recorded (D3.29).

The new procedures governing recognition evidence are contained in part B to section 3 of Code D (D3.34 – 3.37). This encompasses the situation where any person, including a police officer, views a visual image of an individual and is asked whether they recognise that individual as someone they know (D3.34) rather than someone who they witnessed committing a crime. Any such image shall be shown individually to witnesses to avoid collusion and safeguard against mistaken recognition (D3.35).

Officers should follow the video identification principles (Annex A) where the suspect is known and should follow the rules for identification by photographs (Annex E) where the suspect is not known. The circumstances and conditions under which the witness is asked to recognise an individual must be recorded and this must include everything contained in the long list within paragraph D3.36. The record can be made either by the witness or the officer in charge of showing the images to the witness (D3.37).

Identification by fingerprints and samples The second major change involves the power to take fingerprints and samples for recordable offences under PACE ss. 61-63 as amended by ss.2-7 Crime and Security Act 2010. The 2010 Act extends the circumstances when fingerprints and samples can be taken; see Code D 4.3 (fingerprints) and Code D6.2 – 6.6A (samples). Fingerprints samples can now be taken from a person who was arrested and

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bailed for a recordable offence or who was charged, convicted or warned/cautioned for a recordable offence and, either did not have their data taken during the investigation of the offence, or the data taken was either incomplete or of insufficient quality to allow satisfactory analysis. In relation to non-intimate samples, this power can also be utilised where a sample has been destroyed in the proceedings and there is a dispute as to a DNA profile. Where a person was convicted outside the UK of a “qualifying offence” (see s.65A PACE) and either one of the same two conditions apply, then again nonintimate samples and fingerprints can be taken but only where an inspector or above authorises this as he/she is satisfied that it is necessary to assist in the prevention or detection of crime.

Non-intimate samples can also be taken from a detainee following an acquittal on grounds of insanity or fitness to plead under s.2 Criminal Evidence (Amendment) Act 1997.

Additionally, where a police officer reasonably suspects a person to be committing or attempting to commit any offence (or has committed or attempted to commit an offence), and either the person’s name is unknown or the officer reasonably suspects the name given to be false, fingerprints can be taken (D4.3(e)). Where fingerprints are taken under this power, they are not considered to be taken “in the course of an investigation” (D4.3(e)). They can be taken with a mobile device on the street and checked against the national fingerprint database (Code D NfG 4C) whereupon they must be destroyed (D4.7(b)). Where the result means it is necessary to arrest the person, there are a number of conditions to be satisfied before the arrest can

take place (NfG 4C).

Police officers can require a person to attend a police station to have their fingerprints and samples taken and there are specific timescales for each of the powers. Notably, where a person has had their data taken under any of the above powers on two occasions in relation to any single offence, they cannot be required to attend a police station for their data to be taken a third time unless an Inspector or above authorises this.

In such a case, the authorisation and the reasons for it must be recorded as soon as practicable.

Procedures before taking fingerprints or samples Fingerprints and non-intimate samples can be taken with or without the suspect’s consent.

Different information is to be given to the suspect prior to taking fingerprints, depending on whether consent was provided. A record must be made of these matters and this should be within the suspect’s custody record if he/ she is in police detention at the time the prints are taken. Before taking an intimate sample, a suspect must be informed of the reason for taking the sample (including the nature of the suspected offence), that authorisation has been given, the provisions under which it was given and the fact that the sample may be the subject of a speculative search (D6.3).

The amended Codes of Practice can be downloaded from the Home Office website Police and Criminal Evidence Act 1984 (PACE) and accompanying codes of practice | Home Office.

CRIMINAL LAW TODAY • ISSUE 1

THE INFORMATION THAT TIPS THE BALANCE ROOK & WARD SEXUAL OFFENCES - LAW AND PRACTICE His Honour Judge Peter Rook QC and Robert Ward CBE In an increasingly complex area of law, there have been a significant number of changes that will affect your case and its potential outcome. Rook & Ward on Sexual Offences is the most comprehensive text on the law in this area available.

Giving a clear exposition of all aspects of the law covering sexual offences, the work revisits key definitions in the Sexual Offences Act 2003 in light of important Court of Appeal decisions, includes a new chapter on Historic Sexual Offences and Problems Encountered in Practice and includes medical chapters, written by specialists in the field.

December 2010, 978 1 847 03867 8

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NEW

4th edition

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Book Review

Rook and Ward on Sexual Offences: Law and Practice Authors: His Honour Judge Peter Rook QC and Robert Ward CBE Reviewed by Patricia Lynch QC

“Rookie on Nookie” is now the bible as far as any sex practitioner is concerned. Unlike the Bible, however, Rook and Ward have not regurgitated the same old teachings. The fourth edition of this invaluable book brings the current law right up to date, it expands on and updates the original text incorporating all the recent legislative provisions and decisions as well as adding many new practical and instructive new chapters.

In addition, this volume manages to address and provide answers to all of those problems encountered by practitioners since the introduction (and subsequent development) of the Sexual Offences Act 2003 that have hitherto remained obscure, however much searching we have done in other learned works.

Each offence is set out in clear, chronological order under very specific headings that are easy to find in the “Contents” section--they are also repeated at the beginning of each chapter. As a result, readers are able to refer easily and quickly to exactly what they want to look up without the irritation of endlessly turning back and forth to cross-reference random paragraphs or other reference books.

Each chapter begins with an introduction and an evolution of the

legislation where relevant (invaluable for preparing legal argument, particularly for the Court of Appeal) before setting out the substantive current law, evidence, procedure, bail considerations and recent landmark cases. All those tricky implementation dates are included, along with straddling provisions and how to draft your indictment or what sentence to expect if the offences fall either side. We can all stop carrying all those old Archbolds around because Historic Cases are given a chapter to themselves and the new chapter on “Sentencing of Sexual Offenders” is helpfully divided into implementation/ straddling dates and incorporates automatic life, extended sentences and the “dangerousness provisions”.

A comparative table of offences and penalties under the old law and under the Sexual Offences Act is contained in Appendix D. Each chapter has been updated to incorporate recent developments in the law. Of particular note is the new section on the meaning of “Consent and Capacity” in rape cases (hitherto undefined satisfactorily but now sensibly explained), and H is reproduced in Appendix G. The section dealing with “permissible judicial comment”, when read in conjunction with the excerpt from the Crown

Court Bench Book at Appendix E and Peter Rook’s specimen directions at Appendix F, may just have the potential to even out the playing field and lead to better Bench/Bar harmony and understanding. The revised chapters on “Sexual Offences against those with a Mental Disorder” and “Vulnerable Witnesses” provides valuable insight into areas which many practitioners find troublesome.

The vitally important Hearsay and Bad Character provisions, implemented since the last edition, are dealt with in two new individual chapters.

The concise analysis of the law and leading authorities provide a clear, incisive review of the introduction, development and impact of these far-reaching changes--all easily referenced in a single volume. The increasingly important Criminal Procedure Rules 2010 are included where relevant and applicable; this is a vital inclusion as we are all going to have to start paying very close attention to these in the very near future.

Throughout the book explanations, solutions and practical guidance are given in relation to familiar thorny problems. A new chapter is dedicated to Restrictions on Evidence and Questioning about the Complainants

“Sentencing has been completely revolutionised and brilliantly revised”

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CRIMINAL LAW TODAY • ISSUE 1

Book Review

“this book is the definitive authority and will appeal to the judiciary, the seasoned advocate and less experienced practitioners in equal measure” Sexual History that explains the expanded scope of and proceedings applying to s.41 of the Youth Justice and Criminal Evidence Act 1999.

Disclosure (the bane of all our lives) is given its own chapter dealing with familiar issues including material in the hands of third parties and arts 6 and 8 of the ECHR and giving practical and instructive guidance that is set out clearly and concisely. The updated chapter on DNA includes the expansion of the National Database, Low Copy Number, and the re-opening of cold cases in the light of fresh DNA findings. A new chapter dedicated to Anonymity and Reporting Restrictions provides an easily accessible and wellinformed reference to the relevant law and authorities.

Sentencing has been completely revolutionised and brilliantly revised; throughout the book the format has changed to facilitate easy reference.

Each specific offence has an initial “general approach”, followed by the relevant part of the Definitive Guideline. This sets out the starting points, sentencing ranges, and aggravating and mitigating features as tables, thus mirroring the Guidelines themselves and culminating with whether or not the “dangerousness provisions” apply to the particular offence under consideration so that

the sentencing starting point is conveniently accessible at a glance.

To avoid over-adherence to the tables and to encourage wider consideration of appropriate sentence, the full text of the Definitive Guideline is set out at Appendix A. Additionally there are two new chapters, one dedicated to “Sentencing Sex Offenders” and the other to “Ancillary Orders”. Appendix B gives a list of sample prohibitions for sexual offences prevention orders (SOPOs) and risk of serious harm orders (RSHOs) and Appendix C contains Sch.15 to the Criminal Justice Act 2003. Once again, all of the information required by both advocate and sentencer is contained in one volume.

A new chapter dedicated to “Sexual Offences in the Youth Court” discusses the powers, procedure and approach to sentence. This contains two extremely useful annexes comprising firstly, “Sentencing Options available to the Youth Court” and secondly, “Classification of Sexual Offences involving Youths”. Both are set out as tables with helpful footnotes cross referencing Crown Court powers. Although this chapter is directed towards the Youth Court, it nonetheless gives valuable guidance as to the breakdown of age categories and appropriate length of sentence

when dealing with 10 to 17 years in other tribunals.

The new chapter on “Expert Evidence in Sex Cases” is a welcome innovation; the operation and functioning of human memory is particularly relevant to cross examination in cold cases. It is also essential reading for any advocate who feels intimidated by experts and lacks confidence in cross examining.

Read this chapter and combine it with the knowledge that you will gain from the contributions from notable experts in the chapters on “Medical Aspects of Sexual Assault”, “Medical Evidence: Children” and “Psychological Effects of Rape and Serious Sexual Assault”: your confidence will increase, the expert should recognise that you are not a complete amateur and your fears will dissipate.

In a nutshell this book is the definitive authority and will appeal to the judiciary, the seasoned advocate and less experienced practitioners in equal measure. It really does tell you everything you need to know from charge to sentence and beyond.

Patricia Lynch QC 18 Red Lion Court Criminal Law Review

“It really does tell you everything you need to know from charge to sentence and beyond”

CRIMINAL LAW TODAY • ISSUE 1

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BOOKSHOP

BOOKSHOP

ROOK & WARD ON SEXUAL OFFENCES: LAW AND PRACTICE His Honour Judge Peter Rook QC & Robert Ward CBE • A practical and accessible work on all aspects of the law covering sexual offences, with detailed coverage of substantive law, procedure and evidence • Revisits key definitions in the Sexual Offences Act 2003 in light of important Court of Appeal decisions • Includes new chapters on Historic cases and Bad character evidence • Includes three specialist medical chapters written by distinguished medical practitioners: DNA, Law and Statistics; Medical Aspects, Effect of the Psychological Trauma of Sexual Assault upon Victims 4th edition, December 2010

£125

POLICE STATION ADVISERS INDEX Brian Spiro & Steven Bird • Looks at the law and procedure and offers practical hints and guidance on all areas an adviser is likely to encounter • Covers preparing for interview, bail, identification procedures, the right to silence, complaints, custody records, fingerprints and records, terrorist suspects and warrants of further detention • Goes through each topic in alphabetical order for ease of use and reference • Offers an account of the law; detailing the practice and procedure in how the law operates with step-by-step guidance 4th edition, November 2010

£69

CROWN COURT INDEX 2011 His Honour Ian McLean, His Honour Judge Sam Katkhuda & His Honour Judge John Dixon • Provides an index of common penalties and formalities in cases tried on indictment or committed for sentence in the Crown Court, as well as appeals in criminal proceedings • Light, portable and easy to use - ideal for use in court • Alphabetical arrangement and crossreferences in the margins to statutory instruments make the content clear and quickly accessible while in court December 2010

26

£120

CRIMINAL LAW TODAY • ISSUE 1

BOOKSHOP

SENTENCING REFERENCER 2011

POLICE AND CONSTABULARY ALMANAC 2011

Dr David A Thomas QC • Gives guidance on 100 different sentencing topics in a clear and practical layout and all in one book • Uses a practical A-Z layout for easy navigation and quick answers in court • Revised and updated throughout with new further changes to existing legislation December 2010

• An extensive Gazetteer of places and Police Stations in the United Kingdom, crossreferenced with police forces, and a detailed index • Contains the addresses, telephone numbers and personnel of: -- Home Office and Police Organisations

£49

-- Police Forces in England, Wales, Scotland (with maps of Police areas) -- Northern Ireland, the Isle of Man, the Channel Islands and the Irish Republic

MISUSE OF DRUGS AND DRUG TRAFFICKING OFFENCES Rudi Fortson QC • Provides a detailed guide to all aspects of the criminal law relating to drugs, including their manufacture, possession and use, importing, exporting, rules of evidence and police powers, as well as rules pertaining to offences of money laundering, sentencing and confiscation

-- Ministry of Defence Police and the Services Police -- British Transport Police, Airports, Harbours and Docks Police

PROBATION DIRECTORY 2011 Consultant Editor: Owen Wells

£115

SHAW’S DIRECTORY OF COURTS IN THE UNITED KINGDOM 2011/2012 • Contains accurate and up to date details of contact names, telephone and fax numbers, addresses, document exchange numbers, court codes and normal times and sittings of courts • Includes a Numerical Index to enable any court – whether current, abolished or combined – to be easily identified by its Court Code Number

• Interprets the law in a discursive manner offering strategic guidance to complex areas of the law 3rd edition plus 1st supplement 1st supplement only

£298 £49

ARCHBOLD MAGISTRATES’ COURTS CRIMINAL PRACTICE 2012

-- Courts, Prisons, Young Offender Institutions, Remand Centres

• Provides practical guidance as well as legal theory

• Discusses the latest UK, UN and EU strategies for drug control

• Discusses the main areas of fraud; Theft, Deception, Dishonesty, introducing the concepts and clearly highlighting the differences between the areas

General Editor: District Judge Barbara Barnes

• Explains complex concepts of drug laws clearly

• Covers the impact of the Medicines Act 1968

• Explains the general principles and concept of fraud

• Covers all criminal matters dealt with in the magistrates court including Youth Courts

March 2011

• Includes information on various substances, including `Legal Highs’

Anthony Arlidge QC, Jacques Parry and Alex Milne QC

-- HM Revenue and Customs

• Offers a balance of UK drugs law in their international context

6th edition, August 2011

ARLIDGE AND PARRY ON FRAUD

£35

• Features full details of the probation service and all of its related organisations • Includes full details of NOMS and the National Directorate of the Probation Service for England and Wales and all the individual Probation Areas • Contains details of the Probation Service of the Irish Republic • Lists Home Office and Prison Service Agency Personnel, all UK prisons, probation and bail hostels, services for adult offenders in Scotland, all NACRO addresses, specialist accommodation and other services for offenders December 2010

£11.50

• Structured to mirror proceedings, covering pre-trial matters, specific offences, trial and sentencing • Includes information on sentencing, costs and legal aid 2012 edition, August 2011

£179*

*on orders placed before 30th September 2011. Orders placed from 1st October will be charged full price of £199

WILKINSON’S ROAD TRAFFIC OFFENCES General Editor: Kevin McCormac Consultant Editor: Peter Wallis • The definitive authority on road traffic offences in England and Wales • Explains what the law is, covering specific offences chapter-by-chapter • Covers both substantive law and procedure • Follows through to sentencing and appeals, covering every aspect in chronological order • Provides practical tools including diagrams, checklist, flowcharts and tables, plus materials 25th edition, September 2011

£319

• Contains full details of the major restructuring of the Scottish Court Service – brought about by the Criminal Proceedings etc. (Reform) (Scotland) Act 2007 – which includes the disestablishment of local authority administered district courts and their replacement by the new Justice of the Peace courts, administered by the Scottish Court Service August 2011

£54

Visit sweetandmaxwell.co.uk to order CRIMINAL LAW TODAY • ISSUE 1

27

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