Criminal Law Today Spring

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CRIMINAL LAW TODAY THE MAGAZINE FROM SWEET & MAXWELL DEDICATED TO CRIMINAL LAW AND PRACTICE

SPRING 2012

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IN THIS ISSUE GRAVE CRIMES – NOW IT’S PERSONAL

Richard Thompson examines sentencing in the youth courts.

DOBSON & NORRIS AND THE TALE OF THE MINIMUM TERM Robert Bryan discusses the jail terms handed out to David Norris and Gary Dobson and the sentencing guidelines behind them.

R V HEWGILL: JURY – CONTACT BETWEEN MEMBERS OF JURY

Peter Hungerford-Welch brings us the case comment for this issue.

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

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

I’m really pleased to have two extremely topical articles included in this seasons issue. In the first Richard Thompson discusses whether it’s time to reform the principles governing venue decisions for “grave crimes” in the youth court. In the second Robert Bryan discusses the sentences handed to Gary Dobson and David Norris following the long awaited conclusion of the Stephen Lawrence trial.

You may have heard a bit about the new Thomson Reuters iPad app ProView™ from Sweet & Maxwell, so we’ve taken the opportunity to provide an in-depth feature that tells you why we think it’s special, and showcases some of the great features it provides.

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I hope you enjoy the issue.

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CONTENTS 5. Latest News 6. Article: Grave Crimes – Now it’s personal by Richard Thompson 10. Knowledge in Bloom: how books are blooming at a rate of knots on Westlaw UK

Lisa Bruce Editor lisa.bruce@thomsonreuters.com

12. Case Comment: R v Hewgill: Contact between members of Jury by Peter Hungerford-Welch

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19. C ase Comment: Human Rights and the Presumption of Innocence by Andrew Ashworth 21. Article: Dobson & Norris and the tale of the minimum term by Robert Bryan 24. Staying up to date with Sweet & Maxwell 26. Bookshop Cover image: REUTERS/Navesh Chitrakar

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ARTICLE

GRAVE CRIMES - NOW IT’S PERSONAL

By Richard Thompson

During the past decade the principles governing venue decisions for “grave crimes” 1 in the youth court have evolved to take account of factors personal to the individual defendant, beyond simply age. These additional factors, together with the absence of a power to commit for sentence have distorted jurisdiction decisionmaking and reform is urgently needed.

BACKGROUND AND RECENT HISTORY In the adult magistrates’ court, mode of trial follows a statutory plea before venue procedure. Following a not guilty plea venue decisions are based solely on the offence, leaving aside personal mitigation and antecedents. Jury trial is reserved only for offences deemed sufficiently serious. Once any previous record is revealed following summary conviction, committal for sentence operates as a safety valve.

In contrast, youth court venue procedure for “grave crime” offences has no legislative root, and there is no power to commit for sentence unless the defendant is deemed “dangerous”. The venue threshold test turns on whether, “it

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ought to be possible to sentence [the defendant] in pursuance of [section 91(3)] of the Powers of Criminal Courts (Sentencing) Act 2000.”2 In “Overarching Principles -- Sentencing Youths” (2009) the Sentencing Guidelines Council advise that committal is justified only where, “a sentence substantially beyond the 2 year maximum for a detention and training order is a real possibility”.3

Case: R. v Devizes Youth Court Ex p. A (2000) 164 J.P. 330 (DC) *Crim. L.R. 30 Summary

In the absence of other guidance, the youth court has historically borrowed heavily from adult mode of trial in its approach to venue decisions, dating back to the time when adult venue was decided before plea, rather than plea before venue. A clear example is R. v Devizes Youth Court Ex p. A4 where the high court fully endorsed the approach taken by magistrates,

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ARTICLE

IN THE ABSENCE OF OTHER GUIDANCE, THE YOUTH COURT HAS HISTORICALLY BORROWED HEAVILY FROM ADULT MODE OF TRIAL IN ITS APPROACH TO VENUE DECISIONS, DATING BACK TO THE TIME WHEN ADULT VENUE WAS DECIDED BEFORE PLEA, RATHER THAN PLEA BEFORE VENUE

declining jurisdiction in which they took the prosecution case at its highest, disregarded antecedents, assumed a not guilty plea and noted that mitigation and reports would follow only after *Crim. L.R. 31 conviction. All are core adult mode of trial principles. That the defendant’s age was taken into account was the only departure.5 Shortly after the Devizes decision the detention and training order (DTO) provisions took effect.6 The youth court’s sentencing powers were doubled to up to two years detention and training. Such detention however was not available for 12-14-year-olds unless they were deemed “persistent” offenders, and was ruled out altogether for 10-11-year-olds. Simultaneously, the youth court’s power to commit for sentence7 was repealed.

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The new legislation triggered a series of appeals to the high court.8 The judgments clarified that (save in exceptional cases) jurisdiction should not be declined merely to preserve the option of a custodial sentence for less than two years under s.91 in the crown court for defendants not old or persistent enough to receive a DTO. The two year threshold thus became virtually universal for all

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Offences for which a youth defendant, charged alone or jointly with other youths, may be tried either summarily in the youth court or on indictment. (In broad terms, offences carrying a maximum sentence of 14 years or more for an adult (for which the sentence is not fixed by law), and others identified in s.91 Powers of Criminal Courts (Sentencing) Act 2000).

2 Magistrates’ Courts Act 1980 s.24.

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youth defendants. These judgments contain no signal that the Devizes approach, applying adult mode of trial principles to the threshold test, had in any way altered.

PERSONAL MITIGATION The first discernible shift in thinking appeared in R. (on the application of D) v Sheffield Youth Court 9 in which it was held that a youth court considering grave crimes, “should take into account any undisputed facts put forward as mitigation.” If interpreted as offence mitigation this was still consistent with adult mode of trial. However, the high court added, “such as the good character of the accused”, which at adult mode of trial would always be assumed. This was not the focus of what the high court had been asked to determine yet emerges as one of the central points of the judgment.

It does not appear to have been argued, nor was any departure from previous practice acknowledged.

Whether the door was opened to wider aspects of personal mitigation was unclear.

observed almost in passing, that the defendant was dyslexic and the subject of a statement dealing with his educational needs. This appears to have been considered relevant to jurisdiction, but again there was no discussion or argument and no reference to Sheffield.

Any ambiguity was removed in R. (on the application of W) v Brent Youth Court.11 The high court indicated that the defendant’s special educational and behavioural needs were capable of being relevant at the grave crimes stage to whether he might eventually receive a custodial sentence, although a lack of supporting evidence ruled it out on that occasion. *CRIM. L.R. 32 ANTECEDENTS

The relevance of personal mitigation surfaced again in R. (on the application of M & W) v West London Youth Court.10 It was

Following the April 2000 legislative changes, doubts began to ferment in the youth court regarding the continued authority of R. v Hammersmith Juvenile Court Ex p.

O12 which ruled out antecedents in grave crimes decisions. This caused difficulty because if previous convictions were disregarded and jurisdiction retained, without power to commit for sentence the youth court was limited to two years which may be insufficient once antecedents

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This is the current wording of the t`est for “persistent” 12-14 year old offenders and youths aged 15-17. The test for 10-11 year olds and 12-14 year old youths who are not “persistent” is “a sentence exceeding two years is a realistic possibility”.

4 R. v Devizes Youth Court (2000) 164 J.P. 330.

5 The actual ratio of Devizes was that if the threshold test is met, then committal must follow and any argument about the suitability of the crown court as a trial venue is not relevant.

Powers of Criminal Courts (Sentencing) Act 2000 ss.100-107 came into force in April 2000.

7 Under s.37 Magistrates’ Courts Act 1980.

8 The principal cases are reviewed and summarised in R. (on the application of H) v Southampton Youth Court [2004] EWHC 2912 (Admin); (2005) 169 J.P. 37.

9 R. (on the application of D) v Sheffield Youth Court [2003] EWHC 35 (Admin); (2003) 167 J.P. 159.

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were eventually revealed post conviction.

These doubts eventually reached the high court in R. (on the application of Tullet) v Medway Magistrates’ Court.13 Making a very significant break from adult mode of trial, antecedents were deemed relevant.

The high court distinguished Hammersmith, citing the subsequent repeal of the power to commit for sentence, acknowledging though that the repeal had little impact as the crown court’s former powers following committal (up to two years detention in a young offender institution) had simply been handed to the youth court under a slightly different guise (up to two years DTO).

Further, the high court chose to interpret the words of the statutory threshold test as “if one was approaching [the wording] anew”, observing that “the criteria for committal relate specifically to what the possible sentence might be” and it would be “illogical to ignore … matters that would be relevant to the sentencing court.” This contradicted the Hammersmith interpretation of the same words, as well as the long understood practice in both youth and adult courts that antecedents had no relevance until sentencing.14 Thirdly, Tullet happened to be a domestic burglary case and the defendant happened to have four previous convictions for similar offences. The guideline case for sentencing domestic burglars at that time was R. v McInerney & Keating15 in which it was said that whilst youth defendants were not caught by the “three strikes” provisions,16 the youth court should generally commit third strike burglars for trial as a sentence beyond 24 months was likely. This envisaged the admission of previous convictions into grave crimes offences.

THE PROMISE OF A GUILTY PLEA In addition to doubts about antecedents there were also questions regarding whether a defendant’s stated intention to plead guilty was relevant. This was a second point which arose seemingly of the high court’s own motion in Brent (see above) in which it was held that relevant personal mitigation included an indication of an intention to plead guilty, thereby importing a plea before venue approach into grave crimes decisions.

Although not cited, this approach was very

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R. (on the application of M & W) v West London Youth Court [2004] EWHC 1144 (Admin).

11 R. (on the application of W) v Brent Youth Court [2006] EWHC 95 (Admin); (2006) 170 J.P. 198.

12 R. v Hammersmith Juvenile Court Ex p. O (1988) 86 Cr. App. R. 343; (1987) 151 J.P. 639; [1987] Crim. L.R. 343.

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much in line with the Tullet interpretation of section 24 whereby all matters relevant to a sentencing court should be considered, rather than concentrating solely on the offence. *CRIM. L.R. 33 DISCUSSION Taking into account both personal mitigation and intended plea in grave crimes decisions is clearly desirable in avoiding unnecessary crown court committal. Considering mitigation at an early stage may however present difficulties in some cases. The Sentencing Guidelines Council guidance17 now requires consideration of a defendant’s maturity, mental health, capability and any learning or language issues which may call for supporting evidence. The court will also be without the benefit of a pre-sentence report.

As was reaffirmed in Brent, co-defendants must be considered separately in grave crimes decisions. One defendant cannot be committed alongside a co-defendant in the interests of justice as arises in the adult court where a youth and adult are jointly charged. In addition to age differences the youth court must also now consider disparities in personal mitigation and antecedents between individuals, and the unfortunate need for two trials in separate venues becomes more likely.

The absence of a power to commit for sentence (aside from dangerousness) is a highly undesirable aberration. It demands the premature admission of antecedents at the grave crimes stage forcing a defendant with a significant record to face jury trial for an offence which considered in isolation could (and should) properly be tried summarily, as occurred in the instant case in Tullet itself.

This seriously contradicts the general policy of avoiding crown court trial for youths wherever possible, repeated in every high court judgment in this area in recent times, and by the Sentencing Guidelines Council.

A statutory plea before venue procedure for the youth court closely mirroring adult mode of trial, allied with a new power to commit for sentence, is contained in Sch.3 of the Criminal Justice Act 2003, but has not come into force. Inexplicably, committal for sentence is permitted only following a guilty plea.

Defendants convicted following summary trial must remain in the youth court for sentence unless deemed dangerous.

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R. (on the application of Tullet) v Medway Magistrates’ Court [2003] EWHC 2279 (Admin); [2003] 167 J.P. 541.

14 For a fuller analysis see R. Thompson, “Time & Gravity: Grave Crimes and Previous Convictions” (1992) 166 J.P. 964.

15 R. v McInerney & Keating [2003] 1 Cr. App. R. 36 (p.627).

These new provisions make no mention of the relevance or otherwise of antecedents.18 There would still be a need to consider the previous record of grave crimes decisions following a not guilty plea in order to avoid the usual difficulties post-conviction with the two year ceiling.

Little would change in practice as the legislation merely ratifies what has since become youth court procedure via common law means. Cases would continue to be tried in the crown court unnecessarily for the reasons already stated.

CONCLUSION Since Devizes serious incursions have been made into the adult mode of trial principles which formerly governed grave crimes decision-making. This has occurred in large measure by stealth without full argument or recognition of the significance of the changes made. Youth courts must now look beyond the *Crim. L.R. 34 seriousness of the offence, adopt the Tullet approach and make a more holistic assessment as to what the sentence might be for individual defendants.

The addition of extra factors, each carrying variable weight has made venue decisions more complex. This has in turn imported a greater risk of inconsistency both between individual cases and between co-defendants.

A renewed statutory power to commit for sentence is long overdue and should be available in all cases regardless of plea.

The Criminal Justice Act 2003 provisions are already redundant. With committal for sentence available, antecedents could resume their rightful place post-conviction, thereby removing an unwelcome distortion from the grave crimes equation and ensuring that committal is reserved for cases which truly merit crown court trial.

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16

Powers of Criminal Courts Sentencing Act 2000 s.111.

“Overarching Principles -- Sentencing Youths” (2009).

18 .U nlike the proposed “allocation” provisions for adult mode of trial in the same Act which explicitly state that antecedents are relevant.

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CASE COMMENT

CONTACT BETWEEN MEMBERS OF JURY AND CONVICTED DEFENDANT BEFORE VERDICT OF A CO-ACCUSED

By Peter Hungerford-Welch REUTERS/Daniel Munoz

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CASE COMMENT

CASE: R. V HEWGILL SUBJECT: Criminal evidence

*Crim. L.R. 134 Six defendants were tried at Birmingham Crown Court on various counts of conspiracy relating to the supply of drugs.

The jury returned guilty verdicts in respect of five and acquitted one, Fox, but had not reached a verdict in relation to one count, count 4, in which the appellant Hewgill was charged alone. One of the convicted defendants, the appellant Murray, was released on bail pending sentence. Murray left the Crown Court and went to a local public house called The Crown, a pub often used by some jurors. Whilst there she saw two of the jurors and approached them. Over a period of approximately just under two hours she had conversations with them in which the position of Hewgill was discussed.

The following morning the two jurors mentioned the conversations to other jurors, but not to the judge, any other officer of the court or any lawyer. The jury retired. A short time later Hewgill was unanimously found guilty of count 4. Following the verdict the jurors were discharged and nine of them went to The Crown where one of them spoke to the acquitted defendant, Fox, and the appellant Hancock.

The jurors discussed the verdicts with Fox and Hancock. The appellants contended, inter alia, that the conversation between the two jurors and Murray and the subsequent dissemination of that conversation to at least three members of the jury on the following day had been a complete repudiation of the oath taken by the jurors to try the case according to the evidence.

In due course the Court of Appeal asked the Criminal Cases Review Commission (CCRC) to investigate not only what had happened between Murray and the jurors, but also other contact that had taken place between some of the jurors and other defendants earlier in the trial. The CCRC concluded that there had been repeated and ongoing contact between the bailed defendants and a number of jurors in The Crown which was described as the passing of pleasantries during lunchtime adjournments. The contacts appeared to be more of a

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mutual recognition than anything else and seemed not in general to have been initiated by one party rather than the other. However, there was one occasion on which there was more than an exchange of pleasantries when Fox and Hancock had been approached by a juror who said to Fox “Do not worry mate, you are going to be all right”. *Crim. L.R. 135 Held, quashing the conviction on count 4, that the general principles were set out in Thompson [2010] EWCA Crim 1623; [2011] 1 W.L.R. 200 that no investigation or enquiry into juror deliberations was admissible subject to two narrow exceptions. The first arose if it emerged that there might have been a complete repudiation of the oath taken by the jurors to try the case according to the evidence.

If there were serious grounds for believing that such a repudiation might have taken place, the Court of Appeal would inquire into it, and might hear, de bene esse, evidence, including the evidence of jurors themselves, in order to decide whether it had happened. If it had, the verdict would inevitably be unsafe, and any resulting conviction would be quashed (Thompson at [4]).

The second exception arose in cases where extraneous material had been introduced into the jury deliberations: “The verdict must be reached, according to the jury oath, in accordance with the evidence. For this purpose each juror brings to the decision-making process, his or her own experience of life and general knowledge of the way things work in the real world; that is part of the stock in trade of the jury process, and the combination of the experience of a randomly selected group of twelve individuals, exercising their civic responsibility as a collective body, provides an essential strength of the system. However, the introduction of extraneous material, that is non-evidential material, constitutes an irregularity. Examples are provided by earlier decisions of this court. They include telephone calls into or out of the jury room, papers mistakenly included in the jury bundle, discussions between jurors and relatives or friends about the case, and in recent years,

information derived by one or more jurors from the internet. All this is familiar territory, and no citation of authority is needed. Where the complaint is made that the jury has considered non-evidential material, the court is entitled to examine the evidence (possibly after investigation by the CCRC) to ascertain the facts.

If extraneous material has been introduced into the decision-making process, the conviction may be quashed.” (Thompson at [5]) In the present case it was clear that Murray gave to the jury material information about Hewgill which none of the jurors reported to the judge. If it had been, the judge would have had to consider whether a fairminded, independent and informed observer would conclude that the jury could nonetheless determine the verdict on count 4 without taking into account, even subconsciously, what they had been told by Murray, applying the well-known test formulated in Re Medicaments and Related Classes of Goods (No.2) [2001] 1 W.L.R. 700 and Magill v Porter [2001] UKHL 67; [2002] 2 A.C. 357.

It was just possible the judge might, as in Morrison [2009] 1 All E.R. (D) 193, have asked the jury whether they were able to reach a verdict on the evidence. However, the jury did not report what had happened. It was impossible to see how it could be said that an informed observer could conclude that the jurors had returned their verdict without in any way taking into account what they had been told by Murray. The fact that they had not told the judge made it impossible to conclude objectively that they had reached their verdict in an impartial manner.

On the evidence it was not possible to be sure that Hewgill instigated the contact. Consequently the verdict on count 4 was unsafe and would *Crim. L.R. 136 be set aside.

The general contacts should have been reported to the judge. However, there was nothing in those informal exchanges of pleasantries that could in any way amount to a violation of the jurors’ oath or the introduction of extraneous evidence or in any way affect the safety of the convictions.

The remark to Fox should not have made. It should have been reported to the judge. However, it could not

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THE TEST TO BE APPLIED WAS “WHETHER, IN THE LIGHT OF THIS EVIDENCE, A FAIRMINDED AND INFORMED OBSERVER, HAVING CONSIDERED THE FACTS, WOULD CONCLUDE THAT THERE WAS A REAL POSSIBILITY THAT THE JURY WAS BIASED” be inferred from that incident that there might be other matters where the jurors had acted in a way that was contrary to their oath. This was not an occasion on which extraneous material had been put before them, nor was there any prejudice to Fox (as he was acquitted) or to any other of the defendants. The appeals, except on count 4, would be dismissed.

Cases considered: Thompson [2010] EWCA Crim 1623; [2011] 1 W.L.R. 200.

N.L. Lithman QC appeared for Hewgill.

A. Barker QC appeared for Hancock.

P. Du Feu appeared for Murray.

T.J. Spencer QC and J. Butterfield appeared for the respondent.

COMMENTARY The general rule is that the Court of Appeal will not investigate what went on in the jury room while the jury were considering their verdict. That rule is engaged in the present case because, even though the evidence gathered by the CCRC focused on what was said in the public house when some of the jurors (before delivering a verdict in respect of the appellant) met the defendants they had just acquitted, the court was concerned with the effect of what had been said on the deliberations which lead to the verdict.

The rationale for the rule that the court will not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they are considering their verdict was considered by the

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House of Lords in Connor; Mirza [2004] UKHL 2; [2004] 1 A.C. 1118. Lord Hope of Craighead set out three propositions (at [61]): that confidentiality is essential to the proper functioning of the jury process; that there is merit in finality; and that jurors must be protected from harassment. At [142], Lord Hobhouse of Woodborough said that the confidentiality of jury deliberations: “[U]nderpins the independence and impartiality of the jury as a whole. It enables them to be true to their oath to return a true verdict according to the evidence without fearing the consequences of the reporting of things individual jurors have said or the arguments they have advanced. They can play their part in the collective deliberations of the jury without fear of quotation, embarrassment or victimisation.”

At [107], Lord Hope referred to the exceptions to the secrecy rule: matters which were extrinsic to the deliberations in the jury room; events that took place outside the jury room; irregularities which may have led to the jury being provided with information which they should not have had; and the possession by a juror of knowledge or characteristics which made it inappropriate for that person to serve on the jury. At [123], his Lordship added that it was “arguable that an allegation that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or by the toss of a coin, can be placed into a different category”; this is because a

trial which results in a verdict arrived at by such a method “is not a trial at all”. *Crim. L.R. 137 In a powerful dissenting speech, Lord Steyn (at [16]) asked, rhetorically: “[W]here there is cogent evidence demonstrating a real risk that the jury was not impartial and that the general confidence in jury verdicts was in the particular case ill reposed, what possible public interest can there be in maintaining a dubious conviction?”

His Lordship cautioned (at [22]) that the consequence of the ruling of the majority was that the jury is immune from scrutiny, and that will “gnaw at public confidence in juries”. There is an interesting discussion of these issues in K. Quinn, “Jury Bias and the European Convention on Human Rights: a Well-Kept Secret” [2004] Crim. L.R. 998 and in L. McGowan, “Trial by Jury: Still a Lamp in the Dark?” (2005) 69 J. Crim. L. 518.

The decision in Connor was considered by the House of Lords in Smith; Mercieca [2005] UKHL 12; [2005] 1 W.L.R. 704. The trial judge had received a letter from one of the jurors, stating that a certain group of jurors had been badgering, coercing and intimidating other jurors into changing their verdicts.

It was held that the judge was not obliged to question the jurors about the contents of the letter, nor would it have been appropriate for him to do so. If he had gone into the allegations, he would inevitably have had to question them about

CRIMINAL LAW TODAY • ISSUE 3

the subject of their deliberations (namely, whether the defendants were guilty of any of the offences charged). It was held that the common law prohibition against enquiring into events in the jury room extends to matters connected with the subject matter of the jury’s deliberations (per Lord Carswell at [20]). Moreover, where the juror’s communication alleges wilful misconduct on the part of certain jurors and deliberate disregard of the judge’s directions on the law, the prospects of obtaining satisfactory answers to questioning would be rather limited (at [21]).

The judge in such a case is left with the choice of discharging the jury or giving them a further direction re-emphasising their duty to carry out their discussion with proper give and take (at [22]). If the jury have been behaving as alleged in the juror’s letter, they require a stern warning that they have to follow the judge’s directions on the law, adhere to the evidence without speculation, and decide on the verdicts without pressure or bargaining (at [26]).

In Pintori [2007] EWCA Crim 1700, Dyson L.J. (at [19]) reiterated that the “general rule is that evidence of the jury’s deliberations is inadmissible” and went on to add that “this must extend to evidence not only of the jury’s discussions but also to evidence of how and why a particular juror reached his or her verdict”. However, in that case, evidence that the juror in question was a civilian police employee and of the extent of her knowledge of the officers in the

case was held to be admissible. The test to be applied was “whether, in the light of this evidence, a fairminded and informed observer, having considered the facts, would conclude that there was a real possibility that the jury was biased”.

In that case, the fact that the juror knew at least three of the officers in the case reasonably well was enough to satisfy the test for bias.

A similar approach was taken in Hambleton [2009] EWCA Crim 13.

After the defendant’s conviction, a juror reported that one of the jurors in the case had been overheard telling another juror that the defendant had been in trouble before (the inference being that he had previous convictions), a matter which had not been put in evidence by the prosecution. The Court of Appeal held that the test to be applied was whether a fair-minded and informed observer would conclude that there was a real possibility of bias by the jury being infected by material which was not part of the evidence and which was damaging to the defendant and ought not to have been taken into consideration. The court ruled that such a possibility did indeed exist, and the conviction was quashed.

It should be noted that the remark was *Crim. L.R. 138 apparently made in the jury room some time during the trial, not when the jury were considering their verdict.

In Hewgill, the problem arose from the conversation in the public house and so the Court of Appeal was concerned not with what had actually happened in the jury room

but with the question of whether there was a risk that the jurors, or some of them, had not approached their task correctly. The Court of Appeal rejected a submission from the prosecution that the court should determine whether the conversations had had a material effect upon the decision actually reached by the jury (by asking members of the jury questions as to whether what they had been told had actually affected their decision). Such investigations might have been regarded as permissible investigations into “extraneous material” introduced into the jury’s deliberations (the second exception to the rule that no investigation or enquiry into deliberations is admissible referred to by Lord Judge C.J. in Thompson ). However, the court clearly took the view that even if such an investigation were permissible, it was unnecessary: given the fact that the jurors had failed to report to the judge what was plainly an inappropriate conversation, it was impossible to conclude that they had reached their verdict in an impartial manner.

There was no need to consider their actual deliberations: the risk of bias was clear from the facts, and that was sufficient to necessitate the quashing of the conviction.

Report by David Hargreaves, Barrister Commentary by Peter Hungerford-Welch From Criminal Law Review 2012 You can subscribe to Criminal Law Week in print or as part of Westlaw UK Crime.

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CASE COMMENT

HUMAN RIGHTS: PRESUMPTION OF INNOCENCE

By ANDREW ASHWORTH

REUTERS/David Mdzinarishvili

Case: G v United Kingdom

*Crim. L.R. 47 G., aged 15, was convicted of rape of a child under 13, contrary to s.5 of the Sexual Offences Act 2003. For the purposes of the case it was accepted that the girl told G that she was also 15, and that she consented to the sexual acts.

The principal arguments on behalf of G were, (i) that to impose strict liability as to age for this serious offence was contrary to the presumption of innocence in art.6(2) of the Convention; and (ii) that to charge and convict a child of this serious offence, when the less serious offence under s.9 of the 2003 Act was available, was an unjustifiable interference with G’s right to respect for his private life contrary to art.8.

Fuller facts are set out in the report of the judgments in the House of Lords at [2008] Crim. L.R. 818. The House held, 3:2, that the conviction should stand and that neither of the defence arguments could be accepted.

Substantially the same arguments were made in support of the application to Strasbourg.

Held, ruling the application inadmissible, that (1) the court did not consider that Parliament’s decision not to make available a defence based on reasonable belief that the complainant was aged 13 or over could give rise to any issue under art.6; it is not the court’s role under art.6(1) or (2) to dictate the content of domestic criminal law, including whether or not a blameworthy state of mind should be one of the elements of the offence or whether there should be any particular defence available to the accused; and (2), by a majority, that the applicant’s right to respect for private life under art.8(1) was

CRIMINAL LAW TODAY • ISSUE 3

engaged on these facts, and that the margin of appreciation allowed to member states is narrow where intimate aspects of private life are concerned; but that under art.8(2) there was a powerful countervailing public interest, in the legitimate aim of protecting young and vulnerable children from premature sexual activity, exploitation and abuse. It was within the margin of appreciation to provide for conviction of this offence, and, given the wide range of possible sentences, to prosecute this applicant for the offence.

COMMENTARY This decision takes a similar path of reasoning to that of the majority judges, particularly Baroness Hale, in the House of Lords. The case did not reach the Strasbourg court for a full hearing, because the complaints were ruled inadmissible.

The decision on the first point is consistent with a line of previous judgments, starting with Salabiaku v France (1988) 13 E.H.R.R. 379. None of those judgments has resulted in the court intervening in the substance of domestic criminal law, for example by holding strict liability to be contrary to the presumption of innocence. However, all the judgments use somewhat inconclusive language, as by referring to presumptions of fact or law being permitted “within reasonable limits”. No hint has been given as to where the boundary of those limits is to be found. If the court means that states are free to impose burdens of proof on the defence whenever they wish to, it should say so. If it does not, some clarification of how the permissible/impermissible boundary might be located would be welcome.

The decision on the second point was discussed in the commentary on the House of Lords judgments at [2008] Crim. L.R. 818 and will not be rehearsed at length here. It is possible to accept the thrust of what Baroness Hale said and yet to disagree with its application in this case. Both Baroness Hale and the Fourth Section judges found a strong legitimate aim in the objective of protecting young and vulnerable children from premature sexual activity, exploitation and abuse. Indeed, the importance of this aim has been widely accepted since X and Y v Netherlands (1986) 8 E.H.R.R. 235. What neither Baroness Hale nor the Fourth Section *Crim. L.R. 48 discussed was the impact of this conviction on a person who was himself a child at the time, being under 16. The maximum sentence under s.5 of the 2003 Act is life imprisonment, and a conviction for this offence could have serious adverse consequences for this child in later years. The real question is therefore whether the decision to prosecute a child for this offence, when a lesser alternative under s.9 of the Act was available, was necessary in a democratic society. The failure to consider this precise question is regrettable: the focus was on the child victim without reference to the child offender, whereas one might argue that, if there was to be a prosecution in the absence of evidence of exploitation and abuse, art.8(2) would be better respected by prosecution under s.9, and that prosecution under s.5 was so oppressive as to violate the applicant’s art.8 rights.

Report and commentary by Andrew Ashworth Criminal Law Review 2012, Issue 1

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ARTICLE

BY ROBERT BRYAN

DOBSON & NORRIS AND THE TALE OF THE MINIMUM TERM On the 4 January 2012 at the Central Criminal Court Gary Dobson and David Norris were sentenced by Mr Justice Treacy for the murder of Stephen Lawrence. Much has been written about why the murder in April 1993 was sentenced in 2012 according to the law in force at the time.

The purpose of this article is not to rehash the mountain of print that has been written about whether the Sentencing Framework set out in His Lordship’s Sentencing Remarks were right, or whether the case should be re-considered by the Court of Appeal; this article in fact considers whether despite the assistance of three Queen’s Counsel and being an experienced Trial Judge himself, His Lordship still fell into error when passing sentence. If he did, and this article is based on the published Sentencing Remarks, it quite possibly shows that the relevant legislation has become so convoluted that even the most

CRIMINAL LAW TODAY • ISSUE 3

experienced can still make a basic error.

The question posed is how long were their sentences? By this is meant not how long might they serve, but how long must they serve before being considered for Parole?

To answer this one needs to concentrate on the very last paragraphs of the Sentencing Remarks, where His Lordship drew the threads together and passed sentence on each. Treacy J. said at paragraphs 23 & 24 in relation to Dobson: Gary Dobson, you are now 36; at 17 years and 10 months you were very nearly 18 when you murdered Stephen Lawrence. You are serving a 5 year sentence for drug supply offences. It would be unjust to grant you credit for any time spent in custody awaiting trial on this matter. I therefore decline to grant you any credit for time already spent in custody pursuant to S 240

of the Criminal Justice Act 2003.

In addition, there is no just reason why you should be able effectively to write off the remainder of the custodial element of the drug supply sentence, so I will increase the minimum term for this offence to prevent you receiving an undeserved benefit. I take note of two positive reports from HMP Belmarsh.

Taking account of all the circumstances referred to above, the sentence of the court for the murder of Stephen Lawrence is one of Detention at Her Majesty’s Pleasure.

I specify a minimum term to be served of 15 years and 2 months.

At paragraph 27 in relation to Norris: Taking account of all the circumstances in your case, the sentence of the court for the murder of Stephen Lawrence is one of Detention at Her Majesty’s Pleasure. I specify a minimum term to be served of 14 years and 3 months. Pursuant to S 240

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ARTICLE

Criminal Justice Act 2003, I direct that 483 days representing all time spent on remand since 9th September 2010 be credited towards the minimum term. Any arithmetical error may be corrected administratively.

Accordingly, with respect to His Lordship one needs to breakdown the constituent parts.

MURDER & ‘DETENTION DURING HER MAJESTY’S PLEASURE’ As is well known the sentence for murder is a ‘life sentence’. In fact there are three versions of ‘life sentence’: ‘imprisonment for life’ pursuant to section 1(1) of the Murder (Abolition of Death Penalty) Act 1965, a ‘sentence of detention during Her Majesty’s pleasure’ pursuant to [now] section 90 of the Powers of Criminal Courts (Sentencing) Act 2000, or ‘custody for life’ pursuant to section 93 of the same Act. Section 277 of the Criminal Justice Act 2003 defines ‘life sentence’ in these terms. The only offence for which any such sentence is ‘fixed by law’ is murder.

The distinction between a ‘sentence of detention during Her Majesty’s pleasure’ and ‘custody for life’ is drawn from the age of the offender at the time the murder is committed.

The latter applies to those over 18 but under 21 at the time of the murder.

MINIMUM TERM Section 269 of the Criminal Justice Act 2003 is headed “Determination of minimum term in relation to mandatory life sentence”.

CREDITING TIME ON REMAND In dealing with Dobson and Norris Treacy J. referred to section 240 of the Criminal Justice Act 2003. This section is headed “Crediting of periods of remand in custody: terms of imprisonment and detention”. This is a section with which many practitioners will be well-versed. It has caused a number of problems one of which, identified by Treacy J., was the correct calculation of the time spent in custody on remand. He used the formula “Any arithmetical error may be corrected administratively” being the formula approved of in R. v. Gordon [2007] 2 Cr.App.R.(S.) 66.

However despite this nod to appropriate procedure it would appear the Learned Judge still fell into error.

Firstly, as Gordon clearly repeats, section 240 is of no application to an offence committed before the 4th April 2005 (being the commencement date of that section). Prior to that section 67 of the Criminal Justice Act 1967 was the provision relating to remand time; that section provided that the period in detention or custody was automatically deducted from a sentence of imprisonment (and included police detention) whereas under the 2003 Act the crediting of a period on remand is Judgedirected.

Section 269 (1) says, This section applies where after the commencement of this section a court passes a life sentence in circumstances where the sentence is fixed by law.

Secondly even if section 240 was, by reason of the date of offence, ‘in play’, nevertheless it is not applicable to a sentence that is not a ‘term of imprisonment’ (see s240(1)), just as the earlier section 67 did not. It does not apply therefore to murder (or a sentence that is not a term); subsection (10) provides

As the only offence where sentence is ‘fixed by law’ is murder, so section 269 is ‘in play’, and unsurprisingly His Lordship covered this in paragraph 17 of his Remarks, where he said he would ‘apply the law faithfully’.

This section applies to a determinate sentence of imprisonment under section 91 of the Sentencing Act or section 228 of this Act as it applies to an equivalent sentence of imprisonment

Section 269 (2) says, “The court must, unless it makes an order under subsection (4) [an order that the early release provisions are not to apply to the offender, these in any event were not applicable as Dobson & Norris were under 21] order that section 28 (5) to (8) of the Crime (Sentences) Act 1997 (referred to in this Chapter as “the early release provisions’) are to apply as soon as he has served the part of the sentence which is specified in the order”. This is the provision whereby the Court sets the Minimum Term.

(Thus not relevant, but mentioned in passing, section 240 does not to discretionary life sentences, Imprisonment/Detention for Public Protection (see section 82A of the Powers of Criminal Courts (Sentencing) Act 2000)).

Thus once the offender has served the part of the sentence specified in the order he may be considered for release. So looking at the Minimum Terms passed we know that Gary

22

Dobson must serve a minimum term of 15 years and 2 months; but what of David Norris?

However this does not mean that an offender convicted of murder or for that matter an indeterminate sentence is not credited for any time spent in custody. Section 269 (and for that matter section 82A of the PCC(S) A) provides how the minimum term is to be calculated; 269 (3) The part of his sentence [the Minimum Term] is to be such as the court considers appropriate taking into account –

(a) the seriousness of the offence, or of the combination of the offence and any one or more offences associated with it, and (b) the effect of any direction which it would have given under section 240 (crediting periods of remand in custody) ...if it had sentenced him to a term of imprisonment.

Clearly in relation to Norris this is what His Lordship purported to do when he said: Pursuant to S 240 Criminal Justice Act 2003, I direct that 483 days representing all time spent on remand since 9th September 2010 be credited towards the minimum term.

But as section 240 does not apply, how is Norris to be credited with that time?

At paragraphs IV.49.1 onwards of the Practice Direction (Criminal Proceedings: Consolidation) (as substituted by Practice Direction (Crime: Mandatory Life Sentences) (No.2) [2004] 1 W.L.R. 2551 the steps to be taken when announcing in open court the minimum term are set out.

Paragraph IV.49.1 says: This direction replaces amendment number 6... Its purpose is to give practical guidance as to the procedure for passing a mandatory life sentence under section 269 and Schedule 21 of the Criminal Justice Act 2003. This direction also gives guidance as to the transitional arrangements under section 276 and Schedule 22... It clarifies the correct approach to looking at the practice of the Secretary of State prior to December 2002 for the purposes of Schedule 22 of the Act, in the light of the judgment in R. v.

Sullivan, Gibbs, Elener and Elener [2004] EWCA Crim 1762.

In passing given the date of the offence this was a transitional case so section 276 and Schedule 22 of the Act apply.

The Practice Direction continues at IV.49.12: The Court should then take into account what credit the offender would have received for a remand in custody under section 240 of the Act, but for the fact that the mandatory sentence is one of life imprisonment. Where the offender has been remanded in custody in connection with the offence or a related offence, the court should have in mind that no credit will otherwise be given for his time when the prisoner is considered for early release. The appropriate time to take it into account is when setting the minimum term. The court should normally subtract the time for which the offender was remanded in custody in connection with the offence or a related offence from the punitive period it would otherwise impose to reach the minimum term.

CRIMINAL LAW TODAY • ISSUE 3

ARTICLE

PERHAPS THE RELEVANCE BEHIND THE SENTENCING REMARKS RELATING TO DOBSON WAS TO DRAW THE DISTINCTION BETWEEN THE TWO TO THE GENERAL PUBLIC.

Then, “following these calculations the court should have arrived at the appropriate minimum term to be announced in open court”.

The Practice Direction also makes it clear that section 269 came into force in December 2003, and for offences committed before that date (as this was) there is a fourth step to be taken, this is to ensure that the sentence does not breach the principle of non-retroactivity (which is not the subject matter of this article).

Then comes “Procedure for announcing the minimum term in open court.” Paragraph IV.49.35 indicates that having gone through the three (or four steps) the Court is to state in open court the reasons for deciding on the minimum term. Paragraph IV.49.36 provides; [The] court should state clearly the minimum term it has determined...the court should also declare how much, if any time is being deducted for time spent in custody. The court must then explain that the minimum term is the minimum amount of time spent in custody.

Putting these matters together it would seem that the wording of the sentence passed on Norris is not as clear as it first seems. His Lordship announced that the minimum term was 14 years 3 months, but then directed the crediting of 483 days (which even then may not be the correct figure). As considered there is no power to credit the period of 483 days on remand. 483 days is almost exactly 1 year 4 months. If His Lordship wanted Norris to have the benefit of his time on remand to achieve the correct minimum term, according to the Practice Direction, the 1 year 4 months should be deducted from the punitive period (here 14 years 3 months), thereby giving the minimum term to be announced in court as 12 years 11 months.

Since there is no power for crediting the remand time one does wonder what was entered on the Court record as the minimum term? If the 1 year 4 months is not properly

CRIMINAL LAW TODAY • ISSUE 3

deducted, it may be that Norris will in fact serve a longer punitive custodial element than Dobson (14 years 3 months plus 1 year 4 months equaling 15 years 7 months to Dobson’s 15 years 2 months).

As it is the media reported that the minimum terms were 15 years 2 months and 14 years 3 months respectively.

There is a subsidiary point in relation to Dobson, when dealing with him His Lordship declined to credit him with the time he had spent on remand. Looking at the way the Judge expressed himself Dobson was a serving prisoner, and seemingly had been serving a sentence of 5 years throughout his remand pre-trial for Stephen Lawrence’s murder.

Putting aside the point already made as to the applicability of section 240, in Dobson’s case section 240 would not have applied in any event. The Remand in Custody (Effect of Concurrent and Consecutive Sentences of Imprisonment) Rules 2005 made pursuant to section 240(4) set out at paragraph 2: Section 240(3) of the 2003 Act does not apply in relation to a day for which an offender was remanded in custody— (a) if on that day he was serving a sentence of imprisonment (and it was not a day on which he was on licence under Chapter 6 of Part 12 of the 2003 Act or Part 2 of the Criminal Justice Act 1991); Perhaps the relevance behind the Sentencing Remarks relating to Dobson was to draw the distinction between the two to the general public.

The purpose behind this article is not to criticise those involved, but rather the next time someone is taken to task in the Court of Appeal for failing to correct an improperly expressed sentence they can take heart that even the most experienced dealing with the highest of profile cases may fall into error. As for any ramifications for Norris, only time will tell.

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However our updating of the Archbold content doesn’t stop there. With three supplements delivered as part of an Archbold subscription throughout the year, it keeps you fully up to date with all the latest law and practice but that’s not all…

As a subscriber to Archbold you can also register for free for the Archbold eUpdate, a weekly email showing you which parts of Archbold have been affected by changes in law and practice and outlines the changes for use alongside the book.

Cross-referenced through paragraph to the mainwork, the changes are presented in the style of Archbold and you can see exactly which parts of Archbold are affected as the same chapter and paragraph numbers are used.

What’s more, each week’s email is archived online, organised in chapter and paragraph order, which lets you check at anytime for any changes affecting Archbold content so you can be confident you are using the latest information. It also acts as an indication of the content that will be provided and expanded upon in each new supplement, ensuring you are always one step ahead.

If you’re already a subscriber to Archbold, don’t forget to register for your free eUpdate at sweetandmaxwell.co.uk/archbold

You can also choose whether to be alerted about transcripts and digests in your Daily Update too. No need to wait for the digest – be the first to find out about new cases.

“LAWTEL’S DAILY UPDATES GIVE ME THE CONFIDENCE THAT I’M FULLY ARMED WITH THE LATEST INFORMATION…”

WESTLAW UK CRIME A subscription to Westlaw UK or Westlaw UK Crime provides you with too many features to list here, but aside from all the great content and functionality, Westlaw UK provides a great way to keep you at the cutting edge of the latest developments.

Updated every 15 minutes, Monday to Friday, Westlaw UK’s Current Awareness service is the ideal way to get up-to-the-minute information on what’s happening in the law.

AND IF THAT’S NOT ENOUGH…WE’RE ALSO ON TWITTER! We’re tweeting regularly on all the latest news in criminal law that matters to you. From the latest headlines in the news, to blog posts we think you might be interested in, to the most recent publications from us, we bring you the news that matters.

Visit: Twitter.com/CriminalLawUK or follow us @CriminalLawUK

For a free Westlaw UK trial contact 0845 600 9355 or email customer.service@westlaw.co.uk

Visit sweetandmaxwell.co.uk for more details on any of these products or services.

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BOOKSHOP ARTICLE

BOOKSHOP MITCHELL, TAYLOR AND TALBOT ON CONFISCATION General Editors: Andrew Mitchell and Kennedy Talbot Principle Editor: Stephen Hellman • Explains the law as it relates to restraint, receivership, confiscation, civil recovery and money laundering • Gives you step-by-step guidance on what needs to be done at every stage of the proceedings • Includes a case and commentary section to illustrate how the law has been applied and interpreted by the courts • Shows how the law works in practice using examples of key case law 2012 subscription £342 2 volume looseleaf £220 until 31 July 2012 with 2 updates a year Quote code 0820511A at checkout.

CRIMINAL APPEAL REPORTS General Editor: Clare Barsby MA Consultant Editor: Daniel Janner, QC • Extensive coverage of all major criminal appeal cases, including cases not reported elsewhere • The first source of reference for criminal cases and are frequently cited in court • Judgments revised by the Court of Appeal itself • Full text judgments with detailed headnotes and blocklists of cases cited, and crossreferencing to Archbold 2012 subscription, 10 issues a year

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£882

CRIMINAL LAW TODAY • ISSUE 3

BOOKSHOP ARTICLE

NEW CRIMINAL APPEAL REPORTS (SENTENCING)

COURT OF APPEAL CRIMINAL DIVISION: A PRACTITIONER’S GUIDE

HUMAN RIGHTS AND CRIMINAL JUSTICE

Editors: Dr David A Thomas, QC, Tom Rees • Up to 30 important sentencing decisions with full details of every judgment • Includes head notes, each containing a key-word summary of the main issues and the background of the case, the judgment given and a list of cases referred to in the judgment • Sets out full text judgments covering cases decided in the Court of Appeal (Criminal Division) and Divisional Court

Susan Holdham and Alix Beldam • Covers general practice and procedure of the Court of Appeal Criminal Division, providing guidance in all aspects of the process • Helps you prepare well drafted grounds of appeal • Identifies the principles underlying the various jurisdictions and the court’s practice • Covers the various specific applications and appeals, outlining the rights of appeal and the relevant legislation and rules • Covers general Principles and Case Management, commencement of proceedings and pre-trial work

Andrew Ashworth QC, Alison Macdonald and Ben Emmerson QC • Shows you how your work is affected by human rights considerations • Deals in turn with the practical impact of human rights principles on each area of criminal practice • Provides a full and systematic analysis of UK human rights law and the criminal justice system • Covers the ECHR and the principles of interpretation and the HRA

2012 subscription, 10 issues a year

£638

CRIMINAL LAW REVIEW Editors: Professor Ian Dennis, Professor David Ormerod • Draws all aspects of the law together in one regular publication, allowing quick and easy monitoring of all key developments in law and practice • Saves the time of searching through many sources for the latest commentary, cases and legislation • Provides expert commentary on all important criminal law cases 2012 subscription, 12 issues a year

£411

MISUSE OF DRUGS AND DRUG TRAFFICKING OFFENCES

£106.25 until 30 June 2012 £125 from 1 July 2012

SENTENCING REFERENCER 2012 Dr David A Thomas QC • Gives guidance on 100 different sentencing topics in a clear and practical layout • 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 • Now available as an eBook on Thomson Reuters ProView™ December 2011

Rudi Fortson QC • Offers a balance of UK drugs law in their international context • Explains complex concepts of drug laws clearly, provides practical guidance and legal theory • Includes information on various substances, including `Legal Highs’ • Covers the impact of the Medicines Act 1968 and discusses the latest UK, UN and EU strategies for drug control 6th edition, January 2012

June 2012

£50

3rd edition, June 2012

£129

CRIMINAL LAW WEEK Editor: James Richardson QC • Insightful and concise weekly updates on criminal law and practice in print or email • Expert and provocative commentary from leading QC James Richardson • Online access to a fully searchable online database of over 14,000 digests of cases, statutes and SIs, indexed and fully crossreferenced • Offers distance learning CPD courses which are fully accredited by the Law Society and the Bar Council 2012 subscription 46 issues a year and online subscription £272 46 issues a year only £244 Online subscription only £200

£115

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CRIMINAL LAW TODAY • ISSUE 3

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REUTERS/TOBY MELVILLE

MASTER THE COURT OF APPEAL CRIMINAL DIVISION Appearing in the Court of Appeal Criminal Division (CACD) can be a pretty daunting experience. Much of the information relating to the practice of the CACD has been disparate and difficult to find. Until now…

Help is at hand in the form of the new title by Alix Beldam and Susan Holdham; Court of Appeal Criminal Division A Practitioner’s Guide. It brings together everything you need to prepare for a case in the CACD. Whether it’s the initial settling of grounds, the service of the Notice of Appeal, an application for bail, consideration of leave by the single judge through to the full Court hearing, the book provides guidance in all aspects of the process, systematically covering everything you need to know.

Order your copy today at sweetandmaxwell.co.uk.

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