8 Case Digest In Detail G v UK (App. No /08) 9 Gale v Serious Organised Crime Agency [2011] UKSC 49 Her Majesty s Advocate v P [2011] UKSC 44

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1 Blackstone s CRIMINAL PRACTICE Issue 2 Winter 2011/2012 Editors welcome Welcome to Blackstone s Criminal Practice Quarterly Update. Ensuring that practitioners are kept fully up to date with recent developments in criminal law, procedure and sentencing, this publication enhances the comprehensive coverage provided in Blackstone s Criminal Practice This latest issue digests recent cases across a range of offences including murder (diminished responsibility) and theft as well as summarising procedural and evidential cases dealing with matters such as the conduct of the trial judge, good character direction, and legal advice privilege. More detailed coverage is provided of G v UK (App. No /08) and Gale on applications to the ECtHR. The update also offers insights on Assange from HHJ Peter Rook QC, Tim Moloney QC, Anand Doobay, and Professor Valsamis Mitsilegas; and on Twist from Professor Michael Hirst. Lord Justice Hooper and Professor David Ormerod Issue 2 contents 2 Case Digest In Brief Criminal Law Joint Enterprise Criminal Law Rules of Attribution 3 Offences Diminished Responsibility Offences Theft and Robbery 4 Procedure Access to Legal Advice Procedure Jury Discharge Procedure Trial of Juveniles 5 Procedure Conduct of the Trial Judge Evidence Legal Advice Privilege Evidence Good Character Direction 8 Case Digest In Detail G v UK (App. No /08) 9 Gale v Serious Organised Crime Agency [2011] UKSC 49 Her Majesty s Advocate v P [2011] UKSC Legislation Police Reform and Social Responsibility Act 2011 Armed Forces Act Sentencing Burglary Riot and Related Offences Sexual Offences 11 Criminal Justice Act 2003 Order 2011 (SI 2011 No. 2188) 7 Violent Disorder Deportation Reduction in Sentence for Guilty Plea Criminal Justice Act 2003 Order 2011 (SI 2011 No.2224) 11 Police Reform and Social Responsibility Act 2011 Order 2011 (SI 2011 No. 2515) The Police Reform and Social Responsibility Act 2011 Order 2011 (2011 No. 2834) 12 Comment & Analysis Lessons from Assange Anand Doobay, Professor Valsamis Mitsilegas, Tim Moloney QC, HHJ Peter Rook QC 14 Hearsay and Relevance after Twist Professor Michael Hirst 16 Publishing News Police and Criminal Evidence Act 1984 Order 2011 (SI 2011 No. 2282) Visit

2 2 CASE DIGEST IN BRIEF Criminal Law Joint Enterprise Carpenter [2011] EWCA Crim 2568 The principal offender had been convicted of murder. The appellant also faced a count of murder, based on joint enterprise. In his summing-up, the judge left the alternative of manslaughter to the jury and he directed that the defendant would be guilty of manslaughter if she had participated in the violence, and, if when she had done so she had known that the principal offender had had a knife and had intended to use it to cause some injury or harm, but falling short of killing or causing serious bodily harm, or had realised that he might use a knife to cause some injury, falling short of really serious harm. The defendant was acquitted of murder but convicted of manslaughter. The direction to the jury was attacked on appeal on the basis that Mendez [2010] 3 All ER 231 had altered the law in this respect. Richards LJ took the view that Mendez could be readily distinguished: What the court said about the unavailability of manslaughter as a possible verdict has to be read in that context: it was directed to a case where use of a knife was not foreseen, rather than to a case where use of a knife was foreseen but the secondary party did not share or foresee the intention with which it was used. Roberts and Day [2001] EWCA Crim 1594 remained good law. See Blackstone s Criminal Practice: A4.9 Criminal Law Rules of Attribution St Regis Paper Company Ltd [2011] EWCA Crim 2527 In this case, S, the company s technical manager, had recorded false readings and filed misleading reports with the Environment Agency. He was duly convicted under the Pollution Prevention and Control (England and Wales) Regulations 2000, reg. 32(1)(g), by which it is an offence for a person intentionally to make a false entry in any record required to be kept under the condition of a permit. The trial judge ruled that the intentional actions of S could also be attributed to the appellant company because, although he was not for most purposes the directing or controlling mind of the company, he could be identified as such for this particular purpose or in this particular context. The company was then itself convicted under reg. 32, and appealed. After considering Tesco Supermarkets v Nattrass [1972] AC 153 and Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 2 AC 500, the Court of Appeal considered that it was impossible to impose criminal liability for a breach of reg. 32(1)(g) on the company in circumstances other than those where an intention to make a false entry could be attributed by the ordinary operation of the rule in Tesco v Natrass. There was no warrant or necessity, in this context, for attributing to the company the intentions or mens rea of any less senior officers or employees. The Court did not however disapprove of Meridian, nor did it even refer to the other Tesco case, Tesco Supermarkets Ltd v Brent London Borough Council [1993] 1 WLR 1037, in which the mens rea of a lowly checkout operator was attributed ( of necessity ) to the company under the the Video Recording Act 1984, s.11. Such cases appear to remain good law, in their own particular contexts. As the Court observed, it is all a matter of statutory construction: There is no basis for suggesting that the Regulations, designed as they are to protect the environment and prevent pollution, cannot function without imposing liability on the company in respect of one who is not the directing will and mind of the company. We do not, accordingly, agree with the judge that it is necessary to relax the rule in Tesco v Nattrass to avoid emasculating the legislation, as he put it. See Blackstone s Criminal Practice: A6.6 and A6.7 Follow us on twitter at

3 Issue 2 Winter 2011/2012 Offences Diminished Responsibility Brown [2011] EWCA Crim 2796 This was an appeal against sentence following a conviction for manslaughter on the ground of diminished responsibility where the sentence was 24 years imprisonment. The Court of Appeal was asked to consider whether the words substantially impaired in the Homicide Act 1957, s. 2 (as substituted by the Coroners and Justice Act 2009, s. 52), provided a different test to that which was applied to the term substantial impairment in the many cases under the earlier version of the Act. The trial judge had directed the jury that the reference to substantially impaired required the jury to conclude that the impairment was more than minimal. Lord Judge CJ held that there had been no change in that element of the test, that the direction was accurate and that the trial judge s conclusion (that the offender s responsibility for the death of his wife, although diminished, remained substantial and that he retained real culpability for what he had done) was consistent with the jury s verdict. See Blackstone s Criminal Practice: B1.20 Offences Theft and Robbery Vinall [2011] EWCA Crim 6252 The appellant (V) and his gang came across the complainant, D-N, who was on his bicycle, and attacked him. D-N dropped his cycle and fled, pursued by members of the gang, who later returned and made off with the cycle. But they apparently did not keep it for long, because it was found abandoned by a bus shelter only 50 yards away. V and his friends were charged with robbery but argued that they had lacked any intention to permanently deprive D-N of his property; and although there had evidently been force and threats of further force, it was argued that this had not been used or threatened for the purpose of taking the bicycle. The judge however rejected a submission of no case to answer and the Court of Appeal held that he had been right to do so. There was evidence from which the jury might infer that the defendants used or threatened force in order to steal, dishonestly appropriated the bicycle by taking it, and either intended to permanently to deprive D-N of it or treated it as their own to dispose of regardless of his rights. The robbery conviction was nevertheless unsafe because the judge s directions had been inadequate. He had left to the jury the option of concluding that the act of theft was completed only when the cycle was abandoned. If the theft was committed only at the moment of abandonment the prosecution case of robbery was fatally undermined. In those circumstances the prosecution could not prove that force or the threat of force was used before or at the time of and in order to steal. That sufficed to dispose of the appeal (the Court did not think it appropriate to substitute convictions for taking a pedal cycle or theft), but Pitchford LJ went on to examine the scope of the Theft Act 1968, s. 6(1). He endorsed (inter alia) Auld LJ s earlier dictum in Fernandes [1996] 1 Cr App R 175, that s. 6(1) may apply not only to ransom cases but also to cases in which a person in possession or control of another s property who, dishonestly and for his own purpose, deals with that property in such a manner that he knows he is risking its loss. Pitchford LJ added: What section 6(1) requires is a state of mind in the defendant which Parliament regards as the equivalent of an intention permanently to deprive [It] does not require that the thing has been disposed of, nor does it require that the defendant intends to dispose of the thing in any particular way. No doubt evidence of a particular disposal or a particular intention to dispose of the thing will constitute evidence of the defendant s state of mind but it is, in our view, for the jury to decide upon the circumstances proved whether the defendant harboured the statutory intention. See Blackstone s Criminal Practice: B4.42 and B Visit

4 4 Procedure Access to Legal Advice McGowan v B [2011] UKSC 54 The Supreme Court has once again considered the right to legal advice under the ECHR, Article 6 in the context of a reference from a Scottish court. In the instant case, the appellant had declined the offer of legal assistance, but had not received legal advice before making that decision. It was submitted that it would violate Article 6 if the Crown were to lead evidence of the appellant s police interview, since access to a solicitor should be automatic when a person is detained in police custody. The Supreme Court rejected this argument. It held (Lord Kerr dissenting) that there is no absolute rule by which an accused must be given legal advice on the question of whether or not he should exercise his right of access to a lawyer before he can be held to have waived it. The jurisprudence of the ECtHR at Strasbourg does not support that proposition. So where an accused, having been informed of his rights, stated that he did not want to exercise them, his express waiver of those rights must normally be considered valid and effective. Note also Jude v HM Advocate [2011] UKSC 55, which is to similar effect. See Blackstone s Criminal Practice: D1.37 Procedure Jury Discharge Mears [2011] EWCA Crim 2651 A juror s fiancé had sat in the public gallery for a number of days during a long trial. It was established that he had certainly been present for some exchanges in court from which the jury was excluded. It emerged that the affianced couple had been in touch by text during the trial, including periods when the juror was in the retiring room and including a text message from the public gallery of the one word Guilty sent during the judge s summing up. Some of the information gleaned by the juror from the exchanges from which she was included was passed on to at least one other juror and it is clear that the Court of Appeal were sympathetic to the view that the text messages were the tip of the iceberg. Although the Court considered that the judge correctly identified the test to be applied, he failed properly to apply it because he substituted his own view of the facts for that of the fair-minded, independent, and informed observer. The Court reached the clear conclusion that a fairminded, independent and informed observer, knowing that jurors must be, and must be seen to be, unbiased, would have concluded that there was a real risk that during the course of the trial the jury in this case had received information and views emanating from an extraneous source that it could not put out of its mind. The appeal was allowed and the convictions quashed. See Blackstone s Criminal Practice: D13.51 Procedure Trial of Juveniles R (W) v Leeds Crown Court [2011] EWHC 2326 (Admin) The claimant, aged 14, was committed with an adult co-accused for trial to the Crown Court at Leeds on charges of burglary and witness intimidation. At a plea and case management hearing, the co-accused pleaded guilty, but the claimant maintained a plea of not guilty and sought for his case to be remitted to the youth court, given that he no longer faced trial with an adult. The Recorder of Leeds held that the Crown Court had no power to remit such a case to the youth court, because no such power is provided in the relevant legislation, even though he agreed that such a course would otherwise have been desirable in the circumstances. The Divisional Court agreed. Sir Anthony May P said (at [50] [51]): There is no doubt but that it would be highly desirable for the Crown Court to have the power that is contended for in this case. It would only be a power which the Crown Court would not be obliged to operate if there were good and compelling reasons for not doing so, as for instance where the adult who had pleaded guilty remained to be sentenced and the court reckoned that it ought to hear the evidence in the case of the child or young person before proceeding to sentence the adult. However, this court is not the legislature and cannot engage in judicial legislation at will, however desirable it might be. Nevertheless, I feel strongly that this is a matter which requires Parliamentary attention, and I trust that those concerned will feel able to give effect to what should be a straightforward and short piece of amending legislation. See Blackstone s Criminal Practice: D24.58 Follow us on twitter at

5 Issue 2 Winter 2011/ Procedure Conduct of the Trial Judge Malcolm [2011] EWCA Crim 2069 This case illustrates the importance of the principle that a trial judge must not appear to be assisting or directing the prosecution, or biased against the accused, even if the conduct of the defence case is open to criticism. At trial the Recorder identified what he perceived to be gaps in the prosecution s evidence, and directed them to call two further witnesses and questioned one of these himself. He also made repeated criticisms of deficiencies in the defence statement. The defendant was convicted and appealed. His conviction was quashed. Hooper LJ referred (inter alia) to Taylor LJ s judgment in Grafton [1993] QB 101 and said (at [110] and [112]): It is not of course suggested that the Recorder was biased against the defendant. But there remains the issue of the appearance of bias. what we are required to resolve is whether, looking at the trial process as a whole, the Recorder, albeit unintentionally, crossed the line between appropriate and inappropriate judicial conduct by adopting or appearing to adopt the role of the prosecutor. When all the authorities have been examined, in the end, this is a fact specific question. Not without some reluctance we have reached the conclusion that the way in which the Recorder descended into the arena was inappropriate. It was his duty to manage the case in a direct and robust way. But here, the combined effect of his constant repetitious criticism of the inadequacies of the defence statement (when, having given the defence every opportunity to make good those deficiencies, he would have been entitled to make strong comments in his summing up) together with the directions he gave to the prosecution about witnesses who were to be called, would have created in the mind of the informed mutual observer the perception that there was a real possibility that the Recorder had become biased against the defendant. See Blackstone s Criminal Practice: D26.23 Evidence Legal Advice Privilege R (Ford) v Financial Services Authority [2011] EWHC 2583 (Admin) Three Rivers District Council v Governor and Company of the Bank of England (No. 6) [2005] 1 AC 610 was applied in this case, in which the executive directors of a company were able to assert joint legal privilege (i.e. privilege shared with the company itself) over advice provided for them by solicitors retained by the company. Crucially, the executives had reasonably believed that the solicitors were also advising them as individuals and not simply as directors and officers of the company. Because they could assert this privilege, it was not open to the company s administrators to waive that privilege by disclosure to the FSA, whereas the administrators could properly have waived it in so far as it concerned any advice given to the company alone. See Blackstone s Criminal Practice: F9.30 Evidence Good Character Direction Enrieu [2011] All ER (D) 96 (Oct) This was a historic sex abuse case in which the appellant s previously unblemished good character had been of great importance, especially in light of the troubled character of his accuser, his step-son. The trial judge, however, had said only that his good character could be used to his advantage. Small [2008] EWCA Crim 2788 and GJB [2011] EWCA Crim 867 were considered by the Court of Appeal. The jury ought to have been told clearly and definitely that the appellant s good character must be taken into account. The words used had to be affirmative and definitive. The words could be used diluted the direction. There were also difficulties concerning the judge s failure to deal adequately with the issues arising from the historic nature of the accusation and the complainant s delay in making it. The conviction was accordingly unsafe. See Blackstone s Criminal Practice: F13.3 Visit

6 6 SENTENCING Burglary The Sentencing Council for England and Wales has ssued a definitive guideline on burglary (aggravated burglary, domestic burglary and non-domestic burglary). It applies to offenders sentenced on or after 16 January 2012 who are aged 18 or over. It can be accessed at gov.uk/guidelines/forthcoming-guidelines.htm. In order to encourage a consistent approach to sentencing the same guideline will be applicable to both the Crown Court and magistrates courts. The guideline has however, been produced in two different versions to fit within existing formats for judges and magistrates. See Blackstone s Criminal Practice: B4.59 Riot and Related Offences Blackshaw [2011] EWCA Crim 2312 Guidance in relation to a range of offences committed during the period of rioting in London and other cities was given by the Court of Appeal. While the offences themselves were burglary, receiving stolen goods and encouraging or assisting offences, the guidance as to sentencing, a general indication that cases of this type will be treated severely and in some cases more severely than the sentencing guidelines might otherwise suggest, is of wider application. See Blackstone s Criminal Practice: B4.59 Sexual Offences Hall [2011] EWCA Crim 2753 The Court of Appeal revisited the issue of sentencing in cases of historic sexual abuse. Lord Judge LCJ suggested that the following principles applied: (a) Sentence will be imposed at the date of the sentencing hearing, on the basis of the legislative provisions then current, and by measured reference to any definitive sentencing guidelines relevant to the situation revealed by the established facts. (b) Although sentence must be limited to the maximum sentence at the date when the offence was committed, it is wholly unrealistic to attempt an assessment of sentence by seeking to identify in 2011 what the sentence for the individual offence was likely to have been if the offence had come to light at or shortly after the date when it was committed. Similarly, if maximum sentences have been reduced, the more severe attitude to the offence in earlier years should not apply. (c) Due allowance for the passage of time may be appropriate. The date may have a considerable bearing on the offender s culpability. If, for example, the offender was very young and immature at the time when the case was committed, that remains a continuing feature of the sentencing decision. Similarly if the allegations had come to light many years earlier and the defendant had admitted them but the complaint had not been drawn to the attention of, or investigated by, the police, or had been investigated and not then pursued to trial, these too would be relevant features. (d) The fact that, notwithstanding the passage of years, the victim has chosen spontaneously to report what happened to him or her in his or her childhood or younger years would be an indication of continuing inner turmoil. However, careful judgment of the harm done to the victim is always a critical feature of the sentencing decision. Equal care needs to be taken to assess the true extent of the defendant s criminality by reference to what he actually did and the circumstances in which he did it. (e) The passing of the years may demonstrate aggravating features if, for example, the defendant has continued to commit sexual crime or he represents a continuing risk to the public. On the other hand, mitigation may be found in an unblemished life over the years since the offences were committed, particularly if accompanied by evidence of positive good character. (g) Early admissions and a guilty plea are of particular importance in historic cases. Just because they relate to facts which are long passed, the defendant will inevitably be tempted to lie his way out of the allegations. It is greatly to his credit if he makes early admissions. Even more powerful mitigation is available to the offender who out of a sense of guilt and remorse reports himself to the authorities. See Blackstone s Criminal Practice: B3.2 Follow us on twitter at

7 Issue 2 Winter 2011/2012 Violent Disorder Gilmour [2011] EWCA Crim 2458 The offender was an undergraduate of previous good character who had engaged in some serious and wellpublicised acts of violent disorder, including attacks on shops and an attack on a car containing the Prince of Wales. These acts (and some other drunken behaviour such as swinging from a flag at the Cenotaph) were caught on camera in both video and still images and he was identified from those images. He pleaded guilty to violent disorder, although he disputed his responsibility for some of the more serious acts. He sought leave to appeal against a sentence of 16 months imprisonment, but Hughes LJ said: We do not believe that violence in this context and of the kind displayed by this defendant can normally be met by other than significant sentences of immediate custody even for those of otherwise good character. The judge could not give Mr Gilmour the same reduction in sentence for his plea of guilty which he would have been able to give if he had felt able to admit everything he had done, but he could, and plainly did, reduce the sentence appreciably because he pleaded guilty. Violent disorder carries a maximum of five years imprisonment. A sentence of something in the region of months after trial, which is what the judge has passed, correctly took account both of the defendant s serious and dangerous acts in this inflammatory context and of his normal character. It is a penalty which properly met the facts of this case. Deportation R [2011] EWCA Crim 2268 The Court of Appeal accepted that a sentencing judge could properly take notice of the Home Office policy of automatically seeking the deportation of convicted foreign nationals who have been sentenced to imprisonment for 12 months or more and might therefore be assisted by having that policy brought to his attention. Where however a longer (but not otherwise excessive) sentence has been passed, it would be wrong for the Court of Appeal to substitute a more lenient (sub-12 month) sentence simply to avoid the possible deportation of an offender, even if the Home Office policy had not been brought to the judge s attention. See Blackstone s Criminal Practice: E See Blackstone s Criminal Practice: B11.30 Reduction in Sentence for Guilty Plea T [2011] EWCA Crim 2345 The issue was whether a trial judge could refuse to allow a sentencing discount for a guilty plea in circumstances where there were aggravating factors but where none of the recognised exceptions to the general principle of reducing a sentence to take account of a guilty plea applied. The judge was aware that the 16-year-old offender was being sentenced for his third violent offence (one that had grave consequences for the victim, who had suffered brain damage), and that he had been subject to a licence at the time of committing it. He was also mindful of the fact that an adult offender would have been dealt with much more severely, and he imposed the maximum available sentence, a twoyear detention and training order. The Court of Appeal held that the judge had no option but to make some allowance for the plea, although there was no basis for anything more than the minimum reduction. The sentence was quashed and substituted by an 18-month detention and training order, this being the next available sentence. See Blackstone s Criminal Practice: E1.6 Visit

8 8 CASE DIGEST IN detail G v UK (App. No /08) This case concerns the decision of the House of Lords in G [2009] 1 AC 92. It was the subject of an application to the ECtHR and the Court (Fourth Section), sitting as a Chamber, declared the application inadmissible. In what amounted to a repeat of the principal arguments advanced before the House of Lords, the applicant submitted that the Sexual Offences Act 2003, s. 5 (rape of a child under 13) breached Articles 6 and 8 of the ECHR. The ECHR commenced its analysis by observing that a person s right in a criminal case to be presumed innocent and to require the prosecution to bear the onus of proving the allegations against him or her is specifically mentioned in Article 6(2). It was important to note that Articles 6(1) and (2) do not prevent domestic criminal law from providing for presumptions of fact or law to be drawn from elements proved by the prosecution. In that way, the prosecution is absolved from having to separately establish all the elements of the offence. That process is acceptable provided such presumptions remain within reasonable limits and take into account the importance of what is at stake and maintain the rights of the defence. The Court stressed that in principle Contracting States remain free to apply the criminal law to any act which is not carried out in the normal exercise of one of the rights protected under the Convention and, accordingly, to define the constituent elements of the resulting offence. The Court emphasised that it is not its role under Article 6(1) or (2) to dictate the content of domestic criminal law. That was so in relation to, inter alia, 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. The Court went on to note that Parliament created the offence under s. 5 in order to protect children from sexual abuse. It identified the nature of the offence. The actus reus of the offence is penile penetration, by any person old enough for criminal responsibility, of the vagina, anus or mouth of a child aged 12 or under. The mens rea is intention to penetrate. Knowledge of, or recklessness as to, the age of the child or as to the child s unwillingness to take part in the sexual activity are not elements of the offence. The prosecution is required to prove all the elements of the offence beyond reasonable doubt. The Court therefore concluded that Parliament s decision not to make available a defence based on reasonable belief that the complainant was aged 13 or over could not give rise to any issue under Articles 6(1) or (2). As to the argument that s. 5 breached Article 8, the Court s reasoning was as follows. The Court had to decide whether or not the infringement of the applicant s rights was necessary in a democratic society in accordance with Article 8(2). The Court explained that Strasbourg jurisprudence establishes that the notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued. The Court will take into account that a margin of appreciation is left to the national authorities - that margin of appreciation is not constant and will vary according to the right that is interfered with. When the right is an intimate one (as in the instant case) then the margin of appreciation will usually be narrow. But there was also a countervailing public interest to protect the complainant and other children in her position against premature sexual activity, exploitation and abuse. The State is under a positive obligation under Article 8 to protect vulnerable individuals from sexual abuse and the Contracting States enjoy a wide margin of appreciation as regards the means to ensure adequate protection against rape. The Court therefore concluded that the UK had not exceeded its margin of appreciation in creating an offence of rape which had no defence in respect of consent or mistaken belief as to the complainant s age. Moreover, the UK did not exceed its margin of appreciation in prosecuting the applicant as the legislation permitted a broad range of sentences and the Court of Appeal took into account the mitigating circumstances of the offence. The application based upon Article 8 was therefore dismissed as manifestly ill-founded. See Blackstone s Criminal Practice: B3.50 Follow us on twitter at

9 Issue 2 Winter 2011/2012 Gale v Serious Organised Crime Agency [2011] UKSC 49 The Supreme Court considered the relationship of earlier Portuguese proceedings which had resulted in acquittal and subsequent civil recovery proceedings under the Proceeds of Crime Act 2002 relating to the same conduct and, in particular, whether an order in those circumstances infringed the terms of Article 6(2) of the ECHR that Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law which, under English and Welsh law requires proof to the criminal standard. In the principal speech, with which the other judges agreed, Lord Phillips, noted that: There are a number of cases... where the Strasbourg Court has held that the presumption of innocence in article 6(2) was infringed by findings in subsequent proceedings that cast doubt on the validity of a prior acquittal in criminal proceedings. The common factor in these cases has been a procedural connection between the criminal trial and the subsequent proceedings - the mantra oft-repeated has been that the latter proceedings were a consequence and the concomitant of the criminal proceedings. They amount, therefore, to an attempt to re-determine those proceedings. He, nevertheless, found the Strasbourg jurisprudence confusing and suggested that the issue might benefit from consideration by the Grand Chamber. Overall, he concluded that there was nothing in the jurisprudence that lent support to the conclusion that the criminal standard must be applied to proof of criminal conduct in proceedings under the POCA However, the full implications of the decision are not easy to deduce and, in particular, whether the obiter dicta in Briggs-Price [2009] 1 AC 1026 are to be disregarded namely that, where the prosecution can only rely upon the fact of other offences as probative of benefit, those offences must be proved to the criminal standard to prove. As the Court acknowledged the existence of a strand of supporting European authorities, presumably it has not decided that the criminal standard of proof has no application to any part of the POCA 2002 in any circumstances. Their lordships agreed with Griffith Williams J s ruling at trial (see [2009] EWHC 1015 (QB)) that: To consider the evidence adduced in the Portuguese proceedings is not to re-litigate because what is in issue in these proceedings is not the commission of the specific offences alleged against DG in Portugal but whether on the evidence before this court of the material considered by the Portuguese Court, together with the evidence available to the Spanish Courts and other material not considered by the courts in either jurisdiction, the claimant has proved on the balance of probabilities that DG s wealth was obtained through unlawful conduct of a particular kind or of one of a number of kinds, each of which would have been unlawful conduct: see section 242(2)(b) of POCA that is to say drug trafficking, money laundering and tax evasion. Where however a person has been acquitted in criminal proceedings and faces subsequent civil recovery proceedings, the ECHR, Article 6 might be engaged in circumstances where there is a procedural link between the criminal prosecution and the subsequent confiscation proceedings, notably where the latter proceedings follow on from, and represent an attempt to re-determine, the original criminal proceedings. It was further held that nothing in the Proceeds of Crime Act 2002 or in the Civil Procedure Rules prevents the cost to SOCA of paying an interim receiver from being part of the costs of or incidental to the civil recovery proceedings. 9 See Blackstone s Criminal Practice: E19.3 Her Majesty s Advocate v P [2011] UKSC 44 The PACE 1984, s. 76(4) and (5) were considered for comparative purposes in this case, a Scottish reference to the UK Supreme Court which raised issues under the Human Rights Act 1998 that may equally apply to cases under English law. The judgment of the court was indeed said by Lord Brown to be, entirely consistent with the position established under English law and, I hope we may all agree, none the worse for that. The accused, P, was indicted in Scotland on charges of assault and rape which were alleged to have taken place on 10 and 11 October On 11 October 2009 he was detained and interviewed by the police in connection with those alleged offences, but was not given access to legal advice prior to or during the interview. This denial of access to legal advice was clearly a breach of his rights under the ECHR, Article 6: see Cadder v HM Advocate [2010] UKSC 43, 2010 SLT 1125, Ambrose v Harris [2011] UKSC 43 and Salduz v Turkey (2008) 49 EHRR 421 but the issue that arose in P was a different one because, as a result of the interview, the police were able to contact and secure a statement from P s friend, X, which was to some extent incriminating of P. Could the Crown legitimately lead that evidence without infringing P s rights under Article 6? Visit

10 10 The Supreme Court concluded that there was no absolute principle of human rights law that would require the exclusion of such evidence, or indeed of any other evidence obtained as a result of confessions or disclosures at an improperly conducted police interview. Lord Hope, in giving the leading judgment, referred to the position under English law, which clearly he considered to be consistent with Article 6: Section 76(4) provides that a confession that is wholly or partly excluded does not affect the admissibility of any facts discovered as a result of the confession. Under section 78(1) of that Act a breach of section 58 may lead to the exclusion of evidence as to what the person said under police questioning, including any evidence that has been derived from it. But evidence improperly obtained in this way is not invariably inadmissible, as section 78(1) requires the court to have regard to all the circumstances. Ultimately the question is whether it would or would not be fair to admit the evidence: R v Looseley [2001] UKHL 53, [2001] 1 WLR I think that regard can be had to the position in England and Wales which is dealt with in section 76 Subject to the court s discretionary power to exclude it under section 78(1), evidence derived from an involuntary statement which can be adduced without having to rely on that statement is admissible. The Supreme Court also took account of the judgment of the ECtHR Grand Chamber in Gäfgen v Germany (2010) 52 EHRR 1. In Gäfgen the police had threatened serious violence against the appellant in order to make him reveal the whereabouts of a kidnapped child, whom they still hoped to find alive. He then showed them where to find the child, whom he had in fact already murdered. It was held that under Article 3 of the Convention the use or threat of such violence could not be justified, even in those circumstances, and that the appellant s confession had rightly been excluded at trial, but by a majority the ECtHR declined to condemn as unfair the trial court s decision to admit and rely upon evidence concerning the finding of the body, etc. (and a further confession made by the appellant after the threat of violence had been removed) saying (at [174]): The Court notes that there is no clear consensus among the contracting states to the Convention, the courts of other states and other human-rights monitoring institutions about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence. See Blackstone s Criminal Practice: F17.54 LEGISLATION Police Reform and Social Responsibility Act 2011 The Act makes provision about the administration and governance of police forces; about the licensing of, and for the imposition of a late night levy in relation to, the sale and supply of alcohol and for the repeal of provisions about alcohol disorder zones; for the repeal of the Serious Organised Crime and Police Act 2005, ss. 132 to 138 and for the prohibition of certain activities in Parliament Square; to enable provision in local authority bye-laws to include powers of seizure and forfeiture; about the control of dangerous or otherwise harmful drugs; to restrict the issue of arrest warrants for certain extra-territorial offences; and for connected purposes. The Act received Royal Assent on 15 September Most of the provisions of the Act are to be brought into effect by order. Inter alia s. 153 (restrictions on issue of arrest warrants in private prosecutions) came into force on Royal Assent. Armed Forces Act 2011 This Act (inter alia) amends the Armed Forces Act 2006 so as to enable that Act to remain in force (if renewed annually by Order in Council approved by each House of Parliament) until the end of It also contains provisions dealing with the appointment and duties of provost marshals, the inspection of service police investigations, the regulation of Ministry of Defence police performance, the powers of a judge advocate to authorise entry and search by service police, the sentencing powers of a court-martial, the making of service sexual prevention orders, and circumstances in which civilians may be subject to service discipline. Follow us on twitter at

11 Issue 2 Winter 2011/ Provision is made for judge advocates, except those appointed temporarily, to broaden their experience by enabling them to exercise some of the jurisdiction of the Crown Court and to have the powers of a justice of the peace who is a District Judge (Magistrates Courts). Other provisions of the Act amend provisions in the 2006 Act dealing with access by service police to excluded material or special procedure material, etc. Most of the relevant provisions are not yet in force, but s 1 (enabling continuation of the 2006 Act) came into force on Royal Assent (3 November 2011). Criminal Justice Act 2003 (Commencement No. 26) Order 2011 (SI 2011 No. 2188) This Order brings into force the CJA 2003, ss. 29(1) to (3), (5) and (6) and 30 so as to allow the following public prosecutors to institute criminal proceedings by issuing a written charge and requisition: a person specified by the Secretary of State in an order under s. 29(5)(h) or a person authorised by such a person (with effect from 6 September 2011); a police force or a person authorised by a police force to institute criminal proceedings in England and Wales, so far as not currently allowed (with effect from 3 October 2011); and the Secretary of State for Business, Innovation and Skills or a person authorised by the Secretary of State for Business, Innovation and Skills to institute criminal proceedings (with effect from 3 October 2011). Criminal Justice Act 2003 (New Method of Instituting Proceedings) (Public Prosecutor Specification) Order 2011 (SI 2011 No. 2224) Article 2 of this Order specifies Transport for London as a public prosecutor for the purposes of the CJA 2003, s. 29. Section 29 provides public prosecutors with the power to institute criminal proceedings on the issue of a written charge and requisition. Police and Criminal Evidence Act 1984 (Armed Forces) (Amendment) Order 2011 (SI 2011 No. 2282) This Order amends the principal Order of 2009 (SI 2009 No. 1922), with effect from 30 October 2011, so as to extend the time-limit for retention of a fingerprint, impression or sample where a person has been convicted of a service offence. Police Reform and Social Responsibility Act 2011 (Commencement No. 1) Order 2011 (SI 2011 No. 2515) Article 2 of this Order brought the following provisions of the Police Reform and Social Responsibility Act 2011 into force on 31 October 2011: ss. 31, 79 (in part), 98 (in part) and sch. 7 and sch. 15, para. 24 (police conduct and reform). Article 3 brought into force, on 15th November 2011: ss. 78, 80, 95 (in part) and sch. 14, paras. 1-4, which mainly deal with police complaints. Article 3 also brought into force on that date ss. 151 (which gives effect to sch. 17) and 152 (constitution of the Advisory Council on the Misuse of Drugs) and sch. 17 (which contains amendments to the Misuse of Drugs Act 1971 and the Customs and Excise Management Act 1979 relating to temporary class drug orders). The Police Reform and Social Responsibility Act 2011 (Commencement No. 2) Order 2011 (2011 No. 2834) Article 2 of this Order brought into force ss. 142 to 149 and 150 (except for s. 150(2) insofar as it relates to local authorities in Wales) of the Act on 19 December It also brought into force the repeal of the Serious Organised Crime and Police Act 2005, s. 137 on that date. Sections 142 to 149 provide a new regime for the control of activities in the central garden of Parliament Square and the footways that adjoin it and create a number of new offences in relation to activities such as failing to comply with a direction of an authorised officer. Section 150 amends the Parks Regulation (Amendment) Act 1926, the Local Government Act 1972 and the Greater London Authority Act 1999 so as to make it possible for byelaws (or regulations under the 1926 Act) to make provision for seizure, forfeiture etc. where offences have been committed under them. By art. 3, s. 141(1) of the 2011 Act (the repeal of the Serious Organised Crime and Police Act 2005, ss. 132 to 136 and 138: demonstrations etc. in the vicinity of Parliament) is brought into force on 30 March 2012, as is the transitional provision in s. 141(2) of the 2011 Act. One effect is that the Public Order Act 1986, s. 14 (powers to impose conditions on assemblies) applies to such demonstrations etc., including where assemblies which started before the repeal took effect. Visit

12 12 COMMENT&ANALYSIS Lessons from Assange Anand Doobay, Solicitor, Consultant, Peters & Peters Valsamis Mitsilegas, Professor of European Criminal Law, Queen Mary, University of London Tim Moloney QC, Barrister, Tooks Chambers HHJ Peter Rook QC, Central Criminal Court In Assange v Swedish Prosecution Authority [2011] EWHC 2849 (Admin) the Divisional Court considered a number of issues relating to the European arrest warrant (EAW). The Court struggled to balance its desire to uphold the principles of mutual recognition with the need to be seen to examine the merits of all of the arguments that were made in this high-profile and controversial case. This led to a detailed judgment which considered the fundamental principles underlying the EAW and the specific material concerning this case available to the court, even when the judgment commented that there was no requirement to do this. It also led the court to consider the law relating to sexual offences in the UK, given the need to address the arguments as to whether the conduct alleged would give rise to an offence here. The Framework Decision and the Extradition Act 2003 The Court interpreted the Extradition Act 2003 to a great extent in accordance with the EU Framework Decision on the European Arrest Warrant which it was designed to implement as far as surrender to EU Member States was concerned. The need to interpret the Extradition Act in conformity with the EAW Framework Decision was highlighted from the outset: referring to leading judgments in both the Court of Justice of the European Union (Pupino) and the House of Lords (Dabas), the judgment confirms that it is now well established that Part I of the 2003 Act must be read in the context of the Framework Decision and that the national courts of the Member States should construe national laws so far as possible to attain the results sought to be achieved by the Framework Decision (at [9]). The need to take into account the aims of the Framework Decision under the principle of mutual recognition does not however negate any scrutiny of EAWs by domestic courts (at [17]): the intensity of such scrutiny increases in cases where a EAW is issued by a judicial authority who is not a judge (at [19]). Judicial Authority The term judicial authority in the 2003 Act is not confined to a judge who adjudicates only: it is entirely consistent with the principles of mutual recognition and mutual confidence to recognise as valid an EAW issued by a prosecuting authority designated under Article 6 of the Framework Decision (at [41]). This broad interpretation of what constitutes a judicial authority does not preclude however the examination by courts in the executing Member State of the accuracy of the designation of a judicial authority by another Member State. Public confidence in the EAW would be undermined by the recognition of an EAW issued by a Ministry of Justice in contradistinction to an EAW issued by a judge or prosecutor. The designating certificate issued by SOCA would not be conclusive and could be challenged by judicial review: SOCA is entrusted to certify that the issuing authority has the function of issuing EAWs but does not certify that it is a judicial authority. Scrutiny is intensified in circumstances as in the present case, where the warrant was issued by a party to the proceedings (at [47]-[50]). In the present case, the action of the Swedish prosecutor has been subject to independent scrutiny by judges in Sweden which, as judges in another Member State, should be accorded due respect (at [53]). Dual Criminality It is clear from the objective of the Framework Decision that the previous extradition regime (under which the ultimate decision on extradition was for the Executive) has been replaced by a regime of surrender between judicial authorities, based on mutual recognition. The EAW indicated four offences, only one of which (rape) was a Framework offence which does not require dual criminality. It was submitted that the conduct underlying the first three offences would not amount to an offence under the law of England and Wales (i.e. there was no dual criminality), on the basis of the description in the warrant and/or taking into account extraneous material. It was submitted that the conduct for the fourth offence was not fairly and accurately described and if it had been then it would not be rape. Ordinarily when considering dual criminality the judge should make his decision looking only at the contents of the warrant. In exceptional circumstances, such as when there has been a fundamental error or fundamental unfairness or bad faith by the court or prosecutor in the requesting state, extraneous material Follow us on twitter at

13 Issue 2 Winter 2011/ might be admitted. However, such circumstances would not arise where the warrant was clear on its face and the evidence sought to be adduced did not show that the case actually being advanced by the prosecutor was different to the case set out in the warrant. The Meaning of Accused The decision of Parliament to insert into the 2003 Act the requirement that the person was accused of an offence in addition to the requirement under the Framework Decision that surrender was sought for the purpose of being prosecuted for the offence can be seen as an expression of an intention to add an additional requirement to the Framework Decision (at [134]). However, the court should be very careful in the context of the 2003 Act and the Framework Decision about giving to the word accused some technical procedural meaning which would amount to a hurdle which other Member States cannot match in their own procedures (para. 136). The statements required by s, 2(3) of the 2003 Act are essential requirements, not simple formalities (para. 138). It is however not necessary for the statement to use the precise terms set out in the 2003 Act, so long as it is clear that that is what the EAW read as a whole is saying and that it complies with the requirements of s. 2(3) (para. 139). The language of the EAW should make clear that the investigation must have reached the stage at which the requesting judicial authority is satisfied that he faces a case such that he ought to be tried for the specified offence or offences, and the purpose of the request for extradition must be to place him on trial (Toulson LJ in Bartlett quoted in para. 50). This was true in the present case: nothing in the EAW suggested that Mr Assange was wanted for questioning as a suspect (para. 140). The Court did consider extraneous evidence to determine whether Mr Assange was accused, but emphasised that cases where evidence extraneous to the EAW is admitted should be very few and far between (at [147]). The court examined the different systems of criminal procedure on the continent in the light of what it deemed as the real question : whether the fact that it is clear that a final decision has not been made to prosecute or charge Assange meant that he was not accused of an offence (at [150]). One way of addressing this broad question is to ask whether the case against a person has moved from where he can be seen only as a suspect where proof may be lacking or whether there is an accusation against him supported by proof; looking at the question through cosmopolitan eyes, criminal proceedings had commenced (at [153]). Proportionality Although respect for proportionality is not a legal requirement in the Framework Decision, a proportionality check is appropriate before an EAW is issued (at [156]). However, a challenge to the issue of the warrant failed before the Swedish Court of Appeal and, in those circumstances and taking into account the respect that should be accorded to the decision of that court in relation to proceedings governed by Swedish procedural law, the decision to issue the EAW should not be considered disproportionate (at [158]). Moreover, this is self-evidently not a case relating to a trivial offence, but to serious sexual offences (at [159]). Consent to Sexual Intercourse in Absence of the Presumption The Divisional Court had to consider whether the conduct alleged to amount to the Swedish offence of sexual molestation was an offence under the law of England and Wales. The essence of the offence as described in the EAW was that the appellant knew that the complainant would consent to sexual intercourse only if he used a condom throughout, but, nevertheless, went on to have unprotected sexual intercourse with her. It was submitted on behalf of the appellant that no offence had been committed under the law of England and Wales in that a consent to sexual intercourse on condition that the appellant wore a condom remained a consent to sexual intercourse, even if he had not used a condom or removed or damaged the condom he had used. The appellant relied upon B [2007] 1 WLR 1567, where the Court of Appeal held that deception as to HIV status was not deception as to the nature or purpose of the act of sexual intercourse, and accordingly the conclusive presumptions in the SOA 2003, s. 76 did not apply. The act remained a consensual act. Furthermore, the Court in B had gone on to hold that the fact that B had not disclosed that he was HIV-positive was not in any way relevant to the issue of consent to sexual intercourse under s. 74. It was therefore submitted that the present case was analagous, as the complainant had consented to sexual intercourse. It did not matter that she had consented only on the basis that Assange used a condom, as that did not change the nature of the act. It was accepted on the appellant s behalf that this contention might not be one contemporary society would readily understand or consider justifiable, but Parliament had enacted the law in those terms, and the duty of the courts was to apply the law. The Divisional Court, in deciding that the extradition requirement of dual criminality was satisfied, rejected the appellant s submissions based on B. It was noted that in Jheeta [2008] 1 WLR 2582 that the Court of Visit

14 14 Appeal had made it clear that in most cases the absence of consent and the appropriate state of the defendant s mind would be proved without reference to the presumptions set out in ss. 75 and 76. In the Divisional Court s view, s. 76 had no application to this case. Section 76 should be given a stringent construction because it provides for a conclusive presumption. The question of consent, and the issue of the materiality of the use of a condom, fell to be determined by reference to s. 74. It would be open to a jury to hold that, if the complainant had made clear that she would consent to sexual intercourse only if the appellant used a condom, then there would be no consent if, without her consent, he did not use a condom, or removed or tore the condom without her consent. Thus his conduct would amount to an offence under the SOA Act 2003, whatever the position may have been prior to the Act. If conduct is not within s. 76, that does not preclude reliance upon s. 74. Section 76 deals simply with a conclusive presumption in the very limited circumstances to which it applies. In Assange, the Court rejected the argument that if the deception was not a deception within s. 76 (a deception as to the nature and quality of the act or a case of impersonation) then the deception could not be taken into account for the purposes of s. 74. Sir John Thomas P stated (at [88]): It would, in our view have been extraordinary if Parliament had legislated in terms that, if conduct that was not deceptive could be taken into account for the purposes of s. 74, conduct that was deceptive could not be. Sir John Thomas P observed that there was nothing in B to suggest such a construction. B went no further than deciding failure to disclose HIV infection is not of itself relevant to consent under s. 74; it did not permit the appellant to contend that, if he deceived the complainant as to whether he was using a condom or one that he had not damaged, that was irrelevant to the issue of consent to sexual intercourse or his belief in consent. It follows that the counter-argument, that a but for deception, falling short of a s. 76 deception, can never vitiate consent, represents an erroneous construction of s. 74. For further details of the argument that was rejected, see J. Miles Sexual offences: consent, capacity and children [2008] Arch News 10. Hearsay and Relevance after Twist Michael Hirst LLB, LLM, Professor of Criminal Justice, Leicester De Montfort Law School In Twist [2011] EWCA Crim 1143 (see Blackstone s Criminal Practice, F15.3 et seq) the Court of Appeal took the opportunity provided by four conjoined appeals to re-examine the concept of hearsay under the CJA It so happened that all four appeals involved text messages found on mobile telephones. Such evidence had also featured in previous cases before the Court (notably Leonard [2009] EWCA Crim 1251 and Chrysostomou [2010] EWCA Crim 1403) and subsequently featured yet again in Mateza [2011] EWCA Crim 2587, but nothing turns on that particular detail because, as Hughes LJ explained in Twist, a text message is significantly different neither from an nor from a letter, nor from an overheard remark Twist is thus an authority on identifying hearsay statements generally, and not merely on hearsay in the context of mobile telephone messages. It is also significant for other reasons, not least because it provides a timely warning that evidence must always be relevant, whether it is hearsay or not. But just how important is Twist? In Mateza, at [22] to [23], Thomas LJ declared it to be more or less the last word on the subject: The judgment [in Twist] contains a comprehensive analysis of the hearsay provisions of the Criminal Justice Act 2003 It seems to us for the future it is entirely unnecessary for any court to look at cases earlier than Twist because Twist sets out all of the relevant considerations and the correct approach. We cannot in any way improve upon that analysis, but would merely commend it to the courts of the future. With respect, Twist does not represent the last word on hearsay or relevance, and although it sets out a sound approach to the identification of hearsay issues arising from communications, it also demonstrates the difficulty of applying that approach in practice. There are errors in Twist and there are matters that remain unclear or unexplained, some of which were better explained in earlier cases. Hearsay can arise in many contexts and can lurk behind many disguises. It may take a very different form from anything featured in Twist or Mateza. It would therefore be unfortunate if courts and advocates were to follow the suggestion advanced in Mateza, and refrain from considering, citing or applying precedents established in earlier cases. It may even be helpful at times to consider cases decided long before the enactment of the CJA Some such cases may require some reappraisal in light of the CJA regime, but that does not necessarily diminish their importance to us. Rothwell and Horncastle A relatively little-known case pre-dating the CJA 2003 perfectly illustrates this point. In Rothwell (1994) 98 Cr App R 388 a police officer testified that he had seen the appellant hand packages to a number of known heroin users including a man called Law. He made no Follow us on twitter at

15 Issue 2 Winter 2011/ reference to any previous statement, but purported to describe facts that he himself had witnessed. On the face of it, this was original evidence. It was nevertheless found to be tainted by hearsay, because it transpired that the officer was testifying only in part from personal knowledge. He had no such knowledge of Law s heroin habit, but had relied instead on what he was told by fellow officers and had, in effect, invited the court to rely on that too. This evidence would equally have been hearsay if Rothwell had been decided under the 2003 Act. The court was asked to rely on the truth of statements not made in oral evidence in the proceedings (to use the language of s. 114) even though the officer himself made no direct reference to those statements. To put it another way, evidence derived from hearsay must itself be hearsay, because the hearsay rule is essentially a rule against second-hand evidence. Thomas LJ himself made that point when giving the Court of Appeal s judgment in Horncastle [2010] 2 AC 373 a judgment later endorsed by the Supreme Court. He said, it is ordinarily essential that evidence of the truth of a matter be given in person by a witness who speaks from his own observation or knowledge. That is the very essence of the hearsay rule, and the guidance given in Twist is best seen as complementary to it. Problems with Twist The two most important passages in Twist are probably the three-stage test for identifying hearsay set out at para [17] (see Blackstone s Criminal Practice at F15.13) and the warning at para [20] that, any fact which it is sought to prove must be a relevant fact; otherwise the evidence is inadmissible on grounds of irrelevance. I have no quarrel with either passage, as long as it is understood that the three-stage test is intended to be a helpful diagnostic guide, rather than a general restatement of the hearsay rule. But as previously indicated there are problems with Twist. Some concern the Court s deferential treatment of unsound earlier authorities, such as Leonard, but the principal problem concerns the relationship between the new hearsay regime and the concept of relevance as explained by the House of Lords in Kearley [1992] 2 AC 228. Hughes LJ s judgment in Twist refers to Kearley and rightly warns that admissible evidence must always be relevant, whether hearsay or not, but then falls into error by stating that, Whether a communication which is not hearsay does or does not prove the fact alleged is always a matter of weight for the jury and by citing (with implicit approval) this dictum from Rose LJ s judgment in Singh [2006] 1 WLR 1564: What was said by the callers in Kearley would now be admissible as direct evidence of the fact that there was a ready market for the supply of drugs from the premises, from which could be inferred an intention by the occupier to supply drugs. The view of the majority in Kearley, in relation to hearsay, has been set aside by the 2003 Act. A judge may have to rule that an item of evidence cannot logically prove a given fact, and unless that evidence is relevant for some other purpose it cannot then be admissible, so the jury do not even get to hear it. According to Kearley, that is precisely what must happen in a case where an unknown caller leaves a message that appears to assume the truth of a given fact. For example, C may leave a message on D s phone requesting a supply of drugs. This demonstrates that C believes D to be a supplier, and cannot be considered hearsay under the 2003 Act, but the main objection to it under Kearley was never hearsay but irrelevance. Such a call demonstrates C s belief, but unless there is evidence of an established relationship between C and D (as there was for example in Chrysostomou), this belief is irrelevant. One cannot, according to Kearley, prove that D is a supplier merely by proving that C and others believe him to be one, or that there is a ready market for his product. Indeed, Lord Oliver in Kearley expressly rejected the ready market argument. Failure properly to apply the logic of Kearley appears to have affected the outcome of at least one of the appeals in Twist, namely that of Tomlinson and Kelly, where a text message found on T s phone indicated that the sender needed dat gun. The Court reasoned that: The conclusion which could legitimately be drawn was not confined to the fact that the sender believed that the defendants had the gun, but extended to the conclusion that they did indeed have it. With respect, there is no reference to any evidence (e.g., an acknowledgment sent by T) that could support the latter conclusion. The sender was a person evidently known to K as Popy, but that in itself proves nothing, and for all we know T and K read the message in puzzlement and wondered what gun Popy could possibly be referring to. In other words, the message was irrelevant, at least according to the logic of Kearley. Mateza In contrast, the Court in Mateza correctly recognised that a text message found in the inbox of M s phone, advertising guns for sale, could not, without more, be relevant to prove that M had any interest in buying guns. There would have to be evidence that M had shown some interest in that message, e.g., by retaining it while deleting other messages from the same period. It would then be for the jury to determine what, if anything, could be deduced from that. Visit

16 16 Kearley has always been an awkward and unpopular precedent. One may perhaps go further and call it a thoroughly bad one; but while it stands (and only the Supreme Court or Parliament can overturn it) it must be followed. Mateza does not refer to Kearley, but is at least consistent with it, whereas Twist, in places, is not. For a more detailed examination of Twist and related cases, see Michael Hirst, Hearsay, Confessions and Mobile Telephones (2011) 75 Journal of Criminal Law publishing news Taylor on Criminal Appeals Second Edition Edited by Paul Taylor, Barrister, Doughty Street Chambers This new edition of Taylor on Appeals provides a detailed examination of the law and practice relating to criminal appeals, including extensive guidance on procedural aspects of the appeals system. Written by a team of barristers with unparalleled experience of appellate practice, it offers thoughtful coverage of all kinds of criminal appeals, ranging from magistrates appeals to the Crown Court up to the Court of Appeal (Criminal Division), the Supreme Court, and the Privy Council. March pp Hardback SEVENTH Updating Release Available January 2012 Montgomery and Ormerod on Fraud: Criminal Law and Procedure Edited by Clare Montgomery QC, Barrister, Matrix Chambers; and David Ormerod, Barrister, Bencher of Middle Temple, Professor of Criminal Justice, Queen Mary, University of London Deputy Editor Tony Shaw QC, Barrister, 18 Red Lion Court Chambers January ,740 pp Main work price 295 Service price 205 (includes approximately 2 releases each year). QUARTERLY UPDATE Issue 2, January 2012 Published by Oxford University Press, Great Clarendon Street, Oxford, OX2 6DP Customer services: Website: Blackstone s Criminal Practice 2012 Now available with an ebook, downloadable onto a variety of digital platforms including ipad, Kindle, and PC. Find out more at Supplement 2 will be published in February. The print supplement will be sent out on publication. Purchasers of the ebook will receive an directing them to download the new file. If you have any questions, please contact our customer services team on bcpebook.help@oup.com ALBCPQMA4 When you have finished with this leaflet please recycle it. Follow us on twitter at