The prosecution had omitted to bring evidence that the person standing at No.20 on an identification parade was the appellant. The defence complained that the prosecutor had been allowed to re-open his case.
Held: ‘The discretion of the judge to admit evidence after the close of the prosecution case is not confined to the two well established exceptions. There is a wider discretion. We refrain from defining precisely the limit of that discretion since we cannot foresee all the circumstances in which it might fall to be exercised. It is of the essence of any discretion that it should be kept flexible. But lest there be any misunderstanding and lest it be thought we are opening the door too wide, we would echo what was said by Edmund-Davies LJ in the Doran case at p. 437 that the discretion is one which should only be exercised outside the two established exceptions on the rarest of occasions.’ and ‘The earlier the application to admit the further evidence is made after the close of the prosecution case, the more likely it is that the discretion will be exercised in favour of the prosecution.’

Judges:

Lloyd LJ

Citations:

[1990] 91 Cr App R 271

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Vincent Munnery CACD 1992
On a charge of burglary, the prosecution had not brought evidence that the appellant was one of those who carried cartons out of Liberty’s department store. The court allowed the prosecutor to re-open his case to present that evidence.
Held: . .
Cited – Yearly v Crown Prosecution Service Admn 21-Mar-1997
Having closed their case, the prosecution applied for and were granted opportunity to adduce evidence in the form of certificates under section 69.
Held: The court had a discretion to allow further evidence. The magistrates had correctly . .
Cited – Christopher James Jolly v Director of Public Prosections Admn 31-Mar-2000
At trial in the magistrates court, the prosecution had failed to bring evidence that the computer used to analyse the defendant’s breath alcohol was in proper working condition. The defendant submitted no case to answer, and the magistrates allowed . .
Cited – Tuck v Vehicle Inspectorate Admn 24-Mar-2004
The defendant appealed a conviction for exceeding the gross permitted weight on a goods vehicle. The magistrates having heard the case, the defendant submitted there was no case to answer, the prosecution having failed to bring evidence as to the . .
Cited – Regina v Horseferry Road Justices ex parte Hillier Admn 9-Oct-1998
Challenge to conviction based upon evidence as to contents of evidence bags where there was a discontinuity in its custody. Counsel complained that he had been badgered by the stipendiary magistrate into revealing his defence in advance.
Held: . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 04 July 2022; Ref: scu.193589

Judges:

Holroyde LJ, Knowles J, Judge Michael Chambers QC

Citations:

[2019] EWCA Crim 1466, [2019] WLR(D) 485, [2020] 1 Cr App R 11

Links:

Bailii, WLRD

Statutes:

Criminal Procedure and Investigations Act 1996 6E(4)(5), 11(1), (2)(f)(i)(5)(8)

Jurisdiction:

England and Wales

Criminal Practice

Updated: 04 July 2022; Ref: scu.641215

The judge had given the jury instructions (‘steps to verdict’) over and above the mandatory legal instructions. The defendant now appealed, saying that the jury should have been told to follow these additional instructions.
Held: While such documents were common, they were advisory and not binding on the jury.

Judges:

Coulson LJ, Spencer J, Judge Tayton QC

Citations:

[2019] EWCA Crim 710, [2019] WLR(D) 268

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Criminal Practice

Updated: 04 July 2022; Ref: scu.637826

The defendant had admitted an offence under the 1997 Act but the magistrates had declined to make a restraining order. The police then sought and anti-social behaviour order. The defendant objected saying that the events upon which the claim was based were more tan six months old and not admissible.
Held: It was important not to confuse anti-social behaviour proceedings with criminal trials. The procedure adopted here had been incorrect. Such evidence was in principal admissible.

Judges:

Calvert Smith J

Citations:

[2005] EWHC 2559 (Admin), Times 17-Nov-2005

Links:

Bailii

Statutes:

Crime and Disorder Act 1998 1(1), Magistrates Courts Act 1980 812791), Protection from Harrassment Act 1997

Jurisdiction:

England and Wales

Criminal Practice

Updated: 04 July 2022; Ref: scu.235140

The court regretted the practice which had grown of prosecuting counsel make comments to the jury about the law when making his opening address. This was a matter for the judge save where agreed with the judge. Also, once a judge had made a ruling it was inappropriate for counsel to continue to press the point. His remedy was in the court of appeal.

Judges:

Judge LJ, Rafferty J, Sir Douglas Brown

Citations:

Times 28-Sep-2005, [2005] EWCA Crim 2016

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 04 July 2022; Ref: scu.230363

The Court considered the jurisdiction to grant bail after a conviction is quashed and a

Citations:

[2010] EWCA Crim 2368

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 03 July 2022; Ref: scu.637495

Challenge to decision to remand applicant to custody after bail offence.

Citations:

[2016] NIQB 4

Links:

Bailii

Jurisdiction:

Northern Ireland

Criminal Practice

Updated: 01 July 2022; Ref: scu.559547

Rolled-up hearing of an application for Judicial Review of decisions of the Director of Public Prosecutions to discontinue a prosecution.

Citations:

[2016] NIQB 6

Links:

Bailii

Jurisdiction:

Northern Ireland

Criminal Practice

Updated: 01 July 2022; Ref: scu.559546

Appeal in which it is said that the judge was wrong to leave the case to the jury and then compounded that mistake by admitting evidence of bad character.

Citations:

[2009] EWCA Crim 2347

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 01 July 2022; Ref: scu.381508

The defendants appealed their convictions for murder, saying that a co-defendant, have been captured after fleeing the country had later been treated more leniently, a plea of manslaughter having been accepted.
Held: In order to substitute convictions for manslaughter, the court would first have to quash the convictions for murder, which was only possible if they were unsafe. The acceptance of a plea of guilty to manslaughter reflected the different evidence, and the different treatment was not inappropriate. There had been no over-charging

Judges:

Pill LJ, Ouseley J, Davis J

Citations:

[2005] EWCA Crim 1883

Links:

Bailii

Statutes:

Criminal Appeal Act 1968 291)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Andrews-Weatherfoil Ltd CACD 1972
For so long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Eveleigh J: ‘It is necessary . .
Cited – Director of Public Prosecutions v Humphrys HL 1977
Humphrys was charged with driving while disqualified. The issue was the correctness of the identification by a police constable. In evidence, Humphrys denied that he was the driver, or indeed that he had driven any car during the year in question. . .
Cited – Hui Chi-ming v The Queen PC 5-Aug-1991
(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 01 July 2022; Ref: scu.228482

The defendant had been made subject to a criminal restraint order so as to preserve his assets pending the outcome of criminal proceedings. He complained that the order affected property which was not his.
Held: Such an order could cover property which he had obtained for the benefit of somebody else. What was required was the defendant’s non-trivial contribution getting of the property. There was no additional requirement that the defendant have any control over the property. The Act acknowledged expressly the possibility of the same sum being recovered on more than one occasion by means of orders against multiple defendants.
The word ‘obtain’ contemplated that the relevant defendant had been ‘instrumental in getting the property out of the crime’ so that his acts ‘must have been a cause of that being done’.
Laws LJ said: ‘It is in my judgment plain that the essence of what is meant by ‘benefit’ in section 71(4) is given by the verb ‘obtain’; and whether in any given case a person has obtained any particular property must involve issues of fact.’

Judges:

Laws, Longmore, Lloyd LJJ

Citations:

[2005] EWCA Civ 746, Times 12-Jul-2005, [2006] 1 WLR 182

Links:

Bailii

Statutes:

Criminal Justice Act 1988 77(1)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Crown Prosecution Service v Jennings HL 14-May-2008
The appellant appealed against the refusal to discharge a restraint order under the 1988 Act. The sum found to have been obtained in the later trial vastly exceeded the sum the defendant said had ever come within his control or benefit.
Held: . .
Cited – Serious Fraud Office v A CACD 2-Aug-2007
The Director said the Judge had been wrong to discharge on grounds of want of disclosure a restraint order previously made ex parte under the Proceeds of Crime Act at the request of a foreign investigator.
‘The proper approach is to consider . .
Cited – Mercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
Cited – Basso and Another v Regina CACD 19-May-2010
The defendants had been convicted of offences of failing to comply with planning enforcement notices (and fined andpound;10.00), and subsequently made subject to criminal confiscation orders. The orders had been made in respect of the gross income . .
Cited – Mills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 01 July 2022; Ref: scu.227925

A cash sum of andpound;87,000 was transferred. The defendants appealed against a ruling under the 1996 Act, saying that at the time of its transfer, the property did not represent criminal property under the Act.
Held: The pre-conditions for holding a preliminary hearing under the 1996 Act had not applied, and the appeal should not have been brought forward. Nevertheless, the court had heard full argument and could give its opinion. The 2002 Act required that for an offence to be committed under the 2002, the property had to be criminal property within the appropriate definition at the time of the transfer. That it later came within that definition was not sufficient.

Judges:

Clarke LJ, Hughes J, Dobbs J

Citations:

Times 23-Jun-2005, [2005] EWCA Crim 1579, [2005] Crim LR 885, [2005] 2 Cr App R 37

Links:

Bailii

Statutes:

Proceds of Crime Act 2002 32791)(d), Criminal Procedure and Investigations Act 1996 35

Jurisdiction:

England and Wales

Citing:

Applied – Regina v Edwards, Denton and Jackson Hendley Crowley; Attorney General’s Reference (No. 1 of 2004) CACD 29-Apr-2004
The court considered references by the Attorney-General with regard to offences imposing a burden of proof upon the defendant. ‘An evidential burden will be discharged by a defendant by ensuring that there is some evidence before the court which . .

Cited by:

See Also – Loizou, Regina v CACD 14-Jul-2006
The defendant appealed against her conviction for assisting in the disposal of the proceeds of criminal activity, saying that the judge had incorrectly ruled that she had waived legal privilege as to the advice given to her at the police station, . .
Cited – Regina v Crown Prosecution Service, Re Interlocutory Application CACD 7-Sep-2005
The defendants in a forthcoming trial had applied for disclosure of surveillance tapes (some 15,000 hours) made during the investigations anticipating an application for a finding of abuse of process. Some had been served, but the prosecutor now . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 01 July 2022; Ref: scu.227912

The defendant appealed against his convictions for rape, saying that one juror should have been disqualified being subject to a Community Rehabilitation Order, and therefore in effect on probation.
Held: The appeal failed.

Judges:

Clarke LJ, Gibbs J, Stanley Burnton J

Citations:

[2004] EWCA Crim 2997

Links:

Bailii

Statutes:

Juries Act 1974 1 18

Jurisdiction:

England and Wales

Criminal Practice

Updated: 01 July 2022; Ref: scu.226805

Citations:

Times 19-May-2009

Jurisdiction:

England and Wales

Criminal Practice

Updated: 01 July 2022; Ref: scu.346204

Judicial review of refusal of bail.

Citations:

[2005] EWHC 1125 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 30 June 2022; Ref: scu.226107

The defendant was convicted in 1978 of attempted murder and of attempted buggery. He was 15 years old, and had been subjected to prolonged interrogation.
Held: Modern understanding suggested the reality of the possibility of coerced compliant confessions. This issue would be outside the realm of the ordinary experience to be expected of jurors, and expert evidence should have been admitted. Extrinsic evidence could not be used to show that the content of the statement was likely to be true. The issue was the evidential weight of the statement itself. At the time senior officers had sworn on oath that the defendant had written his own statement, but this was now conceded to be false. This therefore also went to the reliability of the associated oral confessions. The appeal was allowed.

Judges:

Keen LJ, Newman J, Walker J

Citations:

Times 10-Jun-2005, [2005] EWCA Crim 1349

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 30 June 2022; Ref: scu.226124

Challenge to refusal of the commission to refer his case to the Court of Appeal (Criminal Division).

Judges:

Brooke LJ, David Steel J

Citations:

[2005] EWHC 1062 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 30 June 2022; Ref: scu.226114

The defendant appealed against refusal of bail. He had failed to attend court in time of the day of his trial and said he had overlooked the date.
Held: Collins J said: ‘[T]he question of whether bail should be continued or removed in connection with the main proceedings is a matter which does not depend upon a conviction for failing to surrender. It depends upon either a conviction or upon a failure to surrender. Paragraph 6 [of the Practice direction] makes it clear that if it appears to the court that he has failed to surrender, and the court does not take the view that there was reasonable cause for the failure, then there is an obligation to refuse bail unless the court takes the view that there would be no significant risk that if released on bail he would fail to surrender to custody. ‘
As to the conclusion that a failure to attend for forgetfulness justified a remand ‘it is difficult to see how it could follow from that one failure, which admittedly was a significant failure and one which, unfortunately, took place on the day on which he was due to be tried, that he would in the future do the same thing, or he might in the future do the same thing. It seems to me that in the light, as I say, of the general approach to bail, and even bearing in mind Parliament’s views as set out in paragraph 6, there was precious little, if any, evidence to justify the fear which the learned judge said that she had.’

Judges:

Collins J

Citations:

[2005] EWHC 882 (Admin)

Links:

Bailii

Statutes:

Firearms Act 1968 16A, Bail Act 1976 4(1)

Citing:

Cited – Thomassy v France ECHR 1992
The court emphasised the need for a court refusing bail to give reasons. In refusing bail, there was a requirement to examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, having . .
Cited – M v Isleworth Crown Court and Another Admn 2-Mar-2005
The court considered an appeal by way of judicial review of a refusal of bail.
Held: There was jurisdiction to consider a claim that bail had been refused in circumstances which showed that that refusal was erroneous in law, but that it was . .
Cited – Practice Direction (Criminal Proceedings: Consolidation) 18-May-2004
cs When a defendant has been convicted of a Bail Act offence, the court should review the remand status of the defendant, including the conditions of that bail, in respect of the main proceedings for which bail . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina on the Application of Rozo v Snaresbrook Crown Court and the Director of Public Prosecutions Admn 6-Jan-2005
An application for bail was based on more general Article 5 grounds, and the learned judge was pressed with the need for him to have regard to Article 5 and to approach the matter on the basis that Article 5 applied. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.225183

The defendant had successfully appealed a confiscation order which had been made without jurisdiction, but now claimed that that exempted those assets from later civil proceedings to recover the criminal proceeds.
Held: The failure of the previous criminal confiscation proceedings did not prevent the later making of civil recovery orders. The exceptions allowed under section 308 could not have applied. To allow them to apply would be to allow just the sort of technical mischief which the 2002 Act was designed to prevent.

Judges:

Brooke, Latham, Lloyd LJJ

Citations:

[2005] EWCA Civ 580, Times 31-May-2005

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 308

Jurisdiction:

England and Wales

Citing:

See Also – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.224924

The defendant appealed against refusal of bail. Collins J said that the expression ‘early stage of criminal proceedings’, which was required to be found to allow a civil challenge, ‘has a penumbra of uncertainty around it’.

Judges:

Collins J

Citations:

[2005] EWHC 648 (Admin)

Links:

Bailii

Cited by:

Cited – S v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.224544

Both counsel in criminal trials have a duty to assist the judge where appropriate. Counsel for the defence in particular could not sit back and allow the judge to continue with a defective summing up in the hope that this would allow a later appeal. Submissions that it had been common and acceptable practice for counsel to remain silent rather than to intervene was incorrect.

Citations:

Times 09-Feb-2001

Jurisdiction:

England and Wales

Criminal Practice

Updated: 30 June 2022; Ref: scu.88524

The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a decision before going on with the case.
Held: The court should consider first whether the irregularity went so far as to remove its jurisdiction. If it did not, and the court could proceed, it should then ask whether there existed a real possibility that one or both parties would suffer a real prejudice if the corrective steps were taken, and last whether it would be just in all the circumstances to go ahead.
The indication of pleas of guilty by counsel on the respondents’ behalves and not by the respondents themselves was a procedural failure which invalidated the steps which followed.
Fulford J said: ‘indeed, these three applications demonstrate how far-reaching the effect of those authorities is likely to be whenever there is a breakdown in the procedures whereby a defendant’s case progresses through the courts (as opposed to the markedly different situation when a court acts without jurisdiction). In our judgment it is now wholly clear that whenever a court is confronted by failure to take a required step, properly or at all, before a power is exercised (‘a procedural failure’), the court should first ask itself whether the intention of the legislature was that any act done following that procedural failure should be invalid. If the answer to that question is no, then the court should go on to consider the interests of justice generally, and most particularly whether there is a real possibility that either the prosecution or the defence may suffer prejudice on account of the procedural failure. If there is such a risk, the court must decide whether it is just to allow the proceedings to continue.
On the other hand, if a court acts without jurisdiction – if, for instance, a magistrates’ court purports to try a defendant on a charge of homicide – then the proceedings will usually be invalid.’

Judges:

Rose LJ VP, Penry-Davey, Fulford JJ

Citations:

Times 18-Apr-2006, [2006] EWCA Crim 794, [2007] 1 WLR 181

Links:

Bailii

Statutes:

Magistrates Courts Act 1980

Jurisdiction:

England and Wales

Citing:

Cited – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Cited – Project Blue Sky Inc v Australian Broadcasting Authority 28-Apr-1998
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Regina v Bullock CCA 1964
The appellant was granted leave to move for an order of certiorari to quash the decision of the quarter sessions and the Court of Criminal Appeal then sat as a Divisional Court to hear the motion. Quarter sessions had no jurisdiction to commit an . .
Cited – Director of Public Prosecutions, Regina (on the Application of) v Everest Admn 24-May-2005
The defendant had lit a bonfire. The smoke left his garden and blew across the road. An accident occurred. The prosecution appealed dismissal of a charge against him on the ground that they sought an amended charge after closure of their case and it . .
Cited – Regina v Cain HL 1985
The sentencing judge had exceeded his powers by making a criminal bankruptcy order. S40 appeared to deny a right of appeal against such an order.
Held: There is a strong presumption that except by specific provision the legislature will not . .
Cited – Regina v Scunthorpe Justices ex parte McPhee and Gallagher Admn 24-Feb-1998
The defendant faced a charge of robbery. More than six months after the alleged offence the prosecution sought to add alternate charges including one of common assault. The magistrates declined jurisdiction on the ground that, more than six months . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Regina v A S CACD 20-Jan-1997
The defendant appealed against convictions for several sexual offences. The alleged victim had originally denied that any offending had taken place. The defendant denied that anything had happened. He complained now that the court had accepted in . .

Cited by:

Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Cited – Westminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.240364

The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not invalidate them.
Held: The appeal was allowed. The confiscation orders made by the judge were valid and the Court of Appeal was wrong to quash them.
The court considered the different kinds of obligation and restriction created by statutes. Section 71 creates a duty on the court to consider the making of a confiscation order. The repeated use of the expression ‘jurisdiction’ tends to distract attention from the fact that what is an issue is not the loss of a power to consider the making of such an order but the dissolution of a duty to do so. It is a duty which Parliament plainly envisaged as capable of subsisting after the offender had been sentenced and after more than six months since his conviction. The 1988 Act should be construed in a manner consistent with that purpose (Steyn and Carswell LL).
Lord Steyn said: ‘Parliament has firmly adopted the policy that in the fight against serious crime, apart from ordinary sentences, a high priority must be given by the courts to the making of confiscation orders against defendants convicted of serious offences. The purpose of confiscation proceedings is to recover the financial benefit that the offender obtained from his criminal conduct . . The most recent statute is the Proceeds of Crime Act 2002 which came into force on 24th March 2003. The aim of the new statute is to create an effective unified regime of confiscation law.’
. . And ‘A recurrent theme in the drafting of statutes is that Parliament casts its commands in imperative form without expressly spelling out the consequences of a failure to comply. It has been the source of a great deal of litigation. In the course of the last 130 years a distinction evolved between mandatory and directory requirements. The view was taken that where the requirement is mandatory, a failure to comply with it invalidates the act in question. Where it is merely directory, a failure to comply does not invalidate what follows. There were refinements. For example, a distinction was made between two types of directory requirements, namely (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance. ‘
. . And ‘Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their usefulness. Instead . . the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity. That is how I would approach what is ultimately a question of statutory construction.’
Lord Rodger of Earlsferry illustrated the point with a striking example: ‘if your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by eleven o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the party held on your daughter’s birthday and, if he fails to turn up, he cannot discharge the duty later. In the present cases Parliament has placed the court under a duty, where appropriate, to make a confiscation order before it sentences an offender. If the court fails to do so and proceeds to sentence the offender first, does Parliament intend that – like your daughter – the court should remain under a duty to make the order? Or does Parliament intend that the duty should be limited so that – like the conjuror – the court can perform it only before sentencing?’

Judges:

Lord Steyn, Lord Rodger of Earlsferry, Lord Cullen of Whitekirk, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2005] UKHL 49, Times 22-Jul-2005, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20

Links:

Bailii, House of Lords

Statutes:

Criminal Justice Act 1988 71(1) 72A(3)

Jurisdiction:

England and Wales

Citing:

Cited – Attorney-General for Northern Ireland v Gallagher HL 1961
The defendant appealed against his conviction for the murder of his wife. The court allowed his appeal on the ground of a misdirection. The prosecutor having now appealed, he sought to plead insanity.
Held: The appeal was allowed on the new . .
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Palmer, Regina v CACD 11-Oct-2002
The defendant appealed against a very substantial confiscation order. The prosecution had served notices under sections 71 and 72(1), but the section 72(1) notice was invalid. The judge allowed a second notice to be served, and the case to be . .
Cited – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Cited – Ruddick v Regina CACD 16-Apr-2003
A judge was required to take into account a confiscation order before making an order for costs, but that need not invalidate the orders. Was a financial order made before the forfeiture process was complete void or merely a ground for appeal? The . .
Cited – Wang v Commissioner of Inland Revenue PC 19-Oct-1994
(Hong Kong) At first instance the judge found that the deputy commissioner lacked jurisdiction to make two determinations since he had not done so within a reasonable time required by the imperative language of the statute. The Court of Appeal . .
Cited – Regina v Kensington and Chelsea Royal London Borough Council Ex parte Hammell CA 1989
Parker LJ said of the plaintiff’s application for a review of the decision on her homelessness application: ‘She is entitled to protection with regard to her public law right to have the necessary inquiries made and the decision properly made . . . .
Cited – Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal PC 19-Jun-2002
PC (Trinidad and Tobago) Disciplinary proceedings had commenced against the appellant, the chief magistrate, but the time limits had not been followed. The appellant argued that the time limits were mandatory. . .
Cited – Credit Suisse v Allerdale Borough Council CA 20-May-1996
Builder’s Guarantee Ultra Vires LA
The council set out to provide a swimming pool using powers under s.19 of the 1976 Act. Purporting to use powers under s.111 of the 1972 Act, it set up a company to develop a site by building a leisure pool and time-share units, with a view to . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – New Zealand Institute of Agriculture Science Inc v Ellesmere County 1976
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – Attorney General’s Reference (No 3 of 1999) (Lynn) HL 15-Dec-2000
A DNA sample had been wrongfully retained after the suspect had been acquitted, and the sample had been used in a later investigation to identify him. A subsequent sample had been taken, and the result of that second test had been used as evidence . .
Cited – British Columbia (Attorney General) v Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re) 1994
(Supreme Court of Canada) The court strongly criticized the mandatory/directory distinction in statutory interpretation: ‘courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an . .
Cited – Howard v Bodington Carc 27-Feb-1877
Imperative or Directory Statutory Requirements
The court considered the consequences of a failure to comply with a statutory requirement.
Held: The distinction drawn between statutory requirements which were ‘imperative’ on the one hand and ‘directory’ on the other involved unfortunate use . .
Cited – Society Promoting Environmental Conservation v Canada (Attorney-General) 2003
(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, . .
Approved – Project Blue Sky Inc v Australian Broadcasting Authority 28-Apr-1998
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of . .
Appeal from – Regina v Soneji; Regina v Bullen CACD 20-Jun-2003
If the court could only postpone confiscation proceedings in exceptional circumstances, it behoved the court before allowing such an adjournment to enquire into the justification, and to record the circumstances which made it exceptional. The . .

Cited by:

See Also – Regina v Knights and Another HL 21-Jul-2005
The defendants had been convicted of offences involving dealing with goods on which customs duty had not been paid. After conviction a timetable was set for sentencing and for confiscation proceedings. The House considered the making of the . .
Cited – Regina v Stannard CACD 1-Nov-2005
The defendant had been convicted of offences in which he had operated to purchase companies and use false debentures to evade corporation tax. Compensation had been sought under the 1988 Act. It was argued that the confiscation order should be . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Bentham, Regina (on the Application of) v HM Prison Wandsworth Admn 7-Feb-2006
The defendant sought a writ of habeas corpus, saying that he had been wrongfully committed to the crown court under the 1998 Act. The note referred only to a ‘conspiracy without further specification. The crown court had remitted him to the . .
Cited – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
Cited – In re Hill and Others (Restraint Order) CACD 20-Dec-2005
The Revenue appealed against discharge of a restraint order. The discharge had been on the basis that some of the offences under investigation (perpetrating a fraud on the revenue) took place before the 2002 Act came into effect.
Held: The . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – R, Regina v CACD 4-Apr-2008
The defendant appealed his conviction for rape, saying that the complainant’s evidence had wrongfully been allowed to be given over a remote video link. Provisions to allow such means of giving evidence had been intended to be phased in only as . .
Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
At House of Lords – Bullen and Soneji v The United Kingdom ECHR 8-Jan-2009
The claimants said that the confiscation and money-laundering proceedings taken against them had taken too long, with delays of 43 months out of a total of 66 month case attributable to the state.
Held: The delay was too long. The applicants . .
At House of Lords – Bullen And Soneji v The United Kingdom ECHR 15-Jun-2007
. .
Cited – JJB Sports Plc, Regina (On the Application of) v Telford and Wrekin Borough Council Admn 5-Nov-2008
The authority’s demand notice was served later than was practicable. The company now appealed against a liability order.
Held: The ratepayer’s appeal by way of Case Stated was dismissed. ‘demand notices must be served by the relevant authority . .
Cited – Crown Prosecution Service v Neish CACD 6-May-2010
The defendant faced confiscation proceedings. The judge gave instructions to the listing office to give a later date for the hearing. The defendant said that the delay took the case out of the court’s jurisdiction to make an order.
Held: The . .
Cited – NT, Regina v CACD 31-Mar-2010
The prosecutor appealed against a stay of the prosecution as an abuse. The prosecution had failed give the undertaking necessary on lodging the appeal to the court against whose ruling it wanted to appeal, that it agreed that the defendant should be . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Delayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
Cited – TTM v London Borough of Hackney and Others CA 14-Jan-2011
The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
Cited – Secerno Ltd and Others v Oxford Magistrates Court and Another Admn 19-Apr-2011
The applicants each sought judicial review of a decision of the magistrate that he did not have jurisdiction to decline to issue liability notices. They argued that the Council had failed to issue the required notices before placing the properties . .
Cited – Herron and Another, Regina (on The Application of) v The Parking Adjudicator CA 27-Jul-2011
The claimant appealed against refusal of judicial review of decisions of the parking adjudicator as to the correctness of 39 penalty charge notices. In each case, they said that the signage supporting the notice, in particular single and double . .
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
Cited – Stockton-On-Tees Borough Council v Latif Admn 13-Feb-2009
The council appealed against a decision that the crown court had jurisdiction to extend the time for appeal against refusal of a private hire vehicle licence.
Held: The court did not have the jurisdiction it used: ‘The terms of the section 300 . .
Cited – Aylesbury Vale District Council, Regina (on The Application of) v Call A Cab Ltd Admn 12-Nov-2013
The council appealed against dismissal of its prosecution of the respondent, alleging the operation of a private hire vehicle without having a current licence, ‘in a controlled district’. The respondent had denied that the necessary resolution had . .
Cited – In re X (A Child) (Surrogacy: Time Limit) FD 3-Oct-2014
Extension of Time for Parental Order
The court considered the making of a parental order in respect of a child through surrogacy procedures outside the time limits imposed by the 2008 Act. The child had been born under Indian surrogacy laws. The commissioning parents (now the . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
Cited – Westminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – Guraj, Regina v SC 14-Dec-2016
The defendant had pleaded to charges of possession of drugs with intent to supply. He was sentenced, but then the prosecutor was 14 months’ late serving its notice with regard to the confiscation order under section 16. The crown now appealed . .
Cited – Abdi, Regina v CACD 31-Jul-2007
The appellant had been convicted of a sexual assault on a boy, and recommended for deportation on completion of his sentence. He had not however been served with notice of the possibility of such an order, as required by section 6 of the 1971 Act, . .
Cited – McCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Sentencing

Leading Case

Updated: 30 June 2022; Ref: scu.228955

An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which provided for a bill of indictment (which had of itself no legal standing save as a proposal of charges) to become an indictment when signed. It was common ground that a valid indictment was a pre-condition to a valid Crown Court trial. The court’s task is to ascertain from the terms of the legislation what Parliament intended to be the consequences if it is not complied with. Where the statutory provisions were clear in their terms, the court was bound to apply them, even if the consequence was that a defendant is enabled to obtain what might be regarded as an unmerited outcome. The effect of the decision in Morais could be reversed, if this was desired, by parliament alone.
Lord Bingham said: ‘Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place.’

Judges:

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2008] UKHL 8, [2008] 1 WLR 338, [2008] 2 Cr App R 2, [2008] Crim LR 551, [2008] 2 All ER 665

Links:

Bailii

Statutes:

Offences Against the Person Act 1861 18, Administration of Justice (Miscellaneous Provisions) Act 1933 1 2

Jurisdiction:

England and Wales

Citing:

Cited – Jane Denton’s Case 1823
Under the grand jury regime the indictment was authenticated by the delivery of the bill found to be a true bill by the grand jury. . .
Cited – Regina v Stewart CACD 1990
The Court recalled the fundamental distinction between the preferment of a bill of indictment and the signing of the bill: it is the signing of the bill which converts it into an indictment. The court then accepted that the proper officer had . .
Cited – Giuseppe Sidoli’s Case 1833
The court considered the validation of the indictment under the grand jury system. . .
Cited – Rex v Gee CCA 1936
The defendants appealed, complaining of defects in the commital procedure.
Held: The proceedings committing the defendants for trial were so defective that there was no lawful committal. It followed that the document purporting to be an . .
Cited – Regina v Thompson 1975
The defendant appealed saying that the prosecution had broken the principle ‘that it is only once that an indictment can be preferred upon the basis of one committal’.
Held: The trial had taken place upon an invalid indictment not properly . .
Cited – Regina v Price CACD 6-Nov-1985
The defendant appealed saying that after committal, the trial had proceeded on the basis of a voluntary bill of indictment, and he had been convicted on his own plea. He now appealed saying that the bill had not been signed as required.
Held: . .
Cited – Regina v Hodges (George David) CACD 5-Jun-1981
The court considered a claim that the indictment was invalid.
Held: Peter Pain J said: ‘It seems to us that it is impossible for a criminal trial to start without there being a valid indictment to which the defendant can plead, and that the . .
Cited – Regina v Morais CACD 1988
A High Court judge had given leave to prefer a voluntary bill against the appellant, who was arraigned on six counts in the voluntary bill. He pleaded not guilty, was convicted on four counts and was sentenced. Relying on section 2 of the 1933 Act, . .
Cited – Regina v Newland CACD 1988
The trial had proceeded on an indictment which was invalid because it improperly contained unrelated counts. The defendant having pleaded guilty appealed.
Held: The proviso could not be applied, and the appeal must succeed. While recognising . .
Cited – Regina v Cairns CACD 1983
The defendant was committed for trial on seven charges of fraud. An eighth was then added under a voluntary bill of indictment, and a circuit judge confirmed a new indictment with all the eight charges. He appealed.
Held: His appeal succeeded. . .
Appeal from – Regina v Anderson, Clarke, McDaid CACD 9-Feb-1998
The defendants appealed their convictions on the basis that the voluntary bills of indictment had not been signed as required under the 1933 Act. . .
Approved – Liverpool Borough Bank v Turner 1860
The court considered how to decide what would be the consequences of failing to comply with a statutory requirement. Lord Campbell CJ said that the court should look at the importance of the provisions in question and to look at the real intention . .
Cited – Regina v Jackson, Brady, Packer, Powell, and Kearns CACD 13-May-1997
The defendants had been charged in a 17 count indictment. Further indictments were properly added, and then yet further indictments. The judge had directed these last to be signed but they had not been. The defendants said that they were therefore . .
Cited – Christie, Young, Scott v Her Majesty’s Advocate HCJ 26-Sep-2003
The defendants appealed against their convictions based upon a faulty indictment. The Act required the that when signing a bill of indictment, the signature should bear certain words signifying the authority of the signatory. The words used were . .
Cited – Her Majesty’s Advocate v James Crawford HCJ 22-Nov-2005
The section required that indictments in proceedings before the sheriff sitting with a jury shall be signed by the procurator fiscal and that the words ‘By Authority of Her Majesty’s Advocate’ shall be prefixed to the signature of the procurator . .
Cited – Regina v Janceski 18-Aug-2005
(Supreme Court of New South Wales) The NSW statute required that an indictment should be signed by any one of a number of persons specified in the section, including a person authorised by the Director of Public Prosecutions to sign indictments, and . .
Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
Cited – Regina v Sheerin CACD 1976
The court considered a procedural error in an indictment. . .
Cited – Regina v Soffe CACD 1982
The defendant sought leave to appeal saying that the 1971 rules had not been followed in preferring the bill of indictment.
Held: The breach was not a material irregularity. The application of the rules was a matter for the judge, and not for . .
Cited – Regina v Farooki CACD 1983
The judge had allowed a 56 day extension to the time for preferring the bill of indictment against the defendant. There were further delays outside the extended period. The judge refused to quash the indictment at trial.
Held: The 1971 rules . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – Sekhon, etc v Regina CACD 16-Dec-2002
The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – Regina v Laming CACD 1989
The defendant appealed saying that the court clerk had signed the indictment in the wrong place.
Held: The signature had been intended to validate the indictment. The appeal failed. . .

Cited by:

Cited – R, Regina v CACD 4-Apr-2008
The defendant appealed his conviction for rape, saying that the complainant’s evidence had wrongfully been allowed to be given over a remote video link. Provisions to allow such means of giving evidence had been intended to be phased in only as . .
Cited – NT, Regina v CACD 31-Mar-2010
The prosecutor appealed against a stay of the prosecution as an abuse. The prosecution had failed give the undertaking necessary on lodging the appeal to the court against whose ruling it wanted to appeal, that it agreed that the defendant should be . .
Cited – LSA, Regina v CACD 16-May-2008
(Courts-Martial Appeals Court) The defendant had faced road traffic offence charges, but the court had discharged the case using the Forest of Dean case. The prosecutor sought to appeal but failed to give the undertaking with regard to taking no . .
Cited – White v Regina CACD 15-Apr-2014
The defendant sought an extension of time for leave to appeal against his conviction for fraud. After his conviction there had been academic debate as to its basis, and the present application was not opposed. He had originally been charged under . .
Cited – Rahmdezfouli, Regina (on The Application of) v Crown Court Sitting At Wood Green and Another Admn 9-Oct-2013
The appellant challenged the refusal to allow him to vacate a guilty plea to a charge of failures to comply with a planning enforcement notice. It had been agreed that the magistrates had failed to ask the two questions required under the 1980 Act. . .
Cited – Westminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
Referred to – Stapleton, Regina v CACD 15-May-2008
The appellant pleaded guilty to six offences of furnishing false information, contrary to the Theft Act 1968. She was committed to the Crown Court for sentence under the 2002 Act, with a view to a confiscation order being considered. She had made . .
Cited – McCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.264275

The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
Held: The courts must remember the importance of such procedures in the fight against crime, and must not allow procedural or technical failures to defeat that purpose. Courts should rather look to see whether the defect was the source of unfairness to the defendant. The use of mandatory terms within a statute was not determinative, but provisions supporting the substantive purpose of the statute should be supported. The doctrine of waiver had no value in this context. Parliament had tried to retain the link between sentencing and confiscation, and so should the courts. The purpose of rules of procedure is not usually to give or take away the court’s jurisdiction: ‘There is no doubt that difficulties for courts exist in applying the distinction between mandatory requirements, on the one hand, and directory requirements on the other. Even if the terms ‘directory’ and ‘mandatory’ are not used the problem remains of answering the question ‘what is the effect of non-compliance with procedural requirements?’ What is necessary, as indicated by Lord Campbell LC in Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379, 381, is ‘to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed’.’
Lord Woolf CJ observed: ‘that it would not have been the intention of Parliament to exclude the jurisdiction of the court in relation to the making of confiscation orders because of procedural defects of a technical nature that caused no injustice to the defendant’
However: ‘We would expect a procedural failure only to result in a lack of jurisdiction if this was necessary to ensure that the criminal justice system served the interests of justice and thus the public or where there was at least a real possibility of the defendant suffering prejudice as a consequence of the procedural failure.’

Judges:

Mr Justice Holland, The Honourable Mr Justice Keith, Lord Chief Justice Of England And Wales Lord Phillips

Citations:

Times 27-Dec-2002, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, [2002] EWCA Crim 2954

Links:

Bailii

Statutes:

Criminal Justice Act 1988 71, Drug Trafficking Act 1994 2 3

Jurisdiction:

England and Wales

Citing:

Doubted – Regina v Davies CACD 22-May-2001
The judge when sentencing the offender set a timetable for the purpose of determinations under the 1994 Act, requiring disclosure of assets and expenditure by the defendant within 28 days and a prosecutor’s statement within 28 days thereafter.
Cited – Liverpool Borough Bank v Turner 1860
The court considered how to decide what would be the consequences of failing to comply with a statutory requirement. Lord Campbell CJ said that the court should look at the importance of the provisions in question and to look at the real intention . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Cited – Attorney General’s Reference (No 3 of 1999) (Lynn) HL 15-Dec-2000
A DNA sample had been wrongfully retained after the suspect had been acquitted, and the sample had been used in a later investigation to identify him. A subsequent sample had been taken, and the result of that second test had been used as evidence . .
Preferred – Regina v Copeland CACD 2002
The court considered the necessary of any postponment of a dermination of a confiscation order.
Held: The court rejected the contention that the postponement order must specify the period of postponement. It was pointed out that the word used . .
Disappoved – Regina v Pisciotto CACD 27-Jun-2002
The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an . .
Disappoved – Palmer, Regina v CACD 11-Oct-2002
The defendant appealed against a very substantial confiscation order. The prosecution had served notices under sections 71 and 72(1), but the section 72(1) notice was invalid. The judge allowed a second notice to be served, and the case to be . .

Cited by:

Cited in – Regina v Secretary of State for the Home Department Ex Parte Jeyeanthan; Ravichandran v Secretary of State for the Home Department CA 21-May-1999
The applicant had failed to comply with the Rules in not using the form prescribed for appliying for leave to appeal against a special adjudicator’s decision to the Immigration Appeal Tribunal. The application, by letter, included all the relevant . .
Disapproved in – Regina v Pisciotto CACD 27-Jun-2002
The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an . .
Disapproved in – Palmer, Regina v CACD 11-Oct-2002
The defendant appealed against a very substantial confiscation order. The prosecution had served notices under sections 71 and 72(1), but the section 72(1) notice was invalid. The judge allowed a second notice to be served, and the case to be . .
Cited – Regina v October CACD 27-Feb-2003
The court had adjourned its proceedings in the absence of the defendant, so as not to fall foul of the requirement that a confiscation inquiry must take place within six months of conviction. The defendant appealed.
Held: The court could . .
Applied – Regina v Clayton CACD 1-Apr-2003
A confiscation order had (inter alia) been made after convictions for cheating the public revenue, but the notice of the proceedings had misdescribed the statutory basis.
Held: The mistake was procedural rather than substantial, and on the . .
Applied – Ruddick v Regina CACD 16-Apr-2003
A judge was required to take into account a confiscation order before making an order for costs, but that need not invalidate the orders. Was a financial order made before the forfeiture process was complete void or merely a ground for appeal? The . .
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Regina v Soneji; Regina v Bullen CACD 20-Jun-2003
If the court could only postpone confiscation proceedings in exceptional circumstances, it behoved the court before allowing such an adjournment to enquire into the justification, and to record the circumstances which made it exceptional. The . .
See Also – Singh v Director of the Assets Recovery Agency CA 17-May-2005
The defendant had successfully appealed a confiscation order which had been made without jurisdiction, but now claimed that that exempted those assets from later civil proceedings to recover the criminal proceeds.
Held: The failure of the . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Regina v Flowers, Graver and Cunningham, Smith and Bradley; Attorney General’s references No 114 of 2002, 115 of 2002 116 of 2002, 144 of 2002, 145 of 202 CACD 26-Nov-2003
. .
Cited – Kasperbauer; Griffith v Griffith; Havens; Zorab and Griffith CA 21-Nov-1997
. .
Cited – Regina v McCready CACD 14-Feb-2003
Conviction of offences of being concerned in the importation of controlled drugs, namely cocaine, ecstasy and amphetamine. McCready was sentenced to 18 years imprisonment. Complaint that no adjournment before confiscation order. . .
Cited – Barrington and Others, Regina v CACD 2-Apr-2003
. .
Cited – Haisman and Others, Regina v CACD 31-Jul-2003
Three appeals concerning the legality of certain Confiscation Orders. . .
Cited – Young v Regina CACD 4-Dec-2003
The appellant had been convicted of VAT fraud. His company collected sums for charity but hid substantial receipts. He appealed his sentence on the grounds of disparity with his co-defendants. The fraud was substantial and organised.
Held: The . .
Cited – Aslam, Regina v CACD 22-Oct-2004
The appellant had pleaded guilty to a number of offences of dishonesty and asked for a number of others to be taken into consideration. One of the offences to which he had pleaded guilty and one of those which he had asked to be taken into . .
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Appeal from – Regina v Knights and Another HL 21-Jul-2005
The defendants had been convicted of offences involving dealing with goods on which customs duty had not been paid. After conviction a timetable was set for sentencing and for confiscation proceedings. The House considered the making of the . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
Cited – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006
The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
Cited – In re Hill and Others (Restraint Order) CACD 20-Dec-2005
The Revenue appealed against discharge of a restraint order. The discharge had been on the basis that some of the offences under investigation (perpetrating a fraud on the revenue) took place before the 2002 Act came into effect.
Held: The . .
Cited – Rowe v Regina CACD 15-Mar-2007
The defendant had been convicted of possessing articles for terrorist purposes, namely a notebook with notes setting out how to construct a mortar bomb in his handwriting. There was also a coded list of potential targets.
Held: The decision in . .
Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Cited – Westminster City Council v Owadally and Another Admn 17-May-2017
Defendant must plea to charge, and not counsel
The defendants had, through their barrister, entered pleas of guilty, but the crown court had declared the convictions invalid because this had to have been done by the defendants personally, and remitted the cases and the confiscation proceedings . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Sentencing

Leading Case

Updated: 30 June 2022; Ref: scu.178440

The failure to obtain the consent of the Director of Public Prosecutions to a prosecution under section 8 of the Sexual Offences Act 1967 rendered the whole of the trial, including the committal proceedings, a complete nullity.

Judges:

Lord Parker LCJ

Citations:

[1968] 1 WLR 669, (1968) 52 Cr App R 280

Statutes:

Sexual Offences Act 1967 8

Jurisdiction:

England and Wales

Cited by:

Cited – Patel and others v London Borough of Brent CA 25-May-2005
Application for return of deposit made to secure commencement of road works on development. . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.226021

The court looked at questions concerning the scope, availability and procedure surrounding the issue of a writ of venire de novo. ‘The issue we have to resolve is whether an application for a writ or order of venire do novo must be made in the course of application for leave to appeal against conviction (and then the subsequent appeal) brought under Part I of the 1968 Act or whether it can be made as a freestanding application, and thus unconstrained by the need for leave or any time limits.’
Held: A criminal conviction and sentence cannot be regarded as truly a ‘nullity’, since such conviction and sentence stand unless and until they have been quashed by the court.
The consequences of a failure to follow a procedural requirement are to be ascertained by reference to the presumed Parliamentary intention.

Judges:

Lord Burnett of Maldon LCJ, Sweeney, William Davis JJ

Citations:

[2018] EWCA Crim 561 (Rev 1

Links:

Bailii

Statutes:

Criminal Appeal Act 1968

Jurisdiction:

England and Wales

Cited by:

Cited – Lalchan, Regina v CACD 27-May-2022
Conviction withoiut required Consent was Unsafe
Whether a conviction for an offence which requires the consent of the Attorney General before the proceedings are instituted can stand when no such consent was obtained.
Held: The appellant’s arguments were well-founded and his conviction on . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 30 June 2022; Ref: scu.608708

The defendant was convicted of infanticide and murder. The experts differed as to the cause of death. She appealed her conviction saying that the experts in effect cancelled each other out.
Held: Her appeal failed. The jury was entitled to listen to both reports and to choose which it accepted. ‘It was therefore for the jury to evaluate the expert evidence, taking account of the facts found at post mortem, bearing in mind in addition, for example, that the findings related to a infant whose mother had spoken about killing him and had made a comment about smothering another child; who had had difficulties in achieving a bond with him in the way in which she thought appropriate; who may have delayed reporting his death; and who had elected not to give evidence. In the context of disputed expert evidence, on analysis, what was required in this case was no different to that which obtains, for example, when pathologists disagree about the cause of death in a case of alleged strangulation. ‘ The law of infanticide is in need of clarification.

Judges:

Judge LJ, Hallett, Leveson JJ

Citations:

[2005] 2 Cr App R 31, [2005] EWCA Crim 1092, Times 11-May-2005

Links:

Bailii

Statutes:

Criminal Appeal Act 1968, Infanticide Act 1938 1(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Angela Cannings CACD 19-Jan-2004
The defendant had been convicted of murdering her children. The substance of the evidence against her was that on a medical expert. His evidence was disputed and later doubted.
Held: Appeal allowed. In general courts should be careful to . .
Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .

Cited by:

Cited – Bowman, Regina v CACD 2-Mar-2006
The defendant appealed his conviction of murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 29 June 2022; Ref: scu.224522

The court considered an appeal by way of judicial review of a refusal of bail.
Held: There was jurisdiction to consider a claim that bail had been refused in circumstances which showed that that refusal was erroneous in law, but that it was only in exceptional cases that the Court should intervene. Maurice Kay LJ said: ‘I have no doubt that it is a jurisdiction which we should exercise very sparingly indeed. It would be ironic and retrograde if, having abolished a relatively short and simple remedy on the basis that it amounted to a wasteful duplication, Parliament has, by a side wind, created a more protracted and expensive remedy of common application.’ and
‘The test must be on Wednesbury principles, but robustly applied and with this court always keeping in mind that Parliament has understandably vested the decision in judges in the Crown Court who have everyday experience of, and feel for, bail applications. Of course if bail were be refused on a basis such as ‘I always refuse in this type of case’, or some other unjudicial basis, then this Court would and should interfere.’
A decision as to bail at an early stage of criminal proceedings did not relate to trial on indictment.

Judges:

Maurice Kay LJ

Citations:

[2005] EWHC 363 (Admin)

Links:

Bailii

Statutes:

Bail Act 1976

Citing:

Cited – Thomassy v France ECHR 1992
The court emphasised the need for a court refusing bail to give reasons. In refusing bail, there was a requirement to examine all the circumstances arguing for or against the existence of a genuine requirement of public interest justifying, having . .

Cited by:

Cited – Wiggins, Regina (on the Application Of) v Harrow Crown Court Admn 20-Apr-2005
The defendant appealed against refusal of bail. He had failed to attend court in time of the day of his trial and said he had overlooked the date.
Held: Collins J said: ‘[T]he question of whether bail should be continued or removed in . .
Cited – Fergus, Regina (On the Application of) v Southampton Crown Court Admn 4-Dec-2008
The applicant challenged the withdrawal of bail on surrender to the Crown Court.
Held: Applying the case of Thompson, ‘bearing in mind the presumption in favour of granting bail and the high threshold that a defendant should only be remanded . .
Cited – S v Northampton Crown Court and Another Admn 7-May-2010
S faced serious charges of defrauding Customs and Excise. After allegations of jury tampering came to light, a decision was made for trial by judge alone, and his bail was revoked. He now sought judicial review of the refusal of bail. He challenged . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 29 June 2022; Ref: scu.223855

The local authority applied for an anti-social behaviour order in respect of the defendant. The defendant appealed saying that the authority should have consulted with him first because the ASBO procedures provided little opportunity for involvement.
Held: District judges had a clear duty to investigate properly cases brought before them, and a failure to do so would be serious. There was no evidence to suggest that the district judge in this case had failed. In some cases consultation might be worthwhile, and in others not, but there was no duty on a local authority to consult.

Judges:

Walker LJ, Jack J

Citations:

Times 28-Mar-2005, [2005] EWHC 358 (Admin)

Links:

Bailii

Statutes:

Crime & Disorder Act 1998& 1

Criminal Practice

Updated: 29 June 2022; Ref: scu.223856

The court discussed the correct approach of the Court of Appeal to new evidence on appeal: ‘However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this Court, is whether, in the light of the fresh evidence, the convictions are unsafe.’ and ‘It is integral to the process that if fresh evidence is disputed, this Court must decide whether and to what extent it should be accepted or rejected, and if it is to be accepted, to evaluate its importance, or otherwise, relative to the remaining material which is before the trial jury: hence the jury impact test . .’

Judges:

Judge, Holman, LJJ, MacKay J

Citations:

[2002] EWCA Crim 730, [2002] Crim LR 578

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kelvin Dial (otherwise called Peter), Andrew Dottin (otherwise called Maxwell) v The State PC 14-Feb-2005
(Trinidad and Tobago) Two defendants appealed against their convictions for murder. The principal witness who had identified them, had retracted his evidence, but the retraction had not been believed. He was then shown to have lied.
Held: The . .
Cited – Regina v Sally Clark CACD 11-Apr-2003
The defendant appealed against her conviction for the murder of her two infant children by, in the one case, smothering and, in the other, suffocation. Amongst the experts called at her trial by the Crown was Professor Sir Roy Meadow. The . .
Cited – Hendy, Regina v CACD 12-Apr-2006
The applicant was sentenced to life imprisonment in 1992 for a brutal murder. He had pleaded diminished responsibility. There were now no papers from the trial. Medical evidence now suggested that at the time of the trial he would have suffered a . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 29 June 2022; Ref: scu.223108

The defendant complained that his criminal record had been placed before the jury under the Act, even though the proceedings had been begun before the commencement date.
Held: The provisions of the Act were procedural in nature and therefore not subject to any rule against reprospectivity. The court criticised the drafting of the Act.

Judges:

Rose LJ, Mittiung J, Walker J

Citations:

Times 17-Jan-2005, [2005] EWCA Crim 20

Links:

Bailii

Statutes:

Criminal Justice Act 2003

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Newton CACD 1982
Where there is a plea of guilty but there remains a conflict between the prosecution and defence as to the facts, the trial judge should approach the task of sentencing in one of three ways: a plea of not guilty can be entered to enable the jury to . .
Cited – Regina v Makanjuola CACD 17-May-1995
Guidance was given on the directions to be given to the jury where a co-accused speaks for prosecution as a witness and in sexual assault cases. The full corroboration warning is not now needed; the Judge may use his own discretion, and may give a . .

Cited by:

Cited – Crown Prosecution Service v City of London Magistrates’ Court and Gill Admn 20-Dec-2005
The prosecutor sought to bring in documentary evidence in support of its application to commit the defendant for trial on fraud charges. During the course of proceedings the rules changed on admission of such evidence. The prosecutor appealed . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 28 June 2022; Ref: scu.221584

The claimant was the wife of an offender sentenced for drug trafficking. An order was made for confiscation of the proceeds of the trafficking. She sought a certificate of inadequacy.
Held: Where she ws not in a position to pay the sum ordered she was entitled to a certificate. The judge had not appreciated that he had a discretion in the matter.

Judges:

Lord Justice Schiemann Lord Justice Sedley Lord Justice Jacob

Citations:

[2003] EWCA Civ 1608, Times 02-Dec-2003

Links:

Bailii

Statutes:

Drug Trafficking Offences Act 1986 14

Jurisdiction:

England and Wales

Criminal Practice

Updated: 28 June 2022; Ref: scu.187718

Renewed application made by the Claimants for permission to bring proceedings for judicial review of the decision of the Recorder of Preston to make Production Orders relating to the Claimants’ banking records

Citations:

[2019] EWHC 906 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 28 June 2022; Ref: scu.636099

Application for European Arrest Warrant to support order for committal of H for contempt of court.

Judges:

Mostyn J

Citations:

[2015] EWHC 3725 (Fam)

Links:

Bailii

Jurisdiction:

England and Wales

Contempt of Court, Criminal Practice

Updated: 28 June 2022; Ref: scu.558992

Where one defendant gave evidence incriminating his co-defendant, just as in cases where an accomplice gave evidence for the prosecution, a full corroboration warning was desirable.

Citations:

[1960] CLY 671, [1960] 1 All ER 298, [1960] 2 QB 464

Jurisdiction:

England and Wales

Cited by:

Explained – Regina v Beck CACD 1982
The defendant complained that the judge had failed to direct the jury about the dangers of relying upon the evidence of witnesses who, though not co-defendants, had their own conflicting interests. They also said that corroborative evidence should . .
Cited – Regina v Knowlden and Knowlden CACD 1983
The court set out warnings for the jury when considering evidence from a co-accused. The rule in Prater was not a rule of law but ultimately in the discretion of the judge: and that ‘the customary clear warning to examine the evidence of each . .
Cited – Regina v Cheema CACD 5-Sep-1993
There is no rule requiring full a corroboration direction to be given for a co-defendant’s evidence to be admitted. The Court of Appeal recommended a review of law on corroboration of a witness’s evidence. Lord Taylor CJ said: ‘The rule of practice . .
Cited – Petkar and Farquar, Regina v CACD 16-Oct-2003
The defendants appealed their convictions and sentence for theft. Whilst employed by a bank thay had arranged for transfers to their own account. Each blamed the other. They appealed on the basis that the direction on their silence at interview was . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 28 June 2022; Ref: scu.244806

Application for judicial review of refusal by the respondent to refer the claimant’s case back to the court.

Judges:

Waller LJ

Citations:

[2002] EWCA Civ 1438

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 27 June 2022; Ref: scu.217590

The trial judge allowed a doctor who had already given evidence in the case, to be recalled to give evidence in answer to a question raised by the jury after its retirement.
Held: The conviction was quashed: ‘ . . Once the summing up is concluded, no further evidence ought to be given. The jury can be instructed in reply to any question they may put on any matter on which evidence has been given, but no further evidence should be allowed.’

Judges:

Lord Goddard CJ

Citations:

[1952] 36 CAR 16

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Gearing CACD 1966
Lord Parker CJ said: ‘It has always been a very strict rule of this court that no evidence whatever must be introduced after the jury have retired.’ . .
Cited – Regina v Karakaya CACD 16-Feb-2005
No Internet Research for juror
After conclusion of the trial, the jury bailiff discovered notes in the jury room which indictated that the jury, after they had retired for their verdict, had read and discussed notes obtained by a juror from the Internet relating to the case.
Cited – Regina v Wilson QBD 1957
‘The principle that, once the summing up is concluded, no further evidence ought to be given, must be maintained in every case, and, if further evidence is allowed at that stage, . . the conviction will be quashed.’ The court considered the nature . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 23 June 2022; Ref: scu.223467

It was permissible for the evidence for a witness for the defence (only) to be taken after the summing up had been completed, but before the jury had retired.

Judges:

Lord Goddard CJ

Citations:

[1953] 37 CAR 32

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Karakaya CACD 16-Feb-2005
No Internet Research for juror
After conclusion of the trial, the jury bailiff discovered notes in the jury room which indictated that the jury, after they had retired for their verdict, had read and discussed notes obtained by a juror from the Internet relating to the case.
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 23 June 2022; Ref: scu.223469

Appeal against sentence – whether the judge should have conducted a Newton hearing.

Citations:

[2005] EWCA Crim 2813

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 21 June 2022; Ref: scu.380261

Extension of custody time limits.

Citations:

[2004] EWHC 2252 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 21 June 2022; Ref: scu.218720

There are limits as to what may be put to a witness by way of cross-examination as to credit. Lawton J said: ‘What, then, is the principle upon which the judge should draw the line? It seems to me that it is this. Since the purpose of cross-examination as to credit is to show that the witness ought not to be believed on oath, the matters about which he is questioned must relate to his likely standing after cross-examination with the tribunal which is trying him or listening to his evidence.’

Judges:

Lawton J

Citations:

[1971] 55 Cr App R 316

Jurisdiction:

England and Wales

Cited by:

Cited – Watson v Cleveland Police CA 12-Oct-2001
The defendant appealed an award of damages in favour of the applicant for assault by police officers whilst held in police custody. The said the judge should have allowed the claimant’s criminal record in in full.
Held: The judge had directed . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 19 June 2022; Ref: scu.184913

Appeal from conviction of murder – jury foreman later convicted and imprisoned for improper research.
Held: The appeal failed. The matters investigated by the foreman were not germane to the issues in the case.

Citations:

[2018] EWCA Crim 788

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 18 June 2022; Ref: scu.624040

The crown sought leave to appeal against a decision of the trial judge to stay a prosecution as an abuse of process.
Held: The decision was an exercise of judicial discretion. As such a court of appeal should be very reluctant to interfere with it. For leave to be granted it had to be seriously arguable not only that the decision was incorrect but that the judge could not properly have come to the conclusion he had. Leave was refused.

Judges:

Sir Igor Judge, President, Mr Justice Aikens and Mrs Justice Swift

Citations:

Times 22-May-2008

Jurisdiction:

England and Wales

Criminal Practice

Updated: 18 June 2022; Ref: scu.272268

The defendant was committed for trial on seven charges of fraud. An eighth was then added under a voluntary bill of indictment, and a circuit judge confirmed a new indictment with all the eight charges. He appealed.
Held: His appeal succeeded. One indictment could be amended to include the other charges, but there was no jurisdiction to create a new indictment containing a charge evidence for which had not been presented on a committal. The new indictment was a nullity.

Citations:

(1983) 87 Cr App R 287, [1983] Crim LR 620

Statutes:

Administration of Justice (Miscellaneous Provisions) Act 1933 2(2), Criminal Justice Act 1967 2(8)(c)

Jurisdiction:

England and Wales

Citing:

Applied – Regina v Thompson 1975
The defendant appealed saying that the prosecution had broken the principle ‘that it is only once that an indictment can be preferred upon the basis of one committal’.
Held: The trial had taken place upon an invalid indictment not properly . .

Cited by:

Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 18 June 2022; Ref: scu.267619

The judge had allowed a 56 day extension to the time for preferring the bill of indictment against the defendant. There were further delays outside the extended period. The judge refused to quash the indictment at trial.
Held: The 1971 rules were not mandatory, and the conviction would not be quashed. The breach was not a material irregularity,

Citations:

(1983) 77 Cr App R 257

Statutes:

Indictments (Procedure) Rules 1971 (1971 No 2084) 5

Jurisdiction:

England and Wales

Citing:

Applied – Regina v Soffe CACD 1982
The defendant sought leave to appeal saying that the 1971 rules had not been followed in preferring the bill of indictment.
Held: The breach was not a material irregularity. The application of the rules was a matter for the judge, and not for . .

Cited by:

Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 18 June 2022; Ref: scu.267627

The defendant appealed saying that the court clerk had signed the indictment in the wrong place.
Held: The signature had been intended to validate the indictment. The appeal failed.

Citations:

(1989) 90 Cr App R 450

Statutes:

Administration of Justice (Miscellaneous Provisions) Act 1933 1 2, Indictment (Rules) 1971 (1971 No 1253) 4(1)

Jurisdiction:

England and Wales

Citing:

Considered – Regina v Soffe CACD 1982
The defendant sought leave to appeal saying that the 1971 rules had not been followed in preferring the bill of indictment.
Held: The breach was not a material irregularity. The application of the rules was a matter for the judge, and not for . .
Cited – Regina v Morais CACD 1988
A High Court judge had given leave to prefer a voluntary bill against the appellant, who was arraigned on six counts in the voluntary bill. He pleaded not guilty, was convicted on four counts and was sentenced. Relying on section 2 of the 1933 Act, . .

Cited by:

Cited – Clarke, Regina v; Regina v McDaid HL 6-Feb-2008
An indictment had not been signed despite a clear statutory provision that it should be. The defects were claimed to have been cured by amendment before sentence.
Held: The convictions failed. Sections 1(1) and 2(1) of the 1933 Act which . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 18 June 2022; Ref: scu.267628

Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders were quashed and new orders substituted restricting their ambit to England and Wales.

Judges:

Lord Justice Gage, Mr Justice Simon and Judge Paget, QC

Citations:

[2008] EWCA Crim 530, Times 23-May-2008, [2008] 3 All ER 830, [2008] 1 WLR 2634, [2008] 2 Cr App R 22

Links:

Bailii

Statutes:

Proceeds of Crime Act 2002 6, Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181)

Jurisdiction:

England and Wales

Citing:

Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – McDonnell v Congregation of Christian Brothers Trustees (Formerly Irish Christian Brothers) and others HL 4-Dec-2003
In 2000, the claimant sought damages for sexual abuse from before 1951. The issue was as to whether the limitation law which applied was that as at the date of the incidents, or that which applied as at the date when he would be deemed uner the . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – Jennings v Crown Prosecution Service 2004
. .

Cited by:

Appeal from – King v Director of the Serious Fraud Office HL 18-Mar-2009
Authorities in South Africa sought assistance in recovering what they said were assets acquired in England and Scotland with the proceeds of crime in South Africa, and in particular a restraint order, an assets declaration and other investigative . .
Cited – Shah and Another v HSBC Private Bank (UK) Ltd CA 4-Feb-2010
Money laundering suspicion to be explained
The customer sought to sue his bank for failing to meet his cheque. The bank sought to rely on the 2002 Act, having reported suspicious activity on freezing the account. He now appealed against summary judgment given for the bank which had refused . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 18 June 2022; Ref: scu.267710

Challenge to refusal of judge to release transcript of application for public interest immunity certificate.

Citations:

[2004] EWHC 2119 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Criminal Practice

Updated: 18 June 2022; Ref: scu.214216

The defendants were charged with indecent assault on a child of 5, who said that the defendants had hurt her in the back and said naughty things to her. The Judge also admitted evidence from the child’s mother of the complaint the child had made to the mother. The essence of that evidence was to the effect that the defendants had lifted up her dress and pulled her knickers down and touched her nipples. Also admitted was evidence of the possession by the defendant of pornographic magazines, and answers as to his sexual proclivities given by the defendant in interview.
Held: Harry Ognall QC said: ‘The first and primarily important point to note arising from the terms of that complaint is that none of that allegation formed any part of the child’s evidence before the jury. We draw attention to this as the starting-point, because it cannot be doubted as a matter of long-established law that the whole and exclusive rationale for the introduction of a recent complaint in cases of alleged sexual crimes lies in its utility to the jury in determining whether or not the complainant has been consistent in the accounts she has given. For this purpose we refer to and agree with the passage set out in Archbold (42nd ed.) at para.4-308, p.403, which reads: ‘The mere complaint is no evidence of the facts complained of, and its admissibility depends on proof of the facts by sworn or other legalised testimony.’ It must, in our view, follow that if the terms of the complaint are not ostensibly consistent with the terms of the testimony, the introduction of the complaint has no legitimate purpose within the context of the trial. It is for this reason that the courts have treated the matter in the past as is summarised in para. 4-310 of Archbold (42nd ed.), which summary in that paragraph we respectfully agree with and adopt. It may be that if the learned Judge had confined the admitted evidence to the fact of a complaint, without allowing in its detail, other considerations would have applied. But, of course, the consequences of so doing might have been to compel the defendants to adduce evidence of its terms in an effort to demonstrate inconsistency. The prejudice attendant thereon would no doubt be the subject of complaint to this Court, and we express no concluded view on it if only for the reason that it did not occur in this case. The fact is that not merely a complaint but the terms of the complaint were admitted in evidence.’
Mustill LJ spoke as to the admissibility of evidence of the defendant’s propensities: ‘One must begin by asking whether, in a case where the issue is whether the act alleged by the complainant ever took place at all, evidence is admissible that the defendant had done similar acts in the past, or could be shown through the possession of incriminating articles or otherwise, to have a leaning towards such acts.
It is not hard to imagine legal systems in which such evidence would not only be admissible, but would be regarded as having high probative value. Nevertheless, this has never been the policy of the English criminal law, not so much on the grounds of logic, but because it is considered that to entrust it to a jury would be too great a risk. It is unnecessary to cite any more authority for this proposition that the oft-quoted opinion of Lord Herschell in Makin v. Attorney General for New South Wales [1894] AC 57.
The principle is subject to exceptions, as Lord Herschell himself acknowledged. Thus if a person accused of indecently touching a child admits the contact but asserts that it was accidental, evidence of previous similar acts may be admitted, because it is relevant to the issue of accident or design: see Makin (supra) and Bond [1906] 2 K.B. 389. So also if there is a defence that acts prima facie attributable to guilt in fact had an innocent explanation. See Gale (1987) (unreported), where a defendant who had taken indecent photographs of his young step-daughter claimed that he had done so for artistic purposes at the instigation of his wife, and where it was held to have been proper to admit evidence that he had written pornographic fantasies to describe, in a manner which bore a close resemblance to the very type of incident which the girl had herself described, the sexual initiation of a young girl by her father.
Again such evidence may be permitted where it goes to disprove a defence than an association with the complainant bears an innocent explanation. Another exception exists where there is no doubt that an offence was committed by someone, but where the defendant denies that he was that person, and where the evidence is of acts done by the defendant which bear a striking similarity to those done by the offender on the occasion in question: Thompson v. DPP (1918) 13 Cr.App.R. 61… Reading (1966) 50 Cr.App.R. 98… and Mustafa (1976) 65 Cr.App.R. 26. (Whether Twiss (1918) 13 Cr.App.R. 177,… can now be justified on this ground may one day have to be discussed. We need not decide this here.)
Although these exceptions are well established, it is also quite clear that they are not brought into play simply through a denial that the acts in question ever happened at all. This is demonstrated by Cole (1941) 28 Cr.App.R. 43, Horwood (1969) 53 Cr.App.R. 619… and perhaps most clearly by Lewis (1983) 76 Cr.App.R. 33, where evidence of paedophilic tendencies was held admissible in relation to counts where the touching was said to have been innocent or accidental, but not in relation to an incident which could have had no innocent explanation, but which the defendant denied had ever taken place.
Here it cannot be said that the appellant had raised any defence of the types we have mentioned: he did not admit the incidents whilst denying that they involved any criminality on his part. He asserted that the boys made them up. In argument at the trial counsel for the prosecution asserted, and the judge must be taken to have accepted, that the book was ‘strong probative evidence that he was a homosexual.’ The authorities show that this is not a permissible ground for admitting the evidence, any more than was the evidence of the questions about homosexuality in the police interviews, and of the visit to Paris, which were properly omitted pursuant to the agreement reached before the trial began.
In our judgment the evidence concerning the booklet should not have been admitted, and the booklet itself should not have been seen by the jury.’

Judges:

Harry Ognall QC, Mustill L.J

Citations:

(1990) 90 Cr App 91

Jurisdiction:

England and Wales

Citing:

Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
Cited – Rex v Bond 1906
The court considered the rule excluding evidence of the defendant’s bad character. Kennedy J said: ‘The general rule cannot be applied where the facts which constitute distinct offences are at the same time part of the transaction which is the . .
Cited – Rex v Twiss 1918
. .
Cited – Regina v Gale CACD 1987
The defendant had taken indecent photographs of his young step-daughter. By defence he claimed that he had done so for artistic purposes at the instigation of his wife.
Held: It had been proper to admit evidence that he had written . .
Cited – Regina v Lewis 1983
The defendant appealed convictions for sexual assaults on minors.
Held: Evidence of paedophilic tendencies was properly admitted in relation to counts where the touching was said to have been innocent or accidental, but not in relation to an . .
Cited – Thompson v Director of Public Prosecutions HL 1918
The defendant was charged with gross indecency against boys. The defendant denied that he was the offender. Evidence was admitted that on arrest the defendant was in possession of powder puffs and that a search of his rooms uncovered indecent . .
Cited – Regina v Mustafa 1976
. .
Cited – Regina v Horwood 1969
. .
Cited – Rex v Cole 1941
. .
Cited – Regina v Horwood 1969
. .
Cited – Regina v Reading 1966
. .

Cited by:

Cited – Spooner, Eric Charles v Regina; (Evidence: Sex abuse) CACD 25-May-2004
The defendant appealed his convictions for child sex abuse, involving assault, rape and buggery, saying that evidence of a recent complaint by a schoolgirl friend of the complainant which was not consistent with other evidence of the complainant . .
Cited – Regina v B (Evidence: Propensity) CACD 27-Jan-1997
The defendant appealed his conviction for indecent assaults, denying that any assaults had taken place. He complained that the judge had allowed questioning about his sexual propensities.
Held: Propensity to acts is not admissible as evidence . .
Cited – Regina v A S CACD 20-Jan-1997
The defendant appealed against convictions for several sexual offences. The alleged victim had originally denied that any offending had taken place. The defendant denied that anything had happened. He complained now that the court had accepted in . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 June 2022; Ref: scu.198134