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Criminal Practice - From: 1980 To: 1984

This page lists 74 cases, and was prepared on 21 May 2019.


 
 Regina v Horsham Justices, ex parte Reeves (Note); QBD 1980 - (1980) 75 Cr App R 236

 
 Imperial Tobacco Ltd v Attorney-General; HL 1980 - [1980] 1 All ER 866, HL(E); [1980] 2 WLR 466; [1981] AC 718
 
Stuurman v HM Advocate [1980] CLY 3011; 1980 JC 111
1980

Lord Justice General (Emslie)
Scotland, Criminal Practice
The court was asked whether a fair trial could take place at all in the light of the pre-trial publicity. Held: The court noted that the palliative of judicial directions can never be absolutely effective, but the judge had done what he could. Lord Justice General (Emslie) said: "the question for us is whether on 25 January 1980 the risk of prejudice as the result of these publications was then so grave that even the careful directions of the trial judge could not reasonably be expected to remove it. In our opinion that question falls to be answered in the negative. The publications occurred almost four months before the trial diet was called. In considering the effect of these publications at the date of trial the court was well entitled to bear in mind that the public memory of newspaper articles and news broadcasts and of their detailed contents is notoriously short and, that being so, that the residual risk of prejudice to the prospects of fair trial for the applicants could reasonably be expected to be removed by careful directions such as those which were in the event given by the trial Judge."
1 Citers


 
Reid v The Queen [1980] AC 343
1980
PC
Lord Diplock
Criminal Practice, Commonwealth
It is not in the interests of justice for the prosecution to be given a second chance to make good deficiencies in its case. The Board gave guidance on the considerations relevant to ordering a new trial: "... the interest of justice that is served by the power to order a new trial is the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury." Furthermore "... it is not necessarily a condition precedent to the ordering of a new trial that the Court of Appeal should be satisfied of the probability that it will result in a conviction. There may be cases where, even though the Court of Appeal considers that upon a fresh trial an acquittal is on balance more likely than a conviction, 'It is in the interest of the public, the complainant, and the [defendant] himself that the question of guilt or otherwise be determined finally by the verdict of a jury, and not left as something which must remain undecided by reason of a defect in legal machinery.' This was said by the Full Court of Hong Kong when ordering a new trial in Ng Yuk-kin v The Crown (1955) 39 HKLR 49, 60. That was a case of rape, but in their Lordships' view it states a consideration that may be of wider application."
1 Citers


 
Stewart v H M Advocate 1980 SLT 245
1980
HCJ
Lord Justice General Emslie
Scotland, Criminal Practice
The court re-affirmed the general rule of practice, that where the Crown sets out to prove that a particular person is the perpetrator of a crime the identification of the accused as its perpetrator must not be left to implication.
1 Citers


 
Regina v Manchester Crown Court ex parte H (a Minor) [2000] 1 WLR 760
1980
QBD
Sachs J
Criminal Practice
A judicial review of the discharge of a prohibition on the identification of a minor was seen as a collateral issue. The trial had concluded, and having regard to the nature of the application, the application was collateral.

 
Regina v Pearce (1980) 72 Cr App R 295
1980
CACD

Criminal Practice
The lack of a required consent by the Attorney General, under section 4(3) of the 1977 Act led to the quashing of the conviction.
Criminal Law Act 1977 4(3)
1 Citers


 
Moevao v Department of Labour [1980] 1 NZLR 464
1980

Richardson J
Commonwealth, Criminal Practice
(New Zealand) Richardson J said: "The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the uncertain circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for the law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court."
1 Citers


 
Regina v Shaw [1980] 70 CAR 313
1980
CACD

Legal Professions, Criminal Practice
It was counsel who must decide whether he could continue properly to represent a client, not the judge.
1 Citers


 
Regina v Nottingham Justices, ex parte Davis [1980] 71 Crim App R 178; [1981] 1 QB 38
1980
QBD
Donaldson LJ and Bristow J
Magistrates, Criminal Practice
On a second or subsequent application for bail, magistrates need only ask first whether there had been a material change in circumstancs since the original order. If there had been no change, there was no need to look at the facts underlying the previous refusals of bail.
Lord Justice Donaldson said: "The court considering afresh the question of bail is both entitled and bound to take account not only of the change in circumstances which has occurred since the last occasion but also all circumstances which, although they then existed, were not brought to the attention of the court. To do so is not to impugn the previous decision of the court and is necessary in justice to the accused. The question is a little wider than 'Has there been a change?', it is 'Are there new considerations which were not before the court when the accused was last remanded in custody?'"
1 Citers


 
Regina v Sheffield Crown Court ex parte Brownlow [1980] Cr App R 19; [1980] QB 530; [1980] 2 All ER 444; [1980] 2 WLR 892
1980
CA
Lord Denning MR, Shaw and Brandon LJJ
Criminal Practice
Two police officers were being brought to trial, charged with assault occasioning bodily harm. They applied to the trial judge for an order directing the prosecution to inform the defence whether any members of the jury panel had criminal convictions, and if so, to give details. The trial judge made the order. The court considered a request from the Chief Constable to be allowed to vet a jury to be empanelled to hear a case against two police officers. Held: Lord Denning MR (dissenting iin part) said that that the word "related" can mean "closely related to", or indirectly or distantly related to, or somewhere in between.
When the Crown Court was exercising the former jurisdiction of the Assize Courts, it (like the Assize Courts) could not be judicially reviewed.
Shaw LJ said: "It needs no elaborate argument to demonstrate that this user of such special knowledge would be an abuse as being contrary to the spirit and principle of jury service. It is possible to conceive of very special cases where the protection of the interests of the public at large demands that such knowledge should be sought and used. Even then it should not be sought or used without the sanction of the Attorney-General who is ultimately responsible for the conduct of prosecutions by way of indictment."
Brondon LJ said: "First, I have serious doubt whether there should be any jury vetting at all, either by the prosecution or the defence. Secondly, if jury vetting is to be permitted to the prosecution in certain categories of cases, however and by whomsoever those categories may be defined, it hardly seems just that it should not be permitted to the defence in any categories of cases at all."
As to the random nature of a jury, Lord Denning MR said: "Our philosophy is that the jury should be selected at random–from a panel of persons who are nominated at random. We believe that 12 persons selected at random are likely to be a cross-section of the people as a whole–and thus represent the views of the common man . . The parties must take them as they come."
Courts Act 1971
1 Citers



 
 Regina v Saville; CACD 24-Jan-1980 - (1980) 2 Cr App R (S) 26; [1980] EWCA Crim 1; [1980] 1 All ER 861; [1981] QB 12; [1980] 3 WLR 151
 
Regina v Cuthbertson [1981] AC 470; [1980] 2 All ER 401; [1980] 3 WLR 89; (1980) 71 Cr App R 148
1981
HL
Lord Diplock
Criminal Practice
With "considerable regret", the power of forfeiture and destruction conferred on the court by section 27 of 1971 Act did not apply to offences of conspiracy, and could not be used to provide a means of stripping professional drug-traffickers of the whole of their ill-gotten gains or the total profits of their unlawful enterprises. The forfeiture power applied only to tangible property (including drugs, apparatus, vehicles and "cash ready to be, or having just been, handed over for them"). It did not apply to intangible property, or to property situate abroad, and it did not authorise the court to follow or trace assets which could have been forfeited (but for the fact that they had been exchanged) into the other assets for which they had been exchanged.
Lord Diplock said: "Under English rules of conflict of laws it is in my view well established that an English court has no jurisdiction either in a criminal or a civil matter to make orders purporting ipso jure to transfer moveable property situate abroad."
Misuse of Drugs Act 1971 27
1 Citers



 
 Regina v Huntingdon Crown Court ex parte Jordan; 1981 - [1981] 2 All ER 872; [1981] 3 WLR 27; [1981] QB 857
 
John Pierce v Her Majesty's Advocate 1981 SCLR 783
1981

Lord Justice-General (Lord Emslie)
Criminal Practice, Evidence
A forensic scientist had been called as an expert witness at a criminal trial. He had made an unjustified assumption but had not disclosed the making of the assumption to the court. Held: The court concluded that the witness had been discredited, not only as a scientist, but also as a witness upon the accuracy, fairness and objectivity and of whose evidence reliance could be placed: "This was in our judgment, conduct on the part of an expert witness which demonstrated a complete misunderstanding of the role of scientific witnesses in the Courts, and a lack of the essential qualities of accuracy and scientific objectivity which are normally to be taken for granted."
1 Citers



 
 Morris v Matthews; CA 1981 - [1981] JP 233
 
Regina v Duncan (1981) 73 Cr App R 359
1981
CACD
Lord Lane CJ
Criminal Practice
Where a defendant has not given evidence the whole of a "mixed" statement, one which includes matter which is incriminating and also matter which is exculpatory, should be admitted in evidence, if it is to be admitted at all. Nevertheless, the court discussed the dangers of admitting, in drugs cases, entire statements of defendants which avoided the defendant giving evidence on oath and being cross-examined: "Where a "mixed" statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is, to say the least, not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight. Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence."
1 Citers



 
 Regina v Brentford Justices Ex parte Wong; QBD 1981 - [1981] 1 All ER 884; [1981] 2 WLR 203; (1981) 73 Cr App R 67; [1981] QB 445

 
 Regina v Hall; CACD 1981 - [1981] 74 Cr App R 67
 
Jespers v Belgium [1981] 27 DR 61; (1983) 5 EHRR 305; 8403/78
1981
ECHR

Human Rights, Criminal Practice, Human Rights, Criminal Practice, Media
ECHR (Commission) Article 6, paragraph I of the Convention
(a) A virulent press campaign can, in certain circumstances, adversely affect the fairness of a trial and involve the State's responsibility, particularly if it is sparked off bv one of the State's organs.
(b) Alleged failure by the public prosecutor's office to include in the file and communicate to the defence certain relevant documents which are in its possession (Complaint declared admissible).
Article 26 of the Convention :
(a) Where it is alleged that the members of the jury could have been particularly open to influence by a press campaign concerning the accused, an application for the case to be referred to another court on grounds of legitimate suspicion (art. 542 of the Belgian Code of Criminal Procedure) constitutes a remedv which has to be exhausted.
(b) Where it is alleged that certain relevant documents have neither been included in the criminal file nor communicated to the defence by the public prosecutor's office, a request for the review of the trial (art . 443, para. 3 of the Belgian Code of Criminal Procedure) is not a remedy the preliminary exhaustion of which is required.
European Convention on Human Rights 6(3) 26
1 Citers



 
 Attorney General v New Statesman and National Publishing Company Ltd; 1981 - [1981] QB 1
 
Regina v Manchester Crown Court, ex parte Welby (1981) 73 Cr App R
1981

Lord Lane CJ
Criminal Practice
Increase of sentence on appeal.
1 Citers


 
Regina v Gourley (1981) Crim L R 334
1981


Criminal Practice
The court emphasised the need for a clear direction to a jury on the standard of proof.
1 Citers


 
Regina v Rochdale Justices ex parte Allwork [1981] 3 All ER 434
1981


Magistrates, Criminal Practice
The court considered the circumstances in which a Crown Court can return a case to the Magistrates court for reconsideration.

 
Jespers v Belgium [1981] 27 DR 61; (1983) 5 EHRR 305; 8403/78
1981
ECHR

Human Rights, Criminal Practice, Human Rights, Criminal Practice, Media
ECHR (Commission) Article 6, paragraph I of the Convention
(a) A virulent press campaign can, in certain circumstances, adversely affect the fairness of a trial and involve the State's responsibility, particularly if it is sparked off bv one of the State's organs.
(b) Alleged failure by the public prosecutor's office to include in the file and communicate to the defence certain relevant documents which are in its possession (Complaint declared admissible).
Article 26 of the Convention :
(a) Where it is alleged that the members of the jury could have been particularly open to influence by a press campaign concerning the accused, an application for the case to be referred to another court on grounds of legitimate suspicion (art. 542 of the Belgian Code of Criminal Procedure) constitutes a remedv which has to be exhausted.
(b) Where it is alleged that certain relevant documents have neither been included in the criminal file nor communicated to the defence by the public prosecutor's office, a request for the review of the trial (art . 443, para. 3 of the Belgian Code of Criminal Procedure) is not a remedy the preliminary exhaustion of which is required.
European Convention on Human Rights 6(3) 26
1 Citers



 
 Regina v Crown Court at Ipswich, ex parte Baldwin; QBD 1981 - [1981] 1 All ER 596
 
Regina v Statutory Committee of Pharmaceutical Society of Great Britain [1981] 2 All ER 805
1981

Lord Lane CJ
Health Professions, Criminal Practice
The court asked if the Latin maxim 'nemo debit bis vexari, si constat curiae quod sit pro una et eadem causa', or 'nemo debet bis punire pro uno delicto' (no one ought to be twice punished for the same offence) were relevant where criminal charges were sought to be pursued after a finding of the disciplinary committee. Held: The maxim has no reference to professional disciplinary tribunals. Although the facts might be the same before a criminal Court and before the tribunal the offence and the findings are distinct; and second, it is plain on the authorities that such a tribunal is not a court of competent jurisdiction to which the maxim applies.
1 Citers


 
Regina v Molyneux (1981) 72 Cr App R 111
1981
CACD

Criminal Practice
A statutory conspiracy had been misdescribed as a common law conspiracy; the particulars of the offence were properly set out but a reference to the relevant statute was omitted. Held: On appeal the defect was in fact favourable to the defendant and made not the slightest possible difference. There had been no miscarriage of justice and the proviso was applied.
1 Citers



 
 Regina v Galbraith; CCA 1981 - (1981) 73 Cr App R 124; [1981] 2 All ER 1060; [1981] 1 WLR 1039; 2 Crim LR 767
 
Regina v Hodges (George David) Unreported, 5 June 1981
5 Jun 1981
CACD
Peter Pain
Criminal Practice
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 bill of indictment does not become an indictment until it is signed".
Administration of Justice (Miscellaneous Provisions) Act 1933 2(2)
1 Citers


 
Regina v Beck [1982] CLY 563; [1982] 1 WLR 461; [1982] 1 All ER 807
1982
CACD
Ackner LJ
Criminal Practice, Evidence
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 only have been accepted to support directly some specific evidence of an accomplice. Held: A formal accomplice direction was not required. It was enough to warn the jurors of the dangers. Evidence whose nature was corroborative need not be directly related to evidence given by an accomplice. "While we in no way wish to detract from the obligation upon a judge to advise a jury to proceed with caution where there is material to suggest that a witness's evidence may be tainted by an improper motive, and the strength of the evidence must vary according to the facts of the case, we cannot accept that there is any obligation to give the accomplice warning with all that entails, when it is common ground that there is no basis for suggesting that the witness is a participant or in any way involved in the crime the subject matter of the trial."
1 Cites

1 Citers



 
 Regina v Nye; CACD 1982 - [1982] 75 Cr App Rep 247
 
Regina v Oxford City Justices, ex parte Smith (1982) 75 Cr App R 200
1982
QBD
Lord Lane CJ
Criminal Practice, Road Traffic, Natural Justice
The defendant had given a positive breath test. The laboratory test showed a urine/alcohol proportion above the prescribed limit. He was warned that proceedings were possible. The summons was issued within the six months' period prescribed by the Act, but service was delayed for over two years. He objected that any hearing would be contrary to the rules of natural justice and prejudicial. Held: The delay was inordinate, and due to the police's non-observance or inefficiency or both; it was both unjustified and unnecessary, and of such length as to be unconscionable. It could not be said that he was not prejudiced thereby, and the justices were not justified in exercising any discretion. Accordingly, prohibition was granted to prohibit them from continuing the hearing.
Magistrates' Courts Act 1952
1 Citers


 
Attorney-General's Guidelines Practice Note (Criminal Evidence: Unused Material) [1982] 1 All ER 734
1982


Criminal Practice

1 Citers


 
Regina v Newton [1982] 77 Cr App R 13
1982
CACD

Criminal Practice
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 determine the issue; or the judge himself may hear evidence and come to his own conclusions; or the judge may hear no evidence and listen to the submissions of counsel. If the last of these options is chosen and there is a substantial conflict between the two sides, the version of the defendant must so far as possible be accepted. In the second case, evidence is called before the judge by the prosecution and the defence and the judge makes findings on the critical issues.
If the judge hears no evidence but merely listens to submissions of counsel and there "is a substantial conflict between the two sides he must come down on the side of the defendant. The version of the defendant must so far as possible be accepted".
A hearing may not be required where the defednat's assertion goes not to contradict the prosecution's evidence but merely sought to minimise by assertion as to detail, the overall effect.
1 Citers



 
 Regina v Townsend; 1982 - [1982] 74 Crim App R 218

 
 H v Spain; ECHR 1982 - 10227/82
 
Regina v Pigg [1983] 1 WLR 6; [1983] 1 All ER 56; (1982) 76 Cr App R 79
1982
HL
Lord Brandon
Criminal Practice
The appellant was charged on indictment with two counts of attempted rape. The jury failed to agree on their first retirement following the summing-up, and were then given an impeccable majority direction. They returned to court after a further retirement and the clerk asked whether at least 10 were agreed upon a verdict. The foreman answered, "Yes." The clerk asked if the jury found the defendant guilty or not guilty of rape and the foreman answered, "Not guilty." The clerk asked, "On the charge of attempted rape do you find him guilty or not guilty?" and the foreman answered, "Guilty." The clerk asked if that was the verdict of "you all or by a majority". The foreman answered, "By a majority." The clerk asked how many of the jury agreed on the verdict and how many dissented, and the foreman answered, "10 agreed". The clerk then observed, "10 agreed to 2 of you." The foreman did not respond. The court was asked "Whether it is necessary in order to comply with the terms of the section . . for the foreman of the jury, having stated in open court the number agreeing to the verdict, to go on to state the number of those dissenting." Held: The defendant's appeal failed. It is a necessary requirement of a lawful verdict that the jury say how many agreed and how many dissented.
Lord Brandon of Oakbrook said: "In short, compliance with the requirement of section 17(3) of the 1974 Act is mandatory before a judge can accept a majority verdict of guilty; but the precise form of words used by the clerk of the court when asking questions of the foreman of the jury, and the precise form of words used by the latter in answer to such questions, as long as they make it clear to an ordinary person how the jury was divided, do not constitute any essential part of that requirement.”
Juries Act 1974 17(3)
1 Citers



 
 Regina v Rennie; CACD 1982 - (1982) 74 Cr App R 20; [1982] 1 WLR 509; [1982] 1 All ER 424
 
Essendon Engineering v Maile [1982] Crim LR 510
1982


Criminal Practice

1 Citers



 
 Regina v Manchester Stipendiary Magistrate, ex parte Hill; Hill v Anderton; HL 1982 - [1983] 1 AC 328; [1982] 3 WLR 331; (1982) 146 JP 348; [1982] 2 All ER 963; [1982] Crim LR 755; (1982) 75 Cr App R 346; [1982] 2 All ER 963

 
 Raymond v Attorney General and Others; CA 1982 - [1982] QB 839; [1982] 2 All ER 487; [1982] Crim LR 826; (1982) 75 Cr App R 34; [1982] 2 WLR 849

 
 Regina v Soffe; CACD 1982 - (1982) 75 Cr App R 133; Times, 09 June 1982

 
 Regina v Rose and Others; CACD 1982 - [1982] 1 WLR 614; [1982] 2 All ER 536

 
 Grant v Borg; HL 1982 - [1982] 1 WLR 638; [1982] 2 All ER 257

 
 Regina v Kent; 1982 - [1982] 77 Cr App R 120
 
Regina v Challenger and Nye [1982] 75 Cr App R 247
1982


Criminal Practice
When the jury is being directed to consider the issue of character, whether as to propensity or credibility, a primary consideration is that they should not be misled.
1 Citers


 
Regina v Rose and Others [1982] AC 822
2 Jan 1982
HL
Lord Diplock
Criminal Practice
The House considered what should be the consequences of a radical or fundamental error in the trial process, and whether there was jurisdiction in the Court of Appeal Criminal Division to order a venire de novo when the court was satisfied that a verdict of guilty must be set aside because of a “material irregularity consisting of improper pressure imposed upon the jury at any time before verdict." Held: A writ of venire de novo could be issued when irregularity has resulted in no trial validly commencing or when no properly constituted jury ever returned a valid verdict, but not when irregularity occurred between the valid commencement of the trial and the discharge of the jury after reaching a verdict.
Lord Diplock said of unfair pressure placed upon a jury to reach a verdict that if the judge had imposed a time limit on the jury in the course of his summing up there would have been a risk of pressure. He went on to draw a distinction between those cases where venire de novo might lie because the trial had never been "validly commenced", and those which, although validly commenced, "had not been validly concluded by a properly constituted jury bringing an unequivocal verdict of guilty or not guilty followed by sentence or discharge of the defendant by the court." There was a validly presented indictment but an irregularity in procedure that resulted in no valid verdict being returned.
Lord Diplock said: "the state of judicial authority as to the extent of the jurisdiction of the Court of Criminal Appeal to issue writs of venire de novo at the date of its abolition in 1966. That Court could do so if there had been an irregularity of procedure which resulted in there having been no trial that had been validly commenced. It could do so if the trial had come to an end without a properly constituted jury ever having returned a valid verdict."
1 Cites

1 Citers


 
Adolf v Austria 8269/78; [1982] ECHR 2; (1982) 4 EHRR 313; [1982] ECHR 2
26 Mar 1982
ECHR

Human Rights, Criminal Practice
An elderly lady complained that the applicant had assaulted her. The police investigated and reported back to the prosecutor who referred the matter to the Innsbruck District Court. The court registered the case as a "punishable act" under section 83 of the Penal Code for the infliction of bodily harm. In a decision relating to the costs of a medical opinion the court referred to "the criminal proceedings" against the applicant, who was described as "the accused". Later, at the request of the prosecutor, the court terminated the proceedings under a provision of the Penal Code which provided for such termination if the offence carried no more than a moderate penalty, the guilt of the subject was slight, the act had no more than trifling consequences and punishment was not necessary to deter the subject from committing criminal offences. In giving the reasons for its decision the court recounted the facts of the assault, with no indication that these were the subject of challenge by the applicant (as they were) and ruled that the injury caused was insignificant, that "the fault … of the accused may be described as insignificant" and that the character of the applicant "gives cause to expect that he will conduct himself properly in future". On these facts the Court concluded that there was a criminal charge, although it was unnecessary to determine the precise moment at which the applicant was charged, and that article 6 was engaged. But there was held to be no breach of the article, since the applicant had been in effect exonerated by the Supreme Court. In contrast with the present case, however, there were formal proceedings against the applicant in a criminal court; he was "the accused"; the proceedings could have culminated in his being punished, although in the event they did not; and there was a reasoned judicial decision which, on its face, found that he had committed an assault, although his fault was said to be minor. The expression "charged with a criminal offence". is to be interpreted as having an autonomous meaning in the context of the Convention
European Convention on Human Rights
1 Citers

[ Bailii ] - [ Bailii ]
 
Eckle v Germany 8130/78; (1982) 5 EHRR 1; [1982] ECHR 4
15 Jul 1982
ECHR
R. RYSSDAL, President
Human Rights, Criminal Practice
Two fraud prosecutions against the claimants had lasted for 15 and 20 years respectively. Held: Article 6.1 applies to all stages of criminal proceedings, including sentencing and any appeal. The "reasonable time" in criminal matters, specified in article 6.1 began to run as soon as a person was charged; that "charge" was defined as the official notification given to an individual by that competent authority of an allegation that he had committed a criminal offence. The court observed that mitigation of sentence and discontinuance on the grounds of delay did not deprive the applicants of their status as victims, and "The Court does not exclude the possibility that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention. In such circumstances, to duplicate the domestic process with proceedings before the Commission and the Court would hardly be compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines. This subsidiary character is all the more pronounced in the case of States which have incorporated the Convention into their domestic legal order and which treat the rules of the Convention as directly applicable."
The test as to whether a person has been "charged" for the purposes of article 6(1) is whether the situation of the person has been substantially affected.
European Convention on Human Rights 6.1
1 Cites

1 Citers

[ Bailii ] - [ Bailii ] - [ Bailii ]
 
Regina v Lester and Harvey Unreported, 13 December 1982
13 Dec 1982
CACD
Lord Lane, Chief Justice
Criminal Practice
ThepProsecution relied entirely upon the evidence of an accomplice, Solomon. Lester and Harvey were convicted. A third man was acquitted. The Court referred to how the trial judge left the case to the jury and quoted from the summing up: "Members of the jury, in considering the evidence and in coming to your decision, as a matter of common sense and justice you will no doubt see why you have to deal with each of these defendants separately. Your duty is to consider the case of each defendant separately. The evidence is not the same in the case of all of them and they are entitled to separate consideration by you. It may be, and I will have a lot to say about Solomon, that if you are not satisfied about Solomon in the case of one of these defendants that you will think it not right to be satisfied about him in respect of any one of the others. It may be unreal to think that you could believe him in respect of one defendant and not in respect of the others, but that is something that you and you alone can decide, having heard the evidence and applying my direction in law to it." The Court concluded: "We take the view that the learned judge had formed in his own mind the proposition that it really was the case you either convict all on Solomon's evidence or you convict none. The judge having formed that view the submissions which learned counsel have made on behalf of the Appellants, and to which we have referred, are of the highest importance. It seems to us, when you come to consider Solomon, that you cannot as it were compartmentalise his evidence. The jury were saying "We cannot believe him for sure whether he is telling the truth about Willis", and in saying that it must necessarily follow that they could not, in our view, accept for certainty that he was telling the truth in the case of the others. The fact that all the evidence about Willis's alibi caused them to pause and have doubt about Willis and therefore acquit him, cannot make Solomon's evidence in other respects acceptable so that they could convict the two appellants. In those circumstances we have reached the view that these verdicts are not safe and are not satisfactory. And the convictions must be quashed."
1 Citers


 
Regina v Knowlden and Knowlden (1983) 77 Cr App R 94
1983
CACD
Watkins LJ
Criminal Practice
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 co-defendant with care because each has or may have an interest of his own to serve" would in most cases suffice to ensure that the jury regarded the evidence in question with proper and adequate caution.
1 Cites

1 Citers


 
Regina v Farooki (1983) 77 Cr App R 257
1983
CACD

Criminal Practice
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,
Indictments (Procedure) Rules 1971 (1971 No 2084) 5
1 Cites

1 Citers


 
Regina v Lambeth Metropolitan Stipendiary Magistrate ex parte McComb [1983] QB 551; [1983] 1 All ER 321; (1982) 76 Cr App R 246; 1983] 2 WLR 259
1983
CA
Sir John Donaldson MR, May LJ
Criminal Practice
The Court found that it had jurisdiction to entertain an appeal against the Divisional Court's upholding of a decision that the Director of Public Prosecutions could freely remove exhibits, lodged in the Crown Court in criminal proceedings against the applicant, in order to return them to the Republic of Ireland, to enable them to be used in criminal proceedings against the applicant in the Republic.
Prosecuting authorities had not merely the power to retain exhibits, but also a duty to do so - though that duty was not broken in the particular circumstances of the case when the exhibits were released for use in a foreign court.
Sir John Donaldson MR defined the prosecution's duty toward documents: "(1) to take all proper care to preserve the exhibits safe from loss or damage;
(2) to co-operate with the defence in order to allow them reasonable access to the exhibits for the purpose of inspection and examination; and
(3) to produce the exhibits at the trial.”
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 Regina v Reigate Justices ex parte Argus Newspapers and Larcombe; 1983 - (1983) 5 Cr App R (S) 181
 
Regina v Quinn (1983) Crim LR 475
1983


Criminal Practice
The court laid down the need for a clear direction to a jury on the standard of proof required.
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 Regina v Hay; CACD 1983 - (1983) 77 Cr App R 70

 
 Regina v Cairns; CACD 1983 - (1983) 87 Cr App R 287; [1983] Crim LR 620

 
 Regina v South Tameside Magistrates' Court, ex parte Rowland; 1983 - [1983] 3 All ER 689

 
 Regina v Chard; HL 1983 - [1984] AC 279; [1983] 3 WLR 835
 
Regina v Guildford Magistrates' Court, ex parte Healy [1983] 1 WLR 108
1983
CACD
Buxton LJ
Criminal Practice, Magistrates
Magistrates faced with a claim of abuse of process should recognise the wider responsibility for upholding the rule of law which must be that of the High Court. If a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court.
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 Regina v Edwards; 1983 - (1983) 77 Cr App R 5
 
Minelli v Switzerland 8660/79; (1983) 5 EHRR 554; [1983] ECHR 4
25 Mar 1983
ECHR

Human Rights, Costs, Criminal Practice
It was capable of being an infringement of a defendant's right to a fair trial, to refuse to order payment of his costs after an acquittal in such a manner as to cast doubt on his innocence. "In the Court's judgment, the presumption of innocence will be violated if, without the accused's having previously been proved guilty according to law and, notably, without his having had the opportunity of exercising his rights of defence, a judicial decision concerning him reflects an opinion that he is guilty. This may be so even in the absence of any formal finding; it suffices that there is some reasoning suggesting that the court regards the accused as guilty."
European Convention on Human Rights 6
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Attorney-General v Able and Others [1983] 3 WLR 845; [1984] 1 QB 795; [1984] 1 All ER 277
28 Apr 1983
QBD
Woolf LJ
Crime, Administrative, Criminal Practice, Media
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing suicide. The stated aim of the booklet was to help readers overcome the fear of dying. Held: The offence would be committed only in the particular circumstances of the booklet being supplied to a particular individual considering suicide and with the intent of assisting or encouraging him. The offence was not committed by the general distribution of the booklet. However the court should also be reluctant to make declarations in advance as to the legality or otherwise of particular acts. That risked usurping the function of the court which considered a particular set of circumstances.
Suicide Act 1961 2(1)
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Regina v Governor of Brixton Prison, Ex parte Walsh [1985] AC 154; [1984] 2 All ER 609; [1984] 3 WLR 205
1984
HL
Lord Fraser
Prisons, Criminal Practice
Walsh faced two sets of charges. In one of which he was bailed and in the other he was remanded in custody. The Governor of the prison refused to produce him to the court for the purpose of facing the bailed proceedings. Held: Habeas corpus may be applied for and granted on occasions such as when there is an excessive delay in bringing a prisoner up for trial.
Lord Fraser referred to Section 29 of the 1961 Act and added that: "so the effect of Section 29(1) of the Act of 1961, and of the circular, is that a Governor of a prison may direct a prisoner to be taken to a court if he is satisfied that his attendance at the court is desirable in the interests of justice."
Criminal Justice Act 1961 29
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Regina v Ayres [1984] AC 447; [1984] 1 All ER 619; (1984) 78 Cr App R 232
1984
HL

Criminal Practice
The defendant was charged with a common law conspiracy. It had been held that the only proper charge was of conspiracy to obtain by deception. The defendant was convicted upon an indictment which did not charge him accurately with the only offence for which he could properly be indicted. Held: The misdescription of the offence in the statement of offence as a common law conspiracy to defraud had in the circumstances not the slightest practical significance and that there had been no actual miscarriage of justice
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Regina v Challinor (1984) 80 Cr App R 253
1984
CACD

Criminal Practice

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 Regina v Lee (Bruce); CACD 1984 - [1984] 1 WLR 578; [1984] 1 All ER 1080
 
Regina v Bournemouth Crown Court ex parte Wright [1984] 1 WLR 980; [1984] Crim LR 293; (1984) 148 JP 335
1984

Lord Fraser
Criminal Practice
Lord Fraser said: "Whatever the position may be at a trial before a court of first instance, when it comes to procedure before quarter sessions sitting as an appeal court there is a clear distinction of principle between allowing an appeal against conviction after proceedings in which all the available evidence, so far as it is in the opinion of quarter sessions admissible, has been heard, and allowing it after proceedings which have been prematurely aborted, without all the available and admissible evidence having been heard, because of a ruling by the court on a preliminary point. The former is not liable to be quashed. The latter, which is this case, is liable to be quashed on the grounds stated in R v Ridgway, 1 D&R 132 and R v Clare Justices [1905] 2 IR 510".
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Ferrari-Bravo v Italy (1984) 37 DR 15
1984
ECHR

Human Rights, Criminal Practice
Paragraph (3)(d) rights did not apply when a witness was being questioned by the investigating judge, but only at trial.
European Convention on Human Rights 6(3)(d)
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Regina v Bonython [1984] 38 SASR 45
1984


Criminal Practice, Evidence
(South Australia Supreme Court) The court considered the basis for deciding whether a proposed witness was an expert. Held: It is for the judge to determine whether a witness is competent to give evidence as an expert and for that purpose there are two questions for the judge to decide: "The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This . . may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.
An investigation of the methods used by the witness in arriving at his opinion may be pertinent, in certain circumstances, to the answers to both the above questions . . Where the witness possesses the relevant formal qualifications to express an opinion on the subject, an investigation on the voir dire of his methods will rarely be permissible on the issue of his qualifications. There may be greater scope for such examination where the alleged qualifications depended upon experience or informal studies... Generally speaking, once the qualifications are established, the methodology will be relevant to the weight of the evidence and not to the competence of the witness to express an opinion..."
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Regina v Russell [1984] Crim LR 425; [1984] 148 JP 765
20 Mar 1984
CACD
Dunn LJ, Michael Davies, Popplewell JJ
Criminal Practice
The defendant was charged with obstructing a police officerunder the 1971 Act. The jury was given a majority direction, but when brought back to court about two hours later, at 3.16 pm, they had still been unable to reach a decision. The judge then told the jury that there was no need to rush, but indicated that he would bring the jury back to court at about 4 pm unless they reached a decision before then. The jury was in fact brought back to court at 4.07 pm, and when asked if they had reached a verdict on which at least 10 of them agreed the foreman said "no". The members of the jury were not asked if they were likely to reach a verdict and were simply discharged. A few minutes later the jury bailiff said that the jury has asked for a few more minutes. The judge allowed them to, and the returned a guilty verdict. The defendant appealed. Held: The appeal succeeded. Once a jury had been told that they were discharged from reaching a verdict, they were functus officio, that was an end of that particular trial, and any subsequent proceedings were a nullity.
Popplewell J said: "The primary point that is taken in this appeal is that once the jury has been discharged by the Assistant Recorder no agreement by his counsel to the continuation to the trial could put the matter right. That argument is not founded on any authority that counsel could have been able to find. Counsel for the prosecution, in helpful address to the court, has submitted that once the jury have been told that they are discharged from reaching a verdict in the matter that is the end of that particular trial, and that any subsequent proceedings are a nullity because the jury, having been discharged, are functus officio.
In our judgment that is a good argument. When the jury returned the Assistant Recorder should have asked them whether there was any sensible prospect of their reaching agreement if they had more time."
Misuse of Drugs Act 1971 23(4)
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Regina v Foster (1984) 79 Cr App R 61
29 Mar 1984
CA
Watkins LJ
Criminal Practice
The effect of a free pardon was to remove from the subject of the pardon "all pains, penalties and punishments whatsoever that from the said conviction may ensue", but not to eliminate the conviction itself.
Watkins LJ said: "constitutionally the Crown no longer has a prerogative of justice, but only a prerogative of mercy. It cannot, therefore, he submits, remove a conviction but only pardon its effects. The Court of Appeal (Criminal Division) is the only body which has statutory power to quash a conviction. With that we entirely agree."
and "We understand the strength of the argument that, despite the fact that a free pardon does not eliminate the conviction, a grant of a free pardon should be reserved for cases where it can be established that the convicted person was morally and technically innocent. Furthermore, the policy of confining the grant of a free pardon to such cases has been followed by successive Secretaries of State for over a century. We therefore propose to set aside any question of a free (or full) pardon and look at the matter afresh."
and "These questions, therefore, arise. (a) Is there any objection in principle to the grant of a posthumous conditional pardon? (b) Was the Home Secretary in error in failing to consider the grant of a conditional pardon in this case?
On the first question it may be objected that a conditional pardon is inappropriate where the full penalty has already been paid. The answer to this objection, however, is that it is an error to regard the prerogative of mercy as a prerogative right which is only exercisable in cases which fall into specific categories. The prerogative is a flexible power and its exercise can and should be adapted to meet the circumstances of the particular case. We would adopt the language used by the Court of Appeal in New Zealand in Burt v. Governor-General [1992] 3 N.Z.L.R. 672, 681: "the prerogative of mercy [can no longer be regarded as] no more than an arbitrary monarchical right of grace and favour." It is now a constitutional safeguard against mistakes. It follows, therefore, that, in our view, there is no objection in principle to the grant of a posthumous conditional pardon where a death sentence has already been carried out. The grant of such a pardon is a recognition by the state that a mistake was made and that a reprieve should have been granted."
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De Cubber v Belgium 9186/80; (1985) 7 EHRR 236; [1984] ECHR 14; [1987] ECHR 22; [1984] EHRR 236; (1987) 13 EHRR 422; [1987] ECHR 22; [1984] ECHR 14
26 Oct 1984
ECHR

Human Rights, Criminal Practice
The applicant a Belgian, had been convicted of forgery. He said that the court had not been an impartial tribunal because one of the judges had also acted as an investigating judge in his case. Amongst the grounds on which it was contended that there had been no breach of Article 6(1) was the submission that there was a right of appeal to an appellate courts which was accepted to be impartial; that the Belgian Court of Cassation had rightly held that the court hearing the case at first instance did not have to satisfy the requirements of Article 6(1), provided that the accused was able to appeal to a court that offered all the guarantees stipulated by Article 6(1) and was able to review all questions of fact and law. Held: The possibility of a fair trial on an appeal is not alone sufficient to compensate for a lack of independence and impartiality on the part of the primary decision-maker. The contentions advanced by Belgium were rejected: "The thrust of the plea summarised above is that the proceedings before the Oudenaarde court fell outside the ambit of Article 6(1). At first sight, this plea contains an element of paradox. Article 6 (1) concerns primarily courts of first instance; it does not require the existence of courts of further instance. It is true that the fundamental guarantees, including impartiality, must also be provided by any courts of appeal or courts of cassation which a Contracting State may have chosen to set up. However, even when this is the case it does not follow that the lower courts do not have to provide the required guarantees. Such a result would be at variance with the intention underlying the creation of several levels of courts, namely, to reinforce the protection afforded to litigants. . . . At the hearings, the Commission's Delegate and the applicant's lawyer raised a further question, concerning not the applicability of Article 6 (1) but rather its application to the particular facts: had not the 'subsequent intervention' of the Ghent Court of Appeal 'made good the wrong' or 'purged' the first instance proceedings of the 'defect' that vitiated them? . . . The possibility certainly exists that a higher or the highest court might, in some circumstances, make reparation for an initial violation of one of the Convention's provisions: this is precisely the reason for the existence of the rule of exhaustion of domestic remedies, contained in Article 26. Thus the Adolf judgment of 26 March 1982 noted that the Austrian Supreme Court had 'cleared … of any finding of guilt' an applicant in respect of whom a District Court had not respected the principle of presumption of innocence laid down by Article 6(2). The circumstances of the present case, however, were different. The particular defect in question did not bear solely upon the conduct of the first instance proceedings: its source being the very composition of the Oudenaarde criminal court, the defect concerned matters of internal organisation, and the Court of Appeal did not cure that defect since it did not quash on that ground the judgment of 29 June 1979 in its entirety".
European Convention on Human Rights 6(1)
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