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Criminal Practice - From: 1990 To: 1990

This page lists 35 cases, and was prepared on 21 May 2019.


 
 Regina v Francis; CACD 1990 - [1990] 91 Cr App R 271
 
Regina v Maggs (1990) RTR 129
1990
CACD

Criminal Practice
The charge was of causing death by dangerous driving. Sketch plans with measurements were supplied to the jury. They asked for and were given a tape measure. The defendant appealed. Held: Though once they retired the hjury should not be given additional evidence or equipment, there was nothing wrong in supplying a magnifying glass or tape being the sort of things they might properly have with them in any event.
1 Cites

1 Citers



 
 Attorney General's Reference (No 1 of 1990); CACD 1990 - [1992] QB 630; (1992) 95 Cr App R 296

 
 Regina v Walsall Justices, ex parte W (a minor); QBD 1990 - [1990] 1 QB 253
 
Regina v Maxwell [1990] 1 WLR 401
1990
HL
Lord Ackner
Criminal Practice
The defendant had hired two men to enter his former partner's house to commit robbery. It was his defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution would not add a count of burglary and opposed leaving that offence to the jury, maintaining that the crime was always intended to be a robbery, and that it was not a burglary which had gone wrong. The jury accepted this view. Held: Lord Ackner: "on the facts of this case the judge was entitled to conclude that the alternative of theft was relatively so trifling that the jury's attention upon the essential issue - did the appellant intend violence to be used? - should not be distracted." He opposed the view of Mustill LJ in the Court of Appeal. The test to be applied was: "What is required in any particular case, where the judge fails to leave an alternative offence to the jury, is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. If they are so satisfied then the conviction cannot be safe or satisfactory."
1 Cites

1 Citers



 
 Regina v Smith; CACD 1990 - [1990] 1 WLR 1311

 
 Regina v Froud; CACD 1990 - [1990] Crim LR 197

 
 Regina v Wright and Ormerod; CACD 1990 - (1990) 90 Cr App 91
 
Regina v Kempster (1990) 90 Cr App R 14
1990
CACD
Staughton LJ
Criminal Practice
Staughton LJ discussed the admission against a defendant of the fact of a co-defendant's conviction: "On the more general question whether, if objection had been taken under section 78, the evidence should have been excluded, we have paid particular attention to the observation in Curry [(unreported, April 28, 1998, CA)], "where the evidence expressly or by necessary inference imports the complicity of the person on trial it should not be used". The effect of admitting a conviction as evidence of the complicity of the defendant is that the prosecution will not have to call the person convicted as a witness, to give evidence on oath."
Police and Criminal Evidence Act 1984 74(1) 74(2)
1 Citers



 
 In re Gunawardena, Harbutt and Banks; CACD 1990 - [1990] 1 WLR 703

 
 Regina v Fraser Marr; CACD 1990 - (1990) 90 Cr App R 154

 
 Regina v Beycan; 1990 - [1990] Crim L R 185
 
Connachan v Douglas [1990] CLY 4925
1990


Scotland, Criminal Practice

1 Citers


 
Regina v Phillipson (1990) 91 Cr App R 226
1990
CACD
Ralph Gibson LJ
Criminal Practice
The prosecution had failed to disclose certain letters and photographs exchanged by the Defendant and the father of her child and used them in cross-examination to rebut her defence that she had been carrying drugs under duress exerted by him. The letters revealed a more affectionate relationship than the Defendant had admitted in evidence. Held: The appeal succeeded. Ralph Gibson LJ said: "The basic principle that the prosecution must include all probative material on which it intends to rely, and must tender it as part of the prosecution case, does not form part of our law because the law wishes to help liars to tell more convincing lies, but because an accused needs to know in advance the case which will be made against him if he is to have a proper opportunity of giving his answer to that case to the best of his ability. The accused is also entitled, when he decides whether or not to go into the box to give evidence, to know what the case is he has to meet. The intelligence and powers of memory and of literacy of accused people vary greatly. Some people may exaggerate and embroider and lie even when their basic case is true.
It is better in the interests of justice that an accused is not induced, by thinking that he is safe if he does so, to exaggerate, or to embroider, or to lie . . so to do might be to ambush the accused . . Further, we would add, where the evidence is of great force, the proper disclosing of it may cause the accused to plead guilty to the advantage both of the administration of justice and of the accused." and "Where the material in question, on the facts known to the prosecution, could only be damaging to the defence and of assistance to the prosecution, the obligation to disclose, if any, must, we think, be sought primarily in the principles governing the obligation of the prosecution to include within its case all probative material upon which it intends to rely, having regard to the facts and circumstances known to the prosecution when the case is presented."
1 Citers



 
 Regina v Forest of Dean Justices ex parte Farley; CACD 1990 - [1990] RTR 228
 
Regina v Manchester Crown Court ex parte Williams and Simpson [1990] CLR 654; [1990] 2 Admin LR 817
1990


Criminal Practice
If an application to prefer a Voluntary Bill is successful there is no right of appeal, and nor can the decision be made subject to judicial review.
1 Cites

1 Citers


 
Regina v Stewart (1990) 91 Cr App R 301
1990
CACD

Criminal Practice
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 satisfied himself that the person charged had been committed for trial for the offence contained in the indictment or had been the subject of a voluntary bill or an order under section 9 of the Perjury Act in compliance with section 2(2) of the 1933 Act.
Administration of Justice (Miscellaneous Provisions) Act 1933 2(2)
1 Citers


 
Regina v Matthews [1990] 91 Cr App R 43
1990
CACD
Morland J
Criminal Practice
The court gave guidance on the meaning of the word 'interview' when used in the Codes of Practice. Morland J said: "In our judgment it is not within the spirit of the Act or the code that 'interview' should be given a restricted meaning. Normally any discussion or talk between a suspect or prisoner and a police officer about an alleged crime will amount to an 'interview', whether instigated by the suspect, or prisoner or a police officer . ."
Police and Criminal Evidence Act 1984
1 Citers


 
Re K (Restraint Order) [1990] 2 QB 298
1990

Otton J
Criminal Practice, Banking
An order under the Act prohibited K from disposing of his assets, including a deposit account with the bank. K had an overdraft facility secured against the deposit account. The bank sought to set off the overdraft against the sums held on deposit. Held. the bank was free to consolidate the accounts. Its actions would not reduce K's assets.
Otton J said: "In my judgment, the right of a bank to combine [accounts] is well established and is fundamental to the bank/customer relationship. It is a means of establishing the indebtedness of the customer to the bank and the bank to the customer. In exercising this right a bank is not asserting a claim over the moneys, nor is it in conflict with the claims of the Crown. It is merely carrying out an accounting procedure so as to ascertain the existence and amount of one party's liability to the other. This can only be ascertained by discovering the ultimate balance of their mutual dealing."
Drug Trafficking Offences Act 1986
1 Cites

1 Citers


 
Regina v Canale (1990) 91 Cr App R 1; [1990] 2 All ER 187
1990
CACD
Lord Lane CJ
Criminal Practice
The importance given to compliance with the Codes of Practice under PACE for police officers to take contemporaneous notes is to ensure that a suspect’s remarks are accurately recorded and to protect the officer from suggestions that they induced the suspects to confess by improper approaches or promises.

 
Regina v Liverpool Stipendiary Magistrates ex parte Ellison [1990] RTR 220
1990
QBD
Bingham LJ, Leggatt J
Road Traffic, Criminal Practice
Bingham LJ said: "If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint."
Leggatt J said: "Where a prosecutor applies to withdraw one charge and substitute another, which on the face of it is less serious, the magistrates' court will ordinarily have no reason to object, and indeed no ground for doing so, provided that their powers of sentence remain sufficient. Here it is said that the stipendiary magistrate should have required the prosecutor to proceed on the charge of attempted theft instead of the charge of interfering with a motor vehicle, because the effect of the substitution was, as it is put, to deprive the defendant of his right to trial by jury. It is therefore said to have constituted an abuse of process, notwithstanding that the applicant was thereby rendered vulnerable to a less severe maximum punishment.
The key to the determination of this case appears to me to be that a defendant arraigned in a magistrates' court has in truth no absolute right to trial by jury. Whether he has such a right depends on the charge which is preferred against him. Until the more serious charge . . was withdrawn the applicant enjoyed such a prospective right, but in relation to the less serious charge he did not. To speak of depriving the applicant of his right to trial by jury is . . only a pejorative way of making the point that upon reduction of the charge he ceased to be confronted by a charge sufficiently serious to warrant a right to trial by jury. In the absence of bad faith on the part of the prosecutor or of unfairness or prejudice to the accused, the prosecutor's motive in making the substitution was irrelevant. The question is whether the substitution is in this sense a proper one."
and "Whilst it is no doubt preferable that the charge ultimately made against a defendant should be correct in the first place that cannot always occur."
1 Citers


 
Regina v Conway (1990) 91 Cr App R 143
1990
CACD

Criminal Practice
A witness said that she knew the accused, had seen him in a public house and entertained him to dinner, but did not know his name, where he lived, or anything of importance about him. No identification parade had been held despite the accused having denied that the witness knew him and having expressly requested a parade. Held. The dock identification of the defendant was too weak to support a conviction.
1 Citers


 
Montes v HM Advocate 1990 SCCR 645
1990
HCJ
Lord Justice Clerk Ross
Criminal Practice, Scotland
The appellant was convicted of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of cocaine by importing a quantity of cocaine on a ship which docked at Greenock. The trial judge directed the jury that, in considering the case against the appellant, they could to have regard to a statement by one of his co-accused, Jensen, to Customs and Excise officers, admitting that cocaine found in his possession had been put on the ship in Colombia. Held: This had been a misdirection: "In my opinion this clearly constituted a misdirection. What the appellant Jensen said to the [Customs and Excise] officers was plainly evidence against him, but it was not evidence against the other appellants. In his report the trial judge deals with this ground of appeal. It is not entirely clear whether he is maintaining that because of the earlier direction which he had given to the jury about statements by one co-accused, they ought to have realised that the answers which the appellant Jensen gave to the Customs and Excise officers were not evidence against the other accused, or whether the trial judge's view was that these answers were evidence against the other appellants. In his report he states: 'It is my understanding that a statement made by one accused outwith the presence of another is only inadmissible against the latter if it incriminates him.' The passage would suggest to me that the trial judge's view was that the answers made by the appellant Jensen were in this case admissible against his co-accused. The trial judge recognised that what Jensen said was relevant to the question of importation of cocaine, but he opined that importation by itself was not a criminal act for the purposes of charge (1). That may well be so but importation was a fact which required to be proved by the Crown if guilt under charge (1) was to be established. What the Customs and Excise Officers testified that the appellant Jensen had said to them was hearsay evidence, and so was not admissible against the co-accused as evidence of the facts alleged in the statement. In directing the jury that the evidence of the appellant Jensen's answers was evidence upon which the jury could rely in the case of the other appellants, the trial judge, in my opinion, misdirected the jury."
1 Citers


 
Regina v Murphy and Another [1990] NI 306
1990
CANI

Northern Ireland, Criminal Practice
The two defendants were tried for the murder of two British Army corporals. The prosecution adduced the evidence of a number of television journalists who, in the course of their work, had filmed the scene of the killing. The judge gave leave that these witnesses should not be identified by name and that, when giving evidence, they might be screened so that their faces should be seen only by the judge and the lawyers on each side, but not by the defendants or the public. The defendants appealed the order. Held: The order was approved.
1 Cites

1 Citers



 
 Beattie v Scott; 1990 - 1990 SCCR 296
 
Regina v Abedare Justices ex parte Director of Public Prosecutions [1990] 155 JP 324
1990

Bingham LJ
Magistrates, Criminal Practice
The court considered the circumstances when a superior court should consider an appeal against a magistrates court on an adjournment of a trial: "First, a decision as to whether or not proceedings should be adjourned is, as counsel for the defendant rightly urged, a decision within the discretion of the trial court. It is pre-eminently a discretionary decision. It follows, as a matter of undoubted law, that it is a decision with which any appellate court will be very slow to interfere. It will accordingly interfere only if very clear grounds are shown for doing so.
Secondly, I wish to make it plain that the justices in this case are in no way open to criticism for paying great attention to the need for expedition in the prosecution for criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are the more scandalous when it is criminal proceedings with which a court is concerned."
1 Citers


 
Loade v Director of Public Prosecutions [1990] 1 QB 1052
1990
QBD
Neill LJ, Pill J
Criminal Practice
The court stated that there is either no jurisdiction to hear an appeal by way of case stated in relation to an interlocutory decision, in criminal proceedings or that it is the court's invariable practice not to entertain one. A court might simply dismiss the appeal. As to section 28 of the 1981 Act: 'There is no definition of the word 'decision' in the Act of 1981. The use of the word in conjunction with the words 'judgment' and 'order' is some indication that appeals by way of case stated are meant to be confined to appeals from final decisions rather than preliminary rulings.' and
'I have come to the conclusion that looking at the word 'decision' in its context and also in the light of the history of appeals by way of case stated before 1971 and the parallel history of appeals by way of case stated direct from the justices there is a very powerful argument for construing the word 'decision' as meaning final decision. Indeed, in the case of criminal proceedings I am satisfied that the word should be so construed and that, whether regarded as a matter of jurisdiction or of invariable practice, the High Court will not entertain an appeal by way of case stated in a criminal case unless the Crown Court has reached a final determination.' and
'Nevertheless, the matter has been fully argued before us and I think it would be helpful if I were to express an opinion on the merits of the appeal even though it must be appreciated that what I say is obiter. I would, however, add a warning that it should not be assumed that in other cases the High Court will be prepared to express any opinion, however informal. The appeal may simply be dismissed.'
Pill J agreed.
Supreme Court Act 1981 28
1 Citers


 
Regina v Carson [1990] 92 Cr App R 236
1990
CACD

Criminal Practice
Where the judge had found there to be no case to answer on a single count of violent disorder, he was entitled to leave the statutory alternative of using threatening behaviour, a summary offence, to the jury, and the not guilty verdict of the jury was no less true because it was returned by direction of the judge than when it was returned by the jury of their own volition after consideration of all the facts.
1 Citers



 
 Regina v Walsh (Gerald Frederick); CACD 1990 - [1990] 91 Cr App R 161
 
Regina v Johnson [1990] 91 Cr App R 332
1990


Criminal Practice
An appeal does lie with leave against a confiscation order as part of a sentence.

 
Regina v Birks (1990) 19 NSWLR 677
1990


Criminal Practice
The court looked at Counsel's failure to represent defendant properly.
1 Citers


 
Regina v Gilbey Unreported January 26, 1990
26 Jan 1990
CACD
Lloyd LJ
Criminal Practice
The court warned judges about the need for a balanced summing up to the jury: 'A judge . . is not entitled to comment in such a way as to make the summing up as a whole unbalanced . . It cannot be said too often or too strongly that a summing up which is fundamentally unbalanced is not saved by the continued repetition of the phrase that it is a matter for the jury.'
1 Citers


 
Thomson Newspapers Ltd v Canada (Director of Investigation and Research, Restrictive Trade Practices Commission) [1990] 1 SCR 425
29 Mar 1990

Lamer, Wilson, La Forest, L'Heureux-Dube and Sopinka JJ
Human Rights, Criminal Practice
SCC (Supreme Court of Canada) Constitutional law -- Charter of Rights -- Fundamental justice - Self-incrimination -- Right to remain silent - Derivative evidence -- Combines investigation -- Corporation suspected of predatory pricing - Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Failure to comply with a s. 17 order subject to legal consequences -- Whether s. 7 of the Canadian Charter of Rights and Freedoms can be invoked -- Whether s. 17 infringes s. 7 of the Charter -- If so, whether s. 17 justifiable under s. 1 of the Charter - Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), 13.
Constitutional law -- Charter of Rights -- Unreasonable search and seizure -- Combines investigation -- Corporation suspected of predatory pricing -- Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Whether s. 17 infringes s. 8 of the Canadian Charter of Rights and Freedoms -- If so, whether s. 17 justifiable under s. 1 of the Charter.
Combines -- Investigation -- Corporation suspected of predatory pricing -- Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Whether s. 17 infringes the guarantee to fundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms or the guarantee against unreasonable search and seizure in s. 8 of the Charter.
Evidence -- Self-incrimination -- Derivative evidence -- Documentary evidence -- Real evidence -- Corporate officers ordered to testify under oath and to produce documents pursuant to s. 17 of the Combines Investigation Act -- Whether complete immunity against the use of derivative evidence required by the principles of fundamental justice -- Whether protection against self-incrimination under s. 7 of the Canadian Charter of Rights and Freedoms limited to "testimonial evidence" -- Combines Investigation Act, R.S.C. 1970, c. C-23, ss. 17, 20(2) -- Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5.
La Forest J held that there was no breach of the principles of fundamental justice because there are serious grounds on which objection can be raised to an absolute rule that testimonial immunity must always extend to evidence derived from compelled testimony: "While allowing the Crown to use such evidence in criminal proceedings may in a formal sense be equivalent to permitting direct reliance on the compelled testimony itself, there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence that could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the 'clues' provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been."
The fact that the derivative evidence exists independently of the compelled testimony also means that its quality as evidence and its relevance to the issues in the trial do not depend on its past connection with the compelled testimony.
1 Citers

[ SCC ]

 
 Regina v Dickens; CACD 11-Apr-1990 - [1990] 2 QB 102; [1990] EWCA Crim 4; (1990) 154 JP 979; [1990] 2 WLR 1384; [1990] 2 All ER 626; (1990) 12 Cr App R (S) 191; (1990) 91 Cr App R 164; [1990] Crim LR 603
 
In re W Times, 15 November 1990
15 Nov 1990


Criminal Practice
Where assets had been seized in criminal proceedings, the court had power to order a payment to creditors only where the value of the assets would not be reduced.
1 Citers


 
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