Tag: Crime

Balogh C-25/15: ECJ 9 Jun 2016

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in criminal matters – Right to interpretation and translation – Directive 2010/64/EU – Scope – Definition of criminal proceedings – Procedure laid down by a Member State for the recognition of a decision in criminal proceedings handed down by a court in another Member State and for the entry in the criminal record of the conviction handed down by that court – Costs in connection with the translation of that decision – Framework Decision 2009/315/JHA – Decision 2009/316/JHA

ECLI:EU:C:2016:423, [2016] EUECJ C-25/15
Bailii
Directive 2010/64/EU

European, Crime

Updated: 17 January 2022; Ref: scu.565597

Buckinghamshire County Council v MA and Another: FD 16 May 2016

Proceedings brought by Buckinghamshire County Council to make three children wards of court and also pursuant to the Female Genital Mutilation Act 2003. The respondents are the mother and father, respectively, of the children concerned.

Holman J
[2016] EWHC 1338 (Fam)
Bailii
Female Genital Mutilation Act 2003
England and Wales

Children, Crime

Updated: 17 January 2022; Ref: scu.565531

Crown Prosecution Service v Christof: Admn 22 Oct 2015

The defendant on being arrested was found to have a buckle to his belt which, when removed, would also serve as a knuckleduster.
Held: The district judge had made his decision without examining the object itself. He should have done so. The matter was remitted: ‘notwithstanding that judicial notice must be taken of the fact that knuckledusters are offensive weapons, it was possible for the district judge to conclude that this item was not an offensive weapon per se.’

Beatson LJ, Mitting J
[2015] EWHC 4096 (Admin)
Bailii

Crime

Updated: 16 January 2022; Ref: scu.564418

Coleman, Regina v: CACD 18 Oct 2016

Where a convicted defendant has been ordered in the Crown Court to pay an amount towards the prosecution costs at a time when it is properly assessed that he has the assets to meet such a liability, can, or at all events should, he thereafter be permitted to appeal to the Court of Appeal (Criminal Division) seeking a quashing or reduction of the costs order on the ground of a subsequent change in financial circumstances? The appellant says that he can and should and seeks to rely on a previous decided case to that effect. The respondent Crown says that he cannot, or at all events should not, and the appropriate application should be made to the Magistrates’ Court as the collecting and enforcing court.

[2016] EWCA Crim 1665, [2017] 4 WLR 29
Bailii
England and Wales

Criminal Practice

Updated: 14 January 2022; Ref: scu.570984

Regina v Dudley and Stephens: QBD 9 Dec 1884

Three survivors of the yacht Mignonette were landed from a German sailing barge at Falmouth in September 1884. On the day they landed all three of them described the circumstances in which the fourth member of the crew, the ship’s boy had been killed and eaten on their twentieth day of survival on the open sea without water or food (apart from two tins of turnips). Two defendants agreed to, and did eat the cabin boy, the youngest and weakest of the party. The third boat member also ate, but had declined to be involved in the killing. After rescue the two who killed the cabin boy were accused of murder. The facts found, were referred to the Divisional Court for a special verdict.
Held: Lord Coleridge CJ said: ‘From these facts stated with the cold precision of a special verdict it appears sufficiently that the prisoners were subject to terrible temptation, to sufferings which might break down the bodily power of the strongest man, and try the conscience of the best . . But nevertheless this is clear, that the prisoners put to death a weak and unoffending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with the certainty of depriving him of any possible chance of survival. The verdict finds in terms that ‘if the men had not fed upon the body of the boy they would probably not have survived,’ and that ‘ the boy being in a much weaker condition was likely to have died before them . . Now, except for the purpose of testing how far the observation of a man’s life is in all cases and under all circumstances, an absolute, unqualified, and paramount duty, we exclude from our considerations all incidents of war. We are dealing with a case of a private homicide, not one imposed upon men in the service of their Sovereign and in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well recognised excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called ‘necessity.’ But the temptation to the act which existed here was not what the law has ever called necessity. Nor is this to be regretted. Though law and morality are not the same. and many things may be immoral which are not necessarily illegal, yet the absolute divorce of law from morality would be of fatal consequence; and such divorce would follow if the temptation to murder in this case were to be held by law an absolute defence of it. It is not so. To preserve one’s life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not to live, but to die. The duty, in case of shipwreck, of a captain to his crew, of the crew to the passengers, of soldiers to women and children, as in the noble case of the Birkenhead; these duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others, from which in no country, least of all, it is to be hoped, in England, will men shrink, as indeed they have not shrunk . . It would be a very easy and cheap display of common-place learning to quote from Greek and Latin authors . . passage after passage, in which the duty of dying for others has been laid down in glowing and emphatic language as resulting from the principles of heathen ethics; it is enough in a Christian country to remind ourselves of the Great Example whom we profess to follow. It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting, was chosen. Was it more necessary to kill him than one of the grown men? The answer must be ‘No . . . ‘ . . . It must not be supposed that in refusing to admit temptation to be an excuse for crime it is forgotten how terrible the temptation was; how awful the suffering; how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare himself to have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore our duty to declare that the prisoners’ act in this case was wilful murder, that the facts as stated in the verdict are no legal justification of the homicide; and to say that in our unanimous opinion the prisoners are upon this special verdict guity of murder.’ and ‘if Lord Bacon meant to lay down the broad proposition that a man may save his life by killing, if necessary, an innocent and unoffending neighbour, it certainly is not law at the present day’ (The sentence of death was later commuted to six months imprisonment.)

Lord Coleridge CJ
(1884) 14 QBD 173, [1884] EWHC 2 (QB)
Bailii
England and Wales
Citing:
Cited – Rex v Oneby 1727
Where A and B have a sudden violent quarrel, and later, after tempers should have cooled, A kills B, that is murder. If A says he will revenge himself on B, or will have his blood, that is express malice. The fact of killing is prima facie murder. . .

Cited by:
Applied – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .

Lists of cited by and citing cases may be incomplete.

Crime

Leading Case

Updated: 12 January 2022; Ref: scu.185683

Fisher v Bell: QBD 10 Nov 1960

A shopkeeper displayed a flick-knife in his window for sale. A price was also displayed. He was charged with offering it for sale, an offence under the Act. The words ‘offer for sale’ were not defined in the Act, and therefore the magistrates construed them as under the general law of contract, in which case the shopkeeper had merely issued an invitation to treat.
Held: The display of the knife in the window was indeed only an invitation to treat, and the knife had not been offered for sale. In the Keating and Wiles cases the Acts in question allowed a conviction where an item was exposed for sale. That did not apply here. The appeal was dismissed.
Lord Justice Parker said: ‘It is perfectly clear that according to the ordinary law of contract the display of an article with a price on it in a shop window is merely an invitation to treat. It is in no sense an offer for sale the acceptance of which constitutes a contract.’

Parker LJ CJ, Ashworth Elwes JJ
[1961] 1 QB 394
England and Wales
Citing:
Distinguished – Wiles v Maddison 1943
It was proved that the defendant had the intention to commit an offence. Viscount Caldecote CJ said ‘A person might, for instance, be convicted of making an offer of an article at too high a price by putting it in his shop window to be sold at an . .
Cited – Magor and St Mellons Rural District Council v Newport Corporaion HL 1951
The Court of Appeal had tried to fill in the gaps in a statute where parliament had intended an effect.
Held: Rights to compensation are well capable of falling within the definition of ‘property of a company’ in the relevant provisions of the . .
Distinguished – Keating v Horwood QBD 1926
A baker’s van was doing its rounds, delivering bread which had already been ordered but the van also contained bread which could be bought as required. The bread was underweight The Order prohibited the offering or exposing for sale of food . .

Lists of cited by and citing cases may be incomplete.

Crime, Consumer, Contract

Leading Case

Updated: 12 January 2022; Ref: scu.185104

Neal, Regina v: CACD 22 Feb 2011

Appeal from conviction of possession of indecent photographs of a child. Material on one count had been shown to the jury even though the judge had directed an acquittal on that charge.
Held: The material was prejudicial and the jury should not have seen it. The appeal succeeded. Since it was doubtful whether there would have been a prosecution at all without that same material, a retrial was not ordered.

[2011] EWCA Crim 461
Bailii
Criminal Justice Act 1988 160(1)
England and Wales

Crime

Updated: 05 January 2022; Ref: scu.431255

Regina v Sharpe: CCCR 1857

The defendant was charged not with theft of a corpse, but of its removal from a grave: ‘Our law recognises no property in a corpse, and the protection of the grave at common law as contradistinguished from ecclesiastic protection to consecrated ground depends on this form of indictment.’

Erle J
[1857] Dears and B 160
Commonlii
England and Wales
Cited by:
Cited – Regina v Kelly 1999
Robbers who stole and sold preserved specimens from the Royal College of Surgeons’ collection were held rightly convicted of theft. The court considered the issue of ownership of a corpse: ‘We accept that however questionable the historical origins . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Crime

Updated: 05 January 2022; Ref: scu.195006

John Paterson, Eldest Son and Executor of John Archbishop of Glasgow, Deceased v The Commissioners and Trustees of The Forfeited Estates: HL 20 Mar 1721

Forfeiture for Treason. – I Geo. I. c. 20. – Personal debt claimed on a forfeited Estate. –
The acts relative to forfeiture for treason having solved the rights of creditors innocent, dutiful, and loyal; a claim on a forfeited estate, by virtue of a personal bond, (which had been given up in the inventory by the claimant when confirmed to his fathers) is made by a person who had been confined in prison upon suspicion, but liberated without trial; this claim is rejected by the trustees and Court of Delegates, but their judgment is reversed.

[1721] UKHL Robertson – 349
Bailii
Scotland

Crime

Updated: 05 January 2022; Ref: scu.553667

Nicklinson and Lamb v The United Kingdom: ECHR 23 Jun 2015

ECHR Article 8-1
Respect for private life
Ban on assisted suicide and voluntary euthanasia: inadmissible
Facts – The first applicant is the wife of Tony Nicklinson, now deceased, who suffered locked-in syndrome following a stroke. The second applicant was paralysed following a car accident. His condition is irreversible. Both men wish/ed to end their lives but are/were unable to commit suicide without assistance. They unsuccessfully challenged the statutory ban on assisted suicide and the law on murder, which did not recognise voluntary euthanasia as a defence, before the domestic courts. The Supreme Court found, in particular, that such a sensitive issue was for Parliament to resolve.
Law – Article 8
(a) First applicant: In order for the right to respect for private life to be properly secured at domestic level, individuals had to be able to seek to rely on arguments derived from Article 8 in domestic proceedings and to have those arguments considered and, where appropriate, taken into account in the rulings of the domestic courts. The Court’s more recent case-law had often tended to view this ancillary aspect of private-life protection as arising under the so-called procedural aspect of Article 8 itself (see, for example, Koch v. Germany, 497/09, 19 July 2012, Information Note 154; and McCann v. the United Kingdom, 19009/04, 13 May 2008, Information Note 108).
It was well established in the Court’s case-law that Article 13 does not go so far as to guarantee a remedy allowing primary legislation to be challenged before a national authority on the ground of being contrary to the Convention. Where, as here, the case concerned a challenge to primary legislation, rather than, as in Koch and McCann, an individual measure of implementation, it would therefore be anomalous if the procedural aspect of Article 8 extended further than Article 13 so as to require the possibility of challenging primary legislation in cases giving rise to private-life concerns.
However, the Convention was part of the domestic law of the United Kingdom and a procedure existed, under the Human Rights Act, permitting primary legislation to be challenged on the basis of its alleged incompatibility with Article 8. It could therefore be argued that where the State had chosen to provide a remedy in respect of primary legislation, such remedy was subject to the procedural requirements which generally arose under Article 8, and in particular to the requirement set out in Koch as to the need for an examination of the merits of the claim. For the Court, however, there was a fundamental problem with extending the procedural protections of Article 8 in that way. The problem arose from the application of the margin of appreciation available to member States in cases concerning challenges to primary legislation under Article 8. The Contracting States were generally free to determine which of the three branches of government should be responsible for taking policy and legislative decisions which fell within their margin of appreciation and it was not for the European Court to involve itself in their internal constitutional arrangements. However, when it concluded in any given case that an impugned legislative provision fell within the margin of appreciation, it would often be the case that the Court was, essentially, referring to Parliament’s discretion to legislate as it saw fit in that particular area. Thus, in Pretty v. the United Kingdom (2346/02, 29 April 2002) the Court had held that it was for States to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were to be relaxed or exceptions created. In the context of the United Kingdom, that assessment had been made by Parliament in enacting the relevant provision of the 1961 Suicide Act, a provision that had been reconsidered several times by Parliament in recent years, having been re-enacted in 2009. If the domestic courts were to be required to give a judgment on the merits of such a complaint this could have the effect of forcing upon them an institutional role not envisaged by the domestic constitutional order. Further, it would be odd to deny domestic courts charged with examining the compatibility of primary legislation with the Convention the possibility of concluding, like the Court, that Parliament was best placed to take a decision on the issue in question in light of the sensitive issues, notably ethical, philosophical and social, which arose. For those reasons, the Court did not consider it appropriate to extend Article 8 so as to impose on the Contracting States a procedural obligation to make available a remedy requiring the courts to decide on the merits of a claim such as the one made in the instant case.
In any event, the majority of the Supreme Court judges had dealt with the substance of the first applicant’s claim. They had concluded that she had failed to show that developments since Pretty meant that the ban could no longer be considered a proportionate interference with Article 8 rights. The fact that in making their assessment they had attached great significance to the views of Parliament did not mean that they had failed to carry out any balancing exercise. Rather, they had chosen – as they were entitled to do in light of the sensitive issue at stake and the absence of any consensus among Contracting States – to conclude that the views of Parliament weighed heavily in the balance.
Conclusion: inadmissible (manifestly ill-founded).
(b) Second applicant: Before the Court of Appeal, challenges had been made to both the prohibition on assisted suicide and the law on murder, which made no exception for voluntary euthanasia. However, before the Supreme Court the second applicant had only pursued his complaint about the ban on assisted suicide and not his argument that there should be a judicial procedure to authorise voluntary euthanasia in certain circumstances. It could not be assumed that the Supreme Court would have disposed of the argument concerning voluntary euthanasia in the same way as it disposed of the claim in respect of the prohibition of assisted suicide.
Conclusion: inadmissible (failure to exhaust domestic remedies).

2478/15; 1787/15 – Legal Summary, [2015] ECHR 783
Bailii
European Convention on Human Rights 8-1
Human Rights
Citing:
At HL – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .

Cited by:
See Also – Nicklinson and Lamb v United Kingdom ECHR 16-Jul-2015
The applicants, suffering life threatening and severely disabling conditions, complained of laws which would allow the criminal prosecutions of those assisting them to end their lives. . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Health, Crime

Updated: 04 January 2022; Ref: scu.552391

Butler v Regina: CACD 20 May 2015

This reference concerns the historical judgements that have been made about a girl who has complained of sexual abuse, the extent to which those judgements should inform decisions about disclosure in a subsequent criminal prosecution, the significance and likely impact of whatever material is available on the course of that criminal trial and, finally, the critical importance of combining fair treatment of those who complain of sexual crime with avoiding miscarriages of justice. It requires careful analysis rather than uncritical assumption, along with a proper reflection both of that which the courts have learnt about those who complain about sexual crime and the absolute requirement of a fair trial for those against whom complaints are made and pursued.

Sir Brian Leveson P QBD, Hickinbottom, Thirwall JJ
[2015] EWCA Crim 854
Bailii
England and Wales

Crime

Updated: 01 January 2022; Ref: scu.549795

Brooks v Director of Public Prosecutions: Admn 6 Mar 2015

Appeal by case stated against a decision of the Justices to convict the appellant of the offence of battery contrary to section 39 of the Criminal Justice Act 1988.
The question for the opinion of this court was: 1. ‘Did we apply the correct test in law when we considered whether the prosecution has proved beyond reasonable doubt that the appellant was not acting in lawful self defence when he pushed Mr Wales?’

Sir Stephen Silber
[2015] EWCA Admin 1025
Bailii
England and Wales
Citing:
Cited – Bird, Regina v CACD 22-Mar-1985
The court considered the factors to be accounted in a defence of self-defence. Lord Lane LCJ said: ‘If the defendant is proved to have been attacking or retaliating or revenging himself, then he was not truly acting in self-defence. Evidence that . .

Lists of cited by and citing cases may be incomplete.

Crime

Updated: 30 December 2021; Ref: scu.547501

Yong v Regina: CACD 21 May 2015

The defendant appealed against his conviction for possession of two flash eliminators. He said that a crucial decision had not been left to the jury, namely whether the eliminators might have been used to fit to rifles as welll as automatic guns.
Held: ‘it is not only impossible to see how the judge’s ruling, had the present point been taken, could have favoured the appellant, but also it is equally hard to see how on that basis the appellant has lost anything by not having the issue he now raises resolved by a jury. In those circumstances we do not find that there is anything to impugn the safety of the conviction and dismiss this appeal.’

Treacy LJ, Nicol J, Tonking HHJ
[2015] EWCA Crim 852
Bailii
Firearms Act 1968 1(1)(a)
England and Wales

Crime

Updated: 30 December 2021; Ref: scu.547027

Regina v Clarke: CACD 7 Dec 1971

The defendant appealed against her conviction for theft (shop-lifting). She had placed goods in the wire basket whilst in the supermarket, but transferred some of them to her own bag before approaching the checkout. She denied the intent to steal, citing a medical condition and stressful circumstances. She brought medical experts to support her case, but the judge pressed them as to their evidence, and eventually suggested that he would direct the jury that this was in effect a plea of not guilty by reason of insanity, and directed them as to the McNaughton rules. The defendant was advised to plead guilty.
Held: The appeal succeeded. The judge had mis-stated the law. The medical evidence was to the effect that it was absurd to call anyone in Mrs. Clarke’s condition insane.

Lord Widgery LCJ, Sachs LJ, Ackner J
[1972] 1 All ER 219, (1971) 56 Cr App Rep 225, (1971) 136 JP 184, [1971] EWCA Crim 5
Bailii
England and Wales

Crime

Updated: 28 December 2021; Ref: scu.249926

Bennett and Others, Regina v: CACD 19 Nov 2014

Group of appeals against conviction and sentence arising out of firearms offences committed in Chingford, East London, during 2012. The principal issue in these appeals is whether the judge erred in preparing and distributing to the jury a written chronology as a hand out to accompany his summing-up. There are also issues concerning length of sentence and whether the judge should have imposed extended sentences on certain defendants.

Jackson LJ, Davies J, tonking HHJ Rec Stafford
[2014] EWCA Crim 2652
Bailii
England and Wales

Crime

Updated: 24 December 2021; Ref: scu.540490

Leeks, Regina v: CACD 6 Jul 2009

Application for leave to appeal against conviction – validity of a count which was added to an indictment without the court making an order for amendment as required by section 5(1) of the Indictments Act 1915.

[2009] EWCA Crim 1612, [2010] 1 Cr App Rep 5, [2010] Crim LR 641, [2010] RTR 16
Bailii
Indictments Act 1915 5(1)
England and Wales

Crime

Updated: 23 December 2021; Ref: scu.371871

Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy: QBD 1993

The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where the irregularity alleged was procedural, the bye-law remained effective until it was set aside in civil proceedings. Except in the ‘flagrant’ and ‘outrageous’ case a statutory order, such as a byelaw, remains effective until it is quashed. Byelaws which are on their face invalid or are patently unreasonable (termed ‘substantive’ invalidity) may be called in question by way of defence in criminal proceedings, whereas byelaws which are invalid because of some defect in the procedure by which they came to be made (termed ‘procedural’ invalidity) may not be called in question in such proceedings, so that a person might be convicted of an offence under them even if the byelaws were later quashed in other proceedings.

[1993] QB 473, [1993] 2 WLR 628
England and Wales
Citing:
Cited – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
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 . .
See Also – Percy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Cited by:
Overruled – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Doubted – Regina v Wicks HL 21-May-1997
Criminal proceedings, forming part of the general scheme of enforcement of planning control contained in Part VII of the Act, had been taken.
Held: The validity of a planning enforcement notice must be challenged in civil proceedings, not . .
See Also – Percy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Lists of cited by and citing cases may be incomplete.

Crime, Local Government, Constitutional

Updated: 23 December 2021; Ref: scu.187073