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Providing authoritative criminal law updates
since 2002 New
Cases R v Evans,
CA, 2 April 2009. In gross negligence manslaughter cases the question of
whether or not a duty of care existed was one for the Judge not the jury. http://www.bailii.org/ew/cases/EWCA/Crim/2009/650.html
Serious Organised Crime Agency v Olden, QBD, 25 March 2009. The defendant’s conviction
was quashed due to an unlawful arrest. Held: Evidence forming part of the
criminal case could be used in an application for a recovery order. http://www.wikicrimeline.co.uk/images/1/14/Olden.pdf
R v Angela Taylor Solicitors [2008] EWCA Crim 3085
A failure of a solicitor to ensure that proper procedures were in place to
receive and act upon urgent fax communications was an error
"...but to characterise it as a "serious error", or more
importantly "serious misconduct", in our judgment, went too far.
Accordingly this appeal is, for that reason, allowed. The wasted costs order
will be quashed, if that is the appropriate thing to do. " http://www.bailii.org/ew/cases/EWCA/Crim/2008/3085.html
R v Peacock,
CA, 2 April 2009. This case is of interest as it is one of only a few to have
considered prosecution applications to re-assess the amount available to
satisfy a confiscation order. http://www.wikicrimeline.co.uk/images/e/e6/Peacock.pdf
R v Hibberd, CA, 2 April 2009. Until such time as the
Sentencing Guidelines Council or Court of Appeal issue guidance in relation
to conspiracy to defraud offences, the guidance offered in Attorney General's Reference (Nos.48, 49, 50 and 51 of
2002), Re [2002] EWCA Crim 3165 should continue to apply, even
though it seemed lenient. http://www.wikicrimeline.co.uk/images/5/53/Hibberd.pdf
R v Z [2009]
EWCA Crim 20 An important case on the admission
of bad character evidence using hearsay provisions. Held: Such applications
should not be treated as ‘straightforward’, as they were clearly not. http://www.wikicrimeline.co.uk/images/0/0a/Rvz.pdf
R v Nasuna, CA, 3 April
2009. Held: The Court of Appeal recognised that exceptional circumstances
existed to justify granting an extension of time of almost 6 ½ years to
appeal against an extended sentence passed in 2002. The appeal against the
length of the licence period of the extended sentence was then granted.
Commentary: This case highlights the importance of a full and detailed
analysis at the time of sentence of the necessary length of an extended
licence period given the long term consequences and restrictions of such a
disposal. The Nelson principles should always be addressed in detail at the
earliest possible stage. R v
McMillan Smith, CA, 8 April 2009. Commentary by Benjamin
Knight, Central Chambers Manchester:
“Firstly, you will see that this report covers both an AG Ref and an appeal
against the confiscation order. Following conviction, during the
confiscation process, HHJ Spencer made an omission that the AG could not let
go unchallenged. In essence, he had plucked a figure out of the air in
respect of hidden assets and, in doing so, he failed
to give reasons for making the figure what it was. Given that the basic premise of the AG Ref had to
be correct - that the Order was made without the reasons required under the
1994 Act - it fell to the defence to draft an application to appeal the Order
out-of-time. This is where, in my view, the result was very
interesting. The Court found favour in our submissions that
McMillan-Smith had been given incorrect advise by
those who represented him at trial. He had been told that giving no
evidence during his confiscation proceedings would be the best thing for him
to do. He had given evidence in the trial that had clearly been lies
and so he should simply allow the representatives to settle the matter
between themselves and with the Judge. This is not an uncommon approach to confiscation
and as Hooper LJ put it in these proceedings, giving evidence could not have
made it any worse for Mr McMillan-Smith. Accordingly, the Court of
Appeal found that there had been incorrect advice and gave permission for
McMillan-Smith to give evidence as to his realisable assets and the existence
of any "hidden assets". Despite the fact that the Court of Appeal has a
power to hear fresh evidence itself in appeals against sentence (and
confiscation orders), that power is used very rarely indeed. This case
is not only unusual in that poor advice has led to a successful appeal
against sentence but that it also appears to create a precedent in that it
opens the door without restriction (it seems) to appeals against confiscation
orders where no evidence has been given by the defendant upon advice of his
representatives. There is none of the caution in the wording of this
judgement that one might expect. Aside from the high costs of this action and the
very limited success of the AG, this case may be a helpful authority for
those dealing with such appeal instructions and frustrated by the recent line
of reasoning from the CA.” http://www.wikicrimeline.co.uk/images/e/ea/Mcmillansmith.pdf
R (Necip) v City of Westminster Magistrates’ Court [2009] EWHC 755 (Admin)
There was no power to issue a warrant under section 83 Magistrates’ Courts Act
1980 to secure the attendance of a person facing enforcement proceedings for
a confiscation order that remained outstanding (the applicant having served a
prison sentence in default of payment). http://www.wikicrimeline.co.uk/images/9/9f/Necip.pdf
R v Awosika, CA, 18 March 2009.
Sentencing for a single ‘confidence fraud’ (Rolex watch valued at £11,400).
Held: 10 months imprisonment (on plea of guilty) reduced to 6 months.
Comment: Reference made to SGC consultation of fraud offences. http://www.wikicrimeline.co.uk/images/6/66/Awosika.pdf
The
Criminal Justice and Immigration Act 2008 (Commencement No. 7) Order 2009 The date
appointed for the coming into force of the following provisions of the 2008
Act is 27th April 2009— (a) section 35
(Referral conditions); (b) section 36
(Power to revoke a referral order); (c) section 37
(Extension of period for which young offender contract has effect); (d) section
148(1) (Consequential etc. amendments and transitional and saving provision)
in so far as it relates to the provision specified in sub-paragraph (f); (e) section 149
(Repeals and revocations) in so far as it relates to the provision specified
in sub-paragraph (g); (f) paragraphs
40, 42, 43 and 49 of Schedule 26 (Minor and consequential amendments); and (g) in Part 2 (Sentencing) of Schedule 28 (Repeals and
revocations), the entry relating to section 17 of the Powers of Criminal
Courts (Sentencing) Act 2000. |
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