Crime update

Criminal Procedure Rules

Criminal practitioners should take careful note of the new Criminal Procedure Rules which come into effect on 2 April 2012, as well as the updated Law Society practice note published on this issue. The Criminal Procedure Rules were introduced in 2005 and were described at the time as effecting a 'sea change in the way cases should be conducted'. Under rule 1.1, the overriding objective of the rules is to ensure that criminal cases are dealt with justly, which includes acquitting the innocent and convicting the guilty, and dealing with the case efficiently and expeditiously. Criminal defence practitioners are of course well versed in the need to balance their professional duties to the court in light of the overall objective against the sometimes contradictory aims and views of their clients.

The updated rules now make clear that the court may require issues in the case to be identified in writing; while case progression forms have been in use for a while, it had been reported that some courts were unsure of their powers to require the identification, in writing, of what was in issue. Care should be taken in completing these forms; in R (on the application of Firth) v Epping Magistrates' Court [2011] EWHC 388 (Admin) the Divisional Court held that a lawyer's note on the case management form that the defendant had acted in self-defence was admissible as hearsay evidence by the prosecution when the defence attempted to state that there was insufficient evidence in the papers, on the basis that there was no evidence to identify the defendant as having been present at the incident.

The biggest procedural change relates to the committal of either-way cases, both where magistrates decide that their sentencing powers are inadequate, and where defendants opt for Crown Court trial. The government has previously described the current committal procedures as a mere 'formality', and the changes will permit magistrates to send cases directly to the Crown Court without satisfying themselves that there is a sufficient case to answer. Defendants will have the right to make an application to dismiss in line with the current practices for indictable-only offences.

One disadvantage, however, is that, for defendants in custody on either-way charges, this will increase the time that they spend on remand awaiting an opportunity to have their case thrown out. The time between their first appearance and the date in which they would be entitled to argue that there is no case to answer (under current rules) would be four weeks. However, it would be in excess of 50 days under the new rules, which is the time limit for the prosecution to serve their evidence following the sending of the case to the Crown Court, following which the defence are permitted to make an application to dismiss.

Sentencing guidelines

The burglary sentencing guideline was published on 16 January 2012, and includes guidance for aggravated burglary, domestic burglary and non-domestic burglary. The effect of the riots that took place across the country in August manifests itself in the recognition of 'general public disorder' as a factor that increases harm. It is therefore interesting to examine whether the new guidelines would have made any difference to the sentences handed down in the Court of Appeal decision of Blackshaw and others [2011] EWCA Crim 2312, in which numerous defendants appealed against their sentences for the respective roles that they played in riot-related offences (including burglary).

Lorraine McGrane had pleaded guilty to burglary and was sentenced to 13 months at a young offender's institution. Miss McGrane was stopped carrying a television that she had stolen from a retail store where a large group of rioters had broken into the premises and stolen stock. When interviewed by police, she explained that she had been on her way home and acted on impulse as she saw a mob attacking the store. She was of previous good character and a serving member of the Territorial Army. On the basis that greater harm was caused due to circumstances of 'general public disorder', Miss McGrane should also have been treated as having lower culpability because the offence was committed on impulse.

The circumstances of her case appear comparable to a category 2 offence being committed, which, according to the guidelines, suggest a starting point of 18 weeks' custody and a sentencing range between a low-level community order to 51 weeks' custody. In dismissing the appeal, the Court of Appeal's upholding of the 13-month sentence is arguably inconsistent with the new guidelines, especially taking into account the defendant's otherwise impeccable character and early guilty plea.

From 27 February 2012, new definitive guidelines on drug offences for both magistrates' and Crown Courts will take effect. These comprehensive guidelines provide judges with a step-by-step approach to the determination of the offender's culpability and the harm caused. Culpability of a defendant is determined according to whether they played a 'leading', 'significant' or 'lesser' role in the offence, whereas the harm caused is generally determined by reference to the quantity of the drugs involved.

The new guidelines apply to all offenders aged 18 and over who are sentenced on or after 27 February 2012 regardless of the date of the offence. The former leading case of Aramah will no longer be applied. This will be good news for those convicted as 'drugs mules' as it is finally recognised that they are often 'poor, foreign people, often women, who have imported drugs in circumstances falling short of the legal defence of duress but which have elements of coercion and in which personal profit is minimal'.

Drugs mules in this category will be seen as less culpable and will receive a lower sentence than what was the case under Aramah.

This begs the question whether the sentencing of drugs mules in accordance with Aramah has always been too high. A series of test cases will soon reach the Court of Appeal, one of which involves a woman who received a seven-year sentence on 5 January 2012, but who would have received five years' imprisonment or less if sentenced on or after 27 February 2012. Practitioners should review their cases for clients sentenced under Aramah '“ if this challenge is successful it may still be possible to lodge appeals in time.

Sexual infidelity

When the Coroners and Justice Act 2009, which came into effect in 2010, provided the full statutory test for manslaughter by way of provocation (or 'loss of control') under section 54, the law expressly disallowed a defendant to rely on the so-called 'crime of passion' defence, in that it would no longer be a defence under the law to state that the victim was killed because of his/her sexual infidelity (section 55(6)(c)).

Rather, one of the qualifying triggers for loss of control required an onerous test under section 55(4) where the defendant's loss of control was attributable to things said or done that constituted circumstances of an extremely grave character and caused him or her to have a justifiable sense of being seriously wronged.

In R v Clinton, Parker and Evans [2012] EWCA Crim 2,,the defendant's conviction for murder was overturned on the basis that the trial judge should have allowed the jury to consider evidence that his deceased wife had taunted him mercilessly about her sexual infidelity, as it could potentially amount to circumstances falling within section 55(4) of the Act.

The court's reasoning was based on the fact that other forms of betrayal and humiliation of sufficient gravity may fall within the qualifying triggers specified under 55(4). Therefore, it would be illogical to exclude sexual infidelity when it is integral to a just evaluation of whether a qualifying trigger properly falls within the ambit of the law.

This decision has been criticised as restoring the defence of sexual infidelity where parliament has expressly legislated against it. Commentators observe that, from now on, defendants would never say that they killed their partner due to sexual infidelity, but rather that the defence would be 'infidelity plus', i.e. that the victim had taunted the defendant about their infidelity to such a degree that caused the defendant's loss of control.