Update: crime

Assault guidelines

The Sentencing Guidelines Council's definitive guideline on assault offences is now in force and applies to all offenders over the age of 18 sentenced on or after 13 June 2011 regardless of the date of their offence.

The guideline covers the full range of violent offences, from common assault up to section 18 wounding/inflicting GBH with intent. The guideline applies in both the Crown Court and magistrates' courts. The existing magistrates' court sentencing guidelines have been amended to reflect the new guideline.

For each offence there are three offence categories, numbered from 1 to 3 with category 1 being the most serious. For each offence category there is the now familiar starting point and sentencing range.

These apply irrespective of an offender's previous convictions or whether he has pleaded guilty.

The first step is to determine the offence category. This is done with reference to new concepts of harm (either greater or lesser) and culpability (either higher or lower).

The guideline gives an exhaustive list of factors which go to harm and culpability. Of particular note is the explicit inclusion of a shod foot as a factor indicating higher culpability.

Having determined the offence category, the second step is to adjust the starting point having regard to a non-exhaustive list of aggravating and mitigating factors. Defence advocates may find the list to be a useful reminder or 'checklist' of the mitigation which may be advanced in any particular case. Relevant previous convictions are factored in at this stage.

The presence of a number of aggravating or mitigating factors may permit the sentencer to move outside the identified sentencing range for the relevant offence category.

Having arrived at a suitable starting point, the sentencer then goes onto consider other matters such as credit for a guilty plea (step 4) and the totality principle (step 6).

Two observations are worth making. First, in relation to offences contrary to sections 18, 20 and 47 of the OAPA 1861 it is said that serious injury (i.e. over and above that which is necessary to make out the offence) 'must normally be present' to give rise to greater harm. If the injury is not so serious then this is a point that ought to be taken by defence advocates in mitigation.

Second, practitioners will be aware of the confusion caused by the previous assault guidelines with their emphasis on the vague notion of premeditation. The Sentencing Council appears to have recognised this. Under the new guideline, only 'a significant degree of premeditation' will amount to a factor indicating higher culpability. Conversely 'a lack of premeditation' is a factor indicating lower culpability. However, the problem may not be entirely solved since 'a significant degree' remains undefined. We await with anticipation the courts' approach to cases involving 'just a little bit of' premeditation'¦

Familiarity with the new guideline is crucial. It is necessary for the purposes of advising clients as to sentence and for those who appear in court, whether prosecuting or defending. I can state from recent experience in a number of Crown Court centres that circuit judges expect and in some cases demand (!) assistance with the guideline and its application.

The guideline is available to download free of charge from the Sentencing Council website at: https://sentencingcouncil. judiciary.gov.uk/guidelines/guidelines-to-download.htm

Hearsay in confiscation hearings

In Clipston [2011] EWCA Crim 446 the Court of Appeal has now considered the effect on these hearings of hearsay evidence. C appealed because the judge allowed as evidence out-of-court statements made by a co-defendant and his counsel's remarks in court; the relevance was that, if true, they increased the value of C's assets. The court gave general guidance:

(a) Confiscation proceedings are an extension of the sentencing hearing, following conviction.

(b) The hearsay provisions of the Criminal Justice Act 2003 do not apply in full (the statutory test in section 134 is not satisfied).

(c) The Civil Evidence Act does not apply.

(d) The Criminal Justice Act regime should be borne in mind as providing an appropriate framework if the hearsay is 'of importance and seriously in dispute'. But since this is post conviction there is room for more flexibility than in a trial context.

(e) In many cases it will be the weight to be attached to the evidence that is the issue, and the Criminal Justice Act framework will form an important framework.

(f) The judge must exercise judgement, taking into account the the legislative intent of the Proceeds of Crime Act and the need for fairness for all concerned.

Confiscation '“ criminal lifestyle

The Court of Appeal has interpreted section 75(2)(c) of POCA restrictively, and in favour of defendants. In Bajwa [2011] EWCA Crim 1093 an indictment charged a conspiracy spanning a considerable time period. Three appellants argued that they had not been involved in the conspiracy for a period of at least six months and so, in relation to them, the conspiracy was not 'an offence committed over a period of at least six months' for the purposes of section 75(2)(c) of POCA. Therefore the criminal lifestyle provisions should not apply.

The court held: 'In our view the wording 'it is an offence committed over a period of at least six months' must relate to the particular defendant's part in an offence, so that the defendant being considered must have committed the offence for at least six months'¦ it must be for the Crown to prove, on a balance of probabilities, that a particular defendant was involved in the conspiracy for at least six months; it is not for a defendant to establish that either the conspiracy as a whole or his part in it has come to an end'¦'

Large orders were quashed, and '“ subject to the Supreme Court determining the point (it is understood that RCPO has petitioned the court for leave to appeal) '“ this is very much a defendant friendly judgment.

Text messages

I'm not sure whether or not we have heard the last of the admissibility of this type of communication, although on 11 May this year the Court of Appeal issued clear and cogent guidance. In Twist and others [2011] EWCA Crim 1143 the court revisited the complex area of admissibility of received text messages. This situation usually crops up in cases where the defendant's mobile telephone reveals suspicious texts such as 'will you have any tomorrow?' or 'need the gun today'.

Lord Justice Hughes set out three questions as to whether the hearsay rules apply, on a 'case sensitive' basis: 'Generally, therefore, it is likely to be helpful to approach the question whether the hearsay rules apply in this way: i) identify what relevant fact (matter) it is sought to prove; ii) ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises (whatever other matters may be contained in the communication); and iii) if yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true? If yes, it is hearsay. If no, it is not.'

If the material is hearsay, then an application will need to be made in accordance with the Criminal Justice Act 2003. This case follows a series of cases, cited in the full judgment, leading to the court's emphasis that it is 'crucial to look carefully at what fact it is sought to prove'.