Five Criminal case you need to know from December

January 18, 2012

Hearsay: Al-Khawaja v UK; Tahery v UK, unreported, 15 December 2011 ECtHR, Grand Chamber (reversing in part chamber decision)

If a conviction is based solely or decisively on hearsay evidence, the trial will not automatically be invalid in accordance with Article 6(3)(d) of the ECHR (everyone charged with a criminal offence has, as a minimum, the right to have witnesses against him attend to be examined).
There must be a good reason for the non-attendance (fear not resulting from the defendants must be carefully examined).
‘Decisive’ depends on the supporting evidence and the degree to which evidence is decisive will be an important factor in determining whether to admit it.
The safeguards in Chapter 2 of Part 11 of the Criminal Justice Act 2003 supported by the Police and Criminal Evidence Act 1984 and the common law requirement to direct the jury on burden of proof and as to the dangers of relying on hearsay are strong safeguards.

Murder, aiding (etc), joint enterprise: R v Gnango, The Times, 15 December 2011, SC (reversing by majority, 6:1, CA decision)

If D1 and D2 voluntarily fight each other intending to seriously injure or kill or cause GBH to each other and D1 mistakenly kills a third party (TP) then D2 is guilty of murder;
D1 shot TP so is guilty of murder by transferred malice. D2 had agreed to fight with D1 and therefore he aided or abetted D1 to shoot at him, therefore he is guilty also;
Alternatively D2 participated in unlawful violence designed to cause death or serious injury, and death occurred, so he was a principal (or an accessory) to a joint enterprise.

Sexual Offences (presumption under s75 SOA): R v Cicarelli [2011] EWCA Crim 2665

Function of section 75 of the Sexual Offences Act 2003 is to require a defendant to raise sufficient evidence about consent for a jury to consider. A complainant will be taken not to have consented unless sufficient evidence can be raised.
Mere assertion of belief in consent by defendant, without more, is not sufficient evidence, the belief must be reasonable;
Touching a woman sexually when she was fast asleep would require evidence beyond the fanciful or speculative in order to be sufficient.

Historic Sexual Offences (sentencing guidance) R v Hall and other appeals [2011] LS Gazette 8 December 2011, 21, CA

Sentence is determined by legislative guidance current at time of sentence (and sentencing guidelines);
Sentence is limited by the maximum permissible at time of commission but sentence is not determined by the law current at that time;
Circumstances of offence are most important but passage of time may be extremely important to the offender’s culpability;
Harm to the victim is a critical factor (for example late reporting may indicate continuing inner turmoil) but equally the sentence must be determined by what the offender did and how he did it;
The time since the offence may demonstrate aggravating features in that the offender has continued to commit sexual crime or continues to be a risk to the public; equally it can be mitigation if the offender has remained of good character;
Early admissions and a guilty plea will be of particular importance in historic cases.

Carter Fees (trial or cracked trial) Lord Chancellor v Ian Henery Solictors, unreported, 8 December 2011, HC

Jury sworn = not conclusive as to whether trial has begun
Jury sworn, case opened, evidence called = trial
Jury sworn but no trial in meaningful sense = cracked trial
Submissions made in continuous process resulting in jury being sworn, case opened and evidence = trial
Jury selected but not sworn in a long case and matters of case management dealt with = trial
Individual circumstances may have to be examined to determine whether a trial has begun
A judge should be prepared to indicate, on request, when a trial has begun, if there if likely to be difficulty over this issue.

Andrew Walklate

One Inner Tample Lane