1. law, govt and politics

CRIME
NEWSLETTER Winter 2007
EDITORIAL
INSIDE
by Christopher Donnellan, head of the Criminal Team
The daily challenge to the practitioner is to meet the complications thrown up by
recent legislation. This edition of the Newsletter addresses three areas which have
exercised the expertise of members of the Criminal Team.
Matthew Lowe has analysed and illustrated the restriction of Parliament’s
intention to chip away at a pillar of our criminal justice system: the burden of proof.
I have addressed an unintended consequence of a ‘care worker offence’ in the Sexual Offences Act 2003.
Felicity Gerry has identified the proper approach to obtaining a ‘Goodyear’ indication for a dangerous
offender facing IPP, with a short update on the same topic from Declan O’Callaghan.
We will continue to provide a programme of seminars on developments in Criminal Law, practice and
procedure throughout 2008. Details will appear on our website and members of the Criminal Team will
be contributing to the International Law Seminar at Exeter University in April.
Finally, we are delighted to announce that Adrienne Lucking has accepted an invitation to join
Chambers. Adrienne joins the Criminal Team from De Montfort Chambers.
Reverse burden of proof provisions
and how to challenge them
Matthew Lowe
1
Patients, sex and the perils of
the “Care Worker”
Christopher Donnellan
3
Goodyear indications and
IPP sentences
Felicity Gerry
5
Recent judgments
Declan O’Callaghan
5
International Law Seminar
6
Reverse burden of proof provisions and how to challenge them
by Matthew Lowe
On the face of it a rather dry and esoteric area of the Criminal Law. It is however one of those few areas where the Human Rights Act has had
anything approaching a meaningful impact on Criminal trials in England and Wales.
In dealing with this issue the House of Lords have made it plain that each statutory provision will be considered on a statute by statute basis. There are
plenty of relevant statutes where the point has yet to be litigated in the appellate courts. Apart from anything else it is an opportunity to make some law.
What do we mean by reverse
burden provisions?
Simply put it arises where a statute creating a
criminal offence imposes a legal burden on the
accused to prove a defence. Almost invariably the
provision will relate to the mental element of the
offence rather than the act or acts, usually in the
following terms:
“it shall be a defence for the defendant to prove
that at the material time he reasonably believed
x y z”
The argument challenging these
provisions
Stripped down the argument runs as follows:
1. A statutory provision that imposes on the
accused a legal burden of proving a defence
offends the presumption of innocence and
therefore the right to a fair trial protected
by Article 6 of the European Convention on
Human Rights.
The relevant part of Article 6 is:
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“everyone charged with a criminal offence
shall be presumed innocent until proved guilty
according to law”
down some more general guidance and tried to
reconcile some earlier decisions.
The case concerned two cases and two very
different statutory provisions.
2. The relevant statutory provision should be
‘read down’ so as to impose an evidential
burden only on the defendant thus ensuring
compatibility with the Convention. This reading
down would of course take place by virtue of
s.3 of the Human Rights Act 1998.
1. Mr. Sheldrake was charged with an offence under
s.5(1)(b) of the Road Traffic Act 1988 (in charge
of a car with excess alcohol). It is a defence
under s.5(2) if defendant proves that there was
no likelihood of him driving while over the limit.
It was argued that this defence under s.5(2)
The argument can be expressed in another way:
was not compliant with Article 6 unless it was
The effect of the legal burden being on the
construed as to impose only an evidential rather
accused is that a jury could convict of an offence
than a legal burden on the defence.
simply because the defence fail to discharge the
The Magistrates convicted. The Divisional
“balance of probabilities” standard. In other words:
Court ruled that it violated the presumption of
the jury could convict despite being unsure as to
innocence.
whether an essential ingredient of the offence has
been proved by the Prosecution.
2. The second case charged under s.11(1)
Terrorism Act 2000 alleged the defendant
The approach adopted by the
was a member of a proscribed organisation
Appellate Courts
(Hamas). Section 11(2) provides:
The leading authority is Sheldrake [2004]
UKHL 43. The House of Lords attempted to set
“It is a defence for a person charged with an
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CRIME
NEWSLETTER Winter 2007
Reverse burden of proof provisions
(continued)
offence under subsection (1) to prove that he has
not taken part in the activities of the organisation
at any time while it was proscribed.
At first instance the Crown had conceded
that only an evidential burden was imposed by
s.11(2). The Judge concluded that defence had
discharged that evidential burden and that the
Crown had failed to prove that the Defendant
had taken part in Hamas related activities
since it was proscribed. A ‘no case’ submission
succeeded and the defendant was acquitted.
The Attorney General took the case to the
Court of Appeal who decided that a legal
burden was imposed by s.11(2). The issue was
referred onto the House of Lords and heard at
the same time as the rather more prosaic case
of Sheldrake.
The following principles can be distilled from
the judgement:
a. The European Convention on Human Rights
does not outlaw presumptions of fact or
law but requires that they are kept within
reasonable limits and should not be arbitrary;
b. Governments are entitled to pass laws defining
criminal offences excluding any requirements
of mens rea (i.e. strict liability) but again these
must be proportionate and reasonable;
Lord Bingham said:
“The task of the court is never to decide
whether a reverse burden should be placed
on a defendant, but always to assess whether
a burden enacted by parliament unjustifiably
infringes the presumption of innocence”
c. These questions will be decided on statute by
statute basis. Lord Bingham said:
“The justifiability of any infringement of the
presumption of innocence cannot be resolved
by any rule of thumb, but on examination of all
the facts and circumstances of the particular
provision as applied in the particular case.”
Therefore, when confronted with a reverse
burden provision it is helpful to ask two
questions:
1. Conventionally construed does the provision
impose a legal or evidential burden upon the
defence? If only an evidential burden then no
sustainable argument exists. If a conventional
construction reveals a legal burden then
consider question 2:
2. Is the imposition of a legal burden
compatible with the Article 6 right to a fair
trial; i.e. is a legal burden reasonable, justified
and proportionate?
Reasonable, justified and proportionate?
In looking at these issues of justification and
proportionality the court will consider the
following factors:
• What is maximum sentence for the offence?
• In the event of conviction will the offence
have great impact upon defendant over and
above the sentence itself? Will he be met
with opprobrium and disapproval from the
community or society at large?
• Does the presumption relate to an issue
peculiarly within the knowledge of the
defendant?
• What is the opportunity or ability of the
defendant to prove the issue in his favour?
• In the absence of a legal presumption how easy
is it for Crown to prove issue in their favour?
• In the absence of a legal presumption how
workable or effective is the statute?
• What mischief is the act directed at?
• Is the presumption directed at an issue that is
commonly an ingredient in a criminal offence
(i.e. mens rea).
In Sheldrake the House of Lords ruled
differently in each of the cases it was considering.
The burden imposed by s.5(2) of the Road
Traffic Act was a legal one. An accused would
have to prove on a balance of probabilities that
he would not have driven whilst unfit. This burden
was justified principally because it related to a
matter closely associated with the accused’s own
knowledge. The imposition of such a burden
did not go beyond what was necessary and
reasonable and it was directed at a legitimate
objective namely preventing serious injury and
death on the roads.
In relation to the Terrorism Act the House
of Lords held that Parliament had intended to
impose a legal burden on the accused but that
amounted to a clear breach of the presumption
of innocence. It was not a proportionate and
justifiable legislative response to the threat of
terrorism. Therefore despite the clear intention of
parliament the section was to be read down to
impose an evidential burden only.
• There was an objective element to the defence
“reasonable cause”. This made it easier for
the prosecution because it was not necessary
to disprove a subjective view held by the
defendant.
• The decisive factor was whether the reverse
burden was necessary to ensure that the
offences remained workable. The conclusion of
the court was the section remained workable
even in the absence of a reverse legal burden.
Therefore the imposition of a legal burden was
not proportionate or justified.
R v Lambert [2002] 2 AC 545
Section 28 Misuse of Drugs Act 1971
Burden on the accused to prove that he
neither believed nor suspected nor had reason
to suspect that the item in his possession was a
controlled drug.
The Court of Appeal held that on a natural
reading the subsection imposed a legal burden
and this undermined the presumption of
innocence to an unreasonable extent. The
section should be read down so as to impose
an evidential burden only. Decisive in the Court’s
reasoning was the fact that offences under this
act might carry a life sentence. If a legal burden
remained, a jury could convict even though they
were not sure that Defendant knew that he
possessed controlled drugs.
R v Johnstone [2003] 1 WLR 1736
Section 92(5) Trade Marks Act 1994
It is a defence to an offence under the act if the
accused proves that he believed on reasonable
grounds that the use of the mark in the manner
in which it was used was not an infringement of
the registered trademark.
Held: A legal burden was imposed and this was
both justified and proportionate. Why?
• The urgent international pressure in the
interests of consumers and traders to restrain
fraudulent trading in counterfeit goods;
• The reliance in the defence on matters within
the defendant’s own knowledge;
• The legal burden was needed to ensure
that those committing these offences could
effectively be brought to book.
Useful examples:
Keogh [2007] EWCA Crim 528
Sections 2 and 3 Official Secrets Act 1989
The Court of Appeal on appeal from a ruling
given at a preparatory hearing, held that the
defences provided under s.2(3) and s.3(4) of the
Act conventionally construed imposed a legal
burden upon the defence. However, that burden
amounted to a significant infringement of the
presumption and should be read down to impose
an evidential burden only.
The following factors seemed to influence the
Court’s decision:
• They looked at what it was that the defence
were required to prove. Here it amounted
to a requirement to disprove a substantial
ingredient of the offence namely the mens rea
of the offence;
• They looked at the ability of Prosecution to
prove that element. The prosecution would
commonly be able to prove this mental
ingredient by the use of inferences.
2
L v DPP [2003] QB 137 (Divisional Court)
Section 139(4) Criminal Justice Act 1988
Burden on the defendant to prove that he
had good reason or lawful authority for having a
bladed article in a public place.
The Court held that the legal burden imposed
was compatible with Article 6. Why?
• Strong public interest in bladed articles not
being carried without good reason;
• Accused had to prove something within his
own knowledge;
• Sentencing powers limited to two years (unless
on school premises).
There are many reverse burden statutory
provisions that have yet to have an airing in the
Court of Appeal. Be prepared to argue for the
proper construction to achieve a fair trial.
Patients, sex and the peril of the “Care Worker”
by Christopher Donnellan
The State, rightly, wants to protect the vulnerable in society. Some of the provisions of the Sexual Offences Act 2003 are deliberately designed as
much to protect the vulnerable from themselves as from the offender. Previous articles have dealt with the thorny issue of voluntary drunkenness and
consent, and with the exercise of discretion to prosecute the young defendant. Now for another issue: for an adult group of people considered by the
law to be vulnerable—persons suffering from a mental disorder.
Mental disorders are many and varied
and range from the most debilitating,
requiring constant supervision and care to
those that may require occasional periods
of in-patient care, and, perhaps with
medication, enable an individual to lead a
normal active life with relationships. Those
with mental disorders have as much right
to their family life, including their chosen
form of sexual relationships, as enshrined
in Article 8 of the ECHR.
How does this square with ss.38 and
42 of the Sexual Offences Act 2003? Is it
now a care worker who might become
the person vulnerable to the application
of the law?
Section 38
An offence is committed under s. 38(1) if
(a) A person (A) intentionally touches
another person (B);
(b) the touching is sexual;
(c) B has a mental disorder;
(d) A knows or could reasonably be
expected to know that B has a
mental disorder; and
(e) A is involved in B’s care in a way
that falls within s.42.
Once it is proved that B has a mental
disorder s.38(2) states that
“it is to be taken that the defendant knew
or could reasonably have been expected
to know that that person had a mental
disorder unless sufficient evidence is
adduced to raise an issue as to whether
he knew or could reasonably have been
expected to know it”.
By s.38(3), f the touching is a
penetrative offence the maximum
sentence is 14 years, otherwise 10 years.
Section 42(1)
For the purposes of ss.38 to 41, a
person (A) is involved in the care of
another person (B) in a way that falls
within this section if any of subsections (2)
to (4) applies.
1 HL Deb 28 April 2003 c535
2 H.O. Circular 21/2004
(2) This subsection applies if
(a) B is accommodated and
cared for in a care home,
community home, voluntary
home or children’s home, and
(b) A has functions to perform
in the home in the course
of employment which have
brought him or are likely to
bring him into regular face to
face contact with B.
(3) This subsection applies if B is a
patient for whom services are
provided
(a) by a National Health Service
body or an independent
medical agency, or
(b) in an independent clinic or an
independent hospital, and A
has functions to perform for
the body or agency or in the
clinic or hospital in the course
of employment which have
brought him or are likely to
bring him into regular face to
face contact with B.
(4) This subsection applies if A
(a) is, whether or not in the
course of employment, a
provider of care, assistance or
services to B in connection
with B’s mental disorder, and
(b) as such, has had or is likely
to have regular face to face
contact with B.
In the House of Lords debate during
the passage of the Bill, Lord Falconer said
“Consent here is totally irrelevant. It plays
no part in the ingredients of the offences.
To put it simply, the elements required for
an offence are the relationship of care
between the defendant and the victim,
and the occurrence of sexual activity”1
Home Office Guidance
The Home Office Guidance Document2
on the offence, and interpretation of “Care
Worker” is as follows:
Section 38
167.Section 38 makes it an offence for
a care worker to engage in sexual
touching with a person with a mental
disorder where he is involved in his
care.
168.“Touching” covers all physical
contact, including touching with
any part of the body, with anything
else and through anything, for
example, through clothing. It includes
penetration.
Section 42
181.This section defines a relationship of
care for the purposes of ss.38 to 41.
This relationship is defined broadly
to cover circumstances where a
relationship exists because one
person has a mental disorder and
another person is regularly involved
(or likely to be involved) face to face
3
in their care and that care arises
from the mental disorder, whether
on a primary or ancillary level, and
whether on a paid or voluntary basis.
It can include, for example, not only
doctors, nurses and social workers
but also receptionists, cleaning staff,
advocates or voluntary helpers.
182. Subsections (2) to (4) describe the
circumstances in which a relationship
of care exists. Subsection (2) deals
with the case where the person cared
for is accommodated in a care home,
community home, voluntary home
or children’s home. An example of a
relationship covered by subsection (2)
would be where the care worker is a
member of staff in a care home and
the person with a mental disorder is
resident there. Subsection (3) deals
with the case where the person cared
for is in receipt of services provided
by an NHS body or private medical
agency or an independent clinic or
independent hospital. An example of
a relationship covered by subsection
(3) would be where the care worker
is a receptionist at a clinic attended
regularly by the person with a mental
disorder. In these cases, the carer
provides functions in the home or
for the body or agency in the course
of employment which bring him into,
or are likely to bring him into, regular
face to face contact with the person
cared for. Subsection (4) deals with
any situation where care, assistance
or services are provided, whether
in the course of employment or
otherwise. In this case, the care
worker must be involved, or be likely
to become involved, in regular face to
face contact with the person with a
mental disorder.
An example of a relationship covered
by subsection (4) would be where
the care worker takes the person
with a mental disorder on outings
every week or visits him at home to
provide complementary therapy.
The inclusion of the situation
where the care worker is “likely to
have” regular face to face contact
is in recognition of the fact that
a relationship of care could be
established on the first occasion.
While many will have thought they
could recognise a “Care Worker” it will
no doubt come as a surprise to many
that receptionists and cleaning staff
are included in the “care relationship”
identified in the statute.
Consider this scenario:
A person (C) is employed in a hospital as
an assistant to a Registered Mental Nurse to
carry out daily living tasks with the patients. A
supportive relationship develops between C and
a short term voluntary in-patient (P) at an NHS
Trust Hospital, who suffers from “emotionally
unstable personality disorder”. After P leaves the
hospital she receives care from the same NHS
Trust through the community based service (e.g.
Community Psychiatric Nurse). A few weeks
later P returns, unexpectedly and voluntarily, to
the hospital and is admitted for a few days and
then discharges herself again; C is on leave at
that time so was not involved in her care but
learns of P’s admission and discharge on his
return. P receives further “out-patient” follow
up. P occasionally returns to the hospital to
collect medication, but is not seen by C on those
occasions. Over the next few months C has
social contact with P, now the former in-patient,
and a consensual sexual relationship develops.
They “fall out”, the patient complains to friends
that C had committed a sexual assault. The Police
were called. P insists that full sexual intercourse
over a period of time was with her consent, but
that on the last occasion when she had invited C
to come to her home by text from her mobile,
as she had done on previous occasions, he had
committed an assault. C admits the details of
the sexual activity except as alleged on the last
occasion.
Does C have a defence to a charge under
s.38 of the penetrative offences and the touching
offence?
In our example of P and C there is no issue
about the ingredients of s.38, save for s.38(1)(e).
Section 42 provides the interpretation of Care
Workers.
The ingredients of the offence seem to be
fulfilled. The care worker interpretation in s.42(3)
would apply to the case. P was an NHS patient
who had received in-patient treatment and was
continuing to receive NHS care in the community
described by the NHS Trust as an “informal
patient”. C has functions to perform for the
hospital in the course of employment which have
brought him into contact with P. Further, although
unlikely in the particular circumstances, there
remains a possibility that she returns for further
in-patient treatment, and if she comes in to the
same hospital it follows that his functions as a
health care assistant are likely to bring him into
regular face to face contact with P.
Has this made it an absolute offence for C to
have a sexual relationship with P while he remains
employed by the NHS Trust? As long as there
is no qualification to s.42, there would appear
to be no cut off period after which it would be
permissible to embark on a relationship with
someone who, after discharge as an in-patient, has
consensually developed that relationship.
Section 43 allows a marriage exception. If the
defendant proves that he and the patient, who
must be over 16, were lawfully married at the
time of the sexual touching, then no offence is
committed.
Was it the intention of Parliament to legislate
(a) that the care relationship continues
without limit of time, or alternatively
(b) that there should be no sex before
marriage with the mentally disordered?
The onus is on the care worker to find out the
law, but would he or his lawyer understand it?
This law needs clarification.
The case raised another issue:
The disciplinary investigator suggested that
the Nursing and Midwifery Council’s Code of
Professional Conduct does not apply to healthcare
assistants. The internal disciplinary proceedings
found no evidence that C had been made aware
that relationships with recently discharged patients
are inappropriate. Ignorance of the law is no
excuse, but if the perception is that the relationship
is only “inappropriate” rather than a criminal
offence carrying 14 years maximum sentence, it
would suggest that the application of the law is not
clear to those most closely affected by it.
In R v Rimmington [2005] UKHL 63. [2006] 1
A.C. 459 at [30], Lord Bingham considered Article
7 ECHR:
As for C: the initial decision was to charge—
primarily based on C’s admission. The decision
was reviewed after considering further material
including the disciplinary findings and lack of
clear guidance. Was it fair to put the vulnerable
complainant through a trial, or the defendant,
in order to try and obtain a ruling of a higher
court? Would the jury have convicted? Unlikely.
The decision to prosecute was reversed.
“Article 7... sustains [the] contention that a criminal
offence must be clearly defined in law, and
represents the operation of ‘the principle of legal
certainty’ ... The principle enables each community
to regulate itself ‘with reference to the norms
prevailing in the society in which they live. That
generally entails that the law must be adequately
accessible - an individual must have an indication
of the legal rules applicable in a given case - and
he must be able to foresee the consequences
of his actions, in particular to be able to avoid
incurring the sanction of the criminal law.”
More tersely, in Warner v Metropolitan Police
Commissioner [1969] 2 AC 256, 296, Lord Morris
of Borth-y-Gest said:
“...In criminal matters it is important to have clarity
and certainty.”
Further note on IPP
Ignorance of the law was argued in the
prosecution of members of the Pitcairn Island
Declan O’Callaghan
community for serious sexual offences. In Christian
The Divisional Court has considered the issue
& others v R [2006] UKPC 47 [40] Lord Woolf
of the lawfulness of the detention of prisoners
stated:
beyond the minimum term specified period in an
IPP where insufficient provision has been made
“...it is a requirement of almost every modern
for the offender to have access to the means to
system of criminal law, that persons who are
reduce the risk factor: Wells v The Parole Board;
intended to be bound by a criminal statute
Walker v The Secretary of State for Justice [2007
must first be given either actual or at least
EWHC1835. To the extent that such prisoners
constructive notice of what the law requires. This is
would remain incarcerated after tariff expiry
a requirement of the rule of law, which in relation
without any effective assessment of the danger
to the criminal law reflects the need for legal
they did or did not pose, such detention could
certainty... governments must ensure adequate
not be justified and was unlawful There is as yet
publication or at least reasonable access to the
no indication of when the House of Lords will
criminal laws which they wish to enforce.”
consider the matter.
Whilst ruling that the defendants had adequate
awareness that their conduct (rape and indecent
assault) was contrary to the criminal law, he also
went on to say [41]:
“The sheer volume of the law in England... creates
real problems of access even to lawyers unless
they are experts in the particular field of law in
question. The criminal law can only operate on
Pitcairn, as elsewhere, if the onus is firmly placed
on a person, who is or ought to be on notice
that conduct he is intending to embark on may
contravene the criminal law, to take the action
that is open to him to find out what are the
provisions of that law.”
4
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CRIME
NEWSLETTER Winter 2007
Goodyear indications and IPP sentences
by Felicity Gerry
A Crown Court Judge is entitled to give an indication, in open Court, as to the maximum sentence that might be imposed on a plea of guilty to a
given offence (R v Karl Goodyear [2005] EWCA Crim 888) . Goodyear indications, as they have become known, are now a common feature of pretrial negotiations. In many cases the Court has to decide whether the “dangerous” provisions of the CJA 2003 are triggered and therefore whether
the Defendant should receive a sentence of imprisonment for public protection (IPP).
In R v Kulah 2007 EWCA Crim 1701 the Court
of Appeal reconciled the decision in Goodyear
(made on the 19th of April 2005) with the
sentencing provisions of the CJA 2003 (in force
1st May 2005). The Court held that it is not
necessarily inappropriate for a Goodyear indication
to be sought or given, but, where the offence
involved is specified (within Schedule 15 of the
CJA 2003) and no risk assessment is available to
enable the judge to decide whether a sentence of
imprisonment for public protection is appropriate,
such an indication should be restricted to what
the notional determinate period would be
In that case the Recorder of Cardiff refused
to give an indication in relation to an offence
of Attempted Robbery where the Defendant
had several specified previous convictions and
no pre sentence report (PSR) was available.
4 days later the matter was listed for mention
before a different judge who was not told of
the Recorder’s refusal. The second judge gave
an indication of a determinate sentence and
said that there would be no IPP sentence,
again without a PSR. The Defendant pleaded
guilty. Thereafter, there was some confusion
as to whether the indication was determinate
or not. He was sentenced by a third judge
to an IPP sentence (with a report regarding
breaches of a Community Order but no PSR).
Once the Defendant realized his sentence was
indeterminate, he appealed. His application for
leave to appeal out of time was allowed. The
Court of Appeal made a fresh assessment of
dangerousness and concluded that it would
be unreasonable to conclude that there was
a significant risk to the public of serious harm
by the commission of further offences by
the Defendant. His appeal was allowed and a
determinate sentence of 3 years imposed.
The following guidance was given:
(vi) If the matter is listed before different
judges, it is important that each judge
is told if there has been a previous
application for an indication and, if an
indication was given, the subsequent judge
should be informed of the exact terms
(i) A Goodyear indication can be sought
and given where the dangerous offender
provisions apply
(ii) The judge is under no obligation to give
any indication and may not wish to do so
where no risk assessment is available.
(iii) If an indication is given, it should be
made clear that the “dangerous offender”
provisions apply and that the indication is
subject to the appropriate material being
available to enable the Court to consider
the risks posed by any future offending by
the Defendant
(iv) If an indication is given and the Defendant
is not assessed as “dangerous”, the
indication can be deemed to be as to the
maximum determinate sentence to be
imposed
(v) If an indication is given and the offender
is later assessed as “dangerous”, the
indication can only relate to the notional
determinate period used to calculate the
time an offender has to serve before he
can apply for parole
The importance of this guidance can be
highlighted by the events in R v MacDonald
2007 Crim 1117 where an indication of 5 years
was given, the offender was later assessed as
“dangerous” and an IPP sentence was imposed by
a different judge. The Court of Appeal held that
the indication was binding and quashed the IPP
sentence
As an aside, for those defending, before
seeking an indication, ensure that the Court
has as much information about a Defendant
as possible since the Court of Appeal has
also held in R v Karen Linda Fletcher (currently
unreported) that judges are not required
to reduce sentences following a Goodyear
indication due to matters of mitigation that
they may not have known about at the time of
giving the indication. The Court said that it is the
judge’s duty to impose the appropriate sentence
for an offence based on all the circumstances,
but not beyond the sentence length indicated
in the Goodyear indication. An appeal, in which it
was said that the Crown Court judge had failed
to give weight to mitigation which he had no
heard at the time of giving a Goodyear indication,
was dismissed.
imprisonment. Accordingly the case did not qualify
under section 225(1)(b) and no sentence under
that section could lawfully be passed.
However, the judge could and should have
used his powers under s.227 to pass an extended
sentence as the offence was a specified violent
offence as defined by s.224(3) and Schedule
15 Part 1 to the Act and the dangerousness
condition was fulfilled.
The judge clearly had in mind a determinate
sentence of three years’ imprisonment. That
would have been both proper and lawful
although the judge should have extended that
sentence under s.227(2) in respect of licence and
could have done so by up to two years taking the
case to the permitted maximum under s.227(5).
Had he done that no complaint could or would
have been made of the sentence.
The court could and did substitute that
sentence for the one imposed by the judge.
A person sentenced to imprisonment for public
protection could not have his case considered by
the Parole Board until he had served the minimum
term. Thereafter he could not be released until
it was considered safe to do so. After release he
remained subject to licence indefinitely unless the
Parole Board directed that the licence should cease
to have effect. However, no such direction could
be given until at least 10 years had expired since
the date of actual release. An extended sentence
entitled a prisoner to be released at the half
way point of the custodial term specified, which
would be 18 months in the instant case. He then
remained on licence and at risk of recall until the
expiration of the whole term, which would be five
years in the instant case. It followed that, taking the
instant case as a whole, the proposed sentence was
not more onerous than the one in fact passed.
Recent Judgments
by Declan O’Callaghan
Sentencing: extended sentence
substituted for IPP R v Mackie [2007] EWCA Crim 2486
The appellant (M) appealed against a sentence
of Imprisonment for Public Protection with a
specified term of 18 months imposed after he
pleaded guilty to an offence of assault occasioning
actual bodily harm to his partner B. M had
previous convictions including seven for violence,
with B among the victims.
The Judge found that the dangerousness
provisions under ss. 224–229 Criminal Justice Act
2003 were satisfied, and he purported to impose
a term of imprisonment for public protection
pursuant to section 225. The Court of Appeal
allowed the appeal.
The judge’s sentence was unlawful since the
offence was not a serious offence within s.224(2)
(b) because the maximum penalty was five years’
5
INTERNATIONAL LAW SEMINAR
in association with
Park Crescent Conference Centre 229 Great Portland Street London W1W 5PN
Tuesday 22 April 2008 9.30am—5.30pm
NEW DA
TE FOR 2008
Iraq, Cambodia and beyond—
fair trials in an international setting
Keynote speaker
His Honour Judge Howard Morrison QC OBE—formerly
Defence counsel at the International Criminal Tribunal for
Rwanda (ICTR) and at the International Criminal Tribunal for the
former Yugoslavia (ICTY)—
sets the theme for the day.
Why did it take a decade to reach verdicts
in Rwanda?
Benjamin Gumpert—Defence Counsel in a genocide trial
at the International Criminal Tribunal for Rwanda.
Special Court for Sierra Leone
Kathryn Howarth—former Consultant at the Office
of the Prosecutor, Special Court for Sierra Leone and Law Clerk
at the Prosecutors Office, War Crimes Division,
Court of Bosnia and Herzegovina, and Graham Fellow
of the International Human Rights Project at the University of
Toronto.
Arab perspectives on the current system
of International Criminal Justice
Judge Adel Ibrahim Maged—Special Advisor to the Islamic
Criminal Justice Project, Counsellor at the Egyptian Court of
Appeals, on secondment to the Ministry of Justice of the
United Arab Emirates (UAE) as Legal Advisor on International
(Criminal) Law and Treaty Affairs and lecturer in international
criminal law at the Institute for Training & Judicial Studies, Abu
Dhabi, United Arab Emirates (UAE).
A retrospective after the trial
of Saddam Hussein
Stuart Alford—Chair of the International Bar Association/
Foreign Office Training Programme for the judges and
prosecutors of the Iraq High Tribunal.
30 years on—defence rights
at the Khmer Rouge Tribunal
Rupert Skilbeck (in person or on DVD if abroad) Head of
Defence Support Section at the Extraordinary Chamber of the
Court of Cambodia.
International crimes and Admissible
Defences—the input of the Rome Statute
Dr Caroline Fournet—Lecturer in Law, University of Exeter.
6 hours CPD accredited
Corporate Liability for human rights
abuses—time to hold companies
to account
Students: FREE; Academics: £40; Others: £80
For more information or to book a place,
please contact
Daniel Leader—International and Public Law Barrister who
has worked on access to justice issues and public interest
litigation in the Democratic Republic of Congo and in Kenya. He
has a particular interest in business and human rights and has
participated in numerous complaints against British companies
under the OECD Guidelines for Multinational Enterprises.
Yvonne Saunders Marketing Coordinator
36 Bedford Row London WC1R 4JH dx: 360 LDE
tel: +44 (0)20 7421 8000
[email protected]
Is the International Criminal Court
the way ahead?
Declan O’Callaghan—Visiting Scholar at the University of
Exeter; International and Public Law Barrister with experience
training Iraqi judges in Dubai.
or book online at www.36bedfordrow.co.uk
(click on ‘Events’)
6