Court of Appeal (Criminal Division) judgments, 2012

In a prosecution brought after substantial delay, any jury direction on delay must be tailored to the evidence and real issues at trial. Where delay has…

A conspiracy requires a shared unlawful design. Similar but separate dishonest arrangements do not suffice. However, an indictment alleging a broader…

An indictment may be amended under section 5(1) of the Indictments Act 1915 where it is defective. The expression is construed liberally. An amendment which…

Criminal Justice Act 2003, Schedule 21 is a flexible sentencing framework. Its starting points and examples must not be applied mechanically or by arithmetical…

Under section 144(1) of the Criminal Justice Act 2003, the relevant event is the defendant’s indication of an intention to plead guilty, rather than formal…

Under section 2 of the Terrorism Act 2006, a publication’s likely effect may be assessed by reference to the range of its readership. Evidence that convicted…

A discretionary life sentence under section 225 of the Criminal Justice Act 2003 requires a statutory assessment that the particular offender presents a…

The judgment records that the appeal was allowed. It gives no reasons resolving the substantive issue and therefore states no general rule of law. The court…

Section 74(3) of the Police and Criminal Evidence Act 1984 creates a rebuttable evidential presumption that a person previously convicted of an offence…

A witness anonymity order is an exceptional measure of last practicable resort. Under the Coroners and Justice Act 2009, the court must ensure that anonymity…

Previous complaints may be admitted as proof of their contents where they rebut an allegation that a witness’s evidence was fabricated, but the statutory…

A confiscation order must be proportionate to the statutory purpose of removing the pecuniary proceeds of crime. After calculating benefit, its value and the…

Where a health and safety offence by an organisation has significantly caused a death, the sentencing court must apply the relevant sentencing guideline unless…

Where evidence from several complainants is capable of providing cross-support, the jury may use it only if sure that the complaints are independent and…

Hearsay evidence is not automatically inadmissible because it is central, or even sole and decisive, evidence. The court must apply the statutory admissibility…

Where the Secretary of State has refused an asylum claim, section 31(7) of the Immigration and Asylum Act 1999 requires a defendant relying on the section 31…

Where an offender appears before the Crown Court under the referral provisions in Schedule 2 to the Criminal Justice and Immigration Act 2008, paragraph 19(6)…

Sexual Offences Act 2003 section 75 creates an evidential, not conclusive, presumption concerning consent and reasonable belief in consent. A trial judge need…

Under section 44 of the Mental Capacity Act 2005, deficient care alone does not establish wilful neglect. The offence is sufficiently certain, although…

In sentencing for manslaughter by gross medical negligence, the court must make an individual assessment of culpability. The Criminal Justice Act 2003 requires…

Section 51 A of the Firearms Act 1968 requires a minimum five-year sentence for an adult convicted of possessing a prohibited firearm, unless exceptional…

A restraining order under section 5A of the Protection from Harassment Act 1997 must protect an identified person or identifiable group. Protection of the…

Untested hearsay from a witness said to be fearful is admissible under section 116(2)(e) only where the court is satisfied to the criminal standard that fear…

In a complex criminal trial, disclosure will not justify a stay unless any failure is materially capable of undermining the prosecution or assisting the…

The court granted leave for the applicant’s case to proceed to a full hearing. It made no determination of the substantive issue. The court directed that the…

For conviction of possession of an imitation firearm in a joint-enterprise robbery, the prosecution must prove both participation in the robbery and knowledge…

A Brown direction is required only where the prosecution advances genuinely alternative bases for guilt and there is a real risk that jurors may reach a…

Where a magistrates' court commits an offender to the Crown Court for breach of a Crown Court suspended sentence under Schedule 12, and also commits associated…

A receiver appointed under Proceeds of Crime Act 2002 will ordinarily have a lien for proper remuneration and expenses over property validly placed in the…

A conviction following a guilty plea may be quashed where the plea resulted from incorrect legal advice and an available statutory defence had sufficient…

A whole life order under Schedule 21 to the Criminal Justice Act 2003 is compatible with Article 3 of the European Convention of Human Rights where it is…

A Crown Court has no power under the statutory protection afforded to complainants in sexual offence cases to prohibit publication of a convicted defendant’s…

For fraud by false representation under section 2 of the Fraud Act 2006, it is insufficient that the defendant generally intended to make a gain or cause loss.…

Where unexpected evidence introduced during a criminal trial may suggest a defendant’s propensity, the court must safeguard fairness. The defendant must have a…

Once a Crown Court has made an unqualified order that a hearing is a preparatory hearing under Criminal Procedure and Investigations Act 1996, it cannot revoke…

A driving disqualification for causing death by careless driving is primarily a forward-looking measure to protect the public from the risk posed by the…

Where evidence or cross-examination concerning a complainant’s sexual behaviour raises a relevant issue other than consent, including an alleged motive to…

An applicant for a search warrant on an ex parte basis owes a duty of full and frank disclosure. The duty is not exhausted by demonstrating the statutory…

For a planned, violent, night-time robbery of a vulnerable householder by a group using weapons and intending to obtain firearms, the post-trial sentence must…

A confiscation order must reflect the defendant’s actual beneficial interest in property. Legal title alone does not permit the whole beneficial ownership to…

For unlawful-act manslaughter, the objective test of dangerousness requires a risk of some physical harm. It does not require the defendant to foresee harm, or…

Intoxication may remove inhibitions without removing a person’s capacity to choose. Consent depends on whether the person had freedom and capacity to make a…

Before the abolition of the historic irrebuttable common-law presumption, a boy under 14 was incapable in law of committing rape. A conviction for rape…

A failure by police or prosecutors to preserve material concerning an initial identification does not automatically require a stay for abuse of process. Where…

A jury’s verdict has constitutional primacy. An appellate court cannot quash a conviction merely because it has a subjective concern about the result. The…

A summing up must be assessed as a whole and in context. An isolated misstatement about eyewitness descriptions will not render a conviction unsafe where the…

A defendant must be sentenced for the offence of which he has been convicted, on a factual basis consistent with any plea accepted by the prosecution. Where a…

Evidence capable of showing a defendant’s familiarity with firearms may be admitted where it is relevant to an important matter in issue. A judge must exclude…

For a dangerous offender convicted of a specified violent offence, the court must impose the least onerous sentence that adequately protects the public from…

Fresh evidence which the appellate court finds incapable of belief and the product of collusion cannot be admitted in the interests of justice under Criminal…

In a cross-admissibility case, one complainant’s account may support another’s only if the jury concludes that the accounts are genuinely independent.…

Section 1(5) of the Firearms Act 1982 imposes a legal, rather than merely evidential, burden on an accused to establish on the balance of probabilities that he…

Where goods have become waste because their original owner discarded them, whether a later holder has changed that status is an objective question of fact. The…

Sentencing for supplying articles for use in fraud requires the court to consider the applicable guideline range before mitigation and before selecting the…

Under Schedule 21 to the Criminal Justice Act 2003, the specified categories of murder are examples, not closed classes. The sentencing court must assess the…

Where alleged sexual offending in adulthood follows prolonged childhood sexual abuse, the earlier abuse and the defendant’s continuing domination and control…

Before fixing a fine, the court must enquire into the offender’s financial circumstances and take account of those known or apparent to it. A fair enquiry may…

On an application to adduce bad-character evidence, the trial judge must conduct a fair balancing exercise. The court must consider the evidence's probative…

A defendant of effective good character should ordinarily receive a modified direction on both credibility and propensity. A judge may withhold such a…

Where a Court Martial Board reaches a factual case materially different from that put by the parties, a conviction may be unsafe if the accused were not given…

Sentencing a defendant to imprisonment engages the article 8 family-life rights of both the defendant and affected family members, including dependent…

An attempted rape conviction requires proof both of an intention to commit rape, rather than a lesser sexual assault, and of conduct going beyond mere…

A sentence for child cruelty must be based on the particular offences admitted or proved. It cannot punish a defendant for a wider pattern of alleged abuse…

A trial judge may discharge an individual juror and continue with the remaining jury where that course preserves fairness and removes any real risk that the…

Untested hearsay which is sole or decisive evidence is not subject to an automatic exclusionary rule. Where it is admitted under the statutory code, the court…

An error in recording the statutory basis for a committal does not invalidate it. The court must identify the substantive decision which the magistrates…

For confiscation under the Proceeds of Crime Act 2002, property must have been obtained as a result of, or in the requisite connection with, the criminal…

A converted blank-firing pistol is not a firearm under section 57(1) of the Firearms Act 1968 where it has no capacity itself to discharge a shot, bullet or…

Ram-raiding is not governed mechanically by a single sentencing guideline. Its gravity depends on the form it takes, including whether it is an attack on…

An inadvertent failure to follow a procedural step does not automatically make later proceedings invalid. The decisive question is whether Parliament intended…

An appeal against conviction will fail where an alleged misdirection on duress could not realistically have affected the jury’s verdict. Where the jury…

Commercial cannabis production combined with possession with intent to supply may properly be sentenced as a Category 3 offence with a significant role where…

On a submission of no case to answer, the judge must apply the Galbraith test. Where guilt depends on an inference, the question is whether a reasonable jury…

Where a juror encounters potentially prejudicial material outside court, the trial judge must make an appropriate, focused investigation. The issue is whether…

Where a jury has been discharged, recalling eleven former jurors and selecting only a replacement juror amounts, strictly, to pre-selection and breaches the…

On a late application for leave to appeal against conviction, the decisive question is whether the conviction is unsafe. A conviction will not ordinarily be…

Where a witness remembers events but cannot articulate them because of embarrassment, a trial judge may use a written statement on matters not in dispute and…

A youth may be committed for trial on a grave crime under Magistrates' Courts Act 1980, section 24(1)(a). Where that occurs, section 24(1A)(b) also permits the…

The normal reduction for a guilty plea entered at the first reasonable opportunity is one third. What amounts to that opportunity depends on the facts…

An appellate court will not interfere with a sentence for possession of a prohibited firearm unless it was manifestly excessive or wrong in principle. The…

Evidence of uncharged conduct may be admitted under section 101(1)(d) of the Criminal Justice Act 2003 where it contributes to a pattern capable of identifying…

In a multi-count criminal trial, cross-admissibility identifies whether evidence on one count is relevant to another. Where that evidence is bad character…

Whether an offence is a specified offence for spousal compellability under section 80 of the Police and Criminal Evidence Act 1984 depends on the legal nature…

Hearsay remains second-hand evidence and is not to be admitted automatically under the Criminal Justice Act 2003. The judge must identify a statutory gateway…

A court that made a defendant’s costs order may reconsider the application where, at an ex parte hearing, the applicant’s solicitors failed to disclose…

Expert evidence which conveys an opinion on whether a complainant of sexual abuse is telling the truth is inadmissible. The credibility and reliability of the…

Where a prosecution for joint rape is put on the basis that each defendant participated physically, the jury should first decide whether each defendant…

A weapon does not fall within the definition of a firearm merely because, when combined with external equipment, it can be made to discharge a missile. The…

A prosecution is not rendered abusive merely because it follows an earlier guilty plea based on a limited account of the offender’s conduct. The court must…

Prosecutors and police must not evade disclosure duties by declining to investigate material that may undermine the prosecution or assist a defendant.…

A variation of a sexual offences prevention order made by the Crown Court is appealable in the Court of Appeal Criminal Division as an appeal against sentence.…

For a substantial importation of cocaine, a starting point of 14 years’ imprisonment or more may be justified. A defendant who did not admit involvement in…

Under section 116(5) of the Criminal Justice Act 2003, a party cannot rely on hearsay where that party caused the witness’s unavailability in order to prevent…

Where a recording has been properly adduced as an exhibit, jurors may examine it in their retiring room, provided they are warned not to manipulate it. That…

A trial judge may explain that a complainant’s withdrawal of allegations in a domestic relationship can have causes other than their falsity. The explanation…

Evidence which merely organises raw communications data into charts, maps and summaries, without expressing an opinion, is not expert opinion evidence. A juror…

A travel restriction order may be imposed only for an offence for which Criminal Justice Act and Police Act, section 33, confers that power. The court has no…

On an appeal involving fresh evidence, the Court of Appeal must evaluate that evidence in the context of the whole case and decide for itself whether the…

Photographic overlay evidence comparing actors of known height with a suspect filmed by a fixed CCTV camera may be admissible as a limited height comparison.…

An imprisonment for public protection sentence requires sufficient evidence of a significant risk that serious specified offending will recur. The gravity of…

A waiver of the right to legal advice at police interview is effective where it is voluntary, informed and unequivocal. The prosecution need not prove that the…

In confiscation proceedings, the assessment of criminal benefit and the assessment of assets available to meet an order are separate questions. Criminal…

Expert scientific evidence based on a recognised and reliable test is not inadmissible merely because the test is used in a new context or for a new purpose.…

Under the Assault Definitive Guideline, harm must be assessed in the context of the particular offence. An injury amounting to grievous bodily harm may still…

Where an accused’s condition at a police interview is materially unchanged from that which later supports a finding of unfitness to plead, the court cannot…

The Definitive Guideline on Drugs Offences must be applied sequentially and as a flexible sentencing framework. At step one, the court must assess culpability…

A detention and training order may be imposed on a 14-year-old only where the offender is properly characterised as a persistent offender. The expression is to…

A sentencing court must follow an applicable definitive guideline unless departure would be contrary to the interests of justice under section 125(1) of the…

A finding of dangerousness may properly rest on the overall evidence of a serious, planned offence against a vulnerable victim and the resulting reasonable…

Under section 225(1)(b) of the Criminal Justice Act 2003, as then in force, dangerousness required a significant risk that further specified offences would…

On a submission of no case to answer, a count may be left to the jury where the evidence is capable of supporting a properly directed jury’s inference of…

A conviction is not unsafe merely because prosecution material was disclosed late, or because an evidential irregularity occurred. The decisive question is…

A spontaneous accusation made while the maker is emotionally overpowered by the event may be admitted as res gestae under section 118(1) of the Criminal…

An employee’s corrupt agreement to perform his work dishonestly may be an act in relation to the employer’s affairs or business, even where the employer…

In an identification case, the judge must assess the quality of the evidence under the Turnbull approach. If it is poor, the case should be withdrawn unless…

Where an accused relies on an alibi, the jury must be directed that rejecting it does not itself establish guilt. The alibi and the prosecution’s proof that…

Acceptance of deposits may be carried on by way of business even where only a small number of large deposits is proved. Relevant evidence includes the…

Evidence of prior incidents alleged to have created the motive for the offence charged may be evidence which has to do with the alleged facts of that offence…

For rape of a child under 13, section 5 of the Sexual Offences Act 2003 makes consent and mistake as to age immaterial to criminal liability. In sentencing…

Under Criminal Justice and Immigration Act 2007, section 76, the need to use force is assessed by reference to the defendant’s honest belief, while the…

Where a conviction depends upon recognition evidence obtained in difficult conditions, the court must scrutinise whether the identifications were reliable…

A Football Banning Order ancillary to conviction requires both a relevant offence and reasonable grounds to believe that the order would help prevent violence…

Where properly joined counts concern allegations whose evidence is cross-admissible, severance under section 5(3) of the Indictments Act 1915 will be…

On a criminal appeal based on fresh evidence, the court must first decide whether the evidence is capable of belief and may afford a ground for allowing the…

Criminal liability for breach of an ancillary order depends on the order actually made by the judge. An erroneous court-office record cannot enlarge its terms.…

A sentencing court must follow relevant Sentencing Council guidelines under section 125(1) of the Coroners and Justice Act 2009, unless the particular case…

A court may rectify an evident statutory drafting error by adding, omitting or substituting words only where it is abundantly sure of the provision’s intended…

Article 4(3) of the Trade in Goods (Control) Order 2003 is not confined to acts preceding the initial conclusion of a contract. A contractual variation or…

Admission of a deceased witness’s statement under Criminal Justice Act 2003 section 116 does not end the fairness enquiry. Where untested hearsay is central to…

Under section 78 of the Police and Criminal Evidence Act 1984, a breach of the duty to take an arrested person to a police station as soon as practicable does…

Counts may be joined under Crim PR 14.2(3) where they have a common factual origin. The facts need not be identical or contemporaneous, but a slight or tenuous…

Purported fresh evidence should not be received unless the applicant provides satisfactory testamentary proof from those involved in obtaining evidence said to…

A prosecution appeal against a terminating ruling under section 58 of the Criminal Justice Act 2003 is competent only if the prosecution acts immediately. It…

Full credit for a guilty plea is reserved for a plea entered at the first available opportunity. Where an offender could have indicated a plea to the principal…

A stay of an indictment for abuse of process because of delay is exceptional. It requires the defendant to show that delay has caused prejudice which makes a…

For a determination under section 4A(2) of the Criminal Procedure (Insanity) Act 1964, the statutory act is identified by construing the particular offence.…

A criminal court may make a compensation order only where there is reliable evidence of the injury, loss or damage suffered by the proposed recipient. The…

Statutory confiscation assumptions may be applied despite specific allegations of uncharged criminal conduct. Those allegations do not constitute a new…

Sentencing for offences under the Computer Misuse Act 1990 requires a balanced assessment of planning, persistence, actual and potential harm, remediation…

Section 35 of the Tax Credits Act 2002 requires proof that the defendant was knowingly concerned in fraudulent activity undertaken with a view to obtaining…

A sentencing guideline operates prospectively where it expressly applies to offenders sentenced on or after a stated commencement date. A sentence that was…

A trial judge may continue with all 12 jurors despite a juror’s personal anxiety, provided the judge reasonably concludes that the juror can still deliberate…

An advocate’s statement on a Plea and Case Management Form may be admissible in principle as an admission made by the defendant’s agent. The defendant may…

On a submission of no case, the question is whether there is evidence on which a properly directed jury could convict. The judge must not substitute an…

In a sentence appeal, apparent disparity with sentences imposed on co-offenders does not establish error unless the necessary disparity test is met. The court…

A holding company may be a trader under the Consumer Protection from Unfair Trading Regulations 2008 even though it is not itself a trading company. The…

Criminal Appeal Act 1968, section 7 restricts the offences for which an accused may be retried after a conviction is quashed. It prevents the replacement of a…

Under Criminal Justice Act 2003, section 120(3) does not admit a witness’s prior written statement for its truth where the document fails to refresh the…

A conviction for fraud by false representation cannot stand where the representations alleged in the indictment, and left to the jury as false, are true on…

A truthful complainant who deliberately makes false retractions which frustrate the prosecution of a serious crime may commit perverting the course of public…

For an offence under section 8(b) of the Misuse of Drugs Act 1971, the prosecution must prove that the prohibited activity, namely the supply of a controlled…

For section 25(2) of the Immigration Act 1971, an immigration law is a law which determines whether a non-national is lawfully or unlawfully entering…

A trial judge may properly control expert evidence, require a witness to answer the question asked, exclude speculation and prevent evidence outside the…

Under the Proceeds of Crime Act 2002, a defendant who jointly obtains criminal benefit obtains the whole benefit in law. Where the statutory conditions are…

After an appeal against conviction has been allowed, a retrial must be sought before the order quashing the conviction becomes final and is recorded by the…

For confiscation purposes, property obtained merely as a necessary cost or mechanism of committing an offence is not thereby obtained in connection with the…

In sentencing for a conspiracy to defraud, the court must assess both the overall gravity of the conspiracy and each offender’s individual role. Sentencing…

An intermediary may improve communication at trial, but its unavailability does not automatically make a trial unfair or require a stay. The use of an…

Sentencing guidance for statutory fraud is capable of applying to a continuing conspiracy involving repeated transactions and the deliberate targeting of…

Section 22A(1)(b) of the Road Traffic Act 1988 is not confined to interference with a vehicle before it is driven, to external acts, or to acts that physically…

For the retrial provisions in Criminal Justice Act 2003, evidence is new if it was not adduced in the proceedings resulting in the acquittal. Mere availability…

Where Child Abduction Act 1984 section 1 criminalises the unauthorised removal of a child from England and Wales, the statutory child-protection scheme…

Whether a person must be cautioned under Code C depends on objective reasonable grounds for suspecting that person of an offence. It does not depend solely on…

Voluntary acute intoxication, whether from alcohol or another voluntarily taken substance, cannot found the partial defence of diminished responsibility. The…

Section 1 of the Terrorism Act 2000 applies according to its broad terms. An attack by insurgents on a government’s or coalition’s armed forces during a…

On a submission of no case to answer, the judge must stop the case only where the prosecution evidence, taken at its highest, could not properly support a…

Article 26 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 does not create immunity from prosecution or a jury defence…

Evidence is not important explanatory evidence merely because it completes the narrative, explains subsequent events, or might answer a jury’s questions about…

A legal representative who opposes hearsay evidence must comply with the procedural requirement to state the grounds of objection. Client instructions and…

Under section 23 of the Criminal Appeal Act 1968, the decisive question on an application to adduce fresh expert evidence is whether receiving it is necessary…

In sentencing reckless manslaughter committed by driving on after a road collision, the court must assess culpability for the continuing conduct. A faultless…

When sentencing for manslaughter by provocation, a court considering the dangerous-offender regime under section 225 of the Criminal Justice Act 2003 must…

For murder sentencing under Criminal Justice Act 2003 Schedule 21, the premeditation inherent in paragraph 5A does not exhaust a significant degree of planning…

Transmission of electronic data to one person can amount to publication under the Obscene Publications Act 1959. The statutory concept of publication does not…

The common-law offence of keeping a disorderly house must remain within its established limits. Sexual services must be available to the public and provided in…

For imprisonment for public protection, the assessment under section 225(1)(b) of the Criminal Justice Act 2003 is predictive and must be made at the…

In sentencing an offender for a firearms offence, the court should assess the weapon and ammunition, any use of it, the offender’s intended use and the…

A sentence for possessing a disguised firearm which attracts the statutory minimum under Firearms Act 1968 should not be reduced to the sentence that might…

Section 69 of the Army Act 1955 requires proof of conduct, objectively prejudicial to both good order and military discipline, and basic mens rea. It does not…

A contempt arising from breach of a restraint order made under Proceeds of Crime Act 2002, s 41, is a civil, not criminal, contempt. Classification depends on…

A conviction is not unsafe merely because a discharged juror has raised concerns connected with the defendant’s community, where the remaining jurors had…

Where a defendant has no previous convictions for sexual offences but has admitted other misconduct, the proper course will ordinarily be to give a qualified…

Where a prosecution depends fundamentally on expert medical evidence in an area of acknowledged scientific uncertainty, the summing-up must make clear that the…

Expert evidence should ordinarily be called at trial. An appellate court will not permit a party to re-litigate expert evidence merely by obtaining a later…

A trial judge may direct that jurors receive defence statements only where the statutory condition is met and must exercise the resulting discretion…

Historic offences must be sentenced under the legislative provisions and relevant guidelines in force when sentence is passed, subject to the maximum penalty…

An acquittal of an alleged co-conspirator does not generally prevent the Crown from alleging, in a later trial of another defendant, that the acquitted person…

The defence of good reason under section 139(4) of the Criminal Justice Act 1988 is ordinarily a question of fact for the jury. The phrase has its ordinary…

A conviction is not unsafe merely because material concerning a prosecution witness’s informant status and expected advantage was not disclosed. The appellate…

A prosecutor may call a witness whose evidence is capable of belief in part, even where other aspects may be unreliable. Fairness is ordinarily secured by…

Whether material compelled under a restraint order requires disclosure in a criminal trial must be assessed against the issues actually raised, the evidence…

In sentencing for a sophisticated MTIC carousel fraud, the usual and most reliable starting point is the total identifiable VAT reclaims made or intended…

The partial defence of loss of control under sections 54 and 55 of the Coroners and Justice Act 2009 is self-contained. Each statutory component must be…

In an appeal against sentence for cheating the public revenue, the scale of the unrecoverable loss to the Revenue may carry decisive weight. A substantial…

A plea of autrefois convict is confined to a later charge alleging the same offence in fact and law. It does not extend to a different offence founded on…