Court of Appeal (Criminal Division) judgments, 2016

An offender who offers a guilty plea at the earliest opportunity should receive the full one-third reduction where there is no proper basis to withhold it. The…

In unlawful act manslaughter, sentence must reflect both culpability and harm. Culpability includes the harm intended and the extent to which the fatal harm…

In a non-disclosure appeal, the court must first decide whether the withheld material ought to have been disclosed. If it should, the court must then decide…

In a case depending wholly or substantially on identification or recognition evidence, the jury must receive a direction that exposes them to the full force of…

A charge of low-value shoplifting remains triable only summarily unless the accused elects Crown Court trial under section 22A of the Magistrates' Courts Act…

A defendant who is fit to stand trial may dismiss legal representatives and conduct the defence personally. Mental illness does not, without a proper factual…

On an application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, the court must assess its credibility, its potential to found an…

A defence costs order may be revoked where unchallenged evidence establishes that, had the court known the true facts concerning the costs claim, it would not…

For causing death by dangerous driving, the level 1 sentencing category applies where a driver deliberately ignores safety rules and thereby shows flagrant…

A prosecution costs order under section 18(1) of the Prosecution of Offences Act 1985 must be just and reasonable. It should compensate only costs actually and…

Hearsay from an absent witness is not inadmissible merely because the witness has given materially inconsistent accounts. Admissibility depends on the…

Whether an offender has benefited for confiscation purposes depends on the proper construction of the statute creating the offence and on identifying the…

A criminal behaviour order under section 22 of the Anti-Social Behaviour, Crime and Policing Act 2014 requires proof beyond reasonable doubt of conduct…

Under Misuse of Drugs Act 1971, section 28(2) must be read as imposing an evidential, rather than legal, burden on an accused who asserts lack of knowledge or…

Where fresh psychiatric evidence establishes that, at sentence, an offender had a treatable mental disorder which materially contributed to the offending, the…

When sentencing a child for grave violence, the court must give proper effect to the offender’s age, exceptional immaturity, learning difficulties, impaired…

A person convicted of bringing contraband into a prison will ordinarily receive an immediate custodial sentence. Sentence must reflect the nature of the items…

On an appeal based on alleged non-disclosure, the decisive question is whether the additional material causes the appellate court to doubt the safety of the…

Under section 40(7)(a) of the Proceeds of Crime Act 2002, undue delay in continuing criminal proceedings is a freestanding bar to a restraint order. It is not…

Fitness to participate in criminal proceedings must be assessed in the context of the particular trial and the demands it makes on the defendant. Where the…

Sentencing guidance for preparation of terrorist acts under Terrorism Act 2006 remains applicable according to its typical levels and should not be applied by…

In gross-negligence manslaughter, causation is proved where the jury is sure that the defendant’s gross negligence caused the deceased to die significantly…

Whether social-media messages amount to other reprehensible behaviour is a fact-specific question. Messages which, in their context, are capable of being read…

Whether an adverse-inference direction is undesirable under section 35(1)(b) of the Criminal Justice and Public Order Act 1994 depends on whether the…

A threat conveyed indirectly may found a defence of duress. The manner of communication is an important evidential circumstance, but not a categorical bar.…

For child-abduction offences under the Child Abduction Act 1984, seriousness should be assessed by reference to culpability and harm. Sentences should normally…

On an appeal against conviction, the governing question in England and Wales is whether the relevant material causes the Court of Appeal to doubt the safety of…

On an appeal under section 2 of the Criminal Appeal Act 1968, the ultimate question is whether the conviction is unsafe. The appellate court must make that…

A prior conviction admitted under section 74(3) of the Police and Criminal Evidence Act 1984 establishes that the accused committed the earlier offence unless…

Where a court imposes imprisonment and a disqualification for the same driving offences, Road Traffic Offenders Act 1988 section 35A requires both a…

An article is an offensive weapon under section 1(4) only if it was made or adapted for causing personal injury, or was intended by the person possessing it to…

In gross negligence manslaughter, the jury must decide whether a breach of duty was gross and criminal. Expert medical evidence may assist on the expected…

For unlawful act manslaughter, sentence must reflect both culpability and the harm caused or foreseeably risked. Where a planned group attack involves knives…

Where serious sexual offences involve planned repeat offending, separate vulnerable victims and severe, lasting psychological harm, the overall seriousness may…

Hearsay from a deceased witness may properly be admitted under Criminal Justice Act 2003, section 116(2)(a), where it is relevant and the jury receive clear…

A witness may be treated as hostile under section 3 of the Criminal Procedure Act 1865 following a fact-sensitive assessment. Relevant matters include the…

Hearsay evidence under section 116 of the Criminal Justice Act 2003 is admissible only when the statutory condition of witness unavailability is established.…

Section 36 of the Malicious Damage Act 1861 creates an offence of basic intent. It is enough to prove that a defendant deliberately committed an unlawful act…

Fresh evidence will not justify an appeal against conviction unless it satisfies the statutory considerations in section 23 of the Criminal Appeal Act 1968.…

A fixed penalty notice is neither a conviction nor an admission or proof of criminal conduct. Unless evidence of the underlying facts is properly adduced, it…

Homicide Act 1957 section 2(2) validly places on a defendant the legal burden, to the civil standard, of proving diminished responsibility. The amendment to…

Time spent subject to an electronically monitored curfew must be credited against sentence under section 240 A of the Criminal Justice Act 2003 where its…

A guilty plea entered after informed advice and time for reflection will not be treated as involuntary merely because the defendant faced a difficult choice…

In a circumstantial case, a judge considering a submission of no case to answer must ask whether a properly directed jury could convict on the prosecution…

For an offence under section 58(1)(b) of the Terrorism Act 2000, the Crown must prove that the information was designed, by its nature, to provide practical…

Voluntary acute intoxication from alcohol or drugs cannot, of itself, found the partial defence of diminished responsibility under section 2 of the Homicide…

Under section 92(1) of the Trade Marks Act 1994, the requirements of acting for gain or to cause loss, and without the proprietor’s consent, apply…

A pre- [2016] UKSC 8 direction which treated foresight as sufficient for secondary liability does not, without more, render a conviction unsafe. Foresight…

In a media case involving alleged misconduct in public office, a jury must receive directions tailored to the factual context when deciding whether the…

An appellate court will not interfere with a sentence where the judge had an evidential basis for the assessed culpability and risk of harm, properly treated a…

A conviction is not unsafe merely because withheld material might have affected the jury’s decision. The Court of Appeal must decide for itself whether the…

Police do not circumvent the production-order regime in the Police and Criminal Evidence Act 1978 by accepting genuinely voluntary disclosure of journalistic…

Separate counts may properly be left to a jury where each addresses distinct legal elements and neither count substantially exhausts the alleged criminality.…

Leave to cross-examine a complainant about previous sexual conduct under section 41(3)(c) requires more than evidence of past consensual sex. The conduct must…

For category 1 offences of wounding with intent, a sentencing court must reflect all aggravating features and the total criminality. It must nevertheless…

Where a Crown Court costs order was properly made at sentence, a defendant’s later alleged deterioration in financial circumstances should be addressed in the…

A financial reporting order is a sentence for the purposes of the Criminal Appeal Act 1968. Where the sentencing judge expressly, or by necessary implication…

Under Youth Justice and Criminal Evidence Act 1999, section 41, proposed cross-examination about consensual sexual activity after an alleged rape may properly…

An extended sentence requires a justified assessment that the offender poses a significant risk of serious personal harm or death. That assessment must be made…

Under section 78(1) of the Police and Criminal Evidence Act 1984, the court must consider both the circumstances in which prosecution evidence was obtained and…

A trial judge may admit prosecution rebuttal evidence arising from a late change in the defence case and may refuse an adjournment where the late development…

In sentencing aggravated burglary within category 1 of the definitive guideline, the court must assess the combined aggravating and mitigating features when…

Under the mutual-recognition scheme for overseas restraint orders, a challenge to the substantive reasons for the order, including an alleged breach of ne bis…

On a criminal conviction appeal, fresh evidence and undisclosed material bearing on a central prosecution witness’s credibility must be assessed cumulatively…

For stalking involving fear of violence under section 4A(1)(b)(i) of the Protection from Harassment Act 1997, the fear need not concern immediate violence…

A sentence for conspiracy to commit dwelling burglary cannot exceed the statutory maximum for dwelling burglary. A consecutive sentence for a separate robbery…

Credit for time spent in custody on remand is not automatically deducted from a murder minimum term under Criminal Justice Act 2003, section 240 ZA. Where the…

In sentencing for a drug-supply conspiracy, the definitive guideline applies to the conspiracy but must be adjusted to reflect an individual offender’s actual…

A sexual harm prevention order and each of its prohibitions must be necessary Restrictions on internet-capable devices may be necessary where the offending and…

Where the mandatory minimum sentence in section 51A of the Firearms Act 1968 applies, the court must impose the minimum term unless truly exceptional…

The Court of Appeal may reopen a concluded criminal appeal only in exceptional circumstances, and only where reopening is necessary to avert a real injustice.…

A trial judge should leave the partial defence of loss of control to the jury only where a rigorous evaluation identifies sufficient evidence on each statutory…

Historic sexual offences must be sentenced under the law and current sentencing practice at the date of sentence, while respecting the maximum penalty…

A conviction founded on an unambiguous and voluntary guilty plea is ordinarily safe. A later acquittal, even when based on fresh expert evidence, does not…

When the Crown Court sentences summary-only offences committed to it under Powers of Criminal Courts (Sentencing) Act 2000, it is subject to the sentencing…

For a disguised-firearm offence carrying a statutory five-year minimum term, the court must use the structured approach beginning with the four Avis questions…

A summary-only offence may be included in an indictment only where the statutory jurisdictional conditions are met. The fact that it arises from the same…

A party relying on hearsay under section 116 of the Criminal Justice Act 2003 must prove the statutory condition of admissibility to the criminal standard.…

A Lucas direction is required only where there is a real danger that a jury may treat a defendant’s lie as proof of guilt. The question depends on the…

Where a company’s directing mind and will is implicated, evidence of that individual’s acts, knowledge and state of mind is direct evidence against the company…

Questions about a complainant’s earlier opportunity to report an alleged sexual offence do not concern sexual behaviour merely because the earlier contact…

An appellate court will exceptionally interfere with a conviction following a guilty plea only where the defendant was deprived of a defence that would…

For confiscation purposes, whether a benefit derives from criminal conduct depends on the proper construction of the statute creating the offence. Regulatory…

Under the Police and Criminal Evidence Act 1984, evidence of a co-conspirator’s conviction or guilty plea may be admitted in a conspiracy trial where the real…

A dwelling-house burglary is triable only on indictment where a person in the dwelling is subjected to violence or a threat of violence during the burglary.…

For confiscation purposes, a company’s pecuniary advantage cannot ordinarily be treated as an individual defendant’s benefit merely because the defendant…

Child abduction by a parent remains a very serious offence where it separates a child from a loving parent for years. A substantial deterrent element may be…

Schedule 21 of the Criminal Justice Act 2003 supplies sentencing guidance, not a mechanical classification exercise. Its listed categories are ordinarily…

For offenders under 18, the statutory test for dangerousness remains whether there is a significant risk of serious harm. It is not replaced by a requirement…

A Single Judge may grant leave to appeal against sentence on specified grounds only, or in relation to a specified part of the sentence. Section 11(2) of the…

When sentencing for using a firearm with intent to resist or prevent lawful arrest, the court must assess the weapon’s type, its use, the offender’s intention…

Witness-anonymity directions must be treated as a measure of last resort and remain subject to review throughout the trial. A review is required if the factual…

Open justice is a fundamental common-law principle. A departure requires necessity, which may arise where publication would frustrate or render impracticable…

Fitness to plead is properly a question of fitness to participate in the whole trial process. It may arise at any stage before acquittal. A defendant’s…

Evidence of a complainant’s bad character is not admissible merely because it is relevant. Under Criminal Justice Act 2003, section 98, it must genuinely…

On a sentencing appeal, the Court of Appeal is a court of review. Fresh evidence is ordinarily admissible only where the interests of justice, assessed under…

A sustained cash-in-transit robbery conspiracy falls within the category of professionally planned commercial robbery where its scale, reconnaissance…

A charging decision made by a Crown prosecutor under the statutory charging procedure, after determining that the evidence justifies a charge and notifying the…

Section 10 of the Serious Crime Act 2015 applies to confiscation orders made after its commencement, irrespective of when the underlying offence was committed…

Evidence of a co-defendant’s propensity is prima facie admissible where it concerns an important issue between defendants, but it must have substantial…

A stay for abuse of process is exceptional. It requires either an impossibly unfair trial or conduct making a trial offensive to justice and propriety. A court…

An absent co-accused’s assertion, recorded in a defendant’s police interview, is not evidence against the defendant on conventional grounds. Unless it is…

In a fraud prosecution concerning a representation that a company had good title to land, expert evidence of foreign law is not required where the issue is…

Gross negligence manslaughter requires a reasonably foreseeable serious and obvious risk of death at the time of the breach. A need for urgent face-to-face…

A jury may find causation proved despite expert evidence expressed as a qualified medical opinion, where the whole of the evidence supports the conclusion…

Under Criminal Justice Act 2003, section 100(1)(b), proposed evidence of a complainant’s bad character must have substantial probative value on a matter of…

In confiscation proceedings, whether the reasonable-time guarantee in Convention for the Protection of Human Rights and Fundamental Freedoms article 6.1 is met…

Where the medical conditions for a hospital order are met, the choice between a penal sentence and a mental health disposal requires a full assessment of…

Evidence of gang affiliation is admissible under Criminal Justice Act 2003, section 101(1)(d), where its evidential context makes it relevant to an important…

For an offence under section 139(1) of the Criminal Justice Act 1988, having a bladed article with a person is narrower than possession but wider than…

An Attorney General’s reference should result in an increased sentence where the original term is significantly too low and therefore unduly lenient. The…

An offender who seeks sentence credit for assistance to the police has no right to require a detailed police response. The police must notify the sentencing…

A conviction is unsafe because of deficient advocacy only where the representative’s incompetence caused identifiable errors that made the trial unfair and the…

An animation which merely illustrates an expert’s opinion is not independent scientific evidence and cannot add support to that opinion. It may assist the jury…

Where the common-law presumption of doli incapax applies, the prosecution must prove beyond reasonable doubt both the offence and that the child knew the…

A co-defendant’s guilty plea may properly be put before a jury where its limited evidential value against another defendant is made clear. The admission of…

Where a jury asks to replay a video-recorded police interview in order to assess how the words were spoken, the normal expectation is that the recording will…

A sentencing court may dispense with a pre-sentence report when it has sufficient material to assess dangerousness and properly considers a report unnecessary…

A renewed and substantially out-of-time application for leave to appeal against conviction will be refused where the further grounds and material disclose no…

An offence under Terrorism Act 2006, section 5 is broad. It requires a specific intention to commit or assist acts of terrorism and conduct preparatory to…

Where the conditions in section 236A of the Criminal Justice Act 2003 are met and imprisonment is imposed, the court must impose the statutory composite…

On an appeal alleging deficient advocacy, the decisive question is whether the conviction is unsafe. Deficient representation alone does not suffice. The…

Under section 100 of the Criminal Justice Act 2003, the trial judge must assess the potential relevance and probative value of proposed non-defendant…

For the spousal exception to criminal conspiracy in section 2(2) of the Criminal Law Act 1977, a spouse is a husband, wife or civil partner in a marriage or…

A sentence imposed within the applicable guideline range will not be altered merely because it is severe, including where it is a first custodial sentence. The…

Whether an accused had a reasonable excuse for failing to attend trial is assessed on the whole of the evidence. Medical material based on self-reported…

A criminal behaviour order under Anti-social Behaviour Crime and Policing Act 2014 may be made without proof of a sustained course of conduct. The statutory…

In sentencing for a drug-supply conspiracy, a basis of plea which admits involvement over a stated period does not require the court to disregard the wider…

Sentencing guidelines for drug supply already reflect the collective social harm caused by drug dealing. A court should not enhance an individual sentence…

For secondary participation in a planned offence, foresight that another participant might commit a further crime is evidence from which intent may be…

A sentencing court may require a disqualified passenger to pass an extended driving test where the passenger’s participation in exceptionally dangerous…

A conviction is not unsafe merely because an indictment contains a clerical error in its statement of offence. The statement must accurately identify the…

A sentencing court must not order consecutive terms which exceed the applicable maximum sentencing power. Where consecutive orders produce an unlawful…

In an appeal alleging inconsistent jury verdicts, the question is whether the conviction is unsafe. The appellant must establish that the verdicts cannot stand…

A jury’s expression of uncertainty during deliberations does not, without more, make a subsequent unanimous verdict unsafe. Where the jury is correctly…

Where an accused has not given evidence, the trial judge must summarise the material defence contained in pre-trial statements and interviews, together with…

Where custody and driving disqualification are imposed for the same offence, section 35A of the Road Traffic Offenders Act 1988 requires a disqualification…

A purported abandonment of a criminal appeal is a nullity where it was lodged without the applicant’s authority and the applicant was unaware that it had been…

A conviction is not unsafe merely because the status of an overseas prosecutorial warning was not fully understood at trial. Where both parties have…

Evidence of a complainant’s sexual behaviour with third parties is not admissible merely because it may portray her as sexually active. However, specific…

A term referring pejoratively to Romany gypsies is capable of amounting to hostility based on membership, or presumed membership, of a racial group. Romany…

Evidence of gang association, gang violence and gun-related images may fall outside the bad-character regime where it is directly relevant to an alleged…

The jurisdiction of the criminal courts derives from Acts of the United Kingdom Parliament. The Extradition Act 2003 does not make the inclusion of prospective…

A renewed application to appeal a guilty-plea conviction will fail where the applicant provides no credible basis for saying that the plea rendered the…

An extended sentence is excessive where, on the available risk evidence, a substantial determinate custodial sentence will adequately protect the public and…

Where a witness is unfit because of a mental condition, a video-recorded statement may be admitted under the Criminal Justice Act 2003 if the statutory…

An item which has already been converted into a firearm within section 57(1) of the Firearms Act 1968 does not cease to be a firearm merely because a temporary…

Before cross-examining a complainant about an earlier allegation of sexual misconduct on the basis that it was false, the defence must show a proper evidential…

An allegation under section 63(1) of the Sexual Offences Act 2003 need not always identify one particular intended sexual offence. Where the evidence…

A co-accused’s conviction may be admitted under section 74 of the Police and Criminal Evidence Act 1984 where it is relevant to an issue. The provision should…

A youth offender’s age, immaturity and the serious impact of custody require a substantial reduction from an equivalent adult sentence. That reduction must…

A sentence for a historic sexual offence must be imposed under current sentencing legislation and by measured reference to current definitive guidelines, but…

An external-request restraint order requires the cumulative conditions in Article 7(2) of the Proceeds of Crime Act 2002 (External Requests and Orders) Order…

A circumstantial prosecution case may properly be left to a jury where cell-site material, associations, scientific evidence and post-offence conduct form a…

Where serious offending is unrelated to an offence for which the offender is already serving a sentence, a consecutive sentence may be appropriate. The…

For breach of a non-molestation order under the Family Law Act 1996, harassment is not established merely because conduct causes alarm or distress. The…

A reduction in sentence for a guilty plea is assessed by reference to the offender’s plea to the charges at the first reasonable opportunity. A sentencing…

A court considering confiscation in a defendant’s absence must decide whether it is fair to proceed in all the circumstances. Fairness may be established where…

A sentence may be varied or rescinded under section 155 only within the statutory 56-day period and by a court constituted as it was when the sentence was…

Where offending comprises a very large number of serious burglaries, a sentencing court may conclude that the normal guideline range is inadequate because…

The definitive guideline for drug offences applies to conspiracies to import or supply controlled drugs. Where an operation is on a very serious and commercial…

Section 12(1)(a) of the Terrorism Act 2000 prohibits a knowing invitation of support from others for a proscribed organisation. “Support” bears its ordinary…

In sentencing for causing or allowing a child to suffer serious physical harm under section 5 of the Domestic Violence, Crime and Victims Act 2004, assault…

The Court of Appeal is a court of review. It reviews whether a sentence was wrong in principle or manifestly excessive on the material available at sentencing…

An omission from a conventional direction under Criminal Justice and Public Order Act 1994, section 34, does not make a conviction unsafe if the summing-up…

A trial judge is not required to initiate an enquiry into a possible contempt by a witness where the information available does not disclose a prima facie…

An apparently regular unanimous jury verdict should be respected. Enquiries into private jury deliberations are permissible only in the most exceptional…

A sentencing guideline which expressly takes effect from a stated date does not affect sentencing practice before that date. It should not be used to assess an…

A defect in an indictment is not cured as a technical error where it identifies the wrong statutory offence and alleges the wrong conduct. The count is…

A defendant may be a party to a conspiracy despite not attending the scene of the substantive offence. The question is whether the evidence, assessed…

A decision whether to suspend a custodial sentence is for the sentencing judge, and an appellate court will interfere only where the decision is clearly wrong…

For post-conviction confiscation under the Proceeds of Crime Act 2002, a conspirator may have obtained drugs without purchasing them where the evidence shows…

An unambiguous and deliberate guilty plea will ordinarily prevent a successful appeal against conviction. A conviction may nevertheless be quashed where the…

In a sentence appeal for stalking involving serious alarm and distress, mental health may reduce culpability where the offender is willing to undergo treatment…

For organised supply of firearms and lethal ammunition, a sentencing court must expressly consider a life sentence. If it imposes a determinate sentence, it…

Fresh material concerning misconduct by police officers in other investigations does not itself make a conviction unsafe. The appellate court must decide…

A failure to ensure that critical equipment is registered, inspected and maintained may properly be categorised as negligent where reasonable inspection could…

For the purposes of section 63 of the Criminal Justice and Immigration Act 2008, whether an image is pornographic depends on the purpose reasonably inferred…

Recognition evidence from CCTV stills is admissible where the images and the circumstances of recognition allow a jury properly to assess its reliability.…

For sentencing a commercial burglary under the applicable guideline, the court must assess both the harm actually caused and the harm intended. The fact that…

Where a defendant has pleaded guilty to an immigration or identity-document offence, a conviction will be unsafe for want of advice about a statutory defence…

In confiscation proceedings, a company’s turnover and assets cannot be treated as property obtained or held by an individual defendant merely because the…

Fitness to plead under the Criminal Procedure (Insanity) Act 1964 remains governed by the Pritchard criteria. The assessment must, however, be practical and…

Section 126 of the Criminal Justice Act 2003 permits exclusion of prima facie admissible hearsay where its limited evidential value is substantially outweighed…

A life sentence for a dangerous offender remains a sentence of last resort. In deciding whether it is justified, the court must assess the seriousness of the…

Where the prosecution case depends on visual identification, the jury must receive an especially careful and fact-specific direction about the risk of mistake.…

Publicly accessible social-media comments linked to reporting of an active criminal trial may create a substantial risk of serious prejudice, even where the…

A court may depart from open justice in a national-security criminal case only where the departure is strictly necessary for justice to be done. The court must…

Fresh psychiatric evidence may establish that a serious psychotic disorder was present but unrecognised when an imprisonment for public protection sentence was…

In a criminal-lifestyle case, a tainted gift must be included in the available amount at the value prescribed by the Proceeds of Crime Act 2002. The absence of…

Evidence of prior conduct falls within section 98(a) of the Criminal Justice Act 2003 where it has a broad and substantive connection with the alleged offence…

A criminal trial may continue where a defendant is absent or unable to participate because of voluntary, self-induced intoxication. The judge must exercise the…

For Proceeds of Crime Act 2002 purposes, illicit drugs are criminal property because their manufacture, trafficking and supply necessarily involve a benefit…

In sentencing a young offender for serious, pre-planned violent disorder, the court may find that immediate detention is necessary where the offender was a…

Section 2(2) of the Criminal Law Act 1977 gives conspiracy immunity only to a person who is formally married to, or in a civil partnership with, the other…

Under Criminal Justice Act 2003 section 100(1)(b), a non-defendant’s bad character is admissible only if it has substantial probative value concerning a matter…

Where the Criminal Justice Act 2003 supplies a statutory code for bad-character evidence, admissibility must be determined solely under that code. Earlier…

Under section 46 of the Criminal Justice Act 2003, jury tampering must be proved to the criminal standard. Proof that the defendant instigated, knew of, or…

Before the 2001 amendments, section 1 of the Prevention of Corruption Act 1906 already applied to corruption involving an agent of a foreign principal or…

An ordinary article is an offensive weapon under section 1 of the Prevention of Crime Act 1953 only if it is carried with an intention to cause injury. The…