CRIME INSIDE. by Christopher Donnellan QC, head of the Criminal Team. by Adrienne Lucking. NEWSLETTER Spring 2008 EDITORIAL

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1 CRIME NEWSLETTER Spring 2008 EDITORIAL by Christopher Donnellan QC, head of the Criminal Team No peace for the wicked: if they have money, it will be confiscated; if they don t turn up for trial, it will start without them; if they are children, they are presumed to have adult capacity for criminal responsibility; if they care for those suffering from lack of capacity, neglecting them now attracts criminal responsibility. This last topic is brought to our attention by Adrienne Lucking, who we welcome to our Criminal Team having joined from Chambers in Leicester. We also welcome Steve Evans who also joined us at the beginning of this year from Chambers in Northampton. We are pleased to announce that in the Autumn the Criminal Team and Civil Practice Groups at are presenting CPD training in association with the Open University, with contributions from M-Scan Ltd and a Detective INSIDE Recent developments in the law 3 on Confiscation Jonathan Spicer Doli incapax alive, well and 4 capable, or crying for its mother? Felicity Gerry I am not coming out of my cell 5 Kate Grieve Corporate Homicide and 6 Personal Injury Seminar Inspector from BTP on the legislative and practical consequences of The Corporate Manslaughter and Corporate Homicide Act More information is to be found on the back of this Newsletter. We look forward to seeing you there. THE MENTAL CAPACITY ACT 2005 Wilful neglect of the incapable by Adrienne Lucking We read and hear frequently in the media that we are faced with an ageing population. As the population increases in age, it seems likely that there will be a growing sector in the population of those who lack mental capacity by reason of age-related conditions. Lack of mental capacity is not, of course, restricted to those with age-related conditions. On the 7th of April 2007, the Mental Capacity Act 2005 received Royal Assent with wide ranging implications for medical professionals, donees of powers of attorney and carers of those who lack capacity to make decisions for themselves. A new Court of Superior Record is created, namely The Court of Protection which is identical in name to its predecessor in jurisdiction. Section 44 of the Act is of special interest to criminal lawyers in that it creates a new offence. However, it cannot be looked at in isolation without a clear understanding of the remainder of the Act. The section may be relatively short but it generates substantial room for academic debate and practical difficulties both in prosecuting and defending offences under this section. This article is a broad overview of the new offence. The principles of the Act. The principles underpinning the Act are set out at s.1. A person must be assumed to have mental capacity unless it is established on the balance of probabilities that he lacks capacity. Even if a person makes an unwise decision, making such a decision does not, by itself, mean that a person should be treated as unable to make a decision. Any act done or decision made for, or on behalf of, a person lacking capacity must be done or made in his best interests. Finally, before any act is done or decision is made for, or on behalf of, any person lacking capacity, regard must be had to whether the same effect can be achieved in a way that is less restrictive of a person s rights or freedom of action. The s.1 principles will be a useful filter for the jury in analysing the state of mind and conduct, be they acts or omissions, of a person charged under s.44. Throughout the Act, persons lacking capacity are generally referred to as P whilst those with a duty towards them under the Act are described as D. What is the nature of the offence created by s.44? The new offence created by s.44(2) is of ill-treatment or wilful neglect of a person lacking mental capacity. The terms ill-treats and neglects are concepts that criminal lawyers are very familiar with, in that they echo the terms of the offence of cruelty to a person under 16 contrary to s.1 of the Children and Young Persons Act However, unlike offences under the 1933 Act, there are only two ways of committing the offence, namely ill-treatment and wilful neglect: there is no exposure. Another very significant difference is the state of mind required for ill-treatment. Whilst neglect must be wilful, ill-treatment need not be; the word wilful only precedes neglect. Parliament therefore must have intended that there should be a difference of mens rea in respect of the two ways in which the offence can be committed. The leading case as to Mrs Frances Oldham QC Miss Gillian Temple-Bone Mr Brian Escott-Cox QC Mr Martin Beddoe Mr Franz Muller QC Miss Charlotte Friedman Mr Rex Tedd QC Miss Mercy Akman Mr David Farrell QC Miss Jacqueline Matthews-Stroud Mr Jeremy Richardson QC Miss Joanne Ecob Mr Richard Wilson QC Mr Robert Underwood Mr William Harbage QC Mr Benjamin Gumpert Miss Lynn Tayton QC Mr Amjad Malik Mr Christopher Donnellan QC Mr Andrew Urquhart Mr David Altaras Mr David Lee Mr Jamie De Burgos Mr Michael Fowler Mr Allan (Sam) Mainds Mr Charles Lewis Miss Catherine Gargan Mr Peter Dean Mr Richard O Dair Mr Gregory Pryce Mr Andrew Howarth Miss Patricia Cave Miss Adrienne Lucking Miss Amanda Johnson Mr John Gibson Mr Matthew Lowe Miss Sarah Gaunt Mr Stuart Alford Miss Rosa Dean Mr John Lloyd-Jones Miss Felicity Gerry Mr Christopher Jacobs Mr Mark O Connor Miss Hari Kaur Mr Andrzej Bojarski Mr Declan O Callaghan Mr Jonathan Spicer Mr Jonathan Kirk Mr William Tyler Mr Rupert Skilbeck Mr Philip Nathan Mr Oliver Connolly Mr Steven Evans Mr Jonathon Rushton Mr Kevin Barry Mr Nick Blake Miss Hannah Markham Miss Rebecca Crane Mr Martin Knight Miss Catarina Sjölin Mr Simon Ash Mrs Penelope Wood Mr Martin Kingerley Miss Katya Saudek Mr Adam Pearson Miss Allison Summers Miss Miriam Carrion Benitez Mr Daniel McDowell Mr Daniel Leader Miss Nadia Silver Mr Christopher Carr Mr Cameron Crowe Miss Kate Tompkins Miss Joanna O Connell Miss Claire Howell Miss Kathryn Howarth Miss Victoria Lorne David Green Senior Clerk Harri Gibson Senior Criminal Clerk Rachel Shepherd Hayley Jones Joanna Booker member of the Criminal Team London WC1R 4JH dx: 360 LDE tel: +44 (0) fax: +44 (0)

2 CRIME NEWSLETTER Spring 2008 Wilful neglect of the incapable (continued) the meaning of wilfully is R v Sheppard [1981] AC 394 HL. Accordingly, wilful neglect must mean that D must neglect P and at the time his state of mind must be that D deliberately neglects P or does an act or omission not caring whether such act or omission amounts to neglect. Ill-treatment need not be wilful and so it seems that it provided a jury is satisfied that P has been ill-treated by D it is sufficient to find a conviction. In reality it is difficult to envisage a factual scenario where ill-treatment as opposed to neglect does not involve some deliberate or reckless abuse or cruelty. Until this difference has been tested before the Court of Appeal there is scope for argument about the deliberate absence of the word wilful in respect of ill-treatment. It should also be noted that unlike the 1933 Act offence in relation to persons under 16, there is no requirement that the ill-treatment or wilful neglect should be conducted in such a manner as to cause unnecessary suffering or injury to health. It is quite possible therefore that neglect in particular may take on a wider meaning than that under the Children and Young Persons Act Those with a lasting power of attorney may be at risk of prosecution because they have authority to make decisions about P s personal welfare as well as their property. There is no definition of ill-treats or neglects within the Act itself and so ordinary everyday meaning of these words provides the definition, as with the 1933 Act offence. However, as clinical practice develops and technology advances there will be new factual and technical scenarios for juries to apply their minds to. The Act applies to such a wide group of people having care and responsibility for those lacking capacity that the discharge of their duties may encompass technical nursing care, drug prescription and administration, together with any other therapeutic process. If such care or treatment is not carried out at all or as directed those omissions or acts may amount to wilful neglect or ill-treatment. In deciding cases where carers or medical staff are D, the jury may well have to consider competing medical expert evidence. It is not difficult to foresee some problematic factual scenarios, particularly where the indicted act or omission involves an inherently painful therapy. Who is protected by S. 44? There are two groups of people identified by s.44(1)(a) in respect of whom an offence under s.44 may be committed. They are people who lack capacity ( P ) and those whom the defendant reasonably believes to lack capacity. There is nothing in the explanatory notes to the Act which explains the distinction between the two groups. It may be that the second group envisages a situation in which a defendant has been responsible for a person whom they have been led to believe lacks capacity but in fact may subsequently be proved to have had capacity at the time of the offence. It will therefore be necessary for the prosecution to obtain evidence to show that the person concerned lacked capacity under the terms of the Act or alternatively evidence to show that whilst P in fact had capacity, the defendant reasonably believed that P lacked capacity. In defending such allegations the defendant will have a defence if they can demonstrate that the Prosecution has failed to prove that P lacked capacity. Further, in the event that P in fact had capacity, it may be a defence to show that they cannot have reasonably believed that P lacked capacity. People who lack capacity The question of whether a person lacks capacity is not determined by reference to a general inability to make decisions. Under this Act, a person may lack the capacity to make a decision about one aspect of their life but may have capacity to make decisions in respect of others. A person may have capacity one day and yet not have it another. A person lacks mental capacity in relation to a matter if at the material time they are unable to make a decision because of an impairment of, or a disturbance in the functioning of the mind or brain. The impairment or disturbance may be temporary or permanent. Whether a person lacks mental capacity is to be decided on the balance of probabilities. The determination cannot be made simply by reference to a person s apparent condition, age or appearance. There cannot therefore be a general assumption that people suffering from, for example, one specific neurological disease affecting the brain, all lack capacity. The test is individual and time specific. Section 3 defines the inability to make decisions. A person is unable to make a decision for themself if they are unable to understand the information relevant to the decision, unable to retain it even if only for a short period, unable to use or weigh it, or unable to communicate that decision. Information relevant to a decision includes information relating to the foreseeable consequences of not making a decision or of deciding one way or another. A person cannot be regarded as unable to understand information relevant to a decision if they are able to understand it when it is communicated in a way relative to their challenge. Accordingly, it may be necessary to communicate by means such as simple language or visual aids. The communication of the decision can be by any means. In practice it seems likely that for the purposes of criminal proceedings juries will need evidence from experts to determine this question. It is of particular interest that s.2(4) states that in proceedings under the Act any question whether a person lacks capacity within the meaning of the Act must be decided on the balance of probabilities. On the face of it, the prosecution need only prove on the balance of probabilities that a person lacked capacity but 2 must prove the ill-treatment or wilful neglect so that the jury are sure of the same. Who is at risk of prosecution under S.44? In short, D is at risk. D is one of three persons. Firstly, D can be a person who has the care of P. This will extend to family carers, professional carers and medical professionals alike. It is not surprising that the person most likely to be able to commit the offence is a person with care. However, there are two further categories of person at risk of prosecution. They are donees of lasting (donees created under the 2005 Act) or enduring powers of attorney (donees created under the Enduring Powers of Attorney Act 1985 repealed by the 2005 Act) created by P, and deputies appointed by the court for P. If D is the donee of a lasting power of attorney, he has authority to make decisions about P s personal welfare as well as his property and other matters specified by the Court of Protection. If donees fail to act in the best interests of P within the scope of s.4 that fact may be significant evidence in support of an allegation of wilful neglect. If a donee has taken s.4 into account in carrying out their duty it may be difficult to show that an offence under s.44 has been committed in the absence of a blatant act or omission. Deputies, persons appointed by the Court of Protection to make decisions on behalf of P about P s personal welfare under s.16, are also at risk of prosecution. The indictment The construction of the indictment does not present any special difficulties. If the facts are particularly serious an offence under s.44 may need to be an alternative for example to a count of manslaughter where the causation of death is in issue or a count under s.18 of the Offences Against the Person Act 1861 where really serious bodily injury is suffered but D s state of mind is in issue. P can be very vulnerable and needs vigilant protection. D can be open to easy criticism with hindsight when carrying out their duties in difficult circumstances. Sentence Upon summary conviction D is liable to a term of imprisonment of up to 12 months or a fine not exceeding the statutory maximum, or both. On indictment, D is liable to a term of imprisonment of up to five years or a fine or both. The author is a member of the Criminal Team and has a keen interest in offences relating to and committed by those lacking mental capacity.

3 Recent Developments in the law on Confiscation by Jonathan Spicer Since the turn of the year, there have been significant developments in the prosecution of cases under the Proceeds of Crime Act 2002 and in the obtaining of orders for confiscation of assets. In November last year the Court of Appeal heard argument on a Prosecution appeal against a terminating ruling in a money laundering case involving charges brought under ss.327 and 328 of the Act 1. The case involved the transfer of monies between NW the main Defendant and three other Defendants who were relatives or otherwise associated with him. The monies were then transferred out of the jurisdiction to Jamaica. The judgment in R v NW, SW, RC & CC [2008] ECWA Crim 2 was delivered on 23rd January As Laws LJ noted the essence of the appeal was whether, to establish guilt under s.327 or 328, the Crown must prove what particular criminal conduct, or at least what type of criminal conduct, has generated the benefit which the alleged criminal property represents? Or is it enough if they can show, no doubt by reference to the large sums involved and the Defendants want of any apparent means of substance (as well as any other relevant evidence), that the money in question can have had no lawful origin even if they have no evidence of the crime or class of crime involved. Section 340 provides in part as follows: (2) Criminal conduct is conduct which (a) constitutes an offence in any part of the United Kingdom, or (b) would constitute an offence in any part of the United Kingdom if it occurred there. (3) Property is criminal property if (a) it constitutes a person s benefit from criminal conduct or it represents such a benefit (in whole or in part and whether directly or indirectly), and (b) the alleged offender knows or suspects that it constitutes such a benefit. (4) It is immaterial (a) who carried out the conduct; (b) who benefited from it. (5) A person benefits from conduct if he obtains property as a result of or in connection with the conduct. The Crown were able to prove that NW had no visible means of support in that he had not been in receipt of benefits and there were no tax records for him in existence that covered the period of the indictment. There was no evidence however that NW or anyone else had been involved in any criminal activity. During the course of his judgment Laws LJ referred to the decided authorities 2 regarding the civil recovery provisions of the Act 3. Under these provisions it is settled law that it is necessary for the enforcing authority to prove at least the class of crime said to constitute the unlawful conduct referred to in ss of the Act. Laws LJ acknowledged the linguistic differences between the civil provisions and the criminal provisions of the Act. In Green [2005] EWHC Admin 3168, Sullivan J stated there is no real dispute as to the legislative purpose of the Act, the mischief to which Part 5 was directed, or the context in which it was enacted. Although the terminology varies, all four documents 4 recognise that a careful balance has to be struck between the civil rights of the individual and the need to ensure that the State has the tools to protect society by tackling crime effectively. Despite the difference in wording of the civil and criminal provisions under the Act, the Court in NW was driven to the conclusion that the legislature could not have intended the careful balance to be placed differently in civil cases and criminal cases, concluding, (and dismissing the Crown s appeal): In short, we do not consider that Parliament can have intended a state of affairs in which, in any given instance, no particulars whatever need be given or proved of a cardinal element in the case, namely the criminal conduct relied on. It is a requirement, to use Sullivan J s expression, of elementary fairness. (Laws LJ para 38) In reaching this conclusion, the Court may be introducing a restriction upon the application of the criminal provisions of the Act which the Government hoped had been avoided. The judgment does leave some questions unanswered. How detailed need the particulars of the criminal conduct be? Is it sufficient simply to point to a defendant s criminal convictions for dishonesty and draw an inference on the basis of these notwithstanding any passage of time between those convictions and the proceedings under the Act? Each case will no doubt turn upon its own facts. An interesting question is where does this leave the professional money launderer? Take for example the dodgy accountant, solicitor, financial adviser etc. who suspects that the property he is assisting his client to conceal, convert or transfer represents a benefit from criminal conduct but he has no knowledge of what that criminal conduct is? The effect of R v NW is that the Crown must show that this person knows or suspects that the property represents benefit from criminal conduct and also the type of criminal conduct giving rise to the benefit. In these cases the Crown may have to fall back on the failing to disclose offences under the Act with the reduced powers of sentence. 1 Section 327(1) of POCA 2002, provides that it is an offence for a person to conceal, disguise, convert, transfer or remove from the jurisdiction criminal property. Section 328(1) provides that a person commits an offence if he enters into or becomes involved in an arrangement which he knows or suspects facilitates the acquisition, retention, use or control of criminal property by or on behalf of another person. 2 Green [2005] EWHC Admin 3168 and Szepietowski [2007] EWCA Civ Sections of the Act 4 Documents which had been put before the Court to establish the purpose of the legislation It is right to note that no mention is made in R v NW of the case of R v C [2007] EWCA 2913, a case decided by the Court only days before NW was argued. In that case the Defendant exhibited a lifestyle which could not have been supported by his lack of income reflected in tax and national insurance records. The inference was that the source of funds was illegitimate. The Prosecution had not particularised the type of criminal conduct but adduced evidence to infer that the source was probably through the supply of drugs. The Appellant argued that in fact the evidence revealed that the Defendant could have obtained the property by way of a number of different types of criminal conduct as well as by innocent means. The argument was put that the jury should have been directed that they had to be sure as to which type of criminal conduct had given rise to the criminal property in order for them to convict, for example that they were all sure that the property had arisen through drug dealing as opposed to through fraud. The Court firmly rejected this argument stating What the jury must be sure of is that the property was criminal property. In our judgment [the 2002 Act] was designed to overcome defences put forward on precisely the basis that is raised by this ground of appeal. It would place a huge burden on the Prosecution if it had to prove only one route by which the property was criminal property and negative all other routes. (per Gage LJ at para 26). To this extent the judgment is consistent with the ruling in R v NW but the Court then went on to approve the following passage from Butterfield J in the unreported case of R v Kelly, Whilst the Prosecution must prove that the property is criminal property within the meaning of the statutory definition, there is nothing further in the wording of the Section [340] which imports any further requirement that the property emanated from a particular crime or a specific type of criminal conduct The reference in that passage to the type of criminal conduct is hard to reconcile with the judgment in R v NW, although it is arguably stated obiter and the Court in R v C, did not take into account the case law that had been considered in R v NW. Orders for Confiscation On 14th May 2008, the House of Lords delivered its verdicts in three cases, R v May [2008] UKHL 28, R v Green [2008] UKHL 30 and CPS v Jennings [2008] UKHL 29. The central case was May. This case involved a VAT carousel fraud and the appeal was against an order for confiscation following conviction. The appellants argument was that the figure for benefit should be apportioned and they relied on the case of R v Porter [1990] 1 WLR The House of

4 Lords upheld the decision of the Court of Appeal in rejecting this appeal. In doing so, it provided the following guidance: (1) The legislation is intended to deprive Defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the Defendant s net profit after deduction of expenses or any amounts payable to Co-conspirators. (2) The court should proceed by asking the three questions posed above: (i) Has the Defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided. (3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive. (4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law. (5) In determining, under the 2002 Act, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions. (6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers. In R v Green [2008] UKHL 30 (under the Drug Trafficking Act 1994) the House of Lords upheld the judgment of the Court of Appeal. The Appellant had argued that the appropriate measure of benefit is the total value of the property actually received by the particular Defendant the court is considering. The sums retained by the Appellant s Co-defendants should therefore have been deducted from the amount specified in the confiscation order against the appellant. The House of Lords approved the judgment of David Clarke J who stated in the Court of Appeal: we consider that where money or property is received by one Defendant on behalf of several Defendants jointly, each Defendant is to be regarded as having received the whole of it for the purposes of s.2(2) of the Act. It does not matter that proceeds of sale may have been received by one conspirator who retains his share before passing on the remainder; what matters is the capacity in which he received them. The result is that there can be multiple recovery by the Prosecution of the total benefit figure from each Defendant. The question is as to what capacity the Defendant received the property, if he received it on behalf of himself and several other Defendants jointly then he is liable for the full amount. The effect of these decisions will be that the Court will now be looking more closely at the circumstances in which a Defendant receives property and the basis upon which guilty pleas are entered will need to be more carefully drawn and scrutinised. Doli Incapax alive, well and capable, or crying for its mother? by Felicity Gerry There are an increasing number of children aged appearing before the Courts for a myriad of offences. Often, much depends on the state of mind of the young Defendant at the time of committing the alleged offence. Recent conflicting decisions of the Court of Appeal have reignited the debate on the criminal responsibility of children. In the recent decision in Crown Prosecution Service v P (2007) 4 All ER 628, whilst the Court of Appeal recognised that s.34 of the Crime and Disorder Act 1998 had removed the rebuttable presumption that a child aged 10 or under was incapable of committing an offence, it held that the Act had not abolished the defence of doli incapax itself. In R v T [2008] EWCA Crim 815 a differently constituted Court (this time including the Vice President of the Court of Appeal Criminal Division) held that the concept of doli incapax did not have existence separate from the presumption and accordingly had been abolished by s,34 of the 1998 Act. Whether the defence of doli incapax still exists the real issue raised by each of these decisions is how, in the absence of a presumption, the Courts should deal with children and in particular, those with significant intellectual challenges. Before the 1998 Act and following CPS v P, the burden of proof would remain on the Crown to prove that the child had the requisite understanding that what he or she was doing was wrong. After R v T the Crown still have to show that it is in the public interest to prosecute, to rebut any medical evidence as to fitness/capacity to be tried and to prove that the Defendant was capable of forming the requisite mens rea at the time of the alleged offence. In practice a youth with specific mental heath issues or learning difficulties may not be able to apply his / her mind to the given circumstances of the offence and may not be able to follow the complexities of a criminal trial whatever special arrangements are made. In terms of preparation prior to charge by the Crown (when considering the public interest in prosecuting vulnerable children) or on behalf of a Defendant, it is always sensible (where possible) to obtain medical, educational and social services records in order to properly understand his / her background. In addition, a psychological assessment may give an insight in to a child s IQ. It very much depends on the offence charged and the evidence available. Most youths will know it is wrong to rob an old lady but, in sex cases where there are issues of consent/ reasonable belief etc., there will be questions about a child s capacity to commit the offence. In R v T, a 12 year old boy pleaded guilty to 12 counts of causing or inciting a child under 13 to engage in sexual activity. No further details of his capacity are available from the judgment. There was no dispute as to fact. In a preliminary ruling, the Crown Court judge refused to allow the 4 Defence to raise the issue of capacity (to know those acts were wrong). One assumes that he was otherwise capable of understanding the trial process and that there was evidence that he formed the requisite state of mind to commit the offence. CPS v P was apparently a very different case. It involved an appeal by the CPS by way of case stated against the decision of a District Judge sitting in the Bishop Auckland Youth Court in which he stayed, as an abuse of process, criminal proceedings for kidnap, false imprisonment, indecent assault, criminal damage, burglary, taking a vehicle without consent and driving without a licence brought against a boy aged 13 years. The boy had Attention Deficit Hyperactivity Disorder (ADHD), conduct disorder, impaired memory capacity and other special educational needs. He had a full scale IQ of 65 (the lowest centile in the population). Psychiatric evidence concluded that he did not have a sufficient level of maturity or intellectual capacity to understand and participate effectively in the proceedings (fitness to plead) and that, on account of his poor verbal reasoning and level of comprehension, he would have great difficulty in understanding concepts such as right and wrong and differentiating between seriously wrong and merely naughty (doli incapax).

5 CRIME NEWSLETTER Spring 2008 Doli incapax... (continued) The District Judge was invited by the Crown to find that the Defendant was unfit to plead and to go on to consider whether the Defendant did the acts alleged. The Defence contended, successfully, that since the Defendant would have been afforded a complete defence by the doctrine of doli incapax the proceedings should be stayed. It was assumed by both parties that the doctrine of doli incapax no longer existed. On appeal by way of case stated it was argued that, in cases such as this, Judges need to know what approach to adopt. It was also suggested that the CPS were concerned that young people, charged with quite serious offences, were too easily able to escape the operation of the criminal law by demonstrating an inability effectively to take part in their trials. The Court invited submissions on the application of doli incapax and concluded (obiter) that the Government s intention in abolishing the presumption was that only the presumption would be abolished, not the underlying defence. The Court of Appeal recognised that there is an overlap between the issues of sufficient understanding of right from wrong, fitness to plead, ability to participate effectively in a trial and the fairness of the trial and it would be for the Court at first instance to decide on all the evidence, not just the medical evidence, whether the appropriate approach was to call a halt to the proceedings or not and when that halt should take place (at commencement where there is significant impairment or on a submission of no case to answer if the Crown are unable to prove understanding). The real question seems to have been whether his intellectual capacity was such that he could not effectively participate in the proceedings. If that were so, he could not have a fair trial and the proceedings against him should be stayed R (TP) v West London Youth Court EWHC 2583 (Admin). In CPS v P the Court of Appeal concluded there should not have been a stay; the District Judge should have sought to try the issue and kept the condition of the Defendant under review. Delay meant that the case was not remitted for trial. Whether or not the doctrine of doli incapax survives, it may be oppressive to try a vulnerable child (abuse of process), he/she may be incapable of giving instructions or understanding the proceedings (fitness to plead) and the Crown will still have to prove mens rea. As to how these decisions will affect the day to day criminal trials, we will have to wait and see but for those prosecuting it is a good reminder of where the burden of proof lies and for those defending, it shows that the burden of representing vulnerable children is a weighty one, where the outcome will depend on the understanding of each child. R v AMROUCHI [2007 EWCA Crim 3019] I am not coming out of my cell... by Kate Grieve Trial in the absence of the Defendant...is a step which ought normally be taken only if it is unavoidable, according to Lord Justice Hughes in R v Amrouchi. In R v Anthony Jones [2003] 1 AC HL, it was held that a judge had a discretion to start or continue a trial in the Defendant s absence, although it was to be exercised with great caution and with close regard to the overall fairness of the proceedings. In exercising the discretion, fairness to the defendant is of prime importance, but fairness to the Prosecution should also be taken into account. Archbold, s sets out a non-exhaustive list of factors to which the judge should have regard when considering proceeding in the absence of the defendant. In the case of R v Amrouchi, the Court of Appeal considered an appeal against conviction where the trial judge had exercised the discretion to proceed. Mr. Amrouchi was tried in his absence for offences of violence to prison officers. He was in prison at the time of his trial. The judge heard evidence from the officer in charge of the cells at court from a private security company to the effect that the discipline office at the prison had told her that the Defendant was refusing to come to court from his cell in prison. It was reported that he had said to the prison staff that he could not be bothered. An application was made by counsel for the Defence to adjourn the trial for 24 hours to ensure that it was clearly established that he was refusing to attend. The judge accepted the indirect evidence of the cells officer. He made a finding that Mr. Amrouchi had absented himself, deliberately waiving his right to be present. He concluded that an adjournment would not resolve the matter as there was no reason to believe that Mr. Amrouchi would change his mind and attend the following day. Mr. Amrouchi s solicitors had written to tell him of the date of trial on the 18th of July and again on the 21st of August What was not clear at the time of trial was whether or not Mr. Amrouchi had received the letters. There was some question as to whether he had been in custody at the time. What was clear is that his solicitors had no contact with Mr. Amrouchi between the date being fixed in July and the first day of trial in October. Mr. Amrouchi asserted that he was never asked to go. Mr. Amrouchi had a large and prolix series of previous convictions for all manner of offences and at any particular point in his criminal career it looks from his antecedents as if it would be likely that he might very well be the subject of a number of criminal proceedings. (para 13) This threw up the question as to whether or not Mr. Amrouchi was aware of the reason why he was required at court. When that submission was made at trial, the judge directed himself that it did not matter and further that if Mr. Amrouchi was in any doubt that he could have asked. The Court of Appeal found this to be an error of principle. Lord Justice Hughes stated that, Our universal experience [is] that in this kind of situation, the proper course it to adjourn for 24 hours and to ensure that an explicit warning is delivered to the defendant that his trial is going to take place without him if he is not there tomorrow morning The judge needs to satisfy himself that the explicit warning he gives is delivered. We would suggest that most Crown Court judges would require written confirmation from the 5 prison that the warning had been delivered and preferably in writing. (para 15) The Court of Appeal held that although unable to say what would have happened if the explicit warning had been given it was not prepared to say that the conviction was safe. Kate Grieve is pupil to Declan O Callaghan (who appeared on behalf of the Appellant) Disabled Access Chambers is committed to providing a high standard of service to all its clients, including clients with any form of disability. Chambers is accessible by wheelchair users. There is a ramp providing easy access to the front door and a door entry system at wheelchair height. Additionally, our conference facilities and unisex disabled toilet are situated on the ground floor. If solicitors have clients who are visiting Chambers and have any other particular needs arising from a disability, they should telephone Chambers (as far in advance of the relevant visit as possible) and ask to discuss the relevant client s needs with David Green, Harri Gibson or Richard Cade. We shall do our best to meet the needs of any client with a disability. Members are pleased to attend conferences with clients at a suitable location on circuit. Equal Opportunities operates an Equal Opportunities policy. Equal opportunities officers: Christopher Donnellan QC, Rosa Dean and Daniel Leader.

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