Text and Materials On The Criminal Justice Process

Text and Materials
on the Criminal
Justice Process
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FIFTH EDITION
Nicola Padfield and Jonathan Bild

Fifth edition published 2016
by Routledge
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and by Routledge
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© 2016 Nicola Padfield and Jonathan Bild

The right of Nicola Padfield and Jonathan Bild to be identified as authors of

this work has been asserted by them in accordance with sections 77 and 78
of the Copyright, Designs and Patents Act 1988.
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Trademark notice: Product or corporate names may be trademarks or registered

trademarks, and are used only for identification and explanation without
intent to infringe.
First edition published by Butterworths Law in 1995

Fourth edition published by Oxford University Press in 2008
British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Padfield, Nicola, author.
Text and materials on the criminal justice process / Nicola Padfield and
Jonathan Bild. — Fifth edition.
pages cm
1. Criminal justice, Administration of—Great Britain. I. Bild, Jonathan,
author. II. Title.
KD7876.P33 2015
345.41'05—dc23
2015014586
ISBN: 978-1-138-91833-7 (hbk)

ISBN: 978-1-138-91834-4 (pbk)
ISBN: 978-1-315-68857-2 (ebk)
Typeset in Joanna
by Apex CoVantage, LLC
Outline Contents
Preface xv
Acknowledgements xvii
Table of Cases xix
Table of Legislation and Conventions xxiii
Table of Statutory Instruments xxix

Table of European Legislation xxxi
Table of Foreign Statutes xxxiii
Table of International Conventions xxxv
1 Introduction 1
2 The Police 77
3 The Crown Prosecution Service 157
4 Non-Police Investigations 203
5 Defence Lawyers 237
6 Magistrates 273
7 Trial Judges 337
8 Juries 395
9 Appeal and Review Decisions 439
10 Sentence Management 495
Index 561
Detailed Contents
Preface xv
Acknowledgements xvii
Table of Cases xix
Table of Legislation and Conventions xxiii
Table of Statutory Instruments xxix

Table of European Legislation xxxi
Table of Foreign Statutes xxxiii
Table of International Conventions xxxv
1 Introduction 1
(i) About this book 3
(ii) Is there a criminal justice system? 7
(iii) Identifying characteristics of the English criminal justice process 8
(iv) Evaluating the criminal justice process 11
Further reading 13
A note on free resources 14
Documents
[1:1] Office for National Statistics, Crime in England and Wales,Year Ending September 2014 (at page 2) 15
[1:2] Reiner, R, ‘Success or statistics? New Labour and crime control: What has
happened to crime under New Labour?’ (2007) Criminal Justice Matters, No 67 (at page 4) 20
[1:3] Report of the Royal Commission on Criminal Justice (1993) Cm 2263, HMSO (at page iii) 23
[1:4] Feeney, F, ‘Interdependence as a working concept’ in Moxon, D (ed),
Managing Criminal Justice (1985) HMSO (at page 8) 25
[1:5] Auld, LJ, Review of the Criminal Courts of England and Wales (2001) The Stationery Office
(at page 23) 28
[1:6] Jones, C, ‘Auditing Criminal Justice’ (1993) 33 BJ of Criminology 187 (at page 199) 33
[1:7] Tonry, M, Punishment and Politics: Evidence and emulation in the making of English
crime control policy (2004) Willan (at page 22) 34
[1:8] Leveson, B, Review of Efficiency in Criminal Proceedings (2015) Judiciary of
England and Wales (at page 96) 35
[1:9] James, A and Raine, J, The New Politics of Criminal Justice (1998) Longmans (at page 44) 43
[1:10] Packer, H, The Limits of the Criminal Sanction (1968) Oxford University Press (at page 153) 45
[1:11] Bottoms, A E and McClean, J D, Defendants in the Criminal Process (1976)
Routledge and Kegan Paul (at page 228) 48
[1:12] King, M, The Framework of Criminal Justice (1981) Croom Helm (at page 13) 49
[1:13] Human Rights Act 1998 (as amended), sections 1–6; 8; Schedule 1
(European Convention on Human Rights) 50
[1:14] Spencer, J R, ‘Squaring up to Strasbourg: Horncastle in the Supreme Court’
(2010) 1 Archbold Review 6 59
[1:15] Spencer, J R, ‘Hearsay evidence at Strasbourg: a further skirmish, or the final round?
A comment on Al-Khawaja and Tahery v UK in the Grand Chamber’ (2012) 1 Archbold Review 5 65
viii | D eta i led Contents
[1:16] Criminal Justice Act 1991 (as amended), section 95 70

[1:17] Statistics on Race and the Criminal Justice System 2012 (2013) Ministry of Justice 70
[1:18] Hood, R, Shute, S and Seemungal, F, Ethnic Minorities in the Criminal Courts: Perceptions of
Fairness and Equality of Treatment (2003) Lord Chancellor’s Department Research
Series No 2/03 73
2 The Police 77
(i) Police accountability 79
(ii) Recording and enforcing crime 82
(iii) Police powers 83
(iv) Out-of-court disposals 89
(v) Bail 90
Further reading 91
Documents
[2:1] Police Reform and Social Responsibility Act 2011, sections 1–8 92
[2:2] Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238 99
[2:3] Lord Hoffman, ‘Human Rights and the House of Lords’ (1999) 62 MLR 159
(at page 162) 101
[2:4] Hoyano, L C H, ‘Policing Flawed Police Investigations: Unravelling the Blanket’
(1999) 62 MLR 912 (at page 920) 104
[2:5] Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24 107
[2:6] R v Metropolitan Police Commissioner, ex p Blackburn (No 3) [1973] QB 241 108
[2:7] R (Mondelly) v Commissioner of Police of the Metropolis [2007] Crim LR 298 108
[2:8] Farrington, D and Dowds, E, ‘Why does crime decrease?’ (1984) Justice
of the Peace 506 (at page 507) 111
[2:9] Police and Criminal Evidence Act 1984 (as amended), sections 17–19; 24;
25; 28–32; 36–38; 56; 58; 66; 76; 78 112
[2:10] Brown, D, ‘PACE ten years on: a review of the research’ (1997) HORS
No 155, HMSO (at page ix) 129
[2:11] Bucke, T and Brown, D, ‘In police custody: police powers and suspects’ rights
under the revised PACE Codes of Practice’ (1997) HORS No 174 HMSO
(at page 69) 136
[2:12] Ashworth, A ‘Should the police be allowed to use deception?’ (1998) 114 Law
Quarterly Review 108 (at page 138) 138
[2:13] R v Looseley; A-G’s Reference (No 3 of 2000) [2002] Crim LR 301 140
[2:14] Best Use of Stop and Search Scheme (2014) Home Office/College of Policing (at page 2) 142
[2:15] Moston, S and Stephenson, G M, ‘The Questioning and Interviewing of
Suspects Outside the Police Station’ (1993) RCCJ Research Study No 22, HMSO
(at page 46) 143
[2:16] Report of the Royal Commission on Criminal Justice (1993) Cm 2263, HMSO (at page 52) 143
[2:17] Criminal Justice and Public Order Act 1994 (as amended), sections 34–38 146
[2:18] Kemp, V, ‘PACE, performance targets and legal protections’ [2014] Crim LR 278
(at page 282) 150
[2:19] R (Guest) v DPP [2009] EWHC 594 (Admin) 153
3 The Crown Prosecution Service 157

(i) Background 159
(ii) The role and legal status of the CPS 160
(iii) The Code for Crown Prosecutors 162
Deta i led Contents | ix
(iv) The Attorney General and the Director of Public Prosecutions 164
(v) Evaluation 165
Further reading 167
Documents
[3:1] Prosecution of Offences Act 1985 (as amended), sections 1–3; 10 167
[3:2] Review of the Crown Prosecution Service (1998) Chaired by Sir Iain Glidewell (at page 4 of the
summary) 171
[3:3] R v Chief Constable of Kent County Constabulary, ex p L; R v DPP, ex p B [1993] 1 All ER 756 175
[3:4] R v Croydon Justices, ex p Dean [1993] 3 All ER 129 177
[3:5] Code for Crown Prosecutors (7th edition, 2013) 177
[3:6] Hoyano, A, Hoyano, L, David, G and Goldie, S, ‘A Study of the Impact of the
Revised Code for Crown Prosecutors’ [1997] Crim LR 556 (at page 557) 186
[3:7] Morgan, R, ‘Review of Drakeford, M, Haines, K, Cotton, B and Octigan, M,

Pre-trial Services and the Future of Probation’ (2002) BJ of Criminology 224 187
[3:8] Ministry of Justice, The Governance of Britain: A Consultation on the Role of the
Attorney General (2007) Cm 7192 189
[3:9] Protocol between the Attorney General and the Prosecuting Departments (July 2009) 192
[3:10] Block, B, Corbett, C and Peay, J, ‘Ordered and Directed Acquittals in the
Crown Court: A Time of Change?’ [1993] Crim LR 95 (at page 100) 197
[3:11] McConville, M, Sanders, A and Leng, R, The Case for the Prosecution (1991) Routledge
(at page 124) 199
4 Non-Police Investigations 203

(i) Revenue and Customs frauds 206
(ii) Benefit frauds 207
(iii) Health and Safety Executive 207
(iv) The Environment Agency 208
(v) Serious Fraud Office 208
(vi) Private prosecutions 210
Further reading 211
Documents
[4:1] Lidstone, K W, Hogg, R, Sutcliffe, F, Prosecutions by Private Individuals and Non-Police
Agencies (1980) HMSO (at page 180) 212
[4:2] Roording, J, ‘The Punishment of Tax Fraud’ [1996] Crim LR 240 (at page 240) 214
[4:3] Richardson, G, ‘Strict Liability for Regulatory Crime: the Empirical Research’
[1987] Crim LR 295 (at page 303) 215
[4:4] R v IRC, ex p Mead and Cook [1992] STC 482 217
[4:5] HMRC Criminal Investigation Policy 218
[4:6] Sanction Policy of the Department for Work and Pensions (Version 4 – April 2010) 219
[4:7] Criminal Justice Act 1987 (as amended), sections 1–3 223
[4:8] R v Director of Serious Fraud Office, ex p Smith [1993] AC 1 229
[4:9] Padfield, N, ‘Deferred prosecution agreements’ (2012) 7 Archbold Review 4 230
[4:10] Jones v Whalley [2006] UKHL 41 232
5 Defence Lawyers 237

(i) Legal aid 240
(ii) Legal advice at police stations 242
(iii) Role of defence lawyers before and at trial 243
Further reading 246
x | D eta i led Contents
Documents
[5:1] Independent criminal advocacy in England and Wales: A Review by Sir Bill Jeffrey (2014)
Ministry of Justice (at page 3) 247
[5:2] McConville, M, Hodgson, J, Bridges, L and Pavlovic, A, Standing Accused:
The Organisation and Practice of Criminal Defence Lawyers (1994) Clarendon Press 253
[5:3] R v Maxwell [2010] UKSC 48 (report taken from (2011) 8 Archbold Review 4) 256
[5:4] Transforming legal aid: delivering a more credible and efficient system (2013) Ministry of
Justice Consultation Paper CP14/2013 (at page 3) 260
[5:5] Kemp, V, ‘ “No time for a solicitor”: implications for delays on the take-up of
legal advice’ [2013] Crim LR 184 262
[5:6] Baldwin, J, The Role of Legal Representatives at the Police Station (1992) RCCJ
Research Study No 3 HMSO (at page 52) 265
[5:7] R v Paris, Abdullahi and Miller (1993) 97 Cr App Rep 99 266
[5:8] R v Ensor [1989] 1 WLR 497 267

[5:9] Malleson, K, Review of the Appeal Process (1993) RCCJ Research Study No 17, HMSO
(at page 38) 269
[5:10] Plotnikoff, J and Woolfson, R, Information and Advice for Prisoners about Grounds for
Appeal and the Appeal Process (1993) RCCJ Research Study No 18, HMSO (at page 115) 270
6 Magistrates 273
(i) Role of the lay magistracy 275
(ii) District judges 277
(iii) The justices’ clerk 278
(iv) Bail decisions 279
(v) Mode of trial 282
(vi) Pre-trial hearings 283
(vii) Trial and sentencing 283
Further reading 287
Documents
[6:1] Seago, P, Walker, C and Wall, D, ‘The Development of the Professional
Magistracy in England and Wales’ [2000] Crim LR 631 (at page 648) 288
[6:2] Morgan, R, ‘Magistrates: The Future According to Auld’ (2002) 29 J of
Law and Society 308 (at page 314) 292
[6:3] Skyrme, T, The Changing Image of the Magistracy (2nd edition, 1983) Macmillan
(at page 6) 297
[6:4] Morgan, R and Russell, N, The Judiciary in the Magistrates’ Courts (2000) HO RDS
Occasional Paper No 66, Home Office (from the summary, at page vii) 299
[6:5] Ipsos MORI/Ministry of Justice, The strengths and skills of the Judiciary in the
Magistrates’ Courts (2011) Ministry of Justice Research Series 9/11 (at page 1) 305
[6:6] Bail Act 1976 (as amended), section 4; Schedule 1 309
[6:7] HM Chief Inspector of Prisons, Unjust Deserts: A Thematic Review of the Treatment and
Conditions for Unsentenced Prisoners in England and Wales (2000) (at page 123) 317
[6:8] HM Inspectorate of Prisons, Remand prisoners: A thematic review (2012) (at page 11) 320
[6:9] Lloyd, C, Bail Information Schemes: Practice and Effect (1992) HO RPU Paper No 69, HMSO
(at page 65) 326
[6:10] Morgan, P M and Henderson, P, Remand Decisions and Offending on Bail: Evaluation
of the Bail Process Project (1998) HORS 184 (at page vii) 328
[6:11] Bail (Amendment) Act 1993 (as amended), section 1 330
Deta i led Contents | xi
[6:12] Sentencing Council, Allocation Guideline (2012) (at page 18b) 332
[6:13] Brown, S, Magistrates at Work: Sentencing and Social Structure (1991) Open University Press
(at page 81) 334
7 Trial Judges 337

(i) Who are the trial judges? 339
(ii) Case management and sentence bargains 341
(iii) The judge’s discretion to exclude evidence 343
(iv) The summing up 344
(v) Sentencing 345
Further reading 348
Documents
[7:1] Sirros v Moore [1975] QB 118 349

[7:2] Criminal Procedure Rules 2014/1610, Parts 1–3 350
[7:3] R v Jisl [2004] EWCA Crim 696 355
[7:4] Sentencing Guidelines Council, Reduction in Sentence for a Guilty Plea: Definitive Guideline
(Revised 2007) 357
[7:5] Dawes, W, Harvey, P, McIntosh, B, Nunney, F and Phillips, A, Attitudes to guilty plea
sentence reductions (2011) Sentencing Council Research Series 02/11 (at page 1) 360
[7:6] Zander, M and Henderson, P, The Crown Court Study (1993) RCCJ Research
Study No 19, HMSO (at page 138) 364
[7:7] Report of the Royal Commission on Criminal Justice (1993) Cm 2263, HMSO (at page 111) 366
[7:8] R v Goodyear [2005] EWCA Crim 888 368
[7:9] R v McDonald [2007] Crim LR 737 372
[7:10] Hood, R, Race and Sentencing: a Study in the Crown Court (1992) Oxford University Press 374
[7:11] R v Christou [1992] QB 979 377
[7:12] R v Bryce [1992] 4 All ER 567 379
[7:13] R v Khan [1997] AC 558 381
[7:14] R v Newton (1982) 77 Cr App Rep 13 381
[7:15] R v Underwood, R v Arobieke, R v Khan, R v Connors [2004] EWCA Crim 2256; [2005]
1 Cr App R 13; [2005] 1 Cr App R (S) 90 382
[7:16] R v Pryce and Huhne (2013) Sentencing remarks of Mr Justice Sweeney in the
Southwark Crown Court 384
[7:17] Sentencing Council, Assault: Definitive Guideline (2011) (Guideline for
Inflicting grievous bodily harm/Unlawful wounding (Offences Against the
Person Act 1861, section 20)) 388
[7:18] Ashworth, A, Genders, E, Mansfield, G, Peay, J and Player, E, Sentencing in the
Crown Court: Report of an Exploratory Study (1984) Oxford Centre for
Criminological Research Occasional Paper No 10 (at page 60) 390
8 Juries 395
(i) Selecting the jury 397
(ii) The function of the jury 399
(iii) Assessing the jury 401
Further reading 404
Documents
[8:1] Contempt of Court Act 1981, section 8 404
[8:2] Thomas, C, Are juries fair? (2010) Ministry of Justice Research Series 1/10 (at page i) 405
xii | D eta i led Contents
[8:3] Juries Act 1974 (as amended), sections 1; 3; 9; 17 411

[8:4] R v Abdroikov [2008] Crim LR 134 413
[8:5] R v Ford [1989] QB 868 416
[8:6] Attorney General, The exercise by the Crown of its right of stand by (2012 update) 418
[8:7] H v Ministry of Defence [1991] 2 All ER 834 421
[8:8] Brutus v Cozens [1973] AC 854 421
[8:9] Devlin, P, ‘The Conscience of the Jury’ (1991) 107 Law Quarterly Review 398
(at page 402) 423
[8:10] Darbyshire, P, ‘The Lamp that Shows that Freedom Lives – is it Worth the
Candle?’ [1991] Crim LR 740 (at page 741) 424
[8:11] Attorney General v Scotcher [2005] UKHL 36 (this summary is taken from
(2005) 6 Archbold News 3) 426
[8:12] Attorney General v Dallas [2012] EWHC 156 (Admin) 427
[8:13] Roberts, J V and Hough, M, Public Opinion and the Jury: An International Literature
Review (2009) Ministry of Justice Research Series 1/09 (at page ii) 435
9 Appeal and Review Decisions 439

(i) Usual appeal routes 441
(ii) Unusual methods of appeal and review 445
(iii) The role of the Attorney General 446
(iv) The role of the Home Secretary and the Secretary of State for Justice 447
(v) The Criminal Cases Review Commission 448
(vi) The role of the Supreme Court 448
Further reading 449
Documents
[9:1] Report of the Royal Commission on Criminal Justice: Professor Zander’s Dissent (1993)
HMSO Cmnd 2263 449
[9:2] Magistrates’ Courts Act 1980 (as amended), section 108 452
[9:3] Senior Courts Act 1981 (as amended), section 48 452
[9:4] Criminal Appeal Act 1968 (as amended), sections 2; 23; 33 453
[9:5] Malleson, K, Review of the Appeal Process (1993) RCCJ Research Study No 17, HMSO
(at page 15) 455
[9:6] R v Chalkley and Jeffries [1998] QB 848 456
[9:7] R v Mullen [1999] 2 Cr App Rep 143 457
[9:8] Spencer, J R, ‘Quashing Convictions, and Squashing the Court of
Appeal’ (2006) 170 JP 790 460
[9:9] R v McIlkenny (1992) 93 Cr App Rep 287 463
[9:10] Monnell and Morris v United Kingdom (1988) 10 EHRR 205 466
[9:11] R v Gray and others [2014] EWCA Crim 2372 (at paragraph 1) 471
[9:12] R v Secretary of State for the Home Department, ex p Bentley [1993] 4 All ER 442 474
[9:14] A-G’s Reference (No 3 of 1994) [1997] 3 All ER 936 477
[9:15] Criminal Justice Act 1988 (as amended), sections 36; 133 479
[9:16] Bailin, A and Craven, E, ‘Compensation for miscarriages of justice –
who now qualifies?’ [2014] Crim LR 511 483
[9:17] Report of the Royal Commission on Criminal Justice (1993) HMSO, Cmnd 2263 (at page 183) 487
[9:18] Criminal Appeal Act 1995 (as amended), sections 8; 13 492
Deta i led Contents | xiii
10 Sentence Management 495

(a) Procedural openness 497
(b) Joined up services, or privatisation and fragmentation? 497
(i) Probation 499
(a) Court reports 500
(b) Assisting in determining whether conditional cautions
should be given 504
(c) The supervision and rehabilitation of persons charged with or
convicted of offences 504
(d) The giving of assistance to persons remanded on bail 506
(e) The supervision and rehabilitation of persons to whom conditional
cautions are given 506
(f ) The giving of information to victims of persons charged with or
convicted of offences506
(ii) Prisons 507
(iii) The Parole Board 511
(iv) Mental Health Review Tribunals 513
Further reading 515
Documents
[10:1] Lord Carter, Managing Offenders, Reducing Crime: A New Approach (2003) Summary
(at page 3) 516
[10:2] Woolf Report – Prison Disturbances April 1990 (1991) HMSO (at page 19) 519
[10:3] Transforming Rehabilitation: A Strategy for Reform (2013) Ministry of Justice
Response to Consultation CP(R)16/2013 (at page 3) 519
[10:4] House of Commons Justice Committee, Crime reduction policies: a co-ordinated approach?
Interim report on the Government’s Transforming Rehabilitation programme (2014)
The Stationery Office (at page 3) 524
[10:5] HM Inspectorate of Probation, Transforming Rehabilitation: ‘An independent inspection
setting out the operational impacts, challenges and necessary actions’, April 2014 —
September 2014 (2014) (at page 4) 525
[10:6] Worrall, A and Hoy, C, Punishment in the Community: Managing Offenders and Making Choices
(2nd edition, 2005) Willan (at page 205) 527
[10:7] Padfield, N, Understanding Recall 2011 (2013) University of Cambridge
Faculty of Law Research Paper No 2/2013 529
[10:8] Corston Report, A review of women with particular vulnerabilities in the criminal
justice system (2007) Home Office (at page 2) 531
[10:9] House of Commons Justice Committee, Women offenders: after the
Corston Report (2013) Second Report of Session 2013–14 (at page 3) 536
[10:10] Prison Act 1952 (as amended), sections 1; 47 538
[10:11] Hague v Deputy Governor of Parkhurst Prison [1991] 3 All ER 733 539
[10:12] Hood, R and Shute, S, Parole Decision-making:Weighing the Risk to the Public (2000)
HO Research Findings No 114 (at page 2) 544
[10:13] Thynne,Wilson and Gunnell v United Kingdom (1991) 13 EHRR 666 549
[10:14] Stafford v United Kingdom (2002) 35 EHRR 1121 550
[10:15] Padfield, N, ‘ “Back door sentencing”: is recall to prison a penal
process?’ (2005) Camb LJ 276 556
xiv | D eta i led Contents
[10:16] Holloway, K and Grounds, A, ‘Discretion and the Release of Mentally Disordered
Offenders’ in Gelsthorpe, L and Padfield, N (eds), Exercising Discretion:
Decision-making in the criminal justice system and beyond (2003) Willan (at page 158) 558
Index 561
Preface
Since the first edition of this book, the pace of change in the criminal justice system has not slowed.
Nor has the quality of justice obviously improved. In the seven years since the publication of the
last edition, cost-saving has become a hugely important issue in English criminal justice: the 20
per cent reduction in the Ministry of Justice’s budget over the course of the 2010–15 Parliament
has impacted on all of the players in the criminal justice process. Everyone, it seems, is expected
to do more with less. It is perhaps too early to assess comprehensively the impact of (even more)
straitened finances across the whole ‘system’ but certainly the anecdotal evidence suggests a crim-
inal justice system under great strain. Can we really expect this not to have an effect on substantive
outcomes? We must be as vigilant as ever to ensure that the criminal justice process does not deliver
injustice.
The shape of the book continues to emphasise each discrete part of the decision-making pro-
cess, whereas successive governments appear to have been committed to ‘team working’, ‘joined-up’
criminal justice and inter-agency co-operation in criminal justice. It might therefore be argued that
a book divided as this one is, is out of date. We would argue that the opposite is true. The reality
is that there are several very different players within the criminal justice process. We should not be
seduced into thinking that they all sing from the same songbook. The working relationships between
the various agencies must be explored, as must the legal framework within which they function. As
‘Big Brother’ tightens his grip, are there enough checks and balances within the process?
There are no easy answers to the dilemmas facing the criminal justice system today. In fact, you
may find that this book raises as many questions as it answers. This is not accidental: we want to
encourage you to think as well as learn!
Nicola Padfield and Jonathan Bild
March 2015
Acknowledgements
Grateful acknowledgement is made to all the authors and publishers of copyright material which
appears in this book, and in particular to the following for permission to reprint material from the
sources indicated:
Sheila Brown for the extract from S Brown, Magistrates at Work: Sentencing and Social Structure (1991)
Incorporated Council of Law Reporting for extracts from: Law Reports: Appeal Cases (AC); Court of Appeal
of England and Wales Criminal Division (EWCA Crim); Queen’s Bench Division (QB); and Weekly Law Reports (WLR)
Michael King for the extract from M King, The Framework of Criminal Justice (1981)
Oxford Centre for Criminological Research and the authors for the extract from A Ashworth,
E Genders, G Mansfield, J Peay and E Player, Sentencing in the Crown Court: Report of an Exploratory Study
(1984) Oxford Centre for Criminological Research Occasional Paper No 10
Oxford University Press for extracts from R Hood, Race and Sentencing: a Study in the Crown Court (1992);
and M McConville, J Hodgson, L Bridges and A Pavlovic, Standing Accused: The Organisation and Practice of
Criminal Defence Lawyers (1994)
Oxford University Press Journals for extracts from The British Journal of Criminology: C Jones, ‘Auditing
Criminal Justice’ (1993) 33 British Journal of Criminology 187; and R Morgan, Review of M Drakeford,
K Haines, B Cotton and M Octigan, ‘Pre-trial Services and the Future of Probation’ (2002) British
Journal of Criminology 224
Palgrave Macmillan for extract from T Skryme, The Changing Image of the Magistracy (2nd edition, 1983)
Pearson Education for extract from A James and J Raine, The New Politics of Criminal Justice (1998)
Reed Elsevier (UK) Ltd trading as LexisNexis for extracts from All England Law Reports (All ER); and
extract from Simon’s Tax Cases
Stanford University Press for extract from H Packer, The Limits of the Criminal Sanction (1968)
Sweet and Maxwell Ltd for extract from Archbold News: HM Attorney General v Scotcher [2005] UKHL 36
(as reported at (2005) 6 Archbold News 3); extracts from Archbold Review: N Padfield, ‘Deferred prose-
cution agreements’ (2012) 7 Archbold Review 4; R v Maxwell [2010] UKSC 48 (as reported at (2011) 8
Archbold Review 4); J R Spencer, ‘Squaring up to Strasbourg: Horncastle in the Supreme Court’ (2010) 1
Archbold Review 6; J R Spencer, ‘Hearsay evidence at Strasbourg: a further skirmish, or the final round?
A comment on Al-Khawaja and Tahery v UK in the Grand Chamber’ (2012) 1 Archbold Review 5; extracts
from Criminal Appeal Reports (Cr App R): R v McIlkenny (1992) 93 Cr App Rep 287; R v Mullen [1999]
xviii | Acknow led g e m ents
2 Cr App Rep 143; R v Newton (1982) 77 Cr App Rep 13; R v Paris, Abdullahi and Miller (1993) 97 Cr
App Rep 99; extracts from Criminal Law Review (Crim LR): A Bailin and E Craven, ‘Compensation for
miscarriages of justice – who now qualifies?’ [2014] Crim LR 511; B Block, C Corbett and J Peay,
‘Ordered and Directed Acquittals in the Crown Court: A Time of Change?’ [1993] Crim LR 95; P
Darbyshire, ‘The Lamp that Shows that Freedom Lives – is it Worth the Candle?’ [1991] Crim LR
740; A Hoyano, L Hoyano, G David and S Goldie, ‘A Study of the Impact of the Revised Code for
Crown Prosecutors’ [1997] Crim LR 556; V Kemp, ‘ “No time for a solicitor”: implications for delays
on the take-up of legal advice’ [2013] Crim LR 184; V Kemp, ‘PACE, performance targets and legal
protections’ [2014] Crim LR 278; R v Abdroikov [2008] Crim LR 134; R v Looseley; A-G’s Reference (No 3
of 2000) [2002] Crim LR 301; R v McDonald [2007] Crim LR 737; R (Mondelly) v Commissioner of Police of
the Metropolis [2007] Crim LR 298; G Richardson, ‘Strict Liability for Regulatory Crime: the Empirical
Research’ [1987] Crim LR 295; J Roording, ‘The Punishment of Tax Fraud’ [1996] Crim LR 240; P
Seago, C Walker and D Wall, ‘The Development of the Professional Magistracy in England and Wales’
[2000] Crim LR 631; extracts from European Human Rights Reports: Monnell and Morris v United King-
dom (1988) 10 EHRR 205; Stafford v United Kingdom (2002) 35 EHRR 1121; Thynne, Wilson and Gunnell
v United Kingdom (1991) 13 EHRR 666; and extracts from Law Quarterly Review (LQR): A Ashworth,
‘Should the police be allowed to use deception?’ (1998) 114 LQR 108; P Devlin, ‘The Conscience
of the Jury’ (1991) 107 LQR 398
Taylor & Francis for extracts from A E Bottoms and J D McClean, Defendants in the Criminal Process
(1976); K Holloway and A Grounds, ‘Discretion and the Release of Mentally Disordered Offenders’
in L Gelsthorpe and N Padfield (eds), Exercising Discretion: Decision-making in the criminal justice system and
beyond (2003); M McConville, A Sanders and R Leng, The Case for the Prosecution (1991); M Tonry, Punish-
ment and Politics: Evidence and emulation in the making of English crime control policy (2004); A Worrall and C Hoy,
Punishment in the Community: Managing Offenders and Making Choices (2nd edition, 2005)
Taylor & Francis Journals for extract from Criminal Justice Matters: R Reiner, ‘Success or statistics? New
Labour and crime control: What has happened to crime under New Labour?’ (2007) 67 Criminal
Justice Matters 4
Wiley-Blackwell Publishing Ltd for extracts from Modern Law Review (MLR): Lord Hoffmann,
‘Human Rights and the House of Lords’ (1999) 62 MLR 159; L C H Hoyano, ‘Policing Flawed Police
Investigations: Unravelling the Blanket’ (1999) 62 MLR 912; and extract from Journal of Law and Society:
R Morgan, ‘Magistrates: The Future According to Auld’ (2002) 29 J of Law and Society 308
Contains public sector information licensed under the Open Government Licence v2.0
Table of Cases
ALF v United Kingdom (5908/12) (ECtHR), 12 Castorina v Chief Constable of Surrey (1988) 138 NLJ
November 2013, unreported … 486 Rep 180 … 84
Adams v United Kingdom (70601/11), (ECtHR), 12 Condron v United Kingdom (35718/97) (2000) 31
November 2013, unreported … 486 EHRR 1 … 87
Airedale NHS Trust v Bland [1993] AC 789 … 210 Council of Civil Service Unions v Minister for the Civil
Al-Khawaja and Tahery v UK (Nos 26766/05 and Service [1985] AC 374 … 446
22228/06) (2009) 49 EHRR 1 … 59, 60, 61, 62, Coyne v United Kingdom (1997) Times, October 24,
65–70, 344 ECtHR … 457
Allen v United Kingdom (2013) 36 BHRC 1 … 485
Ashton and Others, Re [1993] 2 All ER 663 … 162 Dickson v United Kingdom (44362/04) (2008) 46
Attorney General v Dallas [2012] EWHC 156 EHRR 41 … 12, 510
(Admin) … 403, 427–434 Donoghue v Stevenson [1932] AC 562 … 106
Attorney General v Fraill and Another [2011] EWCA DPP v Shannon [1975] AC 717, (1974) 59 Cr App R
Crim 1570 … 433, 434 250 … 464
Attorney General v Scotcher [2005] UKHL 36 … 402,
426–427 Ezeh and Connors v United Kingdom (2002) 35 EHRR
Attorney General’s Reference (No 4 of 1989) (1989) 691 … 509
11 Cr App R (S) 517 … 447
Attorney-General’s Reference (No 1 of 1990) [1992] FM (A Child) v Singer [2004] EWHC 793 (QB) … 341
QB 630 … 459 Fayed v UK (17101/90) (1994) 18 EHRR 393 … 105
Attorney-General’s Reference (No 3 of 1994) [1997] 3
All ER 936 … 477–479 Gouriet v Union of Post Office Workers [1978] AC 435
Attorney General’s Reference (No 3 of 2000) [2001] … 190, 210
UKHL 53, [2001] 1 WLR 2060, [2002] Crim
LR 301; reversing in part [2001] EWCA Crim H v Ministry of Defence [1991] 2 All ER 834 … 399,
1214, [2001] Crim LR 645 … 84, 140–142, 402, 421
143, 344, 462 HL v United Kingdom (45508/99) (2005) 40 EHRR
Attorney General’s Reference (No 1 of 2004) [2004] 1 32 … 514
WLR 2111 … 368 Hague v Deputy Governor of Parkhurst Prison see R v
Attorney-General’s Reference (No 112 of 2006) Deputy Governor of Parkhurst Prison and Others,
[2007] 2 Cr App R (S) 3 … 373 ex p Hague, Weldon Respondent v Home Office
Attorney General’s Reference (No 34 of 2010) [2010] Respondent
EWCA Crim 2055 … 342 Hamza (Abu) see R v Abu Hamza
Hanif v United Kingdom (52999/08) (2012) 55
Becker v Home Office [1972] 2 QB 407, [1972] 2 All EHRR 16 … 398
ER 676 … 540 Hayter v L [1998] 1 WLR 854 … 233, 234, 235
Boner v United Kingdom (18711/91) (1995) Hill v Chief Constable of West Yorkshire [1989] AC 53,
19 EHRR 246 … 246 [1988] 2 All ER 238, HL; affirming [1988] QB 60,
Bozano v France (A/111) (1987) 9 EHRR 297 … 552 [1987] 1 All ER 1173 … 81, 99–101, 102, 103,
Brennan v United Kingdom (39846/98) (2002) 34 105, 106, 107
EHRR 18 … 239 Hirst v United Kingdom (74025/01) (2004) 38 EHRR
Brooks v Commissioner of Police of the Metropolis 40 … 510
[2005] UKHL 24 … 81, 107 Hirst v United Kingdom (No 2) (74025/01) (2006)
Brutus v Cozens [1973] AC 854, HL; reversing [1972] 1 42 EHRR 41 … 12
WLR 484 … 401, 421–423 Home Office v Dorset Yacht Co Ltd [1970] AC 1004,
Burt v Governor-General [1992] 3 NZLR 672, NZCA HL; affirming [1969] 2 QB 412, CA … 106
… 475 Hussein v Choong Fook Kam [1970] AC 942 … 84
Caballero v United Kingdom (2000) 30 EHRR 643 … James, Wells and Lee v United Kingdom (25119/09)
279 (2012) 56 EHRR 12 … 347
Capital and Counties plc v Hampshire County Council Jones v Whalley [2006] UKHL 41 … 155, 161, 210,
[1997] QB 1004, [1997] 3 WLR 331 … 102 232–235
xx | Ta ble of C a se s
KF v United Kingdom (30178/09) (ECtHR), R (on the application of Anderson) v Secretary of

3 September 2013, unreported … 485 State for the Home Department [2003] 1 AC
Khan v United Kingdom (35394/97) (2001) 31 EHRR 837 … 346, 512
1016 … 344 R (on the application of Brookes) v Parole Board for
Kostovski v Netherlands (A/166) (1990) 12 EHRR England and Wales [2008] EWCA Civ 29; affirming
434 … 63 [2007] EWHC 2036 (Admin) … 511
Kuruma v R [1955] AC 197 … 343 R (on the application of Guest) v DPP [2009] EWHC
594 (Admin) … 90, 153–156
Latif and Shahzad see R v Latif R (on the application of Gujra) v Crown Prosecution
London Corp v Cox (1867) LR 2 HL 239 … 350 Service [2012] UKSC 52 … 211
R (on the application of H) v Secretary of State for
Meering v Grahame-White Aviation Co Ltd (1919) 122 Health [2006] 1 AC 441 … 514
LT 44 … 541 R (on the application of Lord) v Secretary of State
Michael v Chief Constable of South Wales [2015] UKSC for the Home Department [2003] EWHC 2073
2 … 81 (Admin) … 507
Middleweek v Chief Constable of Merseyside [1990] 3 R (on the application of Mondelly) v Commissioner
WLR 481, [1990] 3 All ER 662 … 541, 543, 544 of the Police of the Metropolis [2006] EWHC
Monnell and Morris v United Kingdom (9562/81 2370 (Admin), [2007] Crim LR 298 … 82,
and 9818/82) (1988) 10 EHRR 205 … 444, 108–110
466–471 R (on the application of Mullen) v Secretary of State for
Murphy v Brentwood DC [1991] 1 AC 398, [1990] 2 the Home Department [2004] UKHL 18, [2005] 1
WLR 414, HL; reversing [1990] 2 WLR 944, [1990] AC 1 … 461, 484
2 All ER 269 … 102 R (on the application of Nicklinson) v Ministry of
Murray v United Kingdom (18731/91) (1996) 22 Justice [2014] UKSC 38 … 161
EHRR 29 … 87, 242, 457 R (on the application of Pretty) v DPP [2002] 1 AC
Myers v DPP [1965] AC 1001 … 70 800 … 160
R (on the application of Purdy) v DPP [2009] UKHL
National Rivers Authority v Yorkshire Water Services Ltd 45 … 160
[1995] 1 AC 444 … 401 R (on the application of Williams) v Secretary of State
Nottingham City Council v Amin [2000] 1 WLR 1071, for the Home Department [2002] EWCA Civ 498
[2001] 1 Cr App R 426 … 141 … 507
R v Abdroikov [2007] UKHL 37, [2008] Crim LR 134
O’Rourke v Camden London Borough Council [1998] … 397, 413–416
AC 188 … 102 R v Abu Hamza [2006] EWCA Crim 2918 … 161–162
Osman v United Kingdom (23452/94) (2000) 29 R v Adaway [2004] EWCA Crim 2831 … 109
EHRR 245 … 81, 101, 104, 105, 106 R v Alladice (1988) 87 Cr App R 380 … 242
R v Bansall, Bir, Mahio and Singh [1985] Crim LR 151
Pepper (Inspector of Taxes) v Hart [1993] … 417
AC 593 … 459 R v Beckles (No 2) [2004] EWCA Crim 2766 … 88
Practice Direction (CA (Crim Div): Criminal Proceed- R v Bibi (1980) 71 Cr App R 360 … 391
ings: Amendment No 2) [2014] EWCA Crim 1569 R v Bloomfield [1997] 1 Cr App R 135 … 458
… 474 R v Bryce [1992] 4 All ER 567 … 344, 379–380
Practice Direction (CA (Crim Div): Criminal Proceed- R v Chaaban [2003] EWCA Crim. 1012 … 355
ings: Consolidation) [2002] 1 WLR 2870 … 472 R v Chalkley and Jeffries [1998] QB 848 … 344, 443,
Practice Direction (CA (Crim Div): Criminal Proceed- 456–457, 458
ings: General Matters) [2013] EWCA Crim 1631 R v Charnley (Kenneth Desmond) [2007] 2 Cr App R
… 352, 444 33 … 402
Practice Direction (Costs in Criminal Proceedings) R v Chief Constable of Kent, ex p L, R v DPP, ex p B
[2013] EWCA Crim 1632 … 352 [1993] 1 All ER 756 … 109, 160, 175–177
Pullar v United Kingdom (22399/93) (1996) 22 R v Chief Constable of Sussex, ex p International
E.H.R.R. 391 … 414, 415 Trader’s Ferry Ltd [1999] 2 AC 418 … 82
R v Christou [1992] QB 979 … 83, 344,
R (on the application of Adams) v Secretary of State for 377–378, 379
Justice [2011] UKSC 18, [2012] 1 AC 48 … 447, R v Claydon (1993) 15 Cr App R (S) 526 … 342
484, 485, 486, 487 R v Collins [1970] 1 QB 710, (1969) 54 Cr App R
R (on the application of Ali) v Secretary of State for 19 … 464
Justice [2013] EWHC 72 (Admin) … 484, 485 R v Commissioner of Police of the Metropolis, ex p
R (on the application of Anderson) v Secretary of State Blackburn (No 1) [1968] 2 QB 118, [1968] 1 All
for the Home Department, R (on the application of ER 763 … 108, 109, 110, 175, 176
Taylor) v Secretary of State for the Home Depart- R v Commissioner of Police of the Metropolis,
ment [2001] EWCA Civ 1698, [2002] 2 WLR ex p Blackburn (No 3) [1973] QB 241, 1 All ER
1143, CA … 555 324 … 108
Ta ble of C a se s | xxi
R v Commissioner of Police of the Metropolis, ex p R v Irwin [1987] 1 WLR 902 … 267, 268
Nahar (1983) Times, May 28 … 543, 544 R v Jeffries [1969] 1 QB 120, (1968) 52 Cr App R 654
R v Commissioner of Police of the Metropolis, ex p P … 464
(1996) 8 Admin LR 6 … 109 R v Jisl [2004] EWCA Crim 696 … 341, 355–357
R v Commissioner of Police of the Metropolis, ex p R v Khan [1997] AC 558 … 344, 381
Thompson [1997] 1 WLR 1519 … 109 R v Killick [2011] EWCA Crim 1608 … 161
R v Condron [1997] 1 Cr App R 185 … 87 R v Kirklees Metropolitan Borough Council, ex p Tesco
R v Cowan (Donald) [1996] 1 Cr App R 1 … 400 Stores Ltd (1993) Times, 26 October … 205
R v Croydon Justices, ex p Dean [1993] QB 769, R v Latif [1996] 1 WLR 104, [1996] 2 Cr App R
[1993] 3 All ER 129 … 161, 177, 234 92 … 141, 257
R v Davis [2008] UKHL 36, [2008] 1 AC 1128 … 62 R v Loosely see Attorney General’s Reference (No 3 of
R v Deputy Governor of Parkhurst Prison and Others, 2000)
ex p Hague, Weldon Respondent v Home Office R v Lychniak, R v Pyrah [2001] EWHC Admin 294,
Respondent [1991] 3 All ER 733; affirming [1990] [2002] QB 296, QBD … 555
3 All ER 687 … 510, 539–544 R v MacDonald [1998] Crim LR 808 … 458, 459
R v Director of the Serious Fraud Office, ex p Smith R v McDonald [2007] Crim LR 737 … 342, 372–374
[1993] AC 1 … 209, 229–230 R v McIlkenny (1992) 93 Cr App R 287 … 444,

R v Dobson [2011] EWCA Crim 1255 … 447 463–466
R v Dosseter [1999] 2 Cr App R (S) 248 … 342 R v Manchester Crown Court, ex p DPP see Ashton and
R v DPP, ex p Chaudhary [1995] 1 Cr App R 136 … Others, Re
160 R v Mansell (1857) 8 E & B 54 … 416
R v DPP, ex p Duckenfield [1999] 2 All ER 873 … 80 R v Martin [1998] AC 917 … 458, 459
R v Ensor [1989] 1 WLR 497 … 246, 267–268 R v Maxwell [2010] UKSC 48 … 240, 256–260, 344
R v Flower [1966] 1 QB 146, (1965) 50 Cr App R 22 R v Mirza [2004] 1 AC 1118, HL … 402, 427
… 466 R v Mullen [1999] 2 Cr App R 143 … 443, 457–460
R v Ford [1989] QB 868 … 398, 416–418 R v Newton (1982) 77 Cr App R 13 … 345, 381–382
R v Fortean [2009] EWCA Crim 437 … 471, 472 R v Novac (1976) 65 Cr App R 107 … 268
R v Friend (Appeal against Conviction) (No 1) [1997] R v Paris, Abdullahi and Miller (1993) 97 Cr App R 99
2 Cr App R 231 … 400 … 243, 266–267, 344
R v Gautam (1987) Times, March 4 … 268 R v Parole Board, ex p Smith, R v Parole Board, ex p
R v General Council of the Bar, ex p Percival [1991] 1 West [2005] UKHL 1; [2005] 1 WLR 350, [2005]
QB 212, [1990] 3 All ER 137 … 175 1 All ER 755 … 556
R v Goodyear [2005] EWCA Crim 888 … 342, R v Pinfold [1988] QB 462 … 487
368–372, 373, 374 R v Pintori [2007] Crim LR 997 … 415
R v Grant [2005] EWCA Crim 1089 … 239, 240 R v Pryce and Huhne (Southwark Crown Court), 8
R v Gray and Others [2014] EWCA Crim 2372 … 445, March 2013, unreported … 384–388
471–474 R v Samuel [1988] QB 615 … 86, 242
R v Guildford Crown Court, ex p Siderfin [1990] 2 QB R v Sang [1980] A.C. 402, (1979) 69 Cr App R 282 …
683 … 398 141, 142
R v Hart and Others [2007] 1 Cr App R 31, [2007] 2 R v Secretary of State for the Home Department,
Cr App R (S) 34 … 474 ex p Bentley [1993] 4 All ER 442 … 445, 447,
R v Heston-Francois [1984] QB 278 … 459 474–476
R v Hollington and Emmens (1985) 82 Cr App R 281 R v Secretary of State for the Home Department, ex p
… 367 Doody [1994] 1 AC 531, [1993] 3 WLR 154, HL
R v Horncastle [2009] UKSC 14, [2010] 2 WLR 47; … 554
affirming [2009] EWCA Crim 964, [2009] 2 Cr App R v Secretary of State for the Home Department, ex p
R 15 … 59–64, 65, 68, 69, 70, 344 Duggan [1994] 3 All ER 277 … 507
R v Horseferry Road Magistrates’ Court, ex p Bennett R v Secretary of State for the Home Department, ex p
(No 1) [1994] 1 AC 42, (1994) 98 Cr App R 114 Northumbria Police Authority [1989] QB 26 … 84
… 141, 234, 256, 257, 259, 458, 459 R v Secretary of State for the Home Department, ex p
R v Horseferry Road Magistrates’ Court, ex p Bennett Venables, R v Same, ex p Thompson [1998] AC
(No 4) [1995] 1 Cr App R 147 … 461 407, [1997] 3 WLR 23 … 554, 555
R v Howell [2003] EWCA Crim 1 … 88 R v Sheffield Crown Court, ex p Brownlow [1980] QB
R v Howitt (1975) 61 Cr App R 327 … 472 530 … 417
R v Hull Prison Board of Visitors, ex p St Germain (No R v Simpson [1998] Crim LR 481 … 458, 459
1) [1979] 1 All ER 701, [1979] QB 425 … 539 R v Simpson [2004] QB 118 … 368
R v Hyatt (1977) 3 Archbold News 2 … 458 R v Smith [2005] 1 WLR 704 … 402
R v Inland Revenue Commissioners, ex p Allen [1997] R v Staines, R v Morrissey [1997] 2 Cr App R 426 …
STC 1141 … 205 457
R v Inland Revenue Commissioners, ex p Mead and R v Swain [1988] Crim LR 109 … 268
Cook [1992] STC 482 … 205, 217–218 R v Togher (Appeal against Conviction) [2001] 3 All ER
R v Innospec Ltd [2010] Crim LR 665 … 631 463 … 443
xxii | Ta ble of C a se s
R v Turner (No 1) [1970] 2 QB 321, [1970] 2 WLR Teixeira de Castro v Portugal (1998) 28 EHRR
1093 … 342, 367, 368 101 … 141
R v Twomey [2009] EWCA Crim 1035 … 403 Thynne, Wilson and Gunnell v United Kingdom
R v Twomey (Central Criminal Court), 31 March 2010, (11787/85) (1991) 13 EHRR 666 … 511,
unreported … 403 549–550, 554
R v Underwood, R v Arobieke, R v Khan, R v Connors
[2004] EWCA Crim 2256, [2005] 1 Cr App R 13, V and T v United Kingdom (24724/94) (1999) 30
[2005] 1 Cr App R (S) 90 … 345, 382–384 EHRR 121 … 512
R v Wang [2005] UKHL 9, [2005] 1 WLR 661 … 462 Van Droogenbroeck v Belgium (A/50) (1982) 4 EHRR
R v Young [1995] QB 324 … 402 443 … 550, 552
Rees v Kratzmann (1965) 114 CLR 63 … 229 Vinter and Others v United Kingdom (66069/09,
Rondel v Worsley [1969] 1 AC 191, [1967] 1 WLR 130/10 and 3896/10) [2013] ECHR 645 … 12
142 … 100
Ward v James (No 2) [1966] 1 QB 273, [1965] 1 All
SBC v United Kingdom (39360/98) (2001) 34 EHRR ER 563 … 421
619 … 279 Warren and Others v Attorney General of Jersey [2011]
Saunders v United Kingdom (19187/91) (1996) 23 UKPC 10 … 240, 259, 260

EHRR 313 … 209, 457 Weeks v United Kingdom (A/114) (1988) 10 EHRR
Schenk v Switzerland (A/140) (1991) 13 EHRR 293 … 550, 552, 554
242 … 381 Weldon v Home Office [1990] 3 WLR 465, [1990] 3
Sheldrake v DPP [2004] UKHL 43 … 8 All ER 672 … 540, 541
Sirros v Moore [1975] QB 118 … 341, 349–350 Woolmington v DPP [1935] AC 462 … 487
Stafford v United Kingdom (46295/99) (2002) 35 Wynne v United Kingdom (15484/89) (1995) 19
EHRR 1121 … 512, 550–556 EHRR 1 … 553, 554, 555
Starrs and Chalmers v Procurator Fiscal [2000] HRLR
191 … 340 X (Minors) v Bedford County Council [1995] 2 AC,
Stovin v Wise [1996] AC 293, [1996] 3 WLR 388, HL; 633, [1995] 3 WLR 152, HL; affirming [1994]
reversing [1994] 1 WLR 1124, [1994] 3 All ER 467, 2 WLR 554, [1994] 4 All ER 602, CA; affirming
CA … 102 [1993] 2 FLR 575, [1994] PIQR P515 … 102,
103
Taxquet v Belgium (926/05) (2012) 54 EHRR X v United Kingdom (7215/75) (1981) 4 EHRR
26 … 400 188 … 514
Table of Legislation and Conventions
(references in bold indicate where material has been reproduced)
United Kingdom Sch 1, Pt II, para 5 … 316

Access to Justice Act 1999 … 239, 240, 275 Sch 1, Pt II, para 6 … 316
Sch 1, Pt III … 316–317
s 12(1) … 240
s 78(1) … 281 Bill of Rights 1688 … 161
s 79 … 284
Administration of Justice (Miscellaneous Provisions) Children Act 1989 … 125
Act 1933 Children Act 2004
s 6 … 421 s 10 … 93, 95
Administration of Justice Act 1960 s 11 … 93, 95
s 1 … 169 Children and Young Persons Act 1969
s 13 … 455 s 5(8) … 199
Animal Health Act 1981 s 32(1A) … 113
s 61 … 113 City of London (Various Powers) Act 1957
Animal Welfare Act 2006 s 4(1) … 412
s 4 … 113 Civil Liability (Contribution) Act 1978 … 54
s 5 … 113 Commissioners for Revenue and Customs Act 2005
s 6(1), (2) … 113 s 18 … 227
s 7 … 113 s 18(2) … 227
s 8(1), (2) … 113 Sch 1 … 229
s 37(1) … 452 Sch 1, para 2 … 229
Anti-social Behaviour, Crime and Policing Sch 1, para 10 … 229
Act 2014 … 487 Sch 1, paras 13–15 … 229
s 22 … 170 Sch 1, para 17 … 229
s 27 … 170 Sch 1, para 19 … 229
s 175 … 447, 486, 487 Sch 1, paras 28–30 … 229
Armed Forces Act 2006 … 311, 315 Companies Act 1985 … 229
Pt XIV (ss 431–453D) … 228
Bail (Amendment) Act 1993 … 282, 330 Companies Act 2006 … 209
s 1 … 330–332
Constitutional Reform Act 2005 … 340, 397
Bail Act 1976 … 90, 183, 279, 309, 316
s 64 … 340
s 3(4)–(6B), (7) … 313
Contempt of Court Act 1981 … 404
s 3(6)(d) … 313
s 8 … 397, 403, 404–405
s 3(6)(e) … 313
s 3(6A) … 313 s 8(1) … 426, 427
s 3(6E) … 312 s 8(2) … 426
s 3A … 90 s 12(5) … 169
s 4 … 309–310, 316 Coroners and Justice Act 2009 … 279, 346
s 7 … 311, 312, 315 s 114 … 279
s 9A(4) … 310 s 115 … 279
Sch 1 … 125, 279, 309, 310–317 s 115(1) … 310
Sch 1, Pt I … 310–314 s 122(2) … 332
Sch 1, Pt I, para 1A … 124 s 125 … 346
Sch 1, Pt I, para 2(1) … 124 s 125(1) … 332
Sch 1, Pt I, para 2(2) … 124 Counter-Terrorism Act 2008
Sch 1, Pt I, para 2A … 316 Sch 4 … 146
Sch 1, Pt I, para 6 … 316 Counter-Terrorism and Security Act 2015
Sch 1, Pt I, para 9A … 316 s 2 … 481
Sch 1, Pt I, para 9B … 316 Courts Act 1971 … 340
Sch 1, Pt II … 310, 315–316 s 4(1) … 350
xxiv | Ta ble of Legi s lation a nd Con v ention s
Courts Act 2003 … 275, 276, 397 ss 17–21 … 448

s 11 … 276 s 29(1) … 459
s 27 … 278 Sch 2, para 5 … 459
s 28 … 278 Criminal Justice Act 1925 … 499
Courts and Legal Services Act 1990 … 239, 340 Criminal Justice Act 1967 … 400, 511
s 71 … 168, 492 Criminal Justice Act 1972
s 108 … 287 s 34(1) … 119
Sch 1 … 492 s 36 … 164, 447, 476–477
Courts-Martial (Appeals) Act 1968 s 36(1) … 478
s 12(1) … 459 Criminal Justice Act 1987 … 168, 208, 209, 223,
Crime (International Co-operation) Act 2003 229, 230
s 13(2) … 224 s 1 … 223, 224
s 15(2) … 224 s 2 … 209, 224–227
Crime (Sentences) Act 1997 … 513 s 3 … 227–229
Crime and Courts Act 2013 … 276 s 4 … 371
Crime and Disorder Act 1998 … 10, 11, 232, 234, s 9 … 454
281, 505 s 9(11) … 473

s 5 … 96 Criminal Justice Act 1988 … 65, 66, 67, 399, 464, 479
s 51 … 164, 283, 371 Pt IV (ss 35–36) … 447, 479
s 54(1) … 281 s 36 … 348, 444, 479–480
s 54(2) … 281 s 43 … 444
s 55 … 281 s 118 … 418
s 56 … 279 s 119 … 397
Sch 3 … 283 s 133 … 447, 480–483, 484, 485–486
Sch 3, para 2 … 146, 148, 149 s 133(1) … 483
Criminal Appeal (Northern Ireland) Act 1980 s 133(2) … 483
s 10(2) … 480 s 133(5A) … 484, 485
s 33(1) … 480 s 133A … 481
Criminal Appeal Act 1907 … 464, 465 s 139AA(7) … 479
Criminal Appeal Act 1964 … 464 Sch 12 … 483
Criminal Appeal Act 1966 … 442 Criminal Justice Act 1991 … 284, 286, 368, 377, 498,
s 1(5) … 477 499, 500, 509, 511, 548, 554
s 4 … 465 s 29 … 284
Criminal Appeal Act 1968 … 442, 443, 453, 457, 458, s 35(1) … 552
459, 462, 464, 470, 472 s 39(1) … 557
Pt I (ss 1–32) … 169, 453, 454, 473 s 39(2) … 556
s 1 … 473 s 39(3) … 557
s 2 … 66, 443, 444, 453, 458, 459, 460, 464 s 39(4)(b) … 556
s 2(1) … 455, 457, 464 s 53 … 371
s 2(2) … 464 s 95 … 13, 70
s 2(3) … 464 s 95(1)(b) … 377
s 7 … 257, 453, 455, 464, 466 Criminal Justice Act 1993 … 284, 500
s 11 … 479, 480 Criminal Justice Act (CJA) 2003 … 10, 11, 35, 59, 60,
s 11(1A) … 473 62, 64, 65, 66, 67, 69, 83, 86, 88, 232, 234, 279,
s 17 … 488, 489, 490, 491 282, 284, 285, 286, 343, 345, 346, 347, 398,
s 22(4) … 454 403, 413, 415, 416, 446, 504, 510, 511, 517, 555
s 23 … 444, 453–454 s 1 … 84
s 29 … 471, 472–473 s 13(4) … 316
s 29(1) … 467, 468, 469, 473 Pt 3 (ss 22–27) … 89, 155
s 31(2)(h) … 473 s 22 … 90
s 32 … 474 s 28 … 160
Pt II (ss 33–44A) … 169, 455, 473 s 29 … 353
s 33 … 448, 454–455 s 44 … 401
s 35(1) … 480 s 47 … 454
Criminal Appeal Act 1995 … 344, 442, 443, 481 Pt 9 (ss 57–74) … 454, 473
s 4 … 444 s 58 … 162
s 8 … 448, 492 s 76(1), (2) … 455
ss 9–12B … 492 Pt 11 (ss 98–141) … 59, 67
s 9 … 473 s 116 … 63
s 11(6) … 453 s 125 … 59, 68
s 13 … 448, 492–493 Pt 12 (ss 142–305) … 284
s 13(2) … 448 s 142 … 285
Ta ble of Legi s lation a nd Con v ention s | xxv
s 143 … 285 ss 34–39 … 87

s 143(2) … 284 s 34 … 88, 146–147, 149, 150
s 144 … 244, 284, 285, 342, 390 s 34(2) … 149, 150
s 144(2) … 359 s 34(2)(b) … 150
ss 145–146 … 285 s 34(2A) … 150
s 148(2) … 357 s 35 … 147, 149, 150, 400
ss 152–153 … 285 s 35(3) … 149, 150
s 153(2) … 357 s 36 … 148, 149, 150
ss 156–160 … 285, 500 s 36(2) … 149, 150
s 158 … 500 s 36(2)(b) … 150
s 161 … 285, 312 s 36(4A) … 150
s 161A … 452 s 37 … 148–149, 150
ss 162–165 … 285 s 37(2) … 149, 150
s 172 … 345 s 37(2)(b) … 150
s 174 … 390 s 37(3A) … 150
Pt 12, Ch 2 (ss 177–180) … 285 s 38 … 149–150
ss 189–195 … 286 ss 40–43 … 397

Pt 12, Ch 5 (ss 224–236) … 390 s 42 … 398
s 224 … 373 s 48 … 283, 342
s 224A … 479 s 52 … 442
s 225 … 346, 347 s 60 … 84, 143
s 225(2) … 479 s 76 … 113
s 226(2) … 479 s 94 … 498
s 229 … 346, 347 s 96 … 499
s 229(3) … 373 s 99 … 499
s 239 … 511 s 149 … 511
s 240 … 390 Criminal Law Act 1967
s 240A … 390 s 4 … 177
s 254 … 557 Criminal Law Act 1977 … 399
s 255 … 557 ss 6–8 … 113
s 269(2) … 480 s 10 … 113
s 321 … 397 Criminal Procedure (Scotland) Act 1995
Sch 2 … 160 s 188(1)(b) … 481
Sch 3 … 37, 372, 480 s 194B … 481
Sch 8, Pt 2 … 309, 317 Criminal Procedure and Investigations Act 1996 … 31,
Sch 15 … 347 220, 283, 352
Sch 15, Pt 1 … 125 s 3(6) … 352
Sch 15, Pt 2 … 125 s 7A(8) … 352
Sch 15B … 347 s 8(5) … 352
Sch 19 … 511 s 35 … 454
Sch 21 … 346 s 35(1) … 473
Sch 33 … 397, 415 Crown Proceedings Act 1947
Criminal Justice and Court Services Act 2000 … 11, s 2(5) … 341
187, 499 Crown Prosecution Service Inspectorate Act 2000
s 5 … 189 Sch, para 7 … 227, 228
Pt III (ss 43–70) … 312
Criminal Justice and Courts Act 2015 … 397, 510 Defamation Act 2013 … 399
s 4 … 347 Domestic Violence, Crime and Victims Act 2004
s 71 … 403 s 35 … 506
Criminal Justice and Immigration Act 2008 … 286,
347, 444 Electoral Administration Act 2006 … 397
Sch 2 … 309 Equality Act 2006 … 13, 532
Criminal Justice and Police Act 2001 Equality Act 2010 … 522
ss 1–11 … 90 Extradition Act 2003 … 12, 332
s 50 … 205 Pt 1 (ss 1–68A) … 170
Criminal Justice and Public Order Act (CJPOA) 1994 … s 67 … 332
83, 132, 146, 209, 243, 244, 279, 283, 498, 511 Pt 2 (ss 69–141) … 170
s 25 … 123, 275, 310 s 139 … 332
s 26 … 279
s 27 … 90 Family Law Act 1996
s 28 … 90 s 62 … 311, 316
s 30 … 282 Finance Act 1986 … 206
xxvi | Ta ble of Legi s lation a nd Con v ention s
Finance Act 1994 s 11 … 417

ss 7–14 … 206 s 17 … 400, 412–413
Sch 4 … 206 Sch 1 … 411
Sch 5 … 206 Justices of the Peace Act 1968 … 278
Financial Services and Markets Act 2000 Justices of the Peace Act 1979
s 167 … 228 s 44 … 287
s 168 … 228 s 45 … 287
s 169(1)(b) … 228 Justices of the Peace Act 1997
s 212(1) … 228 s 6 … 289
s 262(2)(k) … 228 s 55 … 291
s 284 … 228 s 57 … 291
Firearms Act 1968
s 51A(2) … 479, 480 Law Officers Act 1997 … 192
Football Spectators Act 1989 Law Reform (Miscellaneous Provisions) (Scotland) Act
s 14A … 170 1940
s 14B … 170 s 3 … 54
s 23 … 452 Legal Aid, Sentencing and Punishment of Offenders Act

Fraud Act 2006 … 210 2012 … 240, 282, 286, 347
s 68 … 286
Human Rights Act 1998 … 12, 50, 84, 106, 178, Pt 3, Ch 3 (ss 91–107) … 331
510, 554 s 91 … 113
s 1 … 50 s 91(3), (4) … 316
s 2 … 51 s 144 … 113
s 3 … 51, 427 Sch 7 … 242
s 4 … 51–52 Sch 11 … 279
s 5 … 52 Sch 11, para 16 … 316
s 6 … 53 Sch 11, para 17 … 316
s 6(1) … 54 Legal Services Act 2007 … 10, 149, 239
s 8 … 53–54
s 14 … 50 Magistrates’ Courts Act 1980 … 452
s 15 … 50 s 1 … 353
s 19 … 463 s 2 … 333
Sch 1 … 50, 54–59 s 12 … 284
Sch 1, Pt I … 54–58 s 19 … 332
Sch 1, Pt II … 58–59 s 19(1) … 332
Sch 1, Pt III … 59 s 19(2) … 332
s 22(2) … 310
Human Trafficking and Exploitation (Criminal Justice s 33 … 333
and Support for Victims) Act (Northern Ireland) s 41 … 310
2015 s 76 … 113
s 7(2) … 480 s 108 … 169, 441
s 117(2) … 123
Immigration Act 1971 … 168 ss 19–20 … 282
Sch 2, para 16(3) … 119 s 108 … 452
Sch 2, para 18(1) … 119 s 128 … 282
Sch 2, para 18(3) … 119 s 142 … 287
Imprisonment (Temporary Provisions) Act 1980 Sch 2 … 310
s 6 … 543 Magna Carta (1297) … 424, 425, 462
Intelligence Services Act 1994 … 139 cl 39 … 424, 425
Interception of Communications Act 1985 … 139 Management of Offenders etc (Scotland)
Act 2005 … 498
Juries Act 1974 … 397, 411, 412, 416, 418, 419 Mental Health Act 1983 … 134, 453, 513, 514, 558
s 1 … 411, 414 Pt III (ss 35–55) … 453
s 2 … 417 s 37 … 513
s 3 … 411–412 s 38(7) … 453
s 5 … 417 s 41 … 513
s 5(1) … 416 s 47 … 513
ss 9–10 … 419 s 72(1)(a) … 514
s 9 … 412 s 135 … 513
s 9A(1A) … 412 s 136 … 513
s 9A(2A) … 412 Mental Health Act 2007 … 513
s 9A(2B) … 412 Metropolitan Police Act 1829 … 79
Ta ble of Legi s lation a nd Con v ention s | xxvii
Misuse of Drugs Act 1971 … 310, 312 s 38 … 90, 123–125

s 5(2), (3) … 312 s 39 … 121
s 8(d) … 108 s 39(2) … 121
s 41(2) … 126, 127
Northern Ireland Act 1998 s 41(7) … 122
s 23(2) … 483 Pt V (ss 53–65A) … 85
s 56 … 125–126
Obscene Publications Act 1959 … 108 s 58 … 126–127, 242
s 3 … 169 s 63B … 123, 124, 128, 312
Offences Against the Person Act 1861 s 63B(3)(b) … 125
s 4 … 161 s 66 … 128
s 18 … 88, 89, 159, 163, 164, 245, 339, 341, Pt VII (ss 68–72) … 129
342, 345, 381, 382, 383, 397, 427 s 76 … 128–129, 462
s 20 … 88, 163, 245, 339, 341, 342, 345, 382, s 76(2) … 266, 343
388–390, 441, 501 s 78 … 129, 141, 227, 254, 343, 378, 380, 451,
s 29 … 390 457, 462
s 47 … 88 s 78(1) … 140
Offender Management Act 2007 … 11, 498, 499 s 106 … 291
s 1 … 500 Police and Justice Act 2006 … 90, 282
Official Secrets Act 1911 … 401, 402 s 7 … 79
s 17 … 90
Police Act 1964 … 81 Police and Magistrates’ Courts Act 1994 … 275
s 48(1) … 99 s 69 … 275
Police Act 1996 … 103 Police Reform Act 2002 … 11, 79, 81
s 2 … 94 Sch 3, para 23 … 169
s 3 … 93 Sch 3, para 24 … 169
s 6 … 80 Police Reform and Social Responsibility
s 22A … 93, 94, 95 Act 2011 … 80, 92, 93, 94, 95
s 37A … 96, 97 Pt 1, Ch 1 (ss 1–2) … 92–94
s 37A(2) … 93, 95 s 1 … 80, 92–93
s 39A(7) … 93, 95 s 2 … 93–94
Sch 1 … 92, 94, 98 Pt 1, Ch 2 (ss 3–4) … 94–95
Police Act 1997 … 139 s 3 … 94–95
Pt III (ss 91–108) … 84 s 4 … 95
Police and Criminal Evidence Act 1984 (PACE) … 4, Pt 1, Ch 3 (ss 5–27) … 93, 94, 95–99
81, 83, 86, 112, 115, 121, 122, 125, 129–136– s 5 … 95–97
138, 145, 150, 152, 220, 253, 254, 264, 265, s 6 … 97
266, 267, 343, 344, 380, 450, 451 s 7 … 98
Pt I (ss 1–7) … 84 s 8 … 98–99
s 1 … 71 s 8(2) … 93
s 3 … 85 s 8(4) … 95
Pt II (ss 8–23) … 85 s 28(3) … 96
s 17 … 85, 112–114 s 28(4) … 96
s 18 … 85, 114 s 32 … 97
s 19 … 115 s 33(1) … 97
Pt III (ss 24–33) … 85 s 34 … 93, 95
s 24 … 85, 115–116 s 35 … 93, 95
s 24A … 116–117 s 38 … 93
s 28 … 117 s 42 … 95
s 29 … 117 s 48 … 95
s 30 … 117–119 Pt 1, Ch 6 (ss 50–76) … 92
s 30(1) … 119 s 50 … 97
s 30A … 114, 118, 119, 121 Sch 1 … 93
s 31 … 119 Sch 2 … 94
s 32 … 85, 120 Sch 4 … 95
Pt IV (ss 34–52) … 85, 86, 123, 125 Powers of Criminal Courts (Sentencing)
s 34 … 122 Act 2000 … 284, 343
s 35(1) … 121 s 3 … 333
s 35(2A) … 121 s 11(3) … 313
s 36 … 121–122 s 14 … 458
s 37 … 122–123 s 92 … 113
s 37B … 123 s 110(2) … 479
xxviii | Ta ble of Legi s lation a nd Con v ention s
s 111(2) … 479 s 8 … 121

Sch 1 … 309 s 163 … 113
Sch 8 … 309
Prevention of Crime Act 1953 Security Services Act 1996 … 139
s 1A(5) … 479 Senior Courts Act 1981
Prison Act 1877 … 538 s 28A … 445
Prison Act 1952 … 510, 538 s 48 … 441, 452–453
s 1 … 538 Serious Organised Crime and Police
s 12(1) … 542 Act 2005 … 83, 498
s 13 … 542 s 73 … 390
s 47 … 538–539 s 74 … 390
Prisons Act 1878 … 498 s 110 … 85
Probation of Offenders Act 1907 … 499 Sexual Offences (Amendment) Act 1976
Probation Service Act 1993 … 499 s 4(4) … 473
Proceeds of Crime Act 2002 … 11, 83, 222 Sexual Offences Act 1956
Pt 2 … 126, 127 s 12 … 160
Pt 5 … 170, 223 Social Security Fraud Act 2001 … 222

Pt 8 … 170, 223 Street Offences Act 1959
Prosecution of Offences Act 1985 … 159, s 1(2A) … 309
167, 472 Sch … 309
Pt I (ss 1–15) … 232 Supreme Court Act 1981 … 441, 464
s 1 … 167–168 s 48(2)(b) … 481
s 2 … 164, 168 s 69 … 421
s 3 … 164, 168–171 s 81(1B) … 473
s 3(2) … 177
s 3(2)(e) … 166 Taxes Management Act 1970 … 227
s 6 … 232 Pt X (ss 93–107) … 214
s 9 … 171 s 93(1) … 214
s 10 … 162, 171, 177 s 95 … 215
s 12 … 169 s 100B(2) … 215
ss 16–18 … 473 s 100B(3) … 215
s 16 … 287, 477 Terrorism Act 2000 … 86, 113, 119
s 16A … 477 s 7 … 481
ss 18–19 … 242 s 43 … 120
s 18 … 473–474 s 47AB(2) … 128
s 20(1A)–(1C) … 477 Terrorism Act 2006 … 86, 462
s 20(1A)(d) … 477 Sch 3 … 481
s 20(3) … 477 Theft Act 1968
s 23 … 199 s 17 … 215
Protection of Freedoms Act 2012 … 86, 87 Transport and Works Act 1992
Public Order Act 1936 … 401 s 27 … 113
s 1 … 113
s 5 … 422 Vagrancy Act 1824 … 84
Public Order Act 1986 … 83 Violent Crime Reduction Act 2006
s 4 … 113 s 29(4), (6) … 479, 480
Pt III (ss 17–29) … 117 Sch 2, para 2(4), (5) … 480
Pt IIIA (ss 29A–29N) … 117 Visiting Forces Act 1952
s 12(1) … 316
Race Relations Acts … 81
Regulation of Investigatory Powers Act 2000 … 84, Welfare Reform Act 2007 … 221
206 Welfare Reform Act 2009 … 222
Representation of the People Act 1983 … 411,
412 Youth Justice and Criminal Evidence
Sch 2, para 8A … 412 Act 1999 … 11
Road Traffic Act 1988 s 28 … 70
s 4 … 113 s 58 … 87, 242
s 5(1)(b) … 8 s 59 … 209
s 7 … 121 Sch 3 … 209
Table of Statutory Instruments
Assistants to Justices’ Clerks Regulations 2006 (SI Justices’ Clerks Rules 2005 (SI 2005/545) … 278
2006/3405) … 278
Life Sentences (Northern Ireland) Order 2001
Civil Procedure Rules 1998 (SI 1998/3132) … 32 (SI 2001/2564 (NI 2)
Criminal Procedure Rules 2012 (SI 2012/1726) Art 5(1) … 480
Pt 17 … 352
Criminal Procedure Rules 2013 (SI 2013/1554) … Northern Ireland Act 1998 (Amendment of
352 Schedule 3) Order 2010 (SI 2010/977) … 483
Criminal Procedure Rules 2014 (SI 2014/1610) … Northern Ireland Act 1998 (Devolution of Policing and
35, 36, 38, 39, 41, 42, 178, 279, 344, 350, 351, Justice Functions) Order 2010 (SI 2010/976)
352, 354, 412 Art 25(2) … 483
Pt 1 … 350–351
Pt 2 … 351–353 Parole Board (Amendment) Rules 2009
Pt 3 … 341, 353–355 (SI 2009/408) … 512
rr 3.1–3.12 … 353 Parole Board Rules 2011 (SI 2011/2947) … 512
rr 3.13–3.26 … 353 Prison (Amendment) Rules 2002 (SI 2002/2116) …
Pt 17 … 352 509
Pt 17, Section 3 … 352 Prison Rules 1964 (SI 1964/388) … 322, 323, 510,
r 33.6(2) … 40 539, 540, 542
Pt 68 … 282 r 20(2) … 542
Criminal Procedure and Investigations Act 1996 r 43 … 539, 540, 541
(Defence Disclosure Time Limits) Regulations r 43(2) … 540
2011 (SI 1996/209) … 352 Public Bodies (Abolition of Courts Boards) Order 2012
(SI 2012/1206) … 276
Firearms (Northern Ireland) Order 2004 (SI 2004/702
(NI 3)) Young Offender Institution Rules 2000 (SI
Art 70(2) … 480 2000/3371) … 510
Table of European Legislation
Treaties
Treaty of Amsterdam 1997�� 12
Treaty of Lisbon 2007�� 12
Treaty of Maastricht Treaty 1992 (Treaty on European Union)�� 229
Decisions
Council Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States (2002/584/JHA)�� 12
Table of Foreign Statutes
Canada
Bill of Rights�� 425
United States
Constitution�� 425
First Amendment�� 104
Federal Rules of Evidence
r 403�� 344
Table of International Conventions
European Convention on the Protection of Human Art 18 … 58

Rights and Fundamental Freedoms 1950 … 12, Art 26 … 51
45, 50, 59, 60, 62, 101, 104, 139, 160, 178, Art 27(2) … 51
444, 463, 467, 470, 550, 552, 553, 554, 555, Art 31 … 51
556, 557 Art 41 … 54
Arts 2–12 … 50 Art 46 … 51

Art 2 … 54, 535 European Convention on the Protection of Human
Art 3 … 54, 554 Rights and Fundamental Freedoms, Protocol s,
Art 4 … 54–55 First Protocol
Art 5 … 55, 279, 467, 470, 471, 552, 557 Arts 1–3 … 50
Art 5(1) … 467, 468, 469–470, 514, 550, Art 1 … 58
551, 552 Art 2 … 58
Art 5(1)(a) … 467, 552 Art 3 … 59
Art 5(4) … 511, 514, 549, 550, 553, 554, 557 European Convention on the Protection of Human
Art 5(5) … 549 Rights and Fundamental Freedoms, Protocol s,
Art 6 … 56, 59, 65, 66, 67, 70, 104, 105, 141, Sixth Protocol
214, 239, 340, 351, 381, 398, 400, 448, 467, Art 1 … 59
468, 471, 486, 487, 509, 557 Art 2 … 59
Art 6(1) … 62, 63, 67, 87, 88, 102, 103, 105, European Convention on the Protection of Human
106, 209, 381, 457, 467, 468, 469, 471, 554 Rights and Fundamental Freedoms, Protocol,
Art 6(2) … 62, 484, 485, 486 Thirteenth Protocol
Art 6(3) … 59, 62, 66, 246 Art 1 … 50
Art 6(3)(c) … 467, 469, 471
Art 6(3)(d) … 60, 61, 62, 63, 64, 65, 66 International Covenant on Civil and Political Rights
Art 7 … 56 (ICCPR)1966 … 12, 13
Art 8 … 56–57, 161, 381, 510 ICCPR, Optional Protocol … 12
Art 9 … 57 International Covenant on Civil and Political Rights
Art 10 … 57, 58, 427 1966
Art 11 … 57, 58 Art 14(6) … 484
Art 12 … 57
Art 14 … 50, 58, 467 United Nations Convention on the Rights of the Child
Arts 16–18 … 50 1989 … 182
Art 16 … 58 United Nations Universal Declaration of Human Rights
Art 17 … 58 1948 … 12
Chapter 1
Introduction
Chapter Contents
(i) About this book 3

(ii) Is there a criminal justice system? 7
(iii) Identifying characteristics of the English criminal justice process 8
(iv) Evaluating the criminal justice process 11
Further reading 13
A note on free resources 14
Documents
[1:1] Office for National Statistics, Crime in England and Wales,
Year Ending September 2014 (at page 2) 15
[1:2] Reiner, R, ‘Success or statistics? New Labour and crime control: What has
happened to crime under New Labour?’ (2007) Criminal Justice Matters,
No 67 (at page 4) 20
[1:3] Report of the Royal Commission on Criminal Justice (1993) Cm 2263, HMSO
(at page iii) 23
[1:4] Feeney, F, ‘Interdependence as a working concept’ in Moxon, D (ed),
Managing Criminal Justice (1985) HMSO (at page 8) 25
[1:5] Auld, LJ, Review of the Criminal Courts of England and Wales (2001)
The Stationery Office (at page 23) 28
[1:6] Jones, C, ‘Auditing Criminal Justice’ (1993) 33 BJ of Criminology 187
(at page 199) 33
[1:7] Tonry, M, Punishment and Politics: Evidence and emulation in the
making of English crime control policy (2004) Willan (at page 22) 34
[1:8] Leveson, B, Review of Efficiency in Criminal Proceedings (2015) Judiciary of
England and Wales (at page 96) 35
2 | INT R O D U C T I O N
[1:9] James, A and Raine, J, The New Politics of Criminal Justice (1998) Longmans
(at page 44) 43
[1:10] Packer, H, The Limits of the Criminal Sanction (1968) Oxford University Press
(at page 153) 45
[1:11] Bottoms, A E and McClean, J D, Defendants in the Criminal Process (1976)
Routledge and Kegan Paul (at page 228) 48
[1:12] King, M, The Framework of Criminal Justice (1981) Croom Helm (at page 13) 49
[1:13] Human Rights Act 1998 (as amended), sections 1–6; 8; Schedule 1
(European Convention on Human Rights) 50
[1:14] Spencer, J R, ‘Squaring up to Strasbourg: Horncastle in the Supreme Court’
(2010) 1 Archbold Review 6 59
[1:15] Spencer, J R, ‘Hearsay evidence at Strasbourg: a further skirmish,

or the final round? A comment on Al-Khawaja and Tahery v UK in the Grand
Chamber’ (2012) 1 Archbold Review 5 65
[1:17] Statistics on Race and the Criminal Justice System 2012 (2013) Ministry of Justice 70
[1:18] Hood, R, Shute, S and Seemungal, F, Ethnic Minorities in the Criminal Courts:
Perceptions of Fairness and Equality of Treatment (2003) Lord Chancellor’s
Department Research Series No 2/03 73
A bout this book | 3
(i) About this book

Imagine walking home one evening, when you come across a young woman lying on the pavement,
moaning. On closer inspection, you see that she looks a little drunk, and she is bleeding through her
jacket. What do you do? You telephone the emergency services, dial 999? Do you ask for the police or
an ambulance? Whatever you do, the matter will soon be safely out of your hands, and the National
Health Service and/or the criminal justice system will take over. This book follows the processes that
a case such as this will pass through in the criminal justice system.
In our fictional case, you contacted the ambulance service, who then called for the police to
attend. Of course, in many circumstances, the police never hear about a crime. Probably less than
half of all crimes are reported to the police and reporting rates vary enormously between different
types of offences. The factors which influence victims in their decision whether or not to report a
crime were analysed by Clarkson et al (1994). They include victims’ habituation to violence, their
reluctance to have their own behaviour scrutinised, their fear of reprisals, their own criminality
and hostility toward the police, and the social costs associated with reporting crime. And Walby and
Allen (2004) found that high numbers of men and women do not report even the worst incidents of
domestic violence they suffered to the police: because they thought it was too trivial, or a family pri-
vate matter, or because they did not want more humiliation, or because they feared more violence or
that the situation would get worse if they involved the police. How many times have you witnessed
a crime, or indeed been a victim of crime, and not reported it to the police?
Nor do the police record all incidents reported to them: they may not believe the complainant
or they may not consider that the reported behaviour constitutes a criminal act. The Crime Survey
for England and Wales (CSEW) (formerly the British Crime Survey), which measures crimes against
people living in private households by carrying out face-to-face interviews, has been conducted
regularly since 1982, and it became an annual event in 2001 (approximately 50,000 households,
chosen at random, have been selected to take part in the 2014/15 survey). The CSEW has found that
crime has been falling significantly in recent years. It estimated that there were 7.0 million incidents
of crime against households and resident adults (aged 16 and over) in England and Wales for the
year ending September 2014 (down 11 per cent on the previous year and the lowest estimate since
the survey began; it peaked at 19.1 million in 1995). And yet, in the same year, the police recorded
only 3.7 million offences – just over half the number of offences estimated by the CSEW. The first
document included at [1:1] of this chapter is the summary of the Office for National Statistics
Statistical Bulletin for the year to September 2014 which combines findings from the CSEW and
police recorded figures.
Of course, it is very difficult to know how much crime there is: readers should explore the
Office for National Statistics’ website: www.ons.gov.uk/ons/publications/index.html for the latest
statistical data. Rising or falling incidents of recorded and reported crime can be influenced by a
range of factors beyond there simply being a greater or smaller number of offences being committed.
For example, it is difficult to establish whether the rising number of sexual offences recorded by
the police (up 22 per cent in the year to September 2014) reflects increasing numbers of these
offences being committed or, rather, improvements in recording and less reluctance on the part
of victims to come forward to report such crimes. At [1:2] is an extract from an article by Robert
Reiner which considers whether or not statistical crime trends are attributable to the Government’s
criminal justice policy. It focuses on the inevitable unreliability of national crime data.You might like
to consider what data you think should be collected: police recorded crime figures will never paint
a ‘true’ figure of crime (and we will see in Chapter 2 that the UK Statistics Authority ‘de-designated’
police recorded crime as an approved measure of crime statistics in January 2014); offender surveys
give different results from victim surveys, but raise significant ethical and practical problems; local
data may be more useful than national trends, and so on.
Number of offences (000s) Police recorded crime-old counting rules

Police recorded crime-new counting rules
20,000
Police recorded crime-post NCRS
Police recorded crime-post NCRS years
18,000 ending September
CSEW estimate
16,000 CSEW estimate-years ending September
14,000
12,000
10,000
8,000
6,000
4,000
2,000
0
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998/99
1999/00
2000/01
2001/02
2002/03
2003/04
2004/05
2005/06
2006/07
2007/08
2008/09
2009/10
2010/11
2011/12
Year end Sep 13

Year end Sep 14
Figure 1.1 Trends in police recorded crime and CSEW, 1981 to 12 months ending September 2014
Despite the real challenges of measuring ‘crime’, what is clear is that, as we move through
the process – and as we move through the chapters of this book – we are dealing with an ever-
decreasing proportion of cases. Of those cases which are reported to the police, not all result in a
prosecution; and not all prosecutions end in convictions – perhaps two in every hundred offences
committed result in a conviction. There is a huge amount of statistical information on criminal jus-
tice available to the public, but it is presented in an increasingly fragmented manner, split between
the (quarterly) Criminal Justice Statistics, Court Statistics and Offender Management Statistics. Why
some statistics are in one set of data rather than another is not always obvious. Clearly, it is welcome
that so much information is made available – but shouldn’t thought also be given to ensure that it
is readily accessible to the public? In addition to the fragmentation of the statistics, the process of
moving (some previously excellent) websites onto the (not particularly user-friendly) Gov.uk site
has left a trail of broken links across the internet: increasingly, it feels like what you are looking for
is ‘out there somewhere’ but it can be a real test of one’s patience actually to find it! However, the
Criminal Justice Statistics Quarterly Update can be relied upon to provide a useful flowchart of flows
through the criminal justice system.
Once an alleged offence is reported, or comes to the attention of the police in some other way,
then, as we shall see in Chapter 2, the police have wide discretionary powers. They may record it
or they may decide it was just an accident; they may investigate the crime further, using wide com-
mon law and statutory powers under the Police and Criminal Evidence Act 1984 (PACE); they (or
the Crown Prosecution Service) may eventually charge an arrested person with an offence. Many
A bout this book | 5
Notifiable
Recorded Crime(1)
3,508,297
Offences
Offences detected
Crown Prosecution Service receive papers CPS discontinue the case

from the police for prosecution or case unable to proceed
CPS proceed with charge

Notifiable and non-notifiable principal offences (*all offences)
Cannabis warnings Cautions Penalty Notices for Disorder Defendants proceeded against at magistrates’ courts
55,564 160,791 69,048 1,387,553 2,051,072 (*)
Number found guilty by magistrates Number tried at the Crown Court(2)

1,081,298 1,459,148 (*) 84,548
Number found guilty at Crown Court

Number committed for sentence at Crown Court 69,286 163,796 (*)
16,863
Number sentenced by magistrates

Defendants (offences)
Number sentenced by the Crown Court

1,063,101 86,149
Guilty Plea 77,378 Not Guilty Plea 8,771
Community Suspended Other Community Suspended Other

Fined Custody Fined Custody
sentence sentence disposal sentence sentence disposal
1,591 41,535 177 6,303
9,809 21,061 3,382 606 1,356 329
Community Other
Fined Custody Suspended
sentence 102,826
798,380 41,990 23,714
96,191
Total sentenced to custody Total sentences to be served in the community (3)

89,828 152,737
Average custodial sentence length

15.8 months
Prison receptions (4) Probation starts (5)

79,357 140,546
(1) Covers all indictable offences, including triable either way, plus a few closely associated summary offences.
(2) Defendants tried at the Crown Court in a given year may have been committed for trial by a magistrate in a previous year.
(3) Includes community sentences and suspended sentence orders.
(4) Receptions for offenders given a custodial sentence (figures include fine defaulters).
(5) Offenders starting Community Order or Suspended Sentence Order supervision by the Probation Service.
* Total number of all offences in comparison with the total number of defendants on a principal offence basis.
Figure 1.2 Flows through the Criminal Justice System, 12 months ending September 2014
criminals are never charged: they will either be summonsed to appear before a magistrates’ court or
be cautioned. We shall see in Chapter 2 how an enormous proportion of offenders were dealt with
out-of-court in the mid- to late-2000s, although this has fallen significantly in recent years.
Let us go back to our story. Our victim recovers from the attack and tells the police that her
name is Rosa Bottles. She says she went to the pub with the usual group of friends, they all drank
heavily, and on the way home she was involved in a fight with a man with whom she had earlier had
an argument, Gerry Good. She is prepared to see the police proceed against him. The next day Gerry
is arrested. What goes on in the police station between the time he is arrested and the time he is
charged is perhaps the most crucial to a successful prosecution. It is also in the police station that the
seeds of most miscarriages of justice are likely to be sown. In Chapter 2 we examine police powers
and the safeguards for the suspect held in a police station. The Crown Prosecution Service (CPS),
working in partnership with the police, may give pre-charge advice, and now make the decision
whether Gerry should be charged with a minor assault or a more serious wounding offence, and are
responsible for the conduct of the prosecution. We will discuss the complex relationship between
the police and the CPS in Chapter 3.
But not all prosecutions are initiated by the police. Non-police and non-CPS agencies, such as
HM Revenue and Customs, the Environment Agency and the Health and Safety Executive, deal with
many criminal offences, often in very different ways. Chapter 4 thus offers a rather different perspec-
tive on the criminal justice process.
Another influence which is often neglected is that of the lawyer. The suspect’s solicitor and
barrister, in particular, may play a significant role in the process, since their advice about such
matters as to whether a defendant should plead guilty or not guilty, whether to give evidence and
whether to appeal may have a significant impact on the way in which the case is finally proceeded
with. Chapter 5, on the role of defence lawyers, will attempt to assess the appropriateness of the
legal advice given to suspects at all stages in the criminal process and the very real (and growing)
problem of legal costs.
All criminal prosecutions start in the magistrates’ court. When the alleged offender reaches
the magistrates’ court, more decisions are taken. The court may have to decide whether the accused
should be remanded in custody or released on bail, or whether the accused should be tried on
indictment by a judge and jury in the Crown Court or summarily before the magistrates. If the case
remains before the magistrates, they may have to decide on sentence as well as on guilt. Since most
prosecutions begin and end in the magistrates’ court, they clearly merit a chapter (Chapter 6).
Our fictional case is a serious one and Gerry is charged with an indictable crime, one which
can only be tried in the Crown Court by judge and jury. The roles of judge and jury at the trial stage
are clearly different, and each merits separate examination (Chapters 7 and 8).
If convicted, Gerry will be sentenced. The role of the judge or magistrate in sentencing (why
does the jury have no role here?) will be examined in their respective chapters (see above). But the
story, of course, does not end there – perhaps Gerry will appeal or seek some other review of his
sentence and/or conviction, so the powers of appellate bodies must be considered (Chapter 9). In
any event, the process continues beyond Gerry’s conviction – he has a sentence to serve – and in
Chapter 10 we look at how various criminal justice agencies exercise their wide discretionary pow-
ers in relation to sentenced offenders.
The emphasis of the book is on the decisions made by the key actors in the process, stressing
the wide discretionary powers exercised. As Davis (1969) pointed out, the greatest and most fre-
quent injustices occur where discretion is unfettered, where rules and principles provide little or
no guidance. Since consistency and certainty are important objectives of the criminal justice sys-
tem, it might seem that the system should be governed by clearer, pre-determined rules. Why have
such wide discretionary powers been delegated to different individuals and bodies? The answer
DO C U M ENTS | 23
a sense of insecurity as its paraphernalia and routines act as constant signs of threat (Zedner,
2003). These are major factors in the reassurance gap, the failure of public opinion to recognise
the declining overall levels of crime. In short, New Labour has largely delivered on its pledge
to be tough on crime overall, but it needs to get tough on the economic and social causes of
crime, especially more serious crimes, if it is to achieve security and a public sense of security.
References
Burrows, J, Tarling, R, Mackie A., Lewis, R, and Taylor, G (2000) Review of Police Forces' Crime
Recording Practices, Home Office Research Study 204. London: Home Office Research,
Development and Statistics Directorate.
Conservative Party (2005) Conservative Election Manifesto 2005. London: Conservative Party.
Dorling, D (2004) ‘Prime Suspect: Murder in Britain’ in P. Hillyard, C. Pantazis, S. Tombs and
D. Gordon (eds.) Beyond Criminology. London: Pluto.

Downes, D (2004) ‘New Labour and the Lost Causes of Crime’, Criminal Justice Matters, 55: 4–5.
London: CCJS.
Home Office (2006) Counting Rules for Recording Crime, General Rule A.
Garside, R (2006) Right For the Wrong Reasons: Making Sense of Criminal Justice Failure. London:
Crime and Society Foundation.
Labour Party (2005) Tackling Crime, Forward not Back. March 2005, p. 2. London: Labour Party.
Reiner, R (2007) Law and Order: An Honest Citizen's Guide to Crime and Control. Cambridge:
Polity.
Solomon, E, Eades, C, Garside, R, and Rutherford, M (2007) Ten Years of Criminal Justice Under
Labour: An Independent Audit. London: Centre for Crime and Justice Studies.
Walker, A, Kershaw, C, and Nicholas, S (2006) Crime in England and Wales 2005/06. London:
Home Office.
Zedner, L (2003) ‘Too Much Security?' International Journal of the Sociology of Law 31/1:
155–184.
[1:3] Report of the Royal Commission on Criminal Justice

(1993) Cm 2263, HMSO (at page iii)
Terms of reference
To examine the effectiveness of the criminal justice system in England and Wales in securing
the conviction of those guilty of criminal offences and the acquittal of those who are innocent,
having regard to the efficient use of resources, and in particular to consider whether changes
are needed in:
(i) the conduct of police investigations and their supervision by senior police officers, and
in particular the degree of control that is exercised by those officers over the conduct of
the investigation and the gathering and preparation of evidence;
(ii) the role of the prosecutor in supervising the gathering of evidence and deciding
whether to proceed with a case, and the arrangements for the disclosure of material,
including unused material, to the defence;
(iii) the role of experts in criminal proceedings, their responsibilities to the court, prosecu-
tion, and defence, and the relationship between the forensic science services and the
police;
(iv) the arrangement for the defence of accused persons, access to legal advice, and access
to expert evidence;
(v) the opportunities available for an accused person to state his position on the matters
charged and the extent to which the courts might draw proper inferences from primary
facts, the conduct of the accused and any failure on his part to take advantage of an
opportunity to state his position;
(vi) the powers of the court in directing proceedings, the possibility of their having an
investigative role both before and during the trial, and the role of pre-trial reviews, the
courts’ duty in considering evidence, including uncorroborated confession evidence;
(vii) the role of the Court of Appeal in considering new evidence on appeal, including direct-
ing the investigation of allegations;
(viii) the arrangements for considering and investigating allegations of miscarriages of jus-
tice when appeal rights have been exhausted.
(At page 3):
Adversarial or inquisitorial?
11 The criminal justice system of England and Wales, in common with other jurisdictions
which have evolved with the ‘Anglo-Saxon’ or ‘common law’ tradition, is often categorised as
‘adversarial’. This is in contrast to the so-called ‘inquisitorial’ system based on the ‘Continental’
or ‘civil law’ tradition. In this context, the term ‘adversarial’ is usually taken to mean the sys-
tem which has the judge as an umpire who leaves the presentation of the case to the parties
(prosecution and defence) on each side. These separately prepare their case and call, examine
and cross-examine their witnesses. The term ‘inquisitorial’ describes the systems where judges
may supervise the pre-trial preparation of the evidence by the police1 and, more important,
play a major part in the presentation of the evidence at trial. The judge in ‘inquisitorial’ systems
typically calls and examines the defendant and the witnesses while the lawyers for the prose-
cution and the defence ask supplementary questions.
12 It is important not to overstate the differences between the two systems; all adversarial sys-
tems contain inquisitorial elements, and vice versa. But it is implicit in our terms of reference
that we should consider whether a change in the direction of more inquisitorial procedures
might not reduce the risks of mistaken verdicts and the need for subsequent re-examination
of convictions which may be unsafe. For the reasons set out below we do not recommend
the adoption of a thoroughgoing inquisitorial system. But we do recognise the force of the
criticisms which can be directed at a thoroughgoing adversarial system which seems to turn
a search for the truth into a contest played between opposing lawyers according to a set of
rules which the jury does not necessarily accept or even understand. In some instances, such
as our approach to forensic science evidence, our recommendations can fairly be interpreted
as seeking to move the system in an inquisitorial direction, or at least as seeking to minimise
the danger of adversarial practices being taken too far. But we have not arrived at our propos-
als through a theoretical assessment of the relative merits of the two legal traditions. On the
contrary, we have been guided throughout by practical considerations in proposing changes
which will, in our view, make our existing system more capable of serving the interests of both
justice and efficiency.
1 Although in practice this is rare. For example, in France the juge d’instruction plays a part in only some 10% of cases. See
the Report of the French Commission Justice Penale et Droits de l’Homme, La Mise en Etat des Affairs Penales, Paris 1991.
DO C U M ENTS | 25
13 We have sought information from a wide range of other countries’ criminal jurisdictions
(both adversarial and inquisitorial) in order to see whether there are lessons to be learned
from them that might be applied with advantage to the criminal justice system in England
and Wales. In particular, we have during two visits to Scotland looked in some depth at the
Scottish system. We have not, however, found, either in Scotland or anywhere else, a set of
practices which has so clearly succeeded in resolving the problems which arise in any system
of criminal justice that it furnishes the obvious model which all the others should therefore
adopt. Every system is the product of a distinctive history and culture, and the more different
the history and culture from our own the greater must be the danger that an attempted trans-
plant will fail. Hardly any of those who gave evidence to the Commission suggested that the
system in another jurisdiction should be adopted in England and Wales; and of those who did,
not argued for it in any depth or with any supporting detail. We have, accordingly, no evidence
to suggest that there is somewhere a jurisdiction in which the rights and interests of the vari-
ous parties involved are so uniquely well balanced as to give the system the best of all worlds.
In the relevant chapters of this report, we make occasional reference to the features of other
jurisdictions by which we have been influenced in arriving at our conclusions. But we make no
attempt to give them either an ‘adversarial’ or an ‘inquisitorial’ label.
14 Our reason for not recommending a change to an inquisitorial system as such is not simply
fear of the consequences of an unsuccessful cultural transplant. It is also that we ourselves
doubt whether the fusion of the functions of investigation and prosecution, and the direct
involvement of judges in both, are more likely to serve the interests of justice than a system
in which the roles of police, prosecutors, and judges are as far as possible kept separate and
the judge who is responsible for the conduct of the trial is the arbiter of law but not of fact.
We believe that a system in which the critical roles are kept separate offers a better protection
for the innocent defendant, including protection against the risk of unnecessarily prolonged
detention prior to trial. Moreover, there are ‘inquisitorial’ jurisdictions in which the system is
moving, or being urged to move in an ‘adversarial’ direction. For example, Italy has sought to
introduce a more adversarial approach, and in France there has been widespread criticism of
the role of the juge d’instruction.
15 We in no way suggest, as is sometimes done, that ‘Inquisitorial’ systems presume suspects
to be guilty until they are proved innocent. Nor do we suggest, as is also sometimes done,
that ‘Adversarial’ systems are not concerned to unearth the facts on which the guilt or inno-
cence of the suspect depends. Both recognise the principle of the ‘burden of proof’ – that is,
the obligation on the prosecution to establish the defendant’s guilt on the basis of evidence
which the defence is entitled to contest. We regard this principle as fundamental. This, as will
become apparent in later chapters, is not incompatible with changes to our system which
would require the defence to disclose the outline of whatever case it intends to put forward
at an earlier stage than at present, or remove from the defendant charged with an ‘either way’
offence the right to choose the mode of trial, or permit the judge to rule before the jury is
empanelled on questions of admissibility of evidence or the production of statements of
agreed facts. But defendants are always to be presumed to be innocent unless and until the
prosecution has satisfied the magistrates or jury of their guilt beyond reasonable doubt.
[1:4] Feeney, F, ‘Interdependence as a working concept’

In Moxon, D (ed), Managing Criminal Justice (1985) HMSO (at page 8)
There may well have been a time when criminal justice was viewed as a series of separate
processes connected neither with each other nor anything else. These times have long
since passed, however, and today there is widespread agreement that the work of the vari-
ous criminal justice agencies is closely related and that together these agencies form some
kind of ‘system’. There is much less agreement, however, about the nature of this system
and the implications of such related concepts as interdependence of the criminal justice
system.
The general idea of a system dates back at least to the ancient Greeks, who saw systems
as some kind of organised whole. By the eighteenth century the system concept had already
assumed great importance in branches of theoretical physics such as mechanics where it
appeared in full mathematical garb. In the nineteenth century the term began to be applied
to biology, and has since been extended to a wide variety of fields including engineering,
physiology, international affairs, political affairs and even language. In the late 1950s and early
1960s the concept was further refined and systems analysis appeared as an ‘in’ method for
analysing complex problems. It became common at this time to think of systems in almost
every field of human and scientific endeavour. While some earlier criminal justice studies had
taken something of a systems-type approach, it was not until this era that the term ‘criminal
justice system’ first began to be used.
The application of systems concepts to criminal justice which followed these develop-
ments bore almost immediate fruit, leading to a much better understanding of the linkages
among the various parts of the system and the way that the work of each agency affected
the work of the other agencies involved. This knowledge proved to be very useful in thinking
about criminal justice problems and ‘criminal justice system’ rapidly became a standard part
of the criminal justice vocabulary.
The explicit application of systems concepts to criminal justice produced a number of
other results as well. It exposed a great deal of divergence in the way that agencies approach
particular problems and showed that the policies followed by one agency often undermined
or were at cross-purposes with those followed by other agencies. It also demonstrated just
how complex and interdependent the various parts of the system actually are.
Public drunkenness was an early example used to illustrate the kind of divergences
that systems analysis could expose. Enforcement efforts for this crime at this time typically
involved a large number of police arrests followed in America by short jail sentences and in
England by fines. In both countries the offenders were rapidly back on the street, and the
whole process started over again. Calculating the enormous waste of police and court effort
in this revolving-door situation, systems analysts sought to devise treatment approaches that
would make more productive use of the resources expended. They argued explicitly that there
were benefits to be gained in overall system accomplishment by transferring resources from
the police and the courts to the treatment end of the system. Experiments with detoxification
programmes for street alcoholics were one result of their efforts.
Some of those who first sought to apply systems concepts to criminal justice were less
impressed with the linkages among criminal justice agencies, however, than with their frag-
mentation. They argued that criminal justice was in reality not a system but a ‘non-system’.
Judged strictly by the formal definitions developed by theorists these analysts made a per-
suasive case.
A very broad definition, used by some general systems theorists, for example, views a
system as a set of entities whose relations are specified so that deductions may be made from
some relations to others or from the relations among the entities to the behaviour or history
of the system. A more detailed formulation requires that the system under investigation be
explicitly distinguished from its environment, the internal elements of the system be explicitly
stated, the relationships between the elements of the system and between the system and
its environment be explicitly stated, the use of canons of logical or mathematical reasoning
DO C U M ENTS | 27
in deductions relating to these relationships, and the confirmation of assertions about these
relationships through scientific methods.
Even the strongest proponents of the systems approach would be hard-pressed to claim
that their efforts meet the precision required by these standards. Despite this, however, most
of those involved in criminal justice have come to think of it as a system. There is also con-
siderable agreement that the system includes: the police and the prosecution; the defence;
the courts; and corrections, including probation and the prisons. The medical, mental health,
welfare, education and private security systems are all seen as closely related systems but
not as part of the criminal justice system. As the criminal justice system receives not only
clients but also political guidance, financial support, information and personnel from the
larger society, it obviously is part of the general political, economic and social systems of the
larger society.
One of the central features of all systems is the interdependence of the various system
parts. The concept of interdependence is therefore a natural part of the systems idea. In recent
years, however, interdependence has taken on special meaning in the criminal justice sys-
tem, particularly in Great Britain. As this special meaning has a considerable overlap with the
more general systems approach, it cannot be defined in ways that sharply distinguish the two
concepts. It is perhaps best understood, however, as meaning that what one criminal justice
agency does is likely to affect and be affected by other agencies and that a detailed knowl-
edge of the kinds of interactions that are likely to take place is essential for undertaking sys-
tem improvements. The idea is thus explicitly concerned with the development of improved
performance in functions that cross agency lines.
In the criminal justice system interdependence occurs at many different levels – national
and local; agency head and working officer; strategic, tactical and mechanical. Strategic level
choices include large questions of system design or structure, and in Great Britain are gen-
erally made at the national level. Included in such choices would be issues such as whether
there should be an independent prosecution service, whether probation resources should be
increased in order to provide more sentencing alternatives to prison, and whether the police
should receive a much larger share of the system’s resources than the courts. Questions such
as how the defence function is to be organised and financed and whether greater efforts
should be expended on prevention as opposed to apprehension and punishment also involve
strategic issues likely to be decided at the national level.
Tactical level choices generally concern use of the resources available to particular crimi-
nal justice agencies. Whilst these choices can be made at many different levels within a given
organisation, they are generally made locally rather than nationally. Decisions of this kind
include such things as the deployment of police forces, the hours of service provided by the
courts, and how the duty solicitor rota is to function.
Perhaps the most fundamental sense in which criminal justice agencies are linked
together at the tactical level lies in the process of discretionary decision-making by which
cases are adjudicated and transferred from one agency to another. Cases typically begin with
the discovery of a crime and the apprehension of a suspected offender by the police. After
deciding whether to prosecute, the police pass the case on to the courts for adjudication. The
courts in turn often secure the services of the probation service to assist in the sentencing
decision, and in this decision may pass the case on either to probation or the prison service.
This process is rather like an assembly line in which each agency’s workload is essentially con-
trolled by the actions of the previous agency. In most instances the decision of the trans-
mitting agency is largely discretionary, but the receiving agency generally has little or no
say in the decisions made. Probably the most important of these discretionary decisions are
the decisions to arrest, to prosecute and to sentence. Obviously policies such as cautioning
DO C U M ENTS | 549
References
Copas, J.B., Marshall, P. and Tarling, R. (1996) Predicting reoffending for Discretionary Conditional
Release. Home Office Research Study No. 150. London: Home Office.
Hood, R.G. and Shute, S.C (1994, 1995) Evaluating the impact and effects of changes in the Parole
System. University of Oxford, Centre for Criminological Research. Occasional Papers Nos. 13
and 16. Oxford: University of Oxford.
[10:13] Thynne, Wilson and Gunnell v United Kingdom

(1991) 13 EHRR 666
The three applicants had been separately convicted of serious offences and sentenced to dis-
cretionary life sentences. All three applicants complained about the lack of regular judicial
scrutiny of the lawfulness of their detention and, in the cases of the second and third appli-
cants, re-detention. The court held, by a majority of 18 to 1, that there had been a violation of
article 5(4) European Convention on Human Rights, and in the case of the third applicant, also
a violation of article 5(5).
(At page 693):
73 As regards the nature and purpose of the discretionary life sentence under English
law, the Government’s main submission was that it is impossible to disentangle the punitive
and ‘security’ components of such sentences. The court is not persuaded by this argument:
the discretionary life sentence has clearly developed in English law as a measure to deal with
mentally unstable and dangerous offenders; numerous judicial statements have recognised
the protective purpose of this form of life sentence. Although the dividing line may be diffi-
cult to draw in particular cases, it seems clear that the principles underlying such sentences,
unlike mandatory life sentences, have developed in the sense that they are composed of a
punitive element and subsequently of a security element designed to confer on the Secretary
of State the responsibility for determining when the public interest permits the prisoner’s
release. This view is confirmed by the judicial description of the ‘tariff’ as denoting the period
of detention considered necessary to meet the requirements of retribution and deterrence.
74 The court accepts the Government’s submissions that the ‘tariff’ is also communicated
to the Secretary of State in cases of mandatory life imprisonment; that the Secretary of State in
considering release may not be bound by the intimation of the ‘tariff’; and that in the assess-
ment of the risk factor in deciding on release the Secretary of State will also have regard to the
gravity of the offences committed.
However, in the court’s view this does not alter the fact that the objectives of the discre-
tionary life sentence as seen above are distinct from the punitive purposes of the mandatory
life sentence and have been so described by the courts in the relevant cases.
75 It is clear from the judgments of the sentencing courts that in their view the three
applicants, unlike Mr Weeks, had committed offences of the utmost gravity meriting lengthy
terms of imprisonment. Nevertheless, the court is satisfied that in each case the punitive
period of the discretionary life sentence has expired.
In the case of Mr Thynne, it was accepted that by the end of 1984 risk was the sole remain-
ing consideration in his continued detention.
In addition to the life sentence imposed on him for the offence of buggery, Mr Wilson
was sentenced in 1972 to seven years’ imprisonment for each of the nine other counts to be
served concurrently. In the circumstances of his case it would seem reasonable to draw the
conclusion that the punitive period of his life sentence has expired when he was released in
550 | S ENT ENC E MA N AG E M E N T
1982 and that thereafter his re-detention pursuant to that sentence depended solely on the
risk factor.
In Mr Gunnell’s case, too, it may be taken that, notwithstanding the gravity of his offences
on which the courts laid particular emphasis, the applicant had served the punitive period of
his sentence by March 1982, the date fixed for his provisional release.
76 Having regard to the foregoing, the court finds that the detention of the applicants
after the expiry of the punitive periods of their sentences is comparable to that at issue in the
Van Droogenbroeck and Weeks cases – the factors of mental instability and dangerousness are
susceptible to change over the passage of time and new issues of lawfulness may this arise in
the course of detention. It follows that at this phase in the execution of their sentences, the
applicants are entitled under Article 5(4) to take proceedings to have the lawfulness of their
continued detention decided by a court at reasonable intervals and to have the lawfulness of
any re-detention determined by a court.
(At page 695):

79 Article 5(4) does not guarantee a right to judicial control of such scope as to empower
the ‘court’ on all aspects of the case, including questions of expediency, to substitute its own
discretion for that of the decision-making authority; the review should, nevertheless, be wide
enough to hear on those conditions which, according to the Convention, are essential for
the lawful detention of a person subject to the special type of deprivation of liberty ordered
against these three applicants.
80 The court sees no reason to depart from its finding in the Weeks judgment that neither
the Parole Board nor judicial review proceedings – no other remedy of a judicial character
being available to the three applicants – satisfy the requirements of Article 5(4). Indeed, this
was not disputed by the Government.
C Recapitulation
81 In conclusion, there has been a violation of Article 5(4) in respect of all three applicants.
[10:14] Stafford v United Kingdom

(2002) 35 EHRR 1121
This case concerned the power of the Home Secretary not to accept a recommendation of
the Parole Board to release on licence an offender subject to a mandatory life sentence whose
previous licence had been revoked. The court accepted that all life sentences are made up of
two parts: the first, the punishment element of the sentence, is a sentencing exercise, not the
administrative implementation of the sentence of the court. The second part, imposed for
the protection of the public because of the offender’s dangerousness, should be reviewed
regularly by a body with a power to release, and under a procedure with the necessary judicial
safeguards, including, for example, the possibility of an oral hearing. The court held unani-
mously that there had been a violation of both Article 5(1) and Article 5(4) of the European
Convention on Human Rights in the case before it. The Home Secretary should not have the
power to detain post-tariff lifers against the recommendation of the Parole Board. The Court
acknowledged that the Convention is a dynamic tool.
(At paragraph 58):
58 The applicant disputed that the true objective of the mandatory life sentence
was life-long punishment. He remained the only mandatory life prisoner who had been
DO C U M ENTS | 551
detained post-tariff on the basis that the Secretary believed that he might commit
a non-violent offence if released. Different considerations might apply where a risk of
drug trafficking was concerned as such activity was clearly capable of causing physical or
psychological harm to others. To justify indefinite imprisonment by reference to a belief
that he might on release commit a non-violent crime involving no conceivable physical
harm to others, was arbitrary, encompassing matters wholly unrelated in nature and seri-
ousness to the reasons for the prisoner being within the power of the State in the first
place.
2. The Government
59 The Government submitted that the imposition of a mandatory life sentence for murder
satisfied Article 5(1) of the Convention. In its view, this continued to provide a lawful basis
for his detention after the expiry of the six-year sentence for fraud offences as his life licence
had been revoked. It rejected the applicant’s argument that this detention, on the basis of
a concern that he might commit serious non-violent offences of dishonesty bore no proper
relationship to the object of the original mandatory life sentence. It argued that the orig-
inal sentence was imposed because of the gravity of the offence of murder. A mandatory
life sentence for murder fell within a distinct category, different from the discretionary life
sentence, as it was imposed as punishment for the seriousness of the offence. It was not
governed by characteristics specific to a particular offender which might change over time,
factors such as dangerousness, mental instability or youth. A trial judge was required by
Parliament to impose a life sentence for murder whether or not the offender was considered
dangerous.
60 The object and purpose of the punishment was to confer power on the Secretary of State to
decide when, if at all, it was in the public interest to allow the applicant to return to society on
life licence and to empower the Secretary of State to decide, subject to the applicable statutory
procedures, whether it was in the public interest to recall the applicant to prison at any time
until his death. Whether or not the concern was about risk of further offences of violence or
further non-violent offences, a refusal to release on life licence, or a decision to revoke the life
licence, was closely related to the original mandatory life sentence by reason of the gravity of
the offence and to ensure that the prisoner could only be released when the public interest
made it appropriate to do so. The sentence also provided flexibility since it allowed reconsider-
ation of the tariff if such had been set in ignorance of relevant factors, a possibility not available
to a judge.
61 The Government submitted that, in deciding whether it was in the public interest to release
the applicant, the Secretary of State was therefore entitled to have regard to the risk of seri-
ous non-violent offending. It would not be logical or rational if he was unable to refuse to
order the release of a prisoner where there was an unacceptable risk of his committing serious
non-violent offences such as burglary or trafficking in heroin, which attracted far longer prison
sentences than some offences of a violent nature and which caused far more harm to the
public interest. The Government referred to the previous case law of the Court which found
that continued detention of life prisoners was justified by their original trial and appeal pro-
ceedings. The fact that the applicant had been released on life licence and had been living for
some time at liberty had no relevance to the lawful basis of his detention after revocation of
that licence. Nor had there been any relevant developments in either domestic or Convention
case law which altered the statutory basis of the mandatory life sentence or its proper mean-
ing and effect.
B. The Court’s assessment

1. Preliminary considerations
62 The question to be determined is whether, after the expiry on 1 July 1997 of the fixed term
sentence imposed on the applicant for fraud, the continued detention of the applicant under
the original mandatory life sentence imposed on him for murder in 1967 complied with the
requirements of Article 5(1) of the Convention.
63 Where the ‘lawfulness’ of detention is in issue, the Convention refers essentially to national
law and lays down the obligation to conform to the substantive and procedural rules of
national law. This primarily requires any arrest or detention to have a legal basis in domestic
law but also relates to the quality of the law, requiring it to be compatible with the rule of law,
a concept inherent in all the Articles of the Convention. In addition, any deprivation of liberty
should be in keeping with the purpose of Article 5, namely to protect the individual from
arbitrariness.
64 It is not contested that the applicant’s detention from 1 July 1997 was in accordance with a
procedure prescribed by English law and otherwise lawful under English law. This was estab-
lished in the judicial review proceedings, where the Court of Appeal and House of Lords
found that the Secretary of State’s decision to detain the applicant fell within his discretion
as conferred by section 35(1) of the 1991 Act. This is not however conclusive of the matter.
The Court’s case law indicates that it may be necessary to look beyond the appearances and
the language used and concentrate on the realities of the situation.5 In the case of Weeks v.
United Kingdom, which concerned the recall to prison by the Secretary of State of an appli-
cant who had been released from a discretionary life sentence for robbery, the Court inter-
preted the requirements of Article 5 as applying to the situation as follows: The lawfulness
required by the Convention presupposes not only conformity with domestic law but also,
as confirmed by Article 18, conformity with the purposes of the deprivation of liberty per-
mitted by the sub-paragraph (a) of Article 5(1) (see as the most recent authority the Bozano
judgment of 18 December 1986, Series A No. 111, p. 23 (54)). Furthermore, the word ‘after’ in
sub-paragraph (a) does not simply mean that the detention must follow the ‘conviction’ in
point of time: in addition, the ‘detention’ must result from, ‘follow and depend upon’ or occur
‘by virtue’ of the ‘conviction’ (ibid., pp. 22–23, (3), and the Van Droogenbroeck judgment . . .
p. 19, (35)). In short, there must be a sufficient causal connection between the conviction and
the deprivation of liberty at issue (see the abovementioned Van Droogenbroeck judgment,
p. 21 (39)).
65 The Court recalls that in the Weeks case it was found that the discretionary life sentence
imposed on the applicant was an indeterminate sentence expressly based on considerations
of his dangerousness to society, factors which were susceptible by their very nature to change
with the passage of time. On that basis, his recall, in light of concerns about is unstable, dis-
turbed and aggressive behaviour, could not be regarded as arbitrary or unreasonable in terms
of the objectives of the sentence imposed on him and there was sufficient connection for the
purposes of Article 5(1)(a) between his conviction in 1966 and recall to prison in 1977.
66 Much of the argument from the parties has focused on the nature and purpose of the man-
datory life sentence as compared with other forms of life sentence and whether the detention
after 1 July 1997 continued to conform with the objectives of that sentence. And since the
procedures applying to the varying types of life sentences have generated considerable case
law, both on the domestic level and before the Convention organs, there has been extensive
reference to the judicial dicta produced as supporting the arguments on both sides.
DO C U M ENTS | 553
67 Of particular importance in this regard is the Wynne case decided in 1994, in which this
Court found that no violation arose under Article 5(4) in relation to the continued detention
after release and recall to prison of a mandatory life prisoner convicted of an intervening
offence of manslaughter, the tariff element of which had expired. This provides strong sup-
port for the Government’s case while the applicant sought to argue that this decision did not
succeed in identifying the reality of the situation for mandatory life prisoners which subse-
quent developments have clarified still further. The Court in Wynne was well aware that there
were similarities between the discretionary life and mandatory life sentences, in particular
that both contained a punitive and a preventive element and that mandatory life prisoners
did not actually spend the rest of their lives in prison. The key passage states: However the
fact remains that the mandatory life sentence belongs to a different category from the dis-
cretionary life sentence in the sense that it is imposed automatically as the punishment for
the offence of murder irrespective of considerations pertaining to the dangerousness of the
offender. (p. 14, (35))

68 While the Court is not formally bound to follow any of its previous judgments, it is in the
interests of legal certainty, foreseeability and equality before the law that it should not depart,
without cogent reason, from precedents laid down in previous cases. Since the Convention is
first and foremost a system for the protection of human rights, the Court must however have
regard to the changing conditions in Contracting States and respond, for example, to any
emerging consensus as to the standards to be achieved. It is of crucial importance that the
Convention is interpreted and applied in a manner which renders its rights practical and effec-
tive, not theoretical and illusory. A failure by the Court to maintain a dynamic and evolutive
approach would risk rendering it a bar to reform or improvement.
69 Similar considerations apply as regards the changing conditions and any emerging consen-
sus discernible within the domestic legal order of the respondent Contracting State. Although
there is no material distinction on the facts between this and the Wynne case, having regard
to the significant developments in the domestic sphere, the Court proposes to re-assess ‘in
the light of present-day conditions’ what is now the appropriate interpretation and applica-
tion of the Convention.
2. Legal developments
70 The mandatory life sentence is imposed pursuant to statute in all cases of murder. This
position has not changed, though there has been increasing criticism of the inflexibility of the
statutory regime, which does not reflect the differing types of killing covered by the offence
from so-called mercy killing to brutal psychopathic serial attacks.
71 The inflexibility of this regime was, from a very early stage, mitigated by the approach of
the Secretary of State, who in all types of life sentences – mandatory, discretionary and Her
Majesty’s pleasure detention adopted a practice of setting a specific term known as the ‘tar-
iff’ to represent the element of deterrence and retribution. This was generally the minimum
period of detention which would be served before an offender could hope to be released.
It was never anticipated that prisoners serving mandatory life sentences would in fact stay
in prison for life, save in exceptional cases. Similarly, the decision as to the release of all life
prisoners also lay generally with the Secretary of State. The tariff-fixing and release procedures
applicable to life sentences have however been modified considerably over the past 20 years,
to a large extent due to the case law of this Court. It is also significant that the domestic
courts were frequently called upon to rule on lawfulness issues arising out of the Secretary of
State’s role in fixing the tariff and in deciding the appropriate moment for release, the courts
requiring the establishment of proper and fair procedures in his exercise of those functions.
Between Strasbourg and the domestic courts, a steady erosion on the scope of the Secretary
of State’s decision-making power in this field may be identified.
72 The first examination of the Court in this area focused on the situation of discretion-
ary life prisoners. In the cases of Weeks and Thynne, Gunnell and Wilson, the Court ana-
lysed the purpose and effect of the discretionary life sentence, imposable for very serious
offences such as manslaughter and rape. It was held that since the grounds relied upon
in sentencing to a discretionary life term concerned risk and dangerousness, factors sus-
ceptible to change over time, new issues of lawfulness could arise after the expiry of the
tariff which, in the context of Article 5(4), necessitated proper review by a judicial body. As
a result, the Criminal Justice Act 1991 provided that the question of release, after expiry
of tariff of a discretionary life prisoner, was to be decided not by the Secretary of State
but by the Parole Board in a procedure with judicial safeguards. The same Act also gave
statutory force to the Secretary of State’s policy of accepting the judicial view of the tar-
iff in discretionary life cases. The judges then took on the role, in open court, of setting
the punishment element of the sentence. Though no significant changes were made by
statute to the regime of mandatory life sentences, the procedure whereby the tariff was
fixed was shortly afterwards modified following the House of Lords decision in the Doody
case, where it was found that procedural fairness required that mandatory life prison-
ers be informed of the judicial view of the tariff in order that they could make written
representations to the Secretary of State before he reached his decision. This reflected a
growing perception that the tariff-setting function was closely analogous to a sentencing
function.
73 It was at this stage that the Court directly addressed the position of mandatory life pris-
oners in the Wynne case and took the view that the mandatory life sentence was different in
character from the discretionary life sentence. In reaching that decision, it concentrated on
the automatic imposition of the mandatory life sentence, which was perceived as pursuing a
punitive purpose.
74 Not long afterwards, the situation of post-tariff juvenile murderers (Her Majesty’s pleasure
detainees) was the subject of applications under the Convention. Though this type of sen-
tence, as with the adult mandatory life sentence, was imposed automatically for the offence of
murder, the Court was not persuaded that it could be regarded as a true sentence of punish-
ment to detention for life. Such a term applied to children would have conflicted with United
Nations instruments and raised serious problems under Article 3 of the Convention. Consid-
ering that it must be regarded in practice as an indeterminate sentence which could only
be justified by considerations based on the need to protect the public and therefore linked
to assessments of the offender’s mental development and maturity, it therefore held that a
review by a court of the continued existence of grounds of detention was required for the
purposes of Article 5(4).
75 The issues arising from the sentencing process for juvenile murderers at the tariff-fixing
stage were then examined both in the domestic courts and in Strasbourg. In Ex parte T and
V the House of Lords made very strong comment on the judicial nature of the tariff-fixing
exercise and quashed a tariff fixed by the Home Secretary which, inter alia, took into account
‘public clamour’ whipped up by the press against the offenders in the case. This Court found
that Article 6(1) applied to the fixing of the tariff, which represented the requirements of ret-
ribution and deterrence and was thus a sentencing exercise. The fact that it was decided by
DO C U M ENTS | 555
the Secretary of State, a member of the executive and therefore not independent, was found
to violate this provision.
76 By this stage therefore, there were further statutory changes, which assimilated the posi-
tion of juvenile murderers to that of discretionary life prisoners in giving the courts the role of
fixing the tariff and providing the Parole Board with decision-making powers and appropriate
procedures when dealing with questions of release.
77 While mandatory life prisoners alone remained under the old regime, the coming into force
on 2 October 2000 of the Human Rights Act 1998 provided the opportunity for the first direct
challenges to the mandatory life regime under the provisions of the Convention in the domes-
tic courts. In the case of Lichniak and Pyrah the prisoners’ arguments that the mandatory life
sentence was arbitrary due to its inflexibility were rejected. It may be observed, as pointed
out by the applicant, that the Government in that case contended that the mandatory life
sentence was an indeterminate sentence by which an individualised tariff was set and that
after the expiry of the tariff the prisoner could expect to be released once it was safe to do
so. They expressly departed from the position that the mandatory life sentence represented a
punishment whereby a prisoner forfeited his liberty for life. On that basis, the Court of Appeal
found that there were no problems of arbitrariness or disproportionality in imposing man-
datory life sentences. Then in the case of Anderson and Taylor, which concerned a challenge
under Article 6(1) to the role of the Secretary of State in fixing the tariffs for two mandatory life
prisoners, the Court of Appeal was unanimous in finding that this was a sentencing exercise
which should attract the guarantees of that Article, following on from clear statements made
by the House of Lords in the cases of Ex parte T and V and Ex parte Pierson.
78 The above developments demonstrate an evolving analysis, in terms of the right to lib-
erty and its underlying values, of the role of the Secretary of State concerning life sentences.
The abolition of the death penalty in 1965 and the conferring on the Secretary of State of
the power to release convicted murderers represented, at that time, a major and progressive
reform. However, with the wider recognition of the need to develop and apply, in relation to
mandatory life prisoners, judicial procedures reflecting standards of independence, fairness
and openness, the continuing role of the Secretary of State in fixing the tariff and in deciding
on a prisoner’s release following its expiry, has become increasingly difficult to reconcile with
the notion of separation of powers between the executive and the judiciary, a notion which
has assumed growing importance in the case law of the Court.
79 The Court considers that it may now be regarded as established in domestic law that there
is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile
murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life
sentence does not impose imprisonment for life as a punishment. The tariff, which reflects
the individual circumstances of the offence and the offender, represents the element of pun-
ishment. The Court concludes that the finding in Wynne that the mandatory life sentence
constituted punishment for life can no longer be regarded as reflecting the real position in the
domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced
by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by
the gravity of the particular offence. It is correct that the Court in its more recent judgments
in T and V, citing the Wynne judgment as authority, reiterated that an adult mandatory life
sentence constituted punishment for life. In doing so it had, however, merely sought to draw
attention to the difference between such a life sentence and a sentence to detention dur-
ing Her Majesty’s pleasure, which was the category of sentence under review in the cases
concerned. The purpose of the statement had therefore been to distinguish previous case law
rather than to confirm an analysis deriving from that case law.
[10:15] Padfield, N, ‘ “Back door sentencing”: is recall to prison a

penal process?’
(2005) Camb LJ 276
While much effort has gone into training judges and advocates in the intricacies of the new
sentencing regime introduced in the Criminal Justice Act 2003, and implemented in large
measure in April 2005, it is refreshing to see the House of Lords turn its attention to what
might be considered an area of equal importance: executive recall to prison, or ‘back door sen-
tencing’. The Parole Board’s Annual Reports reveal the huge increase in recall cases in recent
years: from 2,457 in 2000–01, to 9,031 in 2003–04, for example. The prison population is thus
increasingly shaped by those who enter by the ‘back door’.
The facts of the two cases before the House of Lords in R v Parole Board, ex parte Smith;
R v Parole Board, ex parte West [2005] UKHL 1; [2005] 1 WLR 350; [2005] 1 All ER 755 were not
untypical. Justin West was released at the halfway stage of his three-year sentence for affray
on 6 August 2001, subject to the standard licence conditions. Ten days after his release, he
had allegedly assaulted his former partner in a hostel, but the victim would not confirm the
incident. He then failed to keep an appointment with his supervising officer, and on 22 August
the Home Secretary revoked his license, under s. 39(2) of the Criminal Justice Act 1991. He
was arrested on 24 August and returned to prison. The Home Secretary referred the case to
the Parole Board under s. 39(4)(b) and his solicitors made written representations urging an
urgent oral hearing to be attended by witnesses whose evidence should be heard on oath.
The Parole Board rejected these representations in a letter of 2 October and Mr West remained
in prison until 9 May 2002.
The Parole Board’s decision was unsuccessfully challenged in the High Court and the
Court of Appeal. The majority of the Court of Appeal concluded that Article 6 (the right to a
fair trial) had no application because of ‘the critical fact that when a parole licence is revoked
and its revocation is subsequently confirmed this is solely with a view to the prevention of risk
and the protection of the public and not at all by way of punishment’ (Simon Brown LJ). Only
Hale LJ recognised, in her dissenting judgement, that ‘to the person concerned it is experi-
enced as punishment, whatever the authorities may say’. However, the House of Lords (Lords
Bingham, Slynn, Hope, Walker and Carswell) decided unanimously that he should have been
allowed an oral hearing:
In his representations against revocation the appellant West offered the Board explanations, which
he said he could substantiate, of his failure to keep an appointment with his probation officer and of
the incident at his ex-partner’s hostel. The Board could not properly reject these explanations on the
materials before it without hearing him. He admitted spending one night away from his approved
address, staying (he said) with a cousin. While this was a breach of his licence conditions, it is not
clear what risk was thereby posed to the public which called for eight months’ detention. His chal-
lenge could not be fairly resolved without an oral hearing and he was not treated with that degree
of fairness which his challenge required (per Lord Bingham).
The other case was that of Trevor Smith, who was released on license from a 6 1/2 year
extended sentence for rape on 7 November 2001, which was his ‘non-parole date’, the date
on which he was entitled to be released. Having tested positive for cocaine whilst living in a
probation hostel, he was moved at his request to another hostel, but again tested positive to
DO C U M ENTS | 557
cocaine, and three days later to cocaine and opiates. His probation officer referred the case to
the Parole Board under s. 39(1) of the Act of 1991. The Board supported the recommendation
that he should be recalled, which he was, on 4 February 2002. Smith made written representa-
tions under s. 39(3), but these were rejected in a letter which explained that his drug use pre-
sented too great a risk to public safety. His original application for judicial review was turned
down. At an oral renewal of the application, he was granted permission to seek judicial review,
but only in relation to Article 6 and the common law. The case was listed before a third judge
who refused to allow him to rely also on Article 5 (right to liberty). He appealed against that
refusal, and the Court of Appeal (led by Lord Woolf CJ) ordered that he be permitted to rely on
Article 5, as well as Article 6 and common law. The Court also ordered that the case be heard
in the Court of Appeal, where the case was heard by Kennedy, Brooke LJJ, Holman J, who held
that Mr Smith had no right to an oral hearing, and that there was no objective need for an
oral hearing, as there was no dispute on the primary facts. Smith was eventually released on 3
December 2003, having served 22 months during the period of recall.

The House of Lords also unanimously allowed this appeal:
The resort to class A drugs by the appellant Smith clearly raised serious questions, and it may well
be that his challenge would have been rejected whatever procedure had been followed. But it may
also be that the hostels in which he was required to live were a very bad environment for a man
seeking to avoid addiction. It may be that the Board would have been assisted by evidence from his
psychiatrist. The Board might have concluded that the community would be better protected by
encouraging his self-motivated endeavours to conquer addiction, if satisfied these were genuine,
than by returning him to prison for 2 years with the prospect that, at the end of that time, he would
be released without the benefit of any supervision. Whatever the outcome, he was in my opinion
entitled to put these points at an oral hearing. Procedural fairness called for more than consideration
of his representations, on paper, as one of some 24 such applications routinely considered by a panel
at a morning session (per Lord Bingham).
Much of the analysis in the House concerns the relationship between the appellants’
common law and their Convention rights. They agreed that the common law demanded, in
these cases, an oral hearing: ‘the prisoner should have the benefit of a procedure which fairly
reflects. . . the importance of what is at stake for him, as for society’ (per Lord Bingham). Lord
Hope explicitly identifies the breach of Article 5(4). Controversially they appear to conclude
that recall is not a punishment, and that therefore the criminal due process rights of Article 6
are not engaged (though Lord Bingham thought it unnecessary to resolve this question). Lord
Hope adds that Article 6 civil rights are not infringed by proceedings of this kind so long as
the individual has access to the domestic courts to assert his right to liberty. Doubtless these
conclusions will be challenged, but there are more fundamental points to question: is the
Parole Board really ‘an independent and impartial tribunal’? Who should bear the burden of
proof before the Parole Board? (And is the Parole Board adequately resourced for the inevita-
ble flood of applications?)
The statutory provisions and subordinate rules governing the release, licensing and
recall of prisoners have, as Lord Bingham points out, been the subject of ‘ceaseless change’
over the past 10–15 years. Under ss. 254 and 255 of the Criminal Justice Act 2003, in force
for all prisoners subject to license conditions on or after 4 April 2005 irrespective of the
date of their offence, recall becomes more obviously an executive decision. This removes
the previous anomaly whereby the Parole Board both advised on recalls and acted as an
appeal body against those same recalls. It is time that lawyers, both academic and practis-
ing, paid much closer attention to the fairness (or otherwise) of these ‘back door sentenc-
ing’ decisions.

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Nicola Padfield and Jonathan Bild

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© 2016 Nicola Padfield and Jonathan Bild

The right of Nicola Padfield and Jonathan Bild to be identified as authors of

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Trademark notice: Product or corporate names may be trademarks or registered

First edition published by Butterworths Law in 1995

British Library Cataloguing-in-Publication Data

ISBN: 978-1-138-91833-7 (hbk)

Table of Statutory Instruments xxix

Table of Statutory Instruments xxix

[1:16] Criminal Justice Act 1991 (as amended), section 95 70

3 The Crown Prosecution Service 157

[3:7] Morgan, R, ‘Review of Drakeford, M, Haines, K, Cotton, B and Octigan, M,

4 Non-Police Investigations 203

5 Defence Lawyers 237

[5:8] R v Ensor [1989] 1 WLR 497 267

7 Trial Judges 337

[7:1] Sirros v Moore [1975] QB 118 349

[8:3] Juries Act 1974 (as amended), sections 1; 3; 9; 17 411

9 Appeal and Review Decisions 439

10 Sentence Management 495

KF v United Kingdom (30178/09) (ECtHR), R (on the application of Anderson) v Secretary of

[1993] AC 1 … 209, 229–230 R v McIlkenny (1992) 93 Cr App R 287 … 444,

Saunders v United Kingdom (19187/91) (1996) 23 UKPC 10 … 240, 259, 260

(references in bold indicate where material has been reproduced)

United Kingdom Sch 1, Pt II, para 5 … 316

Courts Act 2003 … 275, 276, 397 ss 17–21 … 448

281, 505 s 9(11) … 473

s 143 … 285 ss 34–39 … 87

ss 189–195 … 286 ss 40–43 … 397

Finance Act 1994 s 11 … 417

s 23 … 452 Legal Aid, Sentencing and Punishment of Offenders Act

Misuse of Drugs Act 1971 … 310, 312 s 38 … 90, 123–125

s 111(2) … 479 s 8 … 121

Pt 5 … 170, 223 Social Security Fraud Act 2001 … 222

European Convention on the Protection of Human Art 18 … 58

Arts 2–12 … 50 Art 46 … 51

(i) About this book 3

[1:15] Spencer, J R, ‘Hearsay evidence at Strasbourg: a further skirmish,

(i) About this book

Number of offences (000s) Police recorded crime-old counting rules

Year end Sep 13

Crown Prosecution Service receive papers CPS discontinue the case

CPS proceed with charge

Notifiable and non-notifiable principal offences (*all offences)

Number found guilty by magistrates Number tried at the Crown Court(2)

Number found guilty at Crown Court

Number sentenced by magistrates

Number sentenced by the Crown Court

Guilty Plea 77,378 Not Guilty Plea 8,771

Community Suspended Other Community Suspended Other

Total sentenced to custody Total sentences to be served in the community (3)

Average custodial sentence length

Prison receptions (4) Probation starts (5)

D. Gordon (eds.) Beyond Criminology. London: Pluto.

[1:3] Report of the Royal Commission on Criminal Justice

(At page 3):

[1:4] Feeney, F, ‘Interdependence as a working concept’

[10:13] Thynne, Wilson and Gunnell v United Kingdom

(At page 695):

[10:14] Stafford v United Kingdom