Automatic life sentence
In R v Hylands (CLW/04/45/09), it was said that for an offence of robbery to fall within Section 109(5)(h) of the Powers of Criminal Courts (Sentencing) Act 2000 (“robbery, where at some time during the commission of the offence, the offender had in his possession a firearm or imitation firearm”), so as to attract an automatic life sentence, the qualifying condition relating to a firearm or imitation firearm had to be established either by means of an appropriate count under the Firearms Act 1968 in the indictment, or there had to be an unequivocal admission in relation thereto. This applies even where the only issue in relation to the robbery is identity (there being unchallenged evidence before the jury that the robber was in possession of a firearm at the time of the robbery). If there was any doubt about the matter, it was to be resolved in favour of the defendant.
CLW Comment
The net effect is that the indictment should always contain an appropriate count under the 1968 Act. Apart from this being good practice in any event, there can be no assurance that an “unequivocal admission” made, for example in interview, will not be withdrawn at trial. Having a firearms count in the indictment in the first place will avoid the necessity of cumbersome applications for the amendment of the indictment.
Detention and forfeiture of cash
In Chief Constable of Merseyside Police v Reynolds (CLW/04/44/22), it was held that:
(i) where an order was made under Section 295(2)(a) of the Proceeds of Crime Act 2002 authorising the police to continue holding cash seized under Section 294 for 90 days, the time-stamp on the order was not decisive of the proper construction of the 90-day period; the order ran until midnight on the last day of the order, rather than until the time which the order had originally
been made;
(ii) the requirement in the Magistrates Courts (Detention and Forfeiture of Cash) Rules (S.I. 2002 No. 2998) (CLW/03/01/59) to give seven days notice of an application to extend was declaratory rather than mandatory. A magistrates court, therefore, had jurisdiction to make an order authorising an extension of the detention of cash, notwithstanding that the police had not given seven days notice to the person from whom the cash had been seized, of their intention to apply for an extension; but it was preferable that such applications should be made in good time.
CLW Comment
The reference to the need for an applicant for an extension to give seven days notice is potentially misleading. The applicant is obliged by the rules to send interested persons a copy of the application, but there is no requirement that this be done at any particular time. The only reference to seven days is in Rule 5(3). This obliges the justices clerk to fix a date for the hearing of the application “which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed”, and it is the justices clerk who is to give interested parties notice of the hearing of the application. The rules thus give a justices clerk a discretion to abbreviate the notice time for the hearing.
Such discretion should clearly be exercised judicially, and not merely as a means for getting the police out of a difficulty of their own making. Where the police have had 90 days notice of the date of expiry of the order, many justices clerks will no doubt take some persuading as to the existence of good reason for foreshortening the notice period. It is suggested that, “If you dont, well have to hand it back”, would not constitute good reason. If the initial period of authorisation expires without a further order having been made, then the detention of the cash will cease to be lawful. If the cash is not returned, it is a moot point whether a subsequent order could authorise it retrospectively. This must be open to question. A sounder route might be to go through the motions of returning the cash, prior to re-seizing it.
All such difficulties could, however, be avoided by the applicant having systems in place to ensure that notice of an application for an extension is given to the justices clerk in sufficient time to allow for the latter to fix a date of hearing at least seven days in advance.
Grievous bodily harm
In R v King (CLW/04/46/14), the New South Wales Court of Criminal Appeal held that for the purposes of Section 33 of the Crimes Act 1900 (“Whosoever maliciously by any means
inflicts grievous bodily harm upon any person
with intent
to do grievous bodily harm to any person
shall be liable to
” (cf. Offences against the Person Act 1861, S.18)), an unborn foetus is part of the mother. Where, therefore, a man assaulted the complainant with the intention of terminating her pregnancy, and, as a result of the assault, the foetus was delivered stillborn, the assailant was properly charged with an offence contrary to Se