Cases of note from CLW

Failure to provide a specimen: in R. (Martiner) v. D.P.P. (CLW/05/33/10), a High Court judge held that if a person made no attempt to provide a specimen of breath, blood or urine lawfully required of him by a police officer, without advancing an excuse for his refusal, then he could not rely on a medical condition as a supposed excuse at his trial for failing to provide that specimen. The court concluded that that there could be no harm to the individual in requiring him to explain why he could not provide the specimen; giving such an explanation would enable the police officer to consider alternative steps, such as seeking a medical opinion or requiring an alternative type of sample.

Racially or religiously aggravated offences: in Parry v. D.P.P. (CLW/05/33/15), the Divisional Court considered the case of a defendant who had committed an act of criminal damage and who, 20 minutes later when he was being questioned by police officers about the offence, had demonstrated hostility towards the victim based on her race. The court concluded that the words of section 28(1) of the Crime and Disorder Act 1998 (“An offence is racially or religiously aggravated … if (a) at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim’s membership … of a racial or religious group”) apply to words or acts which take place in the immediate context of the substantive offence (in other words, the criminal damage offence in this case).

Therefore, the court held that the defendant here was guilty only of criminal damage and not of racially aggravated criminal damage. The court added, however, that section 28(1) did not require the victim to be in the presence of the defendant at the time of the demonstration of racial hostility.

Imposing deterrent sentences: part of the decision of the Court of Appeal in R. v. Oosthuizen (CLW/05/33/23) was that a judge could not impose a deterrent sentence on an offender on the basis of the judge’s own assumption that the prevalence of the offence for which the offender was being sentenced was more marked in the local area than it was nationally. Rather, the court observed, the guidance of the Sentencing Guidelines Council had to be followed: a deterrent sentence should only be imposed where the court had considered statistics or other evidence produced by the CPS, the local Criminal Justice Board, or otherwise which demonstrated a particular local prevalence of the offence.

Conduct of trial judges: in R. v. Lashley (CLW/05/34/3) the Court of Appeal examined the safety of a conviction obtained during a trial in which the judge had given the impression that he favoured the prosecution case over that of the defendant (particularly, by rolling his eyes, shaking his head, throwing down his pen during the defence evidence). Quashing the conviction, the court observed that, although a judge should, in a case where the prosecution case was a strong one, present it to the jury as such (as he should with the defence case, if that was a strong one), it was impermissible for the judge to allow the jury to be left with the impression that he favoured one side rather than another, and in particular the prosecution rather than defence.