CRIMINAL EVIDENCE

[2020] EWCA Crim 95
[2020] EWCA Crim 95
CA (Crim Div) (Fulford LJ, Cheema-Grubb J, Foster J)
28 January 2020

The Sexual Offences Act 2003 s.67(3), which protected against voyeurism in the form of the recording of another person doing a private act, was not limited to protecting the privacy of a complainant from secret filming by someone who was not present during the private act in question. A participant to certain activity could be guilty of a s.67(3) offence if they secretly recorded what was otherwise a lawful event in which they had participated.

[2020] UKPC 4
[2020] UKPC 4
PC (Bah) (Lord Carnwath, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden)
27 January 2020

An appellant challenging his conviction for rape 23 years after the trial could not rely on any lack of evidence resulting from his failure to obtain samples to carry out DNA testing. Any request for samples he had made during the trial had not been pursued. There had been no failure to disclose by the prosecution: the appellant had been made aware 18 months before trial of the prosecution’s expert evidence on DNA. The appellant had not been prevented from obtaining his own expert report.

[2020] EWCA Crim 38
[2020] EWCA Crim 38
CA (Crim Div) (Singh LJ, Spencer J, Judge Leonard QC)
21 January 2020

For the purposes of commission of the offence of possession of an article for use in fraud, contrary to the Fraud Act 2006 s.6(1), the phrase “for use in the course of or in connection with any fraud” could apply to articles that were used to mislead a victim, but also to articles created later in order to disguise or mask the fraud. There was nothing in the authorities to the effect that the relevant fraud could not be one which had been committed in the past.

[2019] EWCA Crim 2271
[2019] EWCA Crim 2271
CA (Crim Div) (Fulford LJ, Spencer J, William Davis J)
19 December 2019

It was for the defence at trial to take decisions as to whether to use or act on disclosed unused material, and a failure to inspect such material was unlikely to justify a later application, following conviction, for it to be introduced as fresh evidence. The court emphasised that only in exceptional circumstances would evidence be admitted that could have been adduced at trial.

CA (Crim Div) (Davis LJ, Nicol J, Johnson J)
19 December 2019

Although the transcript of a Crown witness’s interview should have been disclosed to the defence, there was no contradiction in it compared to what was said at trial that was capable of affecting the safety of an offender’s conviction for possession of a firearm and ammunition with intent to endanger life.

[2019] EWCA Crim 2332
[2019] EWCA Crim 2332
CA (Crim Div) (Singh LJ, Spencer J, Judge Katz QC)
13 December 2019

Fresh evidence which showed that the complainant had lied in her evidence rendered a conviction for sexual assault unsafe.

[2019] EWCA Crim 2174
[2019] EWCA Crim 2174
CA (Crim Div) (Dingemans LJ, Lambert J, Judge Mark Brown)
6 December 2019

Convictions for assault by penetration and sexual assault were safe, despite inadmissible opinion evidence from prosecution witnesses having been adduced before the jury. The total sentence was, however, reduced from eight years’ imprisonment to five years to reflect the overall criminality involved.

[2019] EWHC 3317 (Admin)
[2019] EWHC 3317 (Admin)
DC (Lord Burnett LCJ, May J)
5 December 2019

The court emphasised that general complaints about the operation of a type-approved breath testing device should be addressed to the secretary of state, not used to ground a disclosure application. Defence representatives were responsible for ensuring that experts understood the requirements of the Criminal Procedure Rules and Directions, and that the expert reports which they served on behalf of their clients were reliable and admissible. If such reports were to be relied upon for the purpose of seeking further disclosure in relation to a type-approved machine, they should address all the matters identified in R. (on the application of DPP) v Manchester and Salford Magistrates’ Court [2017] EWHC 3719 (Admin).

[2019] EWCA Crim 2145
[2019] EWCA Crim 2145
CA (Crim Div) (Simon LJ, Jacobs J, Judge Munro QC)
5 December 2019

When dismissing an appeal against a conviction for conspiracy to corrupt, the Court of Appeal made general observations on the purpose and nature of the summing-up of facts and the scope of a trial judge’s task in that respect.

[2019] EWCA Crim 2100
[2019] EWCA Crim 2100
CA (Crim Div) (Lord Burnett LCJ, Sweeney J, Sir Roderick Evans)
29 November 2019

In an indecent assault trial which turned on the comparative credibility of the complainant and the defendant, the judge should have given a full good-character direction in respect of the defendant. His failure to do so, coupled with his direction that the jury should treat the unchallenged evidence of the defendant’s character witnesses with caution, simply because they knew him well, rendered the defendant’s conviction unsafe.

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