Review

To say that Phipson goes back a long way would be an understatement, the first edition being issued in 1892; therefore it was 116 years ago that Sidney L Phipson produced what would have been a smaller volume.  As one can see by the editions, some familiar names have been associated as Editors.

When the first edition was published the Criminal Evidence Act 1898 still lay in the future and an accused person could not give sworn evidence in his own defence.  If we go back even further we find lawyer-free trials.  John Hostettler in 'Fighting for Justice the History and Origins of Adversary Trials' Waterside Press, 2006 quoting from year books, 30 & 31 (Roll Series) pp.529-30 tells us:-

'Both trial by jury and trial by barristers have existed in England since the thirteenth century. Yet from early in the thirteenth century until the eighteenth century, by law, following a landmark case in the reign of Edward I (1273-1307), prisoners in trials of treason and felony were not allowed to have counsel appear for them, even though the sentence for treason and felony was capital.  The rule prohibiting counsel did not apply to the prosecution and this left defendants at a severe disadvantage for centuries to come, particularly in trials for treason, where the Crown was always represented'.

The current position is:-

Evidence on Behalf of the Defence.

The Criminal Evidence Act 1898 sets out the position of whether an accused person is com­petent and compellable for the Defence. Section 1 of the 1898 Act states:

(1) A person charged in criminal proceedings shall not be called as a witness in the proceedings except upon his own application.

(4) Every person charged in criminal proceedings who is called as a witness in the proceedings shall, unless otherwise ordered by the court, give his evidence from the witness-box or other place from which the other witnesses give their evidence.

It is worth noting that when an accused elects to give evidence, s. 72 of the Criminal Justice Act 1982 requires that such evidence be given on oath and that the accused is liable to cross-examination.  In being cross-examined, an accused may also be questioned by the prosecution about a co-accused R v Paul [1920] 2KB 183; [1920] All E.R. Rep. 535). If the evidence he gives tends to incriminate another defendant, he may be cross-examined on behalf of that other defendant (R v Hadwen, [1902] 1 K.B. 882). If he merely gives evidence on behalf of another defendant and not on his own behalf, he may be cross-examined by the prosecution in order to secure his conviction (R v Rowland, [1910] 1 K.B. 458).

We are told in the Foreword that when the 15^th Edition was published in 2000 it was observed that no previous edition had to register so many changes.  However this edition is the same and deals with extensive changes, and has even ventured into the field of equitable estoppel, a subject beloved of first year Contract Law students! 

This edition covers many changes, in both criminal and civil proceedings.  The use of video-link evidence has increased.  The Youth Justice & Criminal Evidence Act 1999 Chapter 1 of Part II, in force from 2002 has increased the scope of special measures and directions for young and vulnerable witnesses.  There have been great changes with the implementation of the Criminal Justice Act 2003, some intended to strengthen the hand of the Police.

In this edition the chapter on Hearsay and Character has been completely rewritten.  Indeed most chapters of the book have substantial changes and the following get special mention in the Preface.  Chapter 5 Estoppels, Chapter 6 Burden and Standard of Proof, Chapter 8 Attendance of Witnesses and Chapters 11 and 12 Rules of Evidence relating to the course of a trial. 

It indicates the extent of a task when you find that the editorial team has expanded to ten.  The law stated in the book is up to date as at June 1 2005, however a Supplement was issued as at October 2007and the law of evidence continues to develop apace. The Criminal Justice Act 2003 has already generated a wealth of case law on character and hearsay. There are references and the discussions. 

The codes of guidance on expert evidence produced by the Academy of Experts and the Expert Witness Institute have been replaced by the single Protocol for the Instruction of Experts to give evidence in civil claims. The Human Rights Act 1998 is still a relative newcomer.  Since the publication of the sixteenth edition there have been important decisions in the human rights context on such points as the presumption of innocence and reverse burdens, public hearings, the admission of statements by deceased or anonymous witnesses, hearsay and the right to silence.

The law of estoppel is another area in which there has been much development as of late, hence the lengthy discussion in Chapter 5. These are just some of the many developments in the civil field covered in this supplement.

The law stated in this supplement is up to date until October 31, 2007. A further supplement will be published next year.

Once again this is a book worthy of its antecedents, which I am sure will be widely supported and I am glad that there is a copy on my shelf once again.

Rob Jerrard

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Phipson on Evidence 1^st Supp

Edition: 1^st Supplement 2007

Author: Hodge M Malek

ISBN: 978 0421922303

Publishers: Sweet & Maxwell

Price: £69

Publication Date: 2007

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Preface to 1^st Supplement

The extent of this first supplement to the sixteenth edition is a reflection of the fact that the law of evidence continues to develop apace. By way of example, the recent implementation of the Criminal Justice Act 2003 has already generated a wealth of case law on character and hearsay. Readers of this supplement will find very useful the references and the discussions on these important topics.

The codes of guidance on expert evidence produced by the Academy of Experts and the Expert Witness Institute have been replaced by the single Protocol for the Instruction of Experts to give evidence in civil claims. This area has likewise produced a rich seam of litigation. The Human Rights Act 1998 is still, jurisdictionally speaking, a relative newcomer. Its implications for the law of evidence are of course still being worked out. Nevertheless, the short space of time since the publication of the sixteenth edition has seen important decisions in the human rights context on such points as the presumption of innocence and reverse burdens, public hearings, the admission of statements by deceased or anonymous witnesses, hearsay and the right to silence. The law of estoppel is another area in which there has been much development as of late, hence the lengthy discussion in Chapter 5. These are just some of the many developments in the civil field covered in this supplement.

November 12, 2007

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Preface to Second Supplement

 

The extent of the second supplement to the sixteenth edition is a reflection of the fact that the law of evidence continues to develop apace. By way of example, the recent implementation of the Criminal Justice Act 2003 has already generated a wealth of case law on character and hearsay. Readers of this supplement will find very useful the references and the discussions on these important topics.

 

The codes of guidance on expert evidence produced by the Academy of Experts and the Expert Witness Institute have been replaced by the single Protocol for the Instruction of Experts to give evidence in civil claims. This area has likewise produced a rich seam of litigation. The Human Rights Act 1998 is still, jurisdictionally speaking, a relative newcomer. Its implications for the law of evidence are of course still being worked out. Nevertheless, the short space of time since the publication of the sixteenth edition has seen important decisions in the human rights context on such points as the civil standard of proof, presumption of innocence and reverse burdens, public hearings, the admission of statements by deceased or anonymous witnesses, withholding witnesses identity, hearsay and the right to silence. The law of estoppel is another area in which there has been much development as of late, hence the lengthy discussion in Chapter 5. These are just some of the many developments.

 

The law stated in this supplement is up to date until October 2, 2008.

Hodge M. Malek Q.C.

Gray's Inn

October 2, 2008

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Wilkinson's Road Traffic Offences

Edition: 23rd

Authors: Peter Wallis, Kevin McCormac, Philip Brown, Kathryn Swift

ISBN: 9781847030832

Publishers: Sweet & Maxwell

Price: £299

Publication Date: 20/09/200

Publisher's Title Information

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 A key component of your road traffic practice.

As the definitive authority on road traffic offences in England and Wales, Wilkinson's Road Traffic Offences covers every facet of road traffic law you are likely to encounter, whatever the situation.

It provides an unbeatable combination of in-depth analysis with a user-friendly format so that the answers you need are readily to hand. The work explains the law, legal principles and procedure of road traffic offences, setting out all the basic principles and clarifying key terms. It shows both what the law is and how to proceed when prosecuting or defending a case.

What’s more, so you are never at a loss for the answers you need, the work goes through both typical and unusual situations that you could be faced with, and offers guidance for a successful conclusion.

Sets out the basic principles and clarifies key terms

Covers specific offences chapter-by-chapter ensuring relevant information is easy to find

Follows through to sentencing and appeals, covering every aspect in chronological order

Sets out the implications of legislative and case law developments to keep you up to speed with the impact of ongoing developments

Goes through typical and unusual situations and provides advice on the law relating to them

A well-respected author team means that it can always be relied on for guidance, authority and citation in court

It offers regular supplements to keep you up to date

It provides easy access to core statutory and related primary materials, with annotation to clarify complex areas

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Volume 1

Definitions.  Procedure. Evidence.  Dangerous, careless and Inconsiderate Driving. Driver offences.  Accidents and Furnishing Information. Vehicle Offences. Protection of drivers and passengers.  Insurance. Driving Licences.  Excise and Trade Licences. Good and Passenger Vehicles.  Drivers Hours and records. Theft, taking conveyances, aggravated vehicle taking, Criminal Damage and Causing danger to road users. Forgery, fraudulent use and false statements. Fixed penalties.  Custodial and other penalties.  Endorsement and penalty points. Disqualification.  Special reasons and mitigating circumstances.  Appeals.  Appendices

Volume 2

Provides coverage of all relevant sources, including statutes, SIs, European provisions and international agreements, with annotation.

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Preface

The law is generally stated as at March1, 2007, although as is our custom we have worked to later dates in some instances.

Once again we have found ourselves having to deal with a plethora of un­implemented primary legislation, and the words "if and when in force" will be found scattered liberally throughout the text. The principal culprit in this edition is the Road Safety Act 2006, which received Royal Assent on November 8, 2006. It is an Act containing no less than 63 sections and seven Schedules. Although most of its bulk owes its conception and lengthy gestation to the Department for Transport, its most controversial measures were "parachuted" into the Bill at a relatively late stage by the Home Office. Particular attention is drawn to two new serious offences created by ss.20 and 21 of the Act, namely causing death by careless, or inconsiderate, driving and causing death by driving whilst either unlicensed, disqualified or uninsured (§§ 5.96-100). It is understood that these provisions will not be implemented until the Sentencing Guidelines Council has issued guidance in respect of the new offences. Given that a moment's inattention whilst driving, with tragic but unforeseen consequences in its train, may lead to incarceration for up to five years, and that the very act of driving whilst perhaps inadvertently, for example, lacking the requisite insurance cover, may result in up to two years' imprisonment, the Council's task is an unenviable one.

In conjunction with the new offence of causing death by careless driving, the Government has seen fit to provide, for the first time, a statutory definition of careless or inconsiderate driving (§ 5.41). It adopts the concept of the "competent and careful" driver employed in current dangerous driving legislation and imports from that legislation the requirement for regard to be had, as in the test for danger­ous driving, to circumstances shown to have been within the knowledge of the accused. It is understood that the new definition will be brought into being at the same time as the new offence described above.

Matters within the knowledge of the accused featured very heavily in two Divisional Court cases involving the same defendant, a police officer and Grade 1 advanced driver. In the first of these, DPP v Milton (§ 5.09), it was held that in so far as the district judge who tried the case had taken into account in the defendant's favour the defendant's own knowledge of his driving skills, and thereby imported a subjective element into the test of dangerous driving, he had been wrong to do so, and a retrial by a different tribunal was ordered. In the second, Milton v DPP [2007] EWHC 532 (not reported in the text), a differently constituted Divisional Court decided that the fact that the defendant was a Grade 1 advanced police driver was a circumstance to which regard had to be had pur­suant to s.2A(3) of the Road Traffic Act 1988. The test for dangerous driving remained an objective one, albeit refined by reference to existing circumstances. The matter was returned for further consideration to the district judge who had conducted the retrial. At the time of writing that further consideration was still awaited.  Dangerous driving and its consequences seems to have pushed drink/driving cases out of their accustomed position in the limelight, so it should come as no great surprise to learn that the Court of Appeal has now revised the Cooksley sentencing guidelines to take account of the increased maximum penalties for causing death by dangerous driving or by careless driving under the influence of drink or drugs; see R. v Richardson (§§ 5.130 et seq.).

The late John Ebdon used to end his radio programme with the words "if you have been, thank you for listening". As this edition will be the last for which I shall assume full editorial responsibility, perhaps I may be permitted to convey my sincere thanks not only to my fellow editors past and present, but also to the many members of the teams of both Longman and Sweet & Maxwell with whom I have had the pleasure of working over the last 22 years. Perhaps you will also allow me to say, "if you have been, thank you for reading".

Peter Wallis June 20, 2007

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Review of 23rd Edition

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With now over with approaching 30 million vehicles on our roads, additional mileage being done by the population and diminishing police resources being allocated to road policing, the need for knowledge of the law becomes of increasing importance to everyone. The need for a comprehensive textbook on the subject thus becomes a necessity for all those seeking that knowledge. Wilkinson's Road Traffic Offences is such a textbook and old friend. The first edition was published in 1953.

As we have said previously on 'Internet Law Book Reviews', Wilkinson is, however, no ordinary textbook, it is a work in two volumes, with the first volume presented in a very readable form to be readily understood . It is perhaps, the book that many look to in the first instance when confronted with an unusual matter connected with a vehicle.  Like so many major works these days it extends beyond one volume.

Definitions are very important.  I am sure we can all recall how particular vehicles have been manufactured to bring them within a 'definition' eg 'a three wheeler car not exceeding 410kg comes within the definition of motor cycle and your reviewer himself borrowed a Robin Reliant in 1967 and drove it on a motor cycle licence to practise gear changes.  I recall prior to this, such a vehicle was not permitted a reverse gear.

The second volume is not for the general public, but sets out for the practitioner, firstly the Statutes, and secondly, the Statutory Instruments that we all have to obey once outside the curtilage of our homes. They represent a formidable array that looks to be added during the lifetime of any edition.

The whole work has made a valuable contribution to the Road Traffic Law of this country.

It would be impossible, in the space available, for the reviewer to cover the whole of this work and clearly some matters are of more importance than others, for a variety of reasons. It is therefore the intention to comment on some aspects.

Described as the principal culprit in this edition is the Road Safety Act 2006, which received Royal Assent on November 8, 2006. It is an Act containing no less than 63 sections and seven Schedules. Most of its bulk owes its conception and lengthy gestation to the Department for Transport. Particular attention is drawn to two new serious offences created by ss.20 and 21 of the Act, namely causing death by careless, or inconsiderate, driving and causing death by driving whilst either unlicensed, disqualified or uninsured. It is understood that these provisions will not be implemented until the Sentencing Guidelines Council has issued guidance in respect of the new offences.

The Road Safety Act 2006 (Commencement Order No1) Order 2007 brought into force on 27 February 2007 the following sections, 26, 36, 40, 50 & 59 so far as it relates to paragraphs 9, 12 & 16 of Schedule 7 (and accordingly paragraph 9, 12 & 16 of Schedule 7).  The Road Safety Act 2006 Commencement Order No2 brought into force on 27 September 2007 Sections 14, 23, 24, 25, 27, 28, 29, 30, 31, 32 33, 41, 43 & 59. 

In conjunction with the new offence of causing death by careless driving, the Government has provided, for the first time, a statutory definition of careless or inconsiderate driving. It adopts the concept of the "competent and careful" driver employed in current dangerous driving legislation and imports from that legislation the requirement for regard to be had, as in the test for danger­ous driving, to circumstances shown to have been within the knowledge of the accused. It is understood that the new definition will be brought into being at the same time as the new offence described above.

Matters within the knowledge of the accused featured very heavily in two Divisional Court cases involving the same defendant, a police officer and Grade 1 advanced driver.

In DPP v Milton [2006] EWHC 242 (Admin), [2006] RTR 264. A policeman had been acquitted of dangerous driving. While on duty he drove an unmarked police car for training purposes at an average speed of 148-149 mph. The High Court ordered a retrial. They held that a section 2 offence was one of strict liability and the court was wrong to take into account the defendant's skill as a driver. Speed by itself was not dangerous but the lower court should have taken into account the likely effect on other road users of a car coming up on them at that speed with no warning. Accordingly the speed was prima facie evidence of dangerous driving.

At his retrial Milton was convicted and this time he appealed (Milton v DPP [2007] EWHC 532 (Admin), [2007] All ER (D) 285 (Mar). The issue in that appeal was whether in determining whether a driver has been guilty of driving dangerously contrary to section 2 of the Road Traffic Act 1988 it was permissible to take account of the driver's personal driving skills. The High Court held that the answer was `Yes'. Smith LJ stated: taking circumstances known to the accused into account does not . . . detract from the objectivity of the test. Subjective considerations, such as what the accused driver thought about the situation (whether on the road or relating to his journey or his personal circumstances) are irrelevant. But in so far as a circumstance relevant to the issue of dangerousness is capable of being established as being within the knowledge of the accused, the fact-finder must have regard to it. . . Also, the fact that the driver was faced with a sudden and unexpected brake failure ought to be taken into account in his favour by the hypothetical fact-finder assessing the dangerousness of the driving. . . The weight to be attached to such a circumstance is entirely a matter for the fact-finder. . . It simply refines the objective test by reference to existing circumstances. . . Section 2A(3) appears to me to require that regard should be had to such circumstances.

This is the last edition to which Peter Wallis will assume full editorial responsibilities; if it means a rest I am sure he deserves it.

Rob Jerrard

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"Essential for any criminal lawyer!" Heather Phillips, Bangor 30th April 2008

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Reviews of 22nd Edition

Wilkinson is, no ordinary textbook, it is a work in two volumes, with the first volume presented in a very readable form to be readily understood by lawyers and non - lawyers alike. It is perhaps, the book that both classes may look to in the first instance when confronted with an unusual matter connected with a vehicle. The reviewer is careful not to use the words 'wheeled' or 'road' because one is never sure what the ingenuity of the inventor is likely to produce in some backyard shed and launch on to an unsuspecting public and more importantly, the local Police Constable. One only has to look at the opening pages of the first volume to realise the already comprehensive list that might be found on our highways.

The second volume is not for the layman, but sets out for the practitioner, firstly the Statutes, and secondly, the Statutory Instruments that we all have to obey once outside the curtilage of our homes. They represent a formidable array that looks to be added during the lifetime of this edition.

It would be impossible, in the space available, for the reviewer to cover the whole of this monumental work and clearly some matters are of more importance than others, for a variety of reasons. It is therefore the intention to comment on some aspects that it is suggested, are of more importance to the greater mass of the population.

The drink/drive law continues to produce examples whereby drivers seek to avail themselves of what they perceive as loopholes, through which they might wriggle, which is only to be expected, given the dire consequences quite rightly provided by Parliament, and no doubt this will continue to be the case. There is also the increasing use being made of drugs, and in particular, the so - called recreational drugs used by people of sufficient income to own a motor vehicle, enjoy weekend nightlife and purchase cocaine. Some testing is already being done, but the whole process of the law on drug/driving is in need of urgent acceleration.

The legislation in relation to deaths caused by bad driving is another area that will almost certainly require some amendment before being consolidated into the next edition. The problems associated with juries failing to convict for manslaughter were of course, the reason for the offence of causing death by dangerous driving being introduced over 50 years ago, but those problems still remain, and indeed have been exacerbated over the years. It was with some regret that the reviewer learned that the Government was out to consultation on the matter of hearing only the relatives of murder and manslaughter victims in criminal proceedings. It was with some surprise when it was learned that the offence of causing death by dangerous driving was not to be included in the consultation. Surely the latter offence is one of homicide and the relatives of victims should be considered?

The matter of fatal cases involving careless driving will probably be another issue that will bring some amendment for the editorial team to consider. The gap in punishment between the 14 years for a Section 1, Road Traffic Act 1988 offence and the level 4 fine for a section 3 transgression, is one that just cannot be understood by ordinary members of the public, let alone those who have suffered the death of a loved one. There also remains the difficult matter of those cases where death does not result but the victim remains in an unconscious state, sometimes for years after the incident.

Cases of exceeding the speed limit occupy much attention these days, largely because of the additional employment of speed cameras and the vastly increased use made of the fixed penalty procedures. Inevitably a sizeable proportion of public opinion see as an easy revenue-earner, a view which might be supported, bearing in mind that they seem to have had little impact on road casualty figures, although the opposite might be true about their bringing about a reduction in vehicle speeds. Since this increase, the reviewer has been surprised that some enterprising defendant has not made use of a defence that there has been no corroboration of the camera evidence, such usage being merely an opinion of a machine.

The last type of case the reviewer proposes to comment upon is that of failing to stop and report an accident. There are two reasons for this.  The first is the surprise that precedent has not determined whether shock is an injury, and secondly, with the reviewer being an ex-police officer, comment has yet to be made as to whether these offences have altered the police disciplinary punishment arrangements, with officers becoming subject to a custodial sentence.

It is good to know that this new edition of Wilkinson's, on a complex subject which affects every member of the community in some shape or form, carries on making its valuable contribution to the criminal justice system.

1057/02/06 20th February 2006 Brian Rowland

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Wilkinson has navigational tools to take you to what you need straight away. It has to be said that Wilkinson is the authority relied upon by very many police officers, your Reviewer during his police career, and since, has whenever possible had a copy. It does not have the market all its own way, Butterworths Road Traffic Service is very comprehensive and comes in loose-leaf form, it is a matter of opinion which you prefer, inserting additional pages is not everybody's cup of tea, and Wilkinson does have supplements. Another consideration would of course be size and weight, Wilkinson's wins here since it is more portable and a case is provided

Rob Jerrard Review of 22nd Edition

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Crown Court Index 2008

Edition: 28th

Authors: Ian McLean & Sam Katkhuda

ISBN: 978-1-84703-244-7

Publishers: Sweet & Maxwell

Price: £110

Publication Date: Dec 2008

Publisher’s Title Information

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Crown Court Index 2008 provides an invaluable index of common penalties and formalities in cases tried on indictment or committed for sentence in the Crown Court, as well as appeals in criminal proceedings.

Each section presents an accurate and concise statement of the law, with a simple A-Z format and tinted thumb tabs which help you locate the information you need quickly and easily.

The new 2008 edition brings you essential information on the latest developments since the publication of the last edition. These include two brand new sections;

Drinking Banning Orders which are to be introduced by the Violent Crime Reduction Act 2006

Vulnerable Accused where the trial provisions relating to juvenile accused have been extended by amendments to the Consolidated Practice Direction

In addition, a number of existing chapters have been substantially amended including; Bench and Witness Warrants section in light of new rule 28

Binding Over Orders in the light of the amendments to the Consolidated Practice Direction

Dealing with an Offender to include the new guidelines on discounts for pleas of guilty

Factual Basis for Sentence in light of the Attorney-General's revised guidelines on the acceptance of pleas and the prosecutors role in the prosecuting process

Financial Reporting Orders now takes account of the most recent Statutory Instrument

Football Banning Orders in the light of the Violent Crime Reduction Act 2006

Mentally Disordered Offenders in the light of the Mental Health Act 2007

RT Disqualification and Endorsement in the light of the Road safety Act 2006

A new section has been added to the existing chapter on, Forfeiture, on the provisions of Sexual Offences Act 2003 introduced by the Violent Crime Reduction Act 2006

In Imprisonment the sections on "protective sentences" have been totally re-written, as has the section on minimum required sentences under the Firearms Act 1968 s 51A in the light of the most recent authorities .

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Reviews to-date.

"A very successful and well-liked work ... light portable and very easy to^-use"

New Law Journal

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The authors

His Honour Ian McLean was formerly Metropolitan Stipendiary Magistrate and a circuit judge. His Honour Judge Sam Katkhuda is a circuit judge at Isleworth Crown Court.

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Preface

THIS EDITION has been spared the torrent of new legislation that has caused so many problems over the last few years, though one or two significant statutes, and some important statutory instruments have resulted in amend­ments to the text.

A new section, DRINKING; BANNING ORDERS is introduced although the orders introduced by the Violent Crime Reduction Act 2006 are not yet in force. A further new section on VULNERABLE ACCUSED has been intro­duced since amendments to the Consolidated Practice Direction extends to such persons the protections formerly applicable only to juvenile accused.

FOOTBALL BANNING ORDERS has been rewritten in the light of the amendments made by the Violent Crime Reduction Act 2006. In FORFEITURE, etc. a new section has been included on the provisions of SOA 2003 introduced by VCRA 2006. LIVE LINKS HAVE BEEN RESTRUCTERED to take account of the provisions of the Police and Justice Act 2006, relating to provision for the attendance of the accused and vulnerable witnesses. MENTALLY DISORDERED OFFENDERS has been amended in the light of the new approach introduced by the Mental Health Act 2007. RT DISQUALIFICATION AND ENDORSEMENT has been widely amended in the light of the Road Safety Act 2006.

The relevant Part of the Offender Management Act 2007 has not yet been brought into force; and THE AUTHORS HAVE DECIDED TO postpone consideration of it until the next edition. The abolition of local probation boards and the intro­duction of probation trusts is likely to take some time. The probationer service, which became localised in probation boards, is to become a provider of proba­tion services.

This year's subordinate legislation has resulted in BENCH AND WITNESS WARRANTS being substantially amended in the light of the new CPR, r.28 and FINANCIAL REPORTING ORDERS being updated. Amendments to the Consolidated Practice Direction have also required substantial amendment of BINDING OVER ORDERS.

There has been significant case law, particularly in the realm of "protective sentences", which has resulted in important restructuring. In IMPRISON­MENT the sections on "protective sentences" under both PCC(S)A 2000 and CJA 2003, have been totally re-written, as has the section on minimum required sentences under FA 1968, s.51A in the light of the most recent authorities. Credit of remand periods has been re-written in the light of new legislation

The new sentencing guidelines issued by the Council are July^, 2007 have required DEALING WITH OFFENDERS to be updated with respect to dis­counts for pleas of guilty. A full list of ancillary orders has also been added to this section.

FACTUAL BASIS FOR SENTENCE has been revised in the light of the Attorney-General's revised guidelines (June 8, 2007) on the Acceptance of Pleas and the Prosecutor's Role in the Prosecuting Process.

A section on witness anonymity has been added to SPECIAL MEASURES DIRECTIONS.

APPENDICES A and B have been updated.

The law is stated as at October 1, 2007.

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REVIEW

This is a very successful and well-liked work; it is light, portable and very easy to use.  I have been the owner of many of the previous editions, and have always found it to be an acceptable book to reach for when looking for a quick, yet correct answer.  It was first published in 1964; it has stood the test of time well.

Rob Jerrard

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Arlidge & Parry on Fraud

Edition: 3^rd 2007

Authors: Anthony Arlidge, Jacques Parry

ISBN: 9780421892101

Publishers: Sweet & Maxwell

Price: £200

Publication Date: 31/08/2007

Publisher's Title Information

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The new edition of this respected work provides comprehensive coverage of fraud, from general legal principles to detailed, procedural matters.

It has been substantially updated to incorporate important legislation, in particular the new Act on General Offence of Fraud and the Criminal Justice Act 2003. The procedural section now includes the new multiple offences procedural rules and regulations from the Domestic Violence Bill, and there is a complete new chapter on the rise in computer fraud.

The work discusses company fraud in detail, and closely examines other elements of fraud such as theft, deception, forgery, fraud on investors, fraud on creditors, and frauds on the general public. A chapter on jurisdiction guides practitioner through the complex issues that can arise in fraud cases. The final chapters cover procedure, advising on the presentation of a case and matters of evidence.

The most up to date and authoritative work available on fraud
Deals with general principles, the separate fraud offences, and procedure
Offers strategic guidance on complex areas of the law
Provides a complete update on Serious Fraud Office procedures
Examines the latest legislative developments and case law
User friendly format deals with the different offences in separate chapters
Contains all relevant legislation to cut research time

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Review

The second edition of this book was published in 1996 and as the main author correctly states, 'the law of deception has been holed below the water line by Preddy [1996] AC 815', then the 'damage control' parties went to work and enacted the Theft (Amendment) Act 1996 which was all in vain because it was finally sunk by the Fraud Act 2006.  In Preddy the House of Lords held that a person who by deception obtained a mortgage advance consisting in the transfer of funds from an account held by the lender did not obtain property held by another within the meaning of the Theft Act Sec 15.  The old law is very clearly examined in the text at 4-104: this is vital in understanding the new law.

This book covers much of the law very succinctly.  Fraud is a complex subject.  Prosecutors and Police have lived with the problems of the 'deception' offences under the Theft Act.

In any book on fraud there will be discussions on the pre 1968 position and cases such as 'Preddy', 'Gomez', 'Ellemes', 'Hinks', 'AG's Reference No 1 of 1985 and the 'Ghosh test for dishonesty'.  The words subjective and objective come to mind, as do further cases such as 'Oxford v Moss', 'Dura', 'Childs' and 'Lambie' and the taxi and restaurant cases that stretched our imagination and the law!

The book takes a deep look at the subject by taking the reader through the main provisions first, with discussion and reasons behind the new fraud law.   This includes the Fraud Review of July 2006, the UK International Obligations, the extent of the fraud problem, the pre 1968 jurisprudence and of course problems with the Theft Act 1968.

For that reason practitioners will need a comprehensive book covering all the old and new and once again Arlidge and Parry could be the choice of many with this third edition being published at this juncture.

We now move from the old distinctions that have been with us for so long, eg, between obtaining and appropriation,

Prosecution and defence minds must now focus on :-

Fraud by false representation - s2;

Fraud by failing to disclose information - s 3;

Fraud by abuse of position - s 4;

Possession of articles for use in frauds - s 6;

Making or supplying articles for use in frauds - s 7;

Obtaining services dishonestly - s 11.

One unifying feature of all the new offences is the absence of any deception requirement.

The author does warn us of a few possible pitfalls such as his belief that 'the new law of 'fraud by false representation' coupled with the new offence of obtaining services dishonestly (with or without deception) is certainly much simpler BUT that is more of an advantage for prosecutors than for the general public.  He also claims the new law has defects which the Law Commission appears to have overlooked or underestimated.  'They arise partly from the perverse decision to abandon the concept of deception in favour of that of false representation-thus reintroducing a degree of technicality which the Criminal Law Revision Committee wisely discarded in 1966-and partly from the retention of a requirement of causation, but in the form of mens rea rather than actus reus. These changes may mean that the Act not only fails to achieve its aims but creates new difficulties of its own'.

In his Preface the author discusses this and some of his other misgivings which are fully covered in the book eg, 'a dishonest abuse of position' without false representation or even non disclosure; the retention of 'conspiracy to defraud' alongside the new offences; and the far reaching change in Sec 43 of the Criminal Justice Act 2003 which if brought into force will enable serious fraud trials to be conducted by a Judge alone.  This is not new, having been proposed by the Roskill Committee in 1986.

43 Applications by prosecution for certain fraud cases to be conducted without a jury

(1) This section applies where-

(a) one or more defendants are to be tried on indictment for one or more offences, and

(b) notice has been given under section 51B of the Crime and Disorder Act 1998 (c.37) (notices in serious or complex fraud cases) in respect of that offence or those offences.

(2) The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.

(3) If an application under subsection (2) is made and the judge is satisfied that the condition in subsection (5) is fulfilled, he may make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.

(4) The judge may not make such an order without the approval of the Lord Chief Justice or a judge nominated by him.

(5) The condition is that the complexity of the trial or the length of the trial (or both) is likely to make the trial so burdensome to the members of a jury hearing the trial that the interests of justice require that serious consideration should be given to the question of whether the trial should be conducted without a jury.

(6) In deciding whether or not he is satisfied that that condition is fulfilled, the judge must have regard to any steps which might reasonably be taken to reduce the complexity or length of the trial.

(7) But a step is not to be regarded as reasonable if it would significantly disadvantage the prosecution.

44 Application by prosecution for trial to be conducted without a jury where danger of jury tampering

(1) This section applies where one or more defendants are to be tried on indictment for one or more offences.

(2) The prosecution may apply to a judge of the Crown Court for the trial to be conducted without a jury.

(3) If an application under subsection (2) is made and the judge is satisfied that both of the following two conditions are fulfilled, he must make an order that the trial is to be conducted without a jury; but if he is not so satisfied he must refuse the application.

(4) The first condition is that there is evidence of a real and present danger that jury tampering would take place.

(5) The second condition is that, notwithstanding any steps (including the provision of police protection) which might reasonably be taken to prevent jury tampering, the likelihood that it would take place would be so substantial as to make it necessary in the interests of justice for the trial to be conducted without a jury.

(6) The following are examples of cases where there may be evidence of a real and present danger that jury tampering would take place-

(a) a case where the trial is a retrial and the jury in the previous trial was discharged because jury tampering had taken place,

(b) a case where jury tampering has taken place in previous criminal proceedings involving the defendant or any of the defendants,

(c) a case where there has been intimidation, or attempted intimidation, of any person who is likely to be a witness in the trial.

At the time of writing, the Government has not succeeded in bringing S 43 of the Criminal Justice Act 2003 into force. At the insistence of the House of Lords the CJA 2003, s.330(5)(b) requires the approval by both Houses of a commencement order bringing s.43 into force. A draft order was laid in October 2005 but was eventually abandoned, the Attorney-General admitting that the Government would have lost the vote in the Lords.

The new edition also covers other changes since 1995.  There are new offences of income tax evasion, social security fraud, cheating at gambling and operating a cartel. The extra-territoriality provisions of the Criminal Justice Act 1993 finally came into force in 1999, by which time they had been rendered largely unnecessary by developments in the case law, as well as being overtaken by the Criminal Justice (Terrorism and Conspiracy) Act 1998. This edition also takes account of the Financial Services and Markets Act 2000, the changes made to the law of evidence by the Criminal Justice Act 2003, the new procedure for two-stage trials under the Domestic Violence, Crime and Victims Act 2004, the Criminal Procedure Rules 2005 (including the mystifying amendments of April 2007) and the Companies Act 2006.

The law is as stated as at May 1 2007.

Rob Jerrard

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LINKS

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