News Criminal Defence 11th Jan 2018

Crime Team Winter Newsletter

A Note from the Editor:

Welcome to the Winter Edition of the 2 Hare Court Crime Group Newsletter.

In July the Court of Appeal heard the case of Steven Ray, which brought before it the householder’s defence under s.76 Criminal Justice and Immigration Act 2008 as amended. Brian O’Neill QC and Ben Rich consider whether the statutory changes to the law on self defence – where it applies to householders – have in fact made substantial change to the common law.

In October the results of the consultation into sentencing for driving offences which cause death or serious injury were announced and another consultation, into sentencing for terrorism offences opened.

Tom Day examines the forthcoming changes to sentence that drivers who kill or cause serious injury may expect on conviction, while Rob Dacre writes on the change in approach to sentencing offenders convicted of preparing for acts of terrorism.

October also saw the application for judicial review by Jason Loughlin come before the Supreme Court. The case concerned the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court. Julia Faure Walker considers the approach taken by the Supreme Court.

Emily Dummett reviews the collaborative publication between the Inns of Court College of Advocacy and the Royal Statistical Society, produced as part of the project “Promoting Reliability in the Submission and Handling of Expert Evidence”. This ought to be required reading for all advocates before approaching cases where statistics and probability feature. It gives clear guidance both as to the basics of the theories of each area and how to apply those theories in practice.

With the Psychoactive Substances Act 2016, the Government banned the sale or procurement of any substance that has psychoactive activity – the Act came in for substantial criticism from media commentators at the time. On 1 November, and after widespread press reporting of conflicting decisions at first instance, the Court of Appeal (Criminal Decision) heard four appeals from applicants convicted of possessing nitrous oxide with intent to supply. Lewis Macdonald examines that decision, considers the definition of Nitrous Oxide as a medicinal product and looks to what arguments may assist defendants facing future prosecutions.

If we can help with any of the topics raised in this edition please feel free to contact any of the authors, or any member of the Crime Group.


Leon Kazakos


Self-defence and the Householder – Disproportionate Force May be Unreasonable Even in Defence of the Home

It is now eighteen years since Tony Martin disturbed two burglars in his remote Norfolk farmhouse.  He fired at them three times with a shotgun, killing sixteen-year-old Brendan Fearon and seriously injuring the other intruder.  His conviction for murder, later reduced to manslaughter by reason of diminished responsibility, set off a public and political debate on how far the normal rules of self-defence, with its requirement that any force used be “reasonable” in the circumstances as the defendant believed them to be, should be relaxed during an invasion of the home.

After a series of other cases, and a number of Private Members’ Bills in the House of Commons, the Government legislated in 2013.  Amendments were made to Section 76 of the Criminal Justice and Immigration Act 2008 to provide that…

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              Brian O’Neill QC                                Ben Rich

Driving Offences Which Cause Serious Injury or Death

On 1 February 2017 the consultation by the Ministry of Justice on driving offences and the penalties for those offences which cause death and serious injury was closed.

On 20 October 2017 it was announced that the 9,000 responses showed ‘considerable support’ for the proposals.  Accordingly, the Government would proceed with its plans to increase the maximum penalties for two of the three driving offences which cause death and to create a new offence of causing serious injury by careless driving as soon as parliamentary time allows…

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Tom Day



Tom Day



‘Greater Threats to Society’ – The New Draft Guidelines for Terrorism Offences

On 17 October this year the Sentencing Council published both a consultation and new draft guidelines for the sentencing of terrorism offences. The draft comes just over 18 months after the Lord Chief Justice provided detailed guidance for offences under s. 5 of the Terrorism Act 2006 (preparation for terrorist acts) in R v Kahar & Others.

The new draft guidelines deal with nine offences and may provide welcome consistency and clarity to sentencing in terrorism cases. They also mark a shift in attitude towards the preparation of terrorist acts…

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Robert Dacre




Section 73 of SOCPA – What Happens When Terms Are Not Met?

The case Loughlin [2017] UKSC 63 was an application for judicial review of a decision not to refer discounted sentences back to the sentencing court under section 74(3) of SOCPA 2005.  The Supreme Court, reversing the Divisional Court’s decision, refused to quash the prosecutor’s decision.   Consideration of the interests of justice in this context required an open-ended deliberation, and section 74(3) did not impose constraints on how the prosecutor should approach the task…

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Julia Faure Walker




The Inns of Court College of Advocacy (ICCA) and Royal Statistical Society (RSS) Guidebook for Advocates on the Use of Statistical Evidence in Court

This important and detailed guidebook is designed to identify the main pitfalls that advocates are likely to meet when handling statistics and so help us to avoid the miscarriages of justice that can occur – and have occurred – because of misunderstandings, and inappropriate use, of statistics and probability in court.

Taking the simple, famous but salutary example of a mother who finds herself prosecuted for the murder of her two children…

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Emily Dummett




Nitrous Oxide – No Laughing Matter

In R v Chapman and othersthe Court of Appeal dismissed four applications for permission to appeal on the grounds that Nitrous Oxide, commonly known as laughing gas, was not covered by criminal offences in the Psychoactive Substances Act 2016 (‘the PSA’). The Court dismissed the appeal on the arguments advanced by the defendants but the unanimous judgment makes for interesting reading for practitioners involved in a developing area of jurisprudence…

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Lewis MacDonald


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