Powers of Criminal Courts (Sentencing) Act 2000: Committal for Sentencing
| Author | Gary Betts |
| DOI | 10.1350/1740-5580-76.1.12 |
| Published date | 01 February 2012 |
| Date | 01 February 2012 |
| Subject Matter | Court of Appeal |
be possible (at [23]). It must also be recognised that forensic recovery is
not always successful and some computer systems include deletion
software that will permanently delete software. The court must have
been right therefore to conclude that there was a significant risk that the
course of justice would be affected.
To an extent the appellant was lucky that she was charged only with
perverting the course of justice and not with a substantive offence
relating to indecent images of children. In some jurisdictions, most
notably Canada and the USA, it has been held that deleting a file
demonstrates that a person is in possession of the material because he or
she is exercising control over it (see, for example, R vChalk 2007 ONCA
815 (Canada) and US vRomm 455 F3d 990 (3rd Cir, 2006) and US v
Shiver 305 Fed Appx 640 (11th Cir, 2008)). Linking possession with
control has been a feature of English criminal law, albeit in a different
context (see D. C. Ormerod, Smith and Hogan’s Criminal Law, 13th edn
(Oxford University Press: Oxford, 2011,) 172–4) but this specific issue
has not been addressed. In Atkins vDPP [2000] 1 WLR 1427, it was held
that the mental element for possession of an indecent photograph of a
child was knowledge and the jury in this case appears satisfied that the
appellant did know that the images were indecent photographs of a
child. It is quite possible therefore that the appellant could have been
charged with possessing an indecent photograph of a child although it
should be noted that the author is not suggesting such an approach and
the offence of perverting the course of justice is better suited to her
actions. The consequences of a conviction for possession contrary to
s. 160 of the Criminal Justice Act 1988 would have been significantly
different to the sentence imposed here.
Alisdair A. Gillespie
Powers of Criminal Courts (Sentencing) Act 2000:
Committal for Sentencing
R vMitchell [2011] EWCA Crim 2030
Keywords Committal procedure; Magistrates’ court committal powers;
Crown Court’s sentencing powers; either-way offence
In December 2010, the appellant received a sentence of seven months’
imprisonment suspended for 18 months following a conviction for
assault occasioning actual bodily harm contrary to s. 47 of the Offences
Against the Person Act 1861. Ten days later, on New Year’s Eve, the
appellant was involved in a further offence. He was asked to leave a
public house he was visiting owing to him using foul language. During
the course of his ejection, the appellant tried to attack the landlord
The Journal of Criminal Law
12
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