The Gazette 1967/71

CRIME When a judge is considering what sentence to impose he is entitled to have regard to statutory provisions which require a six months' sentence to be suspended, and he may pass a longer sen tence if it is within his power and is not excessive for the offence. Their Lordships so decided when sitting in the first court of five judges since the Criminal Division of the Court of Appeal was constituted in 1966. The Court held also that a five-judge court duly constituted to consider an issue of discretion over sentence and the principles on which it should be exercised can depart from an earlier view of a three-judge court, especially if it was expressed recently and without argument on both sides. [Regina v Newsome; Regina v Browne; Court of Appeal; The Times, 30 July 1970.] Where the paternity of a child born during an existing marriage is in issue and the husband asserts that he is not the father, the modern scien tific evidence provided by a blood test is the best evidence and in the interests of justice and truth as well as the interest of the child, it should be available to the court which has to determine the issue. Though illegitimacy may still be a stigma in some social circles, Parliament by legislation has not only removed most of the financial dis advantages of illegitimacy but has also indicated, by Section 26 of the Family Law Reform Act, 1969, that public policy no longer requires special protection to be given by the law to the status of legitimacy—this is now the position in England. Where therefore a court is trying a paternity issue, it should permit a blood test of a young child to be taken unless satisfied that it would be against the child's interest. But the child's interest in such proceedings is not the sole interest to be considered. [W v W; House of Lords; The Times, 24 July 1970.] The House of Lords (Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, Lord Guest and Lord Diplock) unanimously decided that an indict ment for conspiracy would not lie against a Commonwealth immigrant who, in combination with others, entered the United Kingdom between 1962 and 1968 by evading examination by an immigration officer and a medical examination and without holding an employment voucher. [Director of Public Prosecutions v Bhegwan; House of Lords (1970) 3AE R97.]

Is it a defence for a father charged with assault upon a constable in the due execution of his duty, contrary to Section 51 of the Police Act, 1964, that force was used to release his son from custody in an honest belief on reasonable grounds that, contrary to the fact, the restraint of the son by the constable was unlawful? That question was certified as a point of law of general public importance by their Lordships when giving reasons for the dismissal on July 9 of an appeal by Owen Fennell against conviction at Portsmouth Quarter Sessions (deputy recorder: Mr. C. M. Lavington) of assaulting a constable in the execution of his duty. Leave to appeal was refused. [Regins v Fennell; Court of Appeal; 24 July 1970.] The Court dismissed an appeal by Richard Maskell, aged twenty-six, of Woodford, E., against his conviction at Gloucester Quarter Sessions of handling stolen goods and against sentence of twelve months imprisonment. The appellant had appealed on the grounds, inter alia, that the chairman was wrong in law in allowing his driver, Mr. Glover, of Cranham, Essex, a defence witness, who had stated that he had not taken the goods and whose appeal had been allowed by the Court of Appeal after he had been convicted by a jury of handling stolen goods, to be cross-examined by the Crown to the effect that he was a liar; that the chairman was wrong in ruling that the issue of estoppel did not apply in English law; and that the verdict was inconsistent with that in Mr. Glover's case and therefore unsafe. Their Lordships certified that a question of law of general public importance was involved but refused leave to appeal. [Regina v Maskell; Court of Appeal; The Times, 1 July 1970.] Although a motorist arrested after a positive breath test was willing to give a specimen of blood for a laboratory test and had a reasonable excuse for not doing so, he could still be convicted of failing to provide a specimen for a laboratory test when he unreasonably refused to provide a specimen of urine. [Regina v Harling; Court of Appeal; 17 June 1970.] 100