556 / 736
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