Impact case study database

Influence on the courts and on practitioners

Blackstone’s Criminal Practice (Blackstone) is available in all Crown Courts. It is widely used in everyday practice and referred to by practitioners and judges both in trial courts and in appellate courts. Its use by practitioners and judges creates new laws both in the UK and overseas. It is also cited at the end of each section of the Judicial College’s Crown Court Compendium. In the latest edition (July 2020) approximately 20% of these references refer to Taylor’s material. Judges are thus constantly being referred to Blackstone for further analysis to cater for the particular aspects of the case before them.

Substantial passages from Taylors’ work in Blackstone, dealing with new or contentious issues, have had a significant impact on doctrinal issues, as evidenced through the decisions of the appellate courts.

a) In R(Collins) [2016] QB 862 the Divisional Court (Sir Brian Leveson P) at para 34 rejected as inaccurate a comment in Archbold about the new ‘householder’ defence and preferred Blackstone A3.63 (written by Taylor) which “makes the position clear” [A] and which was expressly quoted as follows:

“The new provision merely affects the interpretation of ‘unreasonable in the circumstances’ so that force is not by law automatically unreasonable in householder cases simply because it is disproportionate provided it is not grossly disproportionate.” [A].

This interpretation approved in R(Collins) was then itself upheld by a five-member Court of Appeal in the subsequent case of Ray [2017] EWCA Crim 1391. The complex new provisions on the use of force by householders had also previously been the subject of an article by Taylor for the Law School’s practitioner newsletter entitled ‘Self-defence for householders – or how to be reasonably disproportionate’, November 2013. The passage in Blackstone approved in R(Collins) reflected the conclusions of this article.

b) In Loake v CPS [2018] QB 998, the defence had explicitly relied on Blackstone para A3.23 et seq and in particular A3.32 [B] for the proposition that the insanity defence could apply to the offence of harassment, even if no mens rea was required. The trial judge did not accept this proposition but on appeal the Divisional court allowed the appeal, disapproved of the way the matter was dealt with in Archbold and applied the law as stated in Blackstone. The judge quoted with approval substantial passages from Taylor’s material in Blackstone (paras 45,46 and 54) of the judgement, referring approvingly to the criticism in Blackstone of the earlier decision in DPP v H, which case, it was decided, should not be followed.

c) In McClenaghan [2016] NICA 51, the Northern Ireland Court of Appeal quoted approvingly at para 49 a substantial passage in Blackstone B1.35 [C] concerning the position where a jury is split between two different bases for convicting of manslaughter, one being unlawful act and the other being gross negligence. They concluded that on the subsequent retrial of the case, the approach argued for in Blackstone should be followed. This citation is particularly significant as it referenced Taylor’s passage in Blackstone. This passage was directly based on Taylor’s 2001 Criminal Law Review article on Jury Unanimity in Homicide [3] in which he deals with unanimity issues in considerable detail on both a theoretical as well as practical basis.

The international impact of Blackstone

There are many other examples of Taylor’s work in Blackstone being cited with approval in courts both in the UK and further afield. For example, in Charles v R 2017 5 LRC 120 at para 16 there is a substantial discussion by the Court of Appeal of the Eastern Caribbean Supreme Court of Blackstone para 4.23 ‘Liability of Accessory where there is no Principal’ [D]. Similarly in Johnson (2017) 91 WIR 23 in the Bahamas Court of Appeal at para 95 [E] there is a quotation from Blackstone Ch A4 on the question of the relevance of knowledge of weapons in complicity cases, following the restatement of the law in the UK Supreme Court in R v Jogee. The case of Ward [2018] NICA 40 provides another example from the Northern Ireland Court of Appeal. It refers at para 27, in relation to the defence of intoxication, to an “important distinction...highlighted in Blackstone 2018 para A3.21” [F]. Blackstone is also frequently cited in the Hong Kong courts, an example relating to Taylor’s chapter being Ahmad Gulzar [2016] HKCU 3235 where a substantial paragraph from Blackstone 2016 A4.28 is quoted at para 22 [G].

Returning to English courts, in Godir [2018] EWCA Crim 2294 the Court of Appeal at para 16 referred to Blackstone A2.6 and A2.14 and adopted the expression given there of the meaning of ‘knowledge’ [H]. Also, Lord Justice Gross in Varley 2019 EWCA Crim 1074 para 99 quoting BCP A4.18 for the proposition that the principal in innocent agency must not lack “some characteristic essential for liability as a principal” [I]. The pervasive influence of Blackstone and Taylor’s chapters in it can be best summed up in the comment of Lord Chief Justice Thomas, in Adebelajo [2014] EWCA Crim 2779 at para 25 where he referred to the definition of murder “in the current leading textbook on crime, namely Blackstone Criminal Practice 2015 para B1.1” [J] (one of Taylor’s chapters). The October 2020 Supreme Court case of R (Highbury Poultry Farm Produce) v CPS [2020] UKSC 39 at para 36, provides the latest example of Taylor’s contributions to Blackstone (in this case para A2.22 on strict liability) continuing to be cited at the very highest level [K].

Impact on the Law Commission’s Report on Hate Crime (May 2014) (Law Com No 348) (Cm 8865)

As part of a cross departmental government initiative on hate crime, in 2013 the Ministry of Justice asked the Law Commission to look at the question of extending the existing offences under the Crime and Disorder Act 1998 and the Public Order Act 1986. Taylor made detailed written comments to the Law Commission in response to the 2013 Consultation Paper and wrote an article published in 2014 which the Commission referred to repeatedly in their May 2014 Report [L].

Taylor recommended that the current aggravated offences should not be extended and that there were better ways of tackling the problem, for example, by an enhanced sentencing regime. These were highly influential in the Law Commission’s preferred recommendation that there should be a wider review of the area which is now underway, rather than an extension of the existing offences, which was the initial terms of reference given to them by the government. His comments on the inherent difficulties relating to the aggravated offences and the undesirability of extending them are referred to in the Law Commission Report on 15 separate occasions. Many of these are substantial points in the text, rather than in the footnotes. They also include six separate references to his 2014 article examining these problems in detail [5]. See the Law Commission Report inter alia at Ch1 para 1.79, Ch 2 n. 132, Ch 3 paras 3.25, 3.88, Ch 4 paras 4.152 with n155, 4.162 with n169, paras 4.169 and 170, ch 5 n40, 42 and 45 and ch 7 para 7.81.

Examples of Taylor’s research contribution are provided by the following extracts from the Report [L]:

‘4.152 Professor Taylor suggested that practitioner and sentencing guidance on the enhanced sentencing system could usefully reinforce the fact that the sentencing tribunal must be satisfied to the criminal standard of proof that hostility was present. He also pointed to case law (155) requiring that adequate notice be given to defendants in any case where hostility allegations are to be made in support of sentence enhancement, for example, at an adjourned hearing’.

‘155 See Chapter 2 above, paras 2.70 and 2.89. See also Prof Taylor’s article “The role of aggravated offences in combating hate crime, 15 years after the CDA 1998 – time for a change?” (2014) 13 Contemporary Issues in Law 76’.

‘4.162 Professor Taylor also expressed unwillingness to see the complexities of the

current aggravated offences extended to further characteristics. He has written

elsewhere (169) that there are “legal difficulties inherent in the legislation” as a result

of the alternative limbs of aggravation. He has argued that extension would be

“inappropriate and counterproductive and would only exacerbate existing

difficulties...” The Law Society also noted the risk that extended aggravated

offences might be ineffective because of these inherent complexities.’

‘169 “The role of aggravated offences in combating hate crime, 15 years after the CDA 1998 – time for a change?” (2014) 13 Contemporary Issues in Law 76. We discuss this further in Chapter 5 below, from para 5.44.’

‘4.169 The Senior Judiciary and Professor Taylor were concerned that these already

complex offences were made even more complex through the interaction with

enhanced sentencing under section 145. There was confusion in the case law

and guidance about whether the aggravated offences and the sentencing regime

are entirely “mutually exclusive”. For the Senior Judiciary, this raised a “serious

practical issue” which risked “the whole purpose of extending the aggravated

offences [being] defeated”.’

‘4.170 Professor Taylor suggested that, in view of these complexities, it would be

preferable to repeal the aggravated offences and focus on improving the

enhanced sentencing system.’