Criminal Litigation [3 ed.] 1859413897, 9781859413890

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CRIMINAL LITIGATION

CP Cavendish Publishing Limited

London • Sydney

OTHER LEGAL PRACTICE TITLES FROM CAVENDISH PUBLISHING

Business Law Transaction Guide Civil Litigation Conveyancing Law & Practice Criminal Litigation Family Law & Practice Intellectual Property with Competition Law & Practice Wills, Probate & Administration

CRIMINAL

Frances Burton, LLB, LLM, Barrister and Jon Clore, LLB, Barrister both Senior Lecturers in Law London Guildhall University

CP Cavendish Publishing Limited

London • Sydney

First published in Great Britain 1993 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX. Telephone: 0171-278 8000 Facsimile: 0171-278 8080 e-mail: [email protected] Visit our Home Page on http://www.cavendishpublishing.com

© Burton, F and Clore, J 1997 First edition 1993 Second edition 1996

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.

Burton, Frances Criminal litigation – 3rd ed – (Legal practice course companion series) 1. Criminal law – England 2. Criminal law – Wales 3. Criminal procedure – England 4. Criminal procedure – Wales I. Title II. Clore 345.4’2’05

ISBN 1 85941 389 7 Printed and bound in Great Britain

Contents

Table of cases Table of statutes 1 Courts and procedure: an overview

ix xix

1.1

Introduction

1

4.12 Failing to stop and failing to report an accident

1.2

Procedure

6

4.13 Other offences

65

1.3

Classification of offences

7

4.14 Sentencing for road traffic offences

65

2

Criminal litigation practice

2.1

Introduction

2.2

Working in a criminal litigation practice 12

2.3

Time recording

13

2.4

Diaries

13

2.5

Files

15

2.6

Professional relations with the client

16

2.7

Practice management

2.8 2.9

64

5

Substantive law: theft and related offences

5.1

Introduction

75

5.2

Theft

76

5.3

Assault

81

5.4

Burglary

88

5.5

Robbery

90

14

6

Financing the defence

Instructing counsel: PCS 20.03

18

6.1

Introduction

93

Conferences with counsel

20

6.2

Professional conduct

93

2.10 Building up a criminal practice

21

6.3

Green Form Scheme

94

6.4

Assistance by way of representation

95

6.5

Duty Solicitor Scheme

97

6.6

Criminal legal aid

98

6.7

Cost to the client

105

6.8

Remuneration

105

6.9

The privately paying client

105

7

Bail practice and procedure

3

Professional conduct

3.1

Introduction

3.2

General rules applicable to criminal specialists as to all solicitors

3.3

11

23 24

The key areas of concern to the criminal litigation solicitor

34

3.4

Using the Guide

50

4

Substantive law: driving offences

7.1

General principles

107

4.1

Criminal procedure takes place in the context of substantive law

7.2

Outline bail procedure

114

53

7.3

Bail for non-imprisonable offences

116

4.2

Dangerous driving

54

7.4

Conditions

116

4.3

Careless driving

55

7.5

Renewing an application for bail

118

4.4

Taking a conveyance without authority 56

7.6

Appealing against a refusal

120

4.5

Aggravated vehicle taking

58

7.7

4.6

Causing death by dangerous driving

59

Appeal by the prosecution against the grant of bail

121

4.7

Driving etc under the influence (various offences)

60

4.8

Speeding

62

4.9

Disobeying traffic signals

63

4.10 Driving while disqualified

63

4.11 Driving while uninsured

63

8

PACE and police station procedure

8.1

Introduction

123

8.2

Arrest

123

8.3

Search

128

8.4

Detention at a police station

129

8.5

Interrogation

137

vi

Criminal Litigation

8.6

Identification procedures

141

12.5 Separate trial of counts

190

8.7

Volunteers

144

12.6 Arraignment

194

8.8

Vulnerable suspects

144

12.7 Pleas

195

9

Election of the mode of trial

12.8 Trial by jury

197

9.1

Introduction

147

12.9 Procedure

200

9.2

Classification of offences

147

12.10 Summing up

204

9.3

Election of the mode of trial

151

12.11 The verdict

206

10

Committal proceedings

13

Sentencing of adult offenders

13.1 Introduction

211

159

13.2 Procedure before sentence

211

10.2 Committal procedure

159

13.3 Deferring sentence

217

10.3 Bail and legal aid

164

13.4 Determining the sentence

218

10.4 Alibi warning

164

13.5 Absolute and conditional discharge

220

10.5 Voluntary bills of indictment

164

10.6 Notices of transfer

165

13.6 Community sentences: ss 6(1) and 6(4) of the CJA 1991

220

13.7 Fines

225

13.8 Custodial sentences

226

13.9 Other orders

231

10.1 Committal to the Crown Court for trial

10.7 Preparation for Crown Court trial; the PDH

11

166

Summary trial

13.10 Criminal Injuries Compensation Board234

11.1 Summary jurisdiction of the magistrates

169

14

11.2 Legal representation

170

14.1 Introduction

237

11.3 Legal aid

170

14.2 Court of Appeal Criminal Division

237

11.4 The information

171

14.3 House of Lords

242

11.5 Advance information under the statutory disclosure scheme

14.4 Judicial review

243

173

14.5 Case stated

244

11.6 Absence of parties

177

14.6 Appeal to the Crown Court

245

11.7 Plea on summary trial

180

11.8 The not guilty hearing

180

14.7 Appeal to the Court of Appeal from the Crown and magistrates’ courts

246

11.9 The defence case

181

11.10 Submissions

181

14.8 Appeal from magistrates to the Divisional Court

246

11.11 Verdict

181

14.9 European Court of Justice

247

11.12 Costs

182

14.10 Other methods of ameliorating the effect of a miscarriage of justice

247

12

Appeals

Trial on indictment

12.1 Introduction

185

12.2 Preparation for trial

185

12.3 The indictment

188

12.4 Joinder of offences

189

15

Juveniles

15.1 Definition

249

15.2 The Youth Court

250

15.3 The juvenile in other courts

252

15.4 Trial on indictment

255

Contents

vii

15.5 Former juveniles

258

21

15.6 Sentencing

258

21.1 Meaning

319

21.2 Exceptions

320

21.3 Accidental disclosure

322

16

Evidence: an introduction

16.1 Evidence on the Legal Practice Course

265

16.2 Overview

265

17

Definitions and scope of the subject

22

Legal communications privilege

Admissions

22.1 Meaning

325

22.2 Formal admissions

325

17.1 Facts in issue

275

22.3 Informal admissions

326

17.2 Relevance, admissibility, weight

275

22.4 Confessions

326

17.3 Judicial evidence

276

22.5 Admission by conduct and silence

326

17.4 Judicial discretion to exclude evidence

278

22.6 The extent of the right to silence on being questioned

327

17.5 Function of judge and jury

279

17.6 Judicial notice

280

18

Burden, standard of proof and presumptions

23

Confessions and illegally obtained evidence

23.1 Meaning

335

23.2 Admissibility

335 338

18.1 Burden of proof

283

18.2 Standard of proof

286

23.3 Confessions by mentally handicapped

18.3 Presumptions

287

23.4 Inadmissibility under other grounds 339

19

Witnesses

19.1 Introduction

289

19.2 Oaths and affirmation

289

19.3 Competence and compellability

290

19.4 Failure to testify

293

20

Course of trial, examinations, opinion, documentary and real evidence

23.5 Procedure for challenging confession

340

23.6 Facts discovered as a result of a confession

342

23.7 Admissibility of excluded confession

343

23.8 Illegally or unfairly obtained evidence

343

24

The rule against hearsay evidence

20.1 Introduction

299

24.1 Meaning and admissibility

349

20.2 Basic principles

299

20.3 Course of trial

300

24.2 Cases where a statement made by another is not hearsay

350

20.4 Examination-in-chief

300

20.5 Cross-examination

306

24.3 Situations where hearsay is admissible

353

20.6 Re-examination

309

20.7 Closing speeches

309

Hearsay admissible under the Criminal Justice Act 1988

20.8 Opinion evidence

309

25.1 The effect of the provisions outlined 355

20.9 Documentary evidence

312

25.2 First-hand documentary statements

356

20.10 Real evidence

314

25.3 Examples of the application of ss 23–26

357

25

viii

Criminal Litigation

27.4 Character and convictions

25.4 Admissibility of business documents under s 24

359

of witnesses

391

25.5 Notes to ss 24 – 26

361

27.5 Spent convictions

395

25.6 Credibility of hearsay statements

361

25.7 Expert reports

362

26

Other exceptions to the hearsay rule

26.1 Computer records

365

26.2 Statements that are part of the res gestae

367

26.3 Statements by deceased persons

371

26.4 Other exceptions

372

27

Evidence of character and convictions

27.1 Introduction

375

27.2 The character of the victim

375

27.3 The character of the defendant

376

28

Corroboration, evidence of identity and self-serving evidence

28.1 Corroboration

399

28.2 Identification evidence

403

28.3 Previous consistent statements

407

29

Public interest immunity and private privilege

29.1 Public interest immunity

411

29.2 Private privilege

413

Index

415

Table of cases A v DPP (1997) 1 Cr App R 27 AG v Good (1825) 148 ER 421 AG v Hitchcock (1847) 1 Exch 91 Ablitt v Mills & Reeve (1995) The Times, 25 October Air Canada v Secretary of State for Trade [1983] 2 WLR 494 Alexander (1974) 58 Cr App R 294 Andrews [1987] 1 AC 281 Argent (1997) 2 Cr App R 27 Ashford Magistrates’ Court, ex p Hilden [1993] 2 All ER 154 Assim (1966) 50 Cr App R 224 Ataou [1988] QB 798 Aziz [1995] 3 WLR 53 B (RA) (1997) 2 Cr App R 88 Bailey (1993) The Times, 22 March Balfour v Foreign and Commonwealth Office [1994] 1 WLR 681 Ball [1989] Crim LR 579 Barnes v DPP (1997) The Times, 6 May Barrick (1985) 7 Cr App R (S) 142 Barton [1973] 1 WLR 115 Baskerville [1916] 2 KB 658 Bateson (1991) The Times, 9 April Bathurst (1968) 52 Cr App R 25 Bedwelty Justices, ex p Williams [1996] 3 WLR 361 Benham v UK (1997) NLJ March 14 Betts v Stevens [1910] 1 KB 1 Bibi [1980] 1 WLR 1193 Birmingham Crown Court ex p Bell (1995) The Times, 28 March Birmingham Justices, ex p Hodgkiss [1985] 2 All ER 183 Blackburn (1992) The Times, 1 December Blake (1989) 89 Cr App R 179 Blanchard (1997) The Times, 4 July Bogie [1992] Crim LR 301 Bolton Justices, ex p Merna [1991] Crim LR 848 Bookbinder v Tebbit (No 2) [1992] 1 WLR 217

287 351 307 323 411 207 368, 369, 408 330 359 191 48 377, 409 382 315, 326 411 84 407 79 322 402 203 205 163 96 85 88, 227 107 155 367 338 90 376 177 412

x

Criminal Litigation

Boswell (1984) 79 Cr App R 277 Bow (1977) 64 Cr App R 54 Boyes [1991] Crim LR 717 Brandy (1996) Gazette June 12 Bratty v AG for Northern Ireland [1963] AC 386 Brentwood Justices, ex p Nicholls [1992] 1 AC 1 Brewster (1997) The Times, 4 July Bridgewood [1988] Gazette 9 November 53 Bristol Justices, ex p Ahmed [1997] Col 12 QBD Britzman; Hall [1983] 1 WLR 350 Burge and Pegg (1996) 1 Cr App R 163 Burmah Oil Ltd v Bank of England [1980] AC 1090 Burstow (1997) The Times, 25 July, HL Burton v Gilbert [1984] RTR 162 Butler v Board of Trade [1971] Ch 680 Button (1994) The Times, 21 October

72 56 210 90 284 153 90 38 117 387 403 411 83 62 323 59

C v DPP [1995] 2 All ER 43 Calder Justices, ex p Kennedy [1992] Crim LR 496 Caldwell and Dixon [1993] Crim LR 862 Canavan (1997) The Times, 21 July Canterbury & St Augustine Justices, ex p Klisiak [1982] QB 398 Cardiff Magistrates’ Court, ex p Cardiff City Council (1987) The Times, 24 February Carr-Briant [1943] 2 All ER 1138 Carter (1996) 161 JP 207 Castillo (1996) 1 Cr App R 438 Castle v Cross [1984] 1 WLR 1372 Cathcart, Re [1870] 5 Ch App 703 Causton v Mann Egerton (Johnsons) Ltd [1974] 1 WLR Central Criminal Court, ex p Abdullah (1996) The Times, 30 July Central Criminal Court, ex p Francis & Francis (a firm) [1989] AC 346 Central Criminal Court, ex p Gurney (1996) The Times, 17 May Chandler (1992) The Times, 16 April Chapman and Lauday (1976) 63 Cr App R 75 Chard v Chard [1955] 3 All ER 721 Chatters v Burke [1986] 1 WLR 1321 Cheeseman (1992) The Times, 11 March Chief Constable of West Midlands Police, ex p Wiley [1994] 3 WLR 433

287 118 144 212 157 155 285 388 356 62, 352 321 321 107 322 117 200 198 285 67 307 411–14

Table of cases

Christie [1914] AC 545 Christou [1992] 3 WLR 228 Chung (1991) 92 Cr App R 314 Cole [1990] 1 WLR 866 Condron [1997] 1 WLR 827 Condron and Condron [1996] The Times, 4 November, CA Connolly v Lancashire County Council [1994] RTR 79 Conway v Rimmer [1968] AC 910 Cook [1987] 1 All ER 1049 Cooper [1969] 1 QB 267 Courtie [1984] AC 463 Cowan (1995) The Times, 13 October Cowan and others [1995] 4 All ER 939 Cox [1991] Crim LR 276 Cox (1993) 96 Cr App R 452 Cox and Railton [1884] 14 QBD 15 Crossland v DPP [1988] 3 All ER 712 D v NSPCC [1978] AC 171 DA Silva [1990] 1 WLR 31 Daly (1981) 3 Cr App R (S) 340 Darby v DPP (1994) The Times, 4 November Davies [1962] 1 WLR 1111 Davis (1980) 2 Cr App R (S) 168 Davis [1993] 1 WLR 613 Davison [1988] Crim LR 442 Delaney (1988) 88 Cr App R 338 Derby Magistrates’ Court [1995] 3 WLR 681 Devichand [1991] Crim LR 446 Diedrick and Aldridge [1997] Crim LR Dodson; Williams (1984) 79 Cr App R 220 Doheny and Adams (1997) 1 Cr App R 369 DPP v Gokceli (1988) 153 JP 109 DPP v Johnson (1994) 158 JPP 891 DPP v Kilbourne [1973] AC 729 DPP v M [1997] 2 All ER7 49 DPP v Merriman [1973] AC 584 DPP v Parmenter [1992] 1 AC 699 DPP v Sikondar [1993] RTR 90

xi

327 346, 380 337 358 329, 333 131 366 411 315 240 59, 212 294, 295, 329, 390 131 342 345 321 62 413 303 91 62 312 91 413 336 337 320, 394 207 166 314 310 178 61 275, 401, 402 290 191 209 64

xii

Criminal Litigation

DPP v Taylor [1992] QB 645 Dragic (1996) 2 Cr App R 232 Dudley Justices, ex p Gillard [1986] AC 442 Duncan (1981) 73 Cr App R 359 Ealing Magistrates’ Court, ex p Woodman [1994] Crim LR 372 Edwards [1975] QB 27 Edwards [1991] Crim LR 45 Edwards (1996) Gazette June 12 Effick (1994) The Times, 22 July, HL Everett [1988] Crim LR 826 Ewer v Ambrose (1825) 3 B & C 746 Fairhurst [1986] 1 WLR 1374 Fenton (1994) 15 Cr App R (S) 682, CA Fenwick v Valentine [1994] SLT 485 Ferguson v R [1979] 1 WLR 94 Fields [1991] Crim LR 38 Fitzpatrick [1963] 1 WLR 7 Flax Bourton Magistrates’ Court, ex p Commissioners of Custom and Excise (1996) The Times, 6 February Ford [1989] QB 868 France and France [1979] Crim LR 48 Frank Truman Export Ltd v Metropolitan Police Commissioner [1977] QB 952 French and Gowlar (1993) 97 Cr App R 421 Friend [1997] 2 All ER 1011 Fulling [1987] QB 426 G v DPP [1997] 2 All ER 755 Galbraith [1981] 1 WLR 1039 George [1984] I WLR 1082 Ghosh [1982] 2 All ER 689 Gilbert (1978) 66 Cr App R 237 Gill and Goodwin v Chief Constable of Lancashire (1992) The Times, 3 November Gill and Ranuana [1989] Crim LR 358 Goddard v Nationwide Building Society [1987] QB 670 Goldenberg (1988) 88 Cr App R 285

82 359 155 409 60 283 346, 347 90 348 337 302 257 82 61 284 203 191 152, 155 199 385 321 359 296 336 290 163, 201 217 77, 204 208 412 347 323 338

Table of cases

Gomez [1993] AC 442 Goodson (1975) 60 Cr App R 266 Gordon (1987) 9 Cr App R (S) 343 Gordon v Crocker [1939] 1 KB 994 Gould (1983) 5 Cr App R (S) 72 Governor of Brixton Prison, ex p Levin (1997) 3 All ER 289 Graham [1973] Crim LR 628 Graveson Magistrates ex p Baker (1997) The Times, 30 April Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 Green v DPP [1993] Crim LR 534 Green v Moore [1982] QB 1044

xiii

80 207 88 29 91 316, 353, 365 303 102 321 85 85

H [1995] 2 WLR 737 H (1997) The Times, July 4 Hales (1983) 5 Cr App (S) Hall (1968) 52 Cr App R 528 Hammersmith Juvenile Court, ex p O (1987) 86 Cr App R 343 Harris (1976) 62 Cr App R 28 Harron (1996) 2 Cr App R 457 Harrow Youth Court, ex p Prussia (1997) The Times, 17 February Harward (1981) 73 Cr App R 168 Harwood [1989] Crim LR 285 Hassan (1970) 54 Cr App R 56 Hazeltine [1967] 2 QB 857 Hereford Magistrates, ex p Rowlands (1997) The Times, 17 February Hickin (1996) Crim LR 584 Highbury Corner Magistrates, ex p Sonn & Co (a firm) (1995) The Times, 23 May Hill v Baxter [1958] 1 QB 277 Horsferry Road Magistrates’ Court, ex p Bennet (No 2) [1994] 1 All ER 138 Hunt (1987) 84 Cr App R 163 Hunt [1992] Crim LR 582 Hurst (1995) 1 Cr App R 82

380 90 88 194 257 194 403 243 190 347 203 195 243 407

Ipswich Crown Court, ex p Baldwin [1981] 1 All ER 596 Ireland (1997) The Times, 25 July Ishmael (1997) The Times, 4 July ITC Film Distributors Ltd v Video Exchange Ltd [1982] Ch 431

244 83 90 323

104 284 413 283 345 311

xiv

Criminal Litigation

Jackson [1970] 1 QB 647 CA Jackson [1992] Crim LR 214 James (1996) 2 Cr App R 38 Jemmison v Priddle [1972] 1 QB 489 John Murray v UK (1994) 18 EHHR CD1

66 205 356 172 334

Keane [1994] 1 WLR 746 Kearley [1992] 2 All ER 345 Kemble [1990] 1 WLR 111 Kerr v DPP (1994) The Times, 5 August Ketteridge (1915) 11 Cr App R 54 Khan (1995) 1 Cr App R 242 Khan [1996] 3 WLR 162 Kherbouche (1997) The Times, 2 January Kidd (1997) The Times, 21 July Kray (1969) 53 Cr App R 569

413 350, 351 289 84 200 315 347 166 212 189

L [1994] Crim LR 839 Laidman and Agnew [1992] Crim LR 428 Lake (1977) 64 Cr App R 172 Langmead (1864) L & C 427 Laskey, Jaggard and Brown v UK (1997) The Times, 20 February Lee [1984] 1 WLR 578 Lewes Justices, ex p Home Secretary (1973) Lewis [1969] 2 QB 1 Lewis (1984) 6 Cr App R (S) 44 Liddell v Middleton (1995) The Times, 14 July Lillyman [1896] 2 QB 167 Liverpool City Justices, ex p Santos (1997) The Times, 23 January Liverpool City Magistrates, ex p McGhee [1993] Crim LR 609 Longden (1995) The Times, 31 May Lucas [1981] QB 720 Ludlow v Metropolitan Police Commissioner (1970) 54 Cr App R 233 Luton Crown Court, ex p Neaves [1992] Crim LR 721

337 381, 382 192 287 5 46 412 203 258, 261 312 304 108 101 394 401–03 190 108

Mahadervan v Mahadervan [1963] 3 All ER 1108 Maidstone Crown Court, ex p Gill (1986) 84 Cr App R 96 Maidstone Crown Court, ex p Lever and Connell [1996] 1 Cr App Rep 524

286 234 117

Table of cases

Makanjuola [1995] 1 WLR 1348 Makanjuola v Commissioner of Police of the Metropolis [1992] 3 All ER 617 Makin v AG for New South Wales [1894] AC 57 Mancini v DPP [1942] AC 1 Maqsud Ali [1966] 1 QB 688 Marchant (1985) 80 Cr App R 361 Marks v Beyfus (1890) 25 QBD 494 Masih [1926] Crim LR 395 Mason (1981) 71 Cr App R 157 Mather [1991] Crim LR 285 Maw [1994] Crim LR 841 Maxwell v DPP [1935] AC 309 McCay [1990] 1 WLR 645 McGillwray (1993) 97 Cr App R 232 McGranaghan [1992] Crim LR 430 McKenna [1960] 1 QB 411 McKenzie [1993] 1 WLR 453 McKenzie v McKenzie [1970] 3 All ER 1034 McKnight & Davies [1974] RTR 4 McLeod (1994) The Guardian, 11 April Menard [1995] 1 Cr App R 306 Mendy (1976) 64 Cr App R Miller [1954] 2 QB 282 Miller v Minister of Pensions [1947] 2 All ER 372 Mills [1962] 1 WLR 1152 Mills v The Queen [1995] 1 WLR 511, PC Minihane (1921) 16 Cr App R 38 Moghal (1977) 65 Cr App R 56 Moore [1992] Crim LR 882 Morais (1988) Cr App R 9 Morris [1983] QB 587 Moss (1991) 91 Cr App R 371 Mudd [1988] Crim LR 326 Murdoch v Taylor [1965] AC 574 Murray v DPP (1993) 97 Cr App R 151 Mutch (1973) Napper (1997) JP 161, 18 January

xv

400, 402 413 380 284 314 57 412, 413 311 199 380 392 385 370, 406 359 381, 382 210 339, 400 170 57 388 345 308 83 284 303 368, 371 414 192 359 188 76 339 212 389 295 205 294

xvi

Criminal Litigation

Neal [1949] 2 KB 590 Newland [1988] QB 402 Newton (1982) 4 Cr App R (S) 388 Nicholas v Penney [1950] 2 KB RTR 446 Norton [1910] 2 KB 496

206 191 212 61 327

Owen v Jones (1989) 9 Cr App R (S) 34 Oyesiku (1972) 56 Cr App R 240

68 304

P [1991] 3 All ER 337 Paling (1978) 67 Cr App R 299 Paris (1993) 97 Cr App R 99 Park (1993) The Times, 30 July Patel (1993) 97 Cr App R 294 Pattinson and Exley (1996) 1 Cr App R 51 Peart [1970] 2 QB 672 Phipps and McGill (1970) 54 Cr App R 300 Piddington v Bates [1961] 1 WLR 162 Powell [1986] 1 All ER 193 Preston [1993] 3 WLR 891, HL Prudential Assurance Co v Edmunds (1877) 2 AC 487 R [1995] 1 Cr App R 183 Ratten v R [1972] AC 378 Rawson v High (1824) 2 Bing 99 [130 ER 242] Redd [1923] 1 KB 104 Redpath (1962) 46 Cr App R 319 Rice [1963] 1 QB 857 Rice v Connolly [1966] 2 QB 414 Richardson; Longman (1968) 52 Cr App R 317 Road Justices, ex p Constable [1981] Crim LR 504 Roberts (1997) 1 Cr App R 217 Robinson (1993) The Times, 25 November Roble [1997] Crim LR 449 Rodgers (1994) 1 Cr App R 374 Rowkes (1856) The Times, 8 March Rowton (1865) le & Ca 520

379, 383 165 336 345 359 405 57 57 84 388 348 286 320 351, 352, 368 369 387 402 313 85 395 155 348 395 127, 331 371 305 379

Table of cases

xvii

Same, ex p Ingram (1997) The Times, 17 February Sang [1980] AC 402 Saunders [1988] Crim LR 521 Saunders v UK (1996) The Times, 19 December Schama and Abramovitch (1914) 11 Cr App R 45 Secretary of State for the Home Department, ex p Pierson (1997) The Times, 28 July, HL Seymour Shand (1996) 2 Cr App R 204, PC Sharma, ex p [1988] Crim LR 741 Sharp [1988] 1 WLR 7 Shaw (1997) The Times, 21 July Shepherd [1993] 2 WLR 102 Shippey and others [1988] Crim LR 767 Simmons (1834) 6 C & P 540 Smurthwaite [1994] 1 All ER 898 Sodeman v R [1963] 2 All ER 1138 Sophocleous v Ringer [1987] Crim LR 422 South Hackney Juvenile Court, ex p RB and CB (1983) 77 Cr App R 294 South Ribble Magistrates, ex p Cochrane (1996) 2 Cr App R 544 South Western Magistrates, ex p Doyle and Bennett (1996) Sparkes (1991) 91 Crim LR 128 Spiby (1990) 91 Cr App R 186 Stagg (unreported) Stanton [1994] Crim LR 834 Statue of Liberty, The [1968] 1 WLR 739 Stokes [1983] RTR 59 Subramaniam v Public Prosecutor [1956] 1 WLR 965 Sullivan (1967) 51 Cr App R 144 Sullivan (1971) 54 Cr App R 389

227 164 406 245 305, 349, 409 212 365, 366 201 326 279, 347 284 365 257 303 98 340 365 347 387 314, 315 56 277, 350 205 203

Taylor, ex p (1992) 93 Cr App R 365 Teeside Magistrates’ Court, ex p Bujnowski [1997] Crim LR 51 Thomas [1983] Crim LR 619 Thomas v Connell (1838) 4 M & W 267 (150 ER 1429) Thompson (1976) 64 Cr App R 96 Thorpe (1997) The Times, 4 July Toohey v Metropolitan Police Commissioner [1965] AC 595

258 108 194 370 392 90 308, 375, 395

243 279, 340, 347 138 5 287

xviii

Criminal Litigation

Towers (1984) The Times, 16 October Tricketts and Tricketts [1991] Crim LR 59 Tricoglus (1976) 65 Cr App R 16 Turnbull [1977] QB 224 Turner (1975) 61 Cr App R 67 Turner [1975] QB 834 Turner (No 2) [1971] 1 WLR 901

239 208 382, 383 142, 205, 271, 382, 403, 406 91 311 76

Vincent, Frost and Edwards (1840) 9 C&P 275 [173 ER 833] Viola [1982] 3 All ER 73; (1982) 75 Cr App R 125 Vye [1993] 3 All ER 241

370 307, 376 377

Wade (1992) The Times, 1 December Wanklyn (1984) The Times, 14 November Ward [1993] 1 WLR 619 Watmore v Jenkins [1962] 2 QB 572 West (1996) 2 Cr App R 374 Western v DPP (1997) 1 Cr App R 474 Whalley (1852) 3 Car & Kir 54 Wharton [1990] Crim LR 877 Whitaker v Campbell [1983] 3 All ER 582 Wibberly [1966] 2 QB 214 Williams v DPP (1993) The Times, 9 March Wilson (1979) 69 Cr App R 83 Wilson (1984) 77 Cr App R 319 Winsor v R (1866) LR 1 QB 390 Wood (1982) 76 Cr App R 23 Woodage v Lambie [1971] 1 WLR 754 Woodhouse (1997) The Times, 4 July Woolmington v DPP [1953] AC 462

367 239 411, 413 60 382 305, 409 303 210 57 57 346 193 209 199 314, 315 68 90 281

Table of statutes

Administration of Justice Act 1985 36 Administration of Justice (Miscellaneous Provisions) Act 1933 s2 2 s 2(1) 188 Aggravated Vehicle Taking Act 1991 59 Bail Act 1976 s3 s 3A s 3(1) s4 s 4(2) s 4(4) s5 s 5A s 5(1) s 5(3) s 5(6A) s6 s 7(1) s 7(2) s 8(2) s 8(4) Sched 1

108, 126 116 113 108 109, 110, 115 113 113 115 121 115 115 115, 116 108 113 113 117 117 109, 110, 112–15, 118 Bail Amendment Act 1993 108 s 1(1) 121 Bankers’ Books Evidence Act 1879 s3 373 Children and Young Persons Act 1933 290 s 28 251 s 34A 251 s 46 252 s 47 251, 252 s 53 112, 258 s 53(1) 259 s 53(2) 256, 257, 259, 261, 262 s 56 258, 259, 261 s 59 251

Children and Young Persons Act 1969 s 7(8) 254 s 12 259 s 12A–C 259 s 16(2) 396 s 18 252 Courts and Legal Services Act 1990 36, 233 s 27 170 Crime (Sentences) Act 1997 230, 231 Part I 227 Criminal Appeal Act 1968 237 s1 14, 237 s 1(1) 237 s2 239, 241, 242 s 2(1) 239, 301 s 12 240 s 15 240 s 23 240 s 23(1) 240 s 31A 241 s 31A(4) 241 s 33 14, 242 s 44A 241 Criminal Appeal Act 1995 237, 239, 247 Part II 247 s1 237 s4 240 s6 241 s7 241 Criminal Damage Act 1971 s1 154 Criminal Evidence Act 1898 384 s1 292, 293, 378 s 1(b) 203 s 1(e) 414 s 1(f) 268, 296, 308, 384, 385, 388, 389 s 1(f)(i) 384, 385, 390 s 1(f)(ii) 384–90 s 1(f)(iii) 384, 385, 389, 390 Criminal Justice Act 1967 120, 208 s 6(3) 209

xx

Criminal Litigation

s9

162, 176, 180, 186, 300, 372 s 10 203, 314 s 11(1) 202 s 11(8) 203 Criminal Justice Act 1982 120 s 1B 262 s 1(1) 226 s 8(2) 262 ss 17–19 224 Criminal Justice Act 1987 3 Criminal Justice Act 1988 268, 355 s 4A 247 ss 23–28 300, 355, 362 ss 23–30 313, 353 s 23 162, 180, 187, 315, 356–58, 360, 361 s 23(3)(b) 359 s 24 162, 180, 313, 315, 359–61, 365, 371 s 25 357, 358, 360, 365 s 25(1) 356 s 25(2) 356, 358 s 26 357–61, 365 s 27 313, 361 s 28(1)(b) 361 s 30 311 s 30(5) 362 s 32 291, 299, 306 s 32(a)(5) 291 s 32(a)(6) 291 s 32(2) 299 s 32(2)(a) 291 s 32A 290, 300 s 33A 290 s 39 81, 82, 86 s 40 58, 63, 82, 147–49, 169, 185, 209 s 40(4) 149 s 41 60–62, 64, 147, 149, 169 s 41(1) 150 s 69 234 ss 93A–D 80 ss 108–17 235 s 139(5) 282 s 154 118

s 155 Sched 2 Criminal Justice Act 1991 ss 1–3 ss 1–4 s 1(2) s 1(2)(a) s 1(3) s 1(4) s 2(2) s 2(2)(a) s3 s 3(1) s 3(2A) s 3(3) s 4A s 6(1) s 6(2) s 6(4) s 7(3) s8 s 11(3) s 12 s 22(3) s 23 s 26 s 29 s 29(1) s 31(1) s 31(3) ss 32–51 s 35 s 52(1) s 53 s 54 s 55 (2)–(6) s 56 s 58 s 63 s 63(5) s 66 s 67 s 68 Sched 1A Sched 8

119 362 70, 79, 151, 218, 219, 250 228 260 219, 226 221 221 226 227, 230 227 219, 227 226, 227 214 226 214 219–21 221 220 221, 224 221 224 224 228 229 229 214 219 214, 219 219 230 227 290 3 290 291 223, 251 259 230, 262 230, 262 238 232 249 221 249

Table of statutes

Criminal Justice Act 1992 s 37(2) Criminal Justice Act 1993 s 8(2) s 18 s 20(1) s 20(1)(A) s 66(1) s 66(6) Sched 3 Criminal Justice Act 1995 s 26 Criminal Justice and Public Order Act 1994 s1 s3 s 3(7) s 4(3) s 16 s 17 ss 25–30 s 25 s 26 s 27 s 27(3) s 28 s 30 s 32 s 33 ss 34–39 s 34 s 34(2) s 35 s 35(2) s 35(3) s 35(4) s 36 s 36(4) s 37 s 37(2) s 37(3) s 38(3)

60 80, 101, 218 230 225 225 225 219 219 225 245 2, 109, 110, 123, 159, 205, 260 260 260 261 261 258 259 108 111 110, 112 108 113 112 121 400 400 127, 334 126, 127, 296, 327, 328, 332, 333 206 206, 294, 329, 333, 390, 409, 414 297 206, 293 293 327, 328, 332, 333 332 327, 328, 332, 333 206 332 206, 295, 296, 331, 399

xxi

s 38(6) 333 s 48 70, 75, 186, 215 s 48(2) 215 s 50 291 s 60 128 s 167(3) 203 s 168(3) 293 Sched 2 203 Sched 3 113 Sched 9 214, 238, 290 Sched 11 293 Criminal Law Act 1967 s 6(1) 196 s 6(2) 209 s 6(4) 209 Criminal Procedure Act 1865 s2 203 s3 301, 392 s4 307, 394 s5 308, 394 s6 308, 394 Criminal Procedure and Investigations Act 1996 49, 126, 151, 166, 173 Part I 273, 320 Part II 320, 413 Part V 159 s3 174, 273 s4 273 s5 174, 273 s6 174, 273 s7 175, 273 s9 175 s 12 174 s 13 174 s 14 413 s 15 413 s 20 176 s 40 270 s 48 178 s 49 151 s 51 176 s 52 119 s 62 290, 291, 299 ss 65–67 267 s 68 300, 372

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s 71 Sched 1 Sched 2 Criminal Procedure (Attendance of Witnesses) Act 1965 Criminal Procedure (Insanity) Act 1964 s 4(6) Financial Services Act 1986 Firearms Act 1968 Homicide Act 1957 s 2(2) Indictment Act 1915 s5 s 5(3) Interception of Communications Act 1985 Interpretation Act 1978 s7 Juries Act 1974 s1 s 5(2) s6 s 16 s 17(4) s 18(1) Sched 1 Justice of the Peace Act 1861 s1 Law of Property Act 1925 s 184 Legal Aid Act 1988 s2 ss 8–13 s8 s 19 s 21(3) s 21(3)(C)

107 8 300, 372 267 24 196 36 90

282 188 193 190 348 177

198 199 198 199 208 198 197 231

286 32, 93 95 95 94 98 103 98

s 21(7) s 21(10) s 22 s 24(2) s 25 Sched 2 Magistrates’ Courts Act 1980 s2 s 2(2) s 2(6) s 5A–F s 5B–E s 5B s 5C s 5D s 5E s6 s 6(1) s 6(2) s8 s 10 s 10(3) s 11 s 11(2) s 11(3) s 11(4) s 12 s 13 s 14 s 17 ss 18–20 ss 18–21 ss 19–21 s 19(3) s 22 s 23 s 24 s 24(1)(b) s 24(2) s 25(2) s 25(6) s 29(2)(a) s 36(1) s 36(2) s 37 s 38

103 103 98–101 104 105 241 147 169 169 169 159 160–62 162 162 162 162 159 7, 159–64 7, 159–64 161 177 14 177 177 179 179 177–79 178, 179 178, 246 151 114 151 254 152 154 151 255, 256 254 255 155 257 253 262 262 261, 262 225, 246

Table of statutes

s 82 s 97(1) s 97(2B) s 101 ss 108–11 s 108 s 111 s 111(4) s 115 s 117 s 120(1) s 122 s 123 s 127 s 128 s 128A s 128(3A) s 142 Sched 1 Mental Health Act 1983 s 37 National Assistance Act 1948 s 47 Oaths Act 1987 s 1(1) s 1(3) s 5(1) Offences Against the Person Act 1861 s 18 s 20 s 21 s 29 s 47 s 57 Official Secrets Act 1911 s1 Police Act 1964 s 51 Police Act 1997 Police and Criminal Evidence

226 176 176 283 14 245 244 246 231 124 117 170 172 171 14, 119 14, 119 14, 119 182, 245, 246 151, 154 197 259

96

289 289 289

53, 86, 87 53, 86, 87, 209 86 86 53, 81, 86, 89, 154 286 138

84 213

Act 1984 s1 s9 s 10 s 10(1)(c) s 17 s 18 s 24 s 27(4) s 28 s 30 s 32 s 37(2) s 37(4) s 38 s 40 s 41(8) s 42(1) s 42(8) s 43 s 46A s 47 s 54 s 56 s 58 s 60 s 61 s 62(10) s 66 s 69 s 69(1) s 71 s 76

s 76(1) s 76(2) s 76(2)(a) s 76(2)(b) s 76(4)(a) s 76(4)(b) s 76(5) s 76(8) s 77 s 78

xxiii

4, 123, 124, 316 128 320 320, 322, 325 320 128 128 63, 82–85, 87, 88, 90 144 126 133 129 13, 140 135 112 13, 140 139 140 13 14, 140 113 113 129, 133 133, 136 133, 135, 138 123 144 401 123 62, 313, 315, 353, 366 366 313 136, 180, 268, 275, 338–40, 342, 343, 345, 353, 372, 408 326, 335 8, 162, 335, 342, 343 339, 341 339, 341 342 343 342 335 338–40, 372 8, 127, 136,

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162, 180, 268, 269, 275, 279, 339–42, 344–48, 353, 361, 372, 407 339 202 293 293 293 293 335 279 132 367 132

s 78(1) s 79 s 80(1) s 80(1)(b) s 80(2) s 80(5) s 82 s 83(2) s 116 Sched 3 Sched 5 Powers of Criminal Courts Act 1973 s 1A–C s2 s7 s 14 s 15(2) s 21 s 31(3) s 35 s 44 Prevention of Corruption Act 1916 s2 Prevention of Crimes Act 1953 s 9(i) Prosecution of Offences Act 1985 ss 16–21 s 19A s 22(3) Public Order Act 1986 Rehabilitation of Offenders Act 1974 Road Traffic Act 1972 Road Traffic Act 1988 s1 s2 s 2A s 2A(4) s3 s4

217, 234 220 221 220 223 224 226 226 232 69 282 282 233 182, 233 107 148

213, 395, 396 148 59 54, 59 54 54 55 60, 61

s 4(6) s5 s6 s7 s 24 s 27 s 34(2) s 35 s 35(4)(a) s 35(4)(b) s 35(4)(c) s 36 s 103 s 143 s 170 s 170(1) s 170(2) s 170(3) s 170(7) Sched 2 Road Traffic Act 1991 Road Traffic Offenders Act 1988 ss 11–17 s 44 Road Traffic Regulation Act 1984 s 34 s 89 s 89(2) Sexual Offences Act 1956 Sexual Offences (Amendment) Act 1976 s2 s7 Solicitors’ Act 1974 s 68 Supply of Goods and Services Act 1982 s 13 Supreme Court Act 1981 s 31 s 46(1) s 81 Theft Act 1968

60 61, 99 61 99 209 65 67 68 68 68, 69 68, 69 59, 63, 66 63 63 64 64 64 64 64 65, 69 54, 55, 63 353 65 63 62 62, 400 400

307, 376 376 36 33

29 14, 243 148 120 150

Table of statutes

s1 s2 s3 s4 s5 s6 s8 s 8(2) s 9(1) s 9(1)(a) s 9(1)(b) s 9(2) s 9(4) s 12 s 12A s 12(1)

76, 195 77 76, 80 76 76 76 90 91 88 88 88, 195 88 89 121 59, 121 56, 58, 124, 125

s 12(6) s 12(7)(a) s 12(7)(b) s 13 s 15 s 22 s 24 s 24(1) s 24(4) s 24(6) s 25 s 27(1) s 27(3) Traffic Offenders Act 1988

xxv

57 57 57 80 80 80 125 125 125 125 125 191 383 62

Chapter 1

Courts and procedure: an overview

Introduction

1.1

The LPC Criminal Litigation Course follows the criminal process from arrest to appeals. You therefore need to understand: • The system of criminal courts in England and Wales, their inter-relationships and their relationship to the European courts • The two forms of criminal trial – summary trial and trial on indictment – and the classification of offences • Substantive law applicable to the course. Note

You also need to be aware of the role and jurisdiction of the European Court of Justice and the Court of Human Rights.

House of Lords

Divisional Court Queen’s Bench Division

Court of Appeal Criminal Division

Case stated

Crown Court Trial on indictment (Jury)

Voluntary bill of indictment Committal Appeal

Sentence (No jury)

Notice of transfer

Appeal by rehearing (No jury)

Committal proceedings

Case stated

Summary trial

Magistrates Court (No jury)

Figure 1.1 The criminal courts of England and Wales

2

Criminal Litigation

1.1.1

The criminal courts Magistrates’ court

The magistrates’ court is the lowest court in the hierarchy of criminal courts. However, it deals with 97% of criminal cases, half of which are motoring offences and, subject to two exceptions explained below. Cases which are to be tried in the Crown Courts are then committed for trial at committal proceedings. The decision to prosecute

If the police decide to prosecute, any proceedings will begin by charge or summons (normally charge if the defendant was arrested and taken to the police station and summons for offences where there may have been no arrest at all, eg minor motoring offences). Only if the police decide to prosecute will the decision be reviewed by the Crown Prosecution Service (CPS) who decide whether the proceedings begun by the police should be continued. In each case they must consider whether there is sufficient evidence to afford a realistic prospect of conviction and whether prosecution is in the public interest. Note

The police might decide to caution instead of prosecuting. There is no statutory basis for police cautions. Cautioning practice is regulated by Home Office Guidelines in HO Circular No 18/1994. A caution is only appropriate where the offender admits guilt, there is sufficient evidence to justify such guilt and the offender consents to the caution. Alternatively, no further action may be taken at all, in which case the offender would neither be prosecuted nor cautioned. Note

The innovative transfer for trial procedure (which was to be substituted for committal proceedings by the Criminal Justice and Public Order Act 1994) was never brought into force, and has now been replaced by an updated form of committal: see Chapter 10.

1

Committal proceedings are bypassed by a voluntary bill of indictment obtained from a High Court judge in chambers: s 2 of the Administration of Justice (Miscellaneous Provisions) Act 1933 as amended.

Courts and Procedure: an Overview

The procedure should only be used where the interests of justice rather than administrative convenience require it: 1990 Practice Direction: Voluntary Bills. In practice it is only used where • Committal proceedings were held but no committal resulted (the application is effectively a review of the magistrates’ decision), or • Committal proceedings are unsuitable for some special reason. Committal proceedings are bypassed by a notice of transfer given by a designated authority provided certain conditions are satisfied. A notice can be used in two unrelated situations • Complex fraud cases: s 4(1)(a) and (b) Criminal Justice Act 1987 • Certain cases involving child witnesses: s 53 of the Criminal Justice Act 1991. Designated authority means the Director of Public Prosecutions (DPP), Director of the Serious Fraud Office, the Commissioners of Inland Revenue, the Commissioners of Customs and Excise and the Secretary of State in relation to complex fraud cases, but only the DPP in those cases involving child witnesses.

2

Note

Committal proceedings are the procedural step whereby charges are transferred from the magistrates’ court to the Crown Court.

Trial in the magistrates’ court is called summary trial and takes place before lay magistrates (advised by a legally qualified clerk) or before a legally qualified stipendiary magistrate: see 1.2.2. Jurisdiction

Magistrates’ jurisdiction, apart from summary trial and sentencing, includes • Committal for trial on indictment at the Crown Court of all cases not to be tried summarily (including the necessary mode of trial hearing to decide whether Crown Court or summary trial is the more suitable) • Deciding whether a defendant should be remanded on bail or in custody

3

4

Criminal Litigation

• Deciding whether legal aid should be granted • Issuing summonses to commence prosecutions for minor offences • Issuing search and arrest warrants and warrants of further detention under the Police and Criminal Evidence Act 1984. 1.1.2

Youth courts

Persons under 18 years of age appear before a specially constituted youth court composed of magistrates, who may be either lay or stipendiary. 1.1.3

Crown Court

This is the other major trial court. Trial in the Crown Court is before judge and jury and is called trial on indictment. The status of the judge – a recorder, circuit judge or High Court judge – depends on the gravity of the case. Jurisdiction

The jurisdiction of the Crown Court includes • The conduct of the trial on indictment and sentencing (see 1.3.1) • Deciding whether a defendant should be granted bail or legal aid • Sentencing of defendants committed for sentence by the magistrates’ court • Hearing of appeals from the magistrates’ court by way of rehearing. Divisional Court of the Queen’s Bench Division

This court hears appeals by way of case stated, ie appeals on points of law or jurisdiction from the magistrates’ court and appeals or rehearings from the Crown Court. It also hears applications for judicial review. Judges are drawn from the Queen’s Bench Division of the High Court. The Court of Appeal (Criminal Division)

This court hears appeals against conviction and sentence from the Crown Court. Judges are drawn from the Lord Chief Justice, Lords Justices of Appeal and High Court Judges. The House of Lords

Further appeal can be made to the House of Lords from the Court of Appeal and the Divisional Court of the Queen’s Bench Division, but only where a point of law of

Courts and Procedure: an Overview

5

general public importance is involved. The judges are five Lords of Appeal in Ordinary, commonly called the ‘Law Lords’. The House of Lords is the highest court of appeal in criminal cases except where a point of European Community law is involved, where the final appeal court is the European Court of Justice. Court of Justice of the European Communities

The impact of this court and its lower court, the Court of First Instance, on the criminal law system of England and Wales is extremely limited. Questions of interpretation of European Community law can only be definitively answered by the Court of Justice on a reference to it, which is then applied by the English courts. Criminal proceedings are adjourned (stayed) until the reference has been determined. A reference is made by a court or tribunal and is not an appeal. Note

The appropriate final appeal court in the UK (usually the House of Lords) in a case involving the interpretation of Community law must make a reference to the European Court, a lower court may. A referral by a lower court is unusual.

European Court of Human Rights

This international court in Strasbourg is an institution of the Council of Europe established under the European Convention on Human Rights, to which the UK is a signatory. The Convention affects criminal law by protecting, inter alia, procedural rights (Article 5), the right to a fair hearing (Article 6) and freedom from retrospective penalties (Article 7). Article 8 also protects the respect for private life on which the criminal law necessarily sometimes impacts. If these human rights are violated an application can be made by petition lodged with the Commission established under the Convention. If declared admissible complaints are investigated by the Commission which reports to the Council of Ministers. A referral to the court from the Council can be made by the Commission or the Member State complained against. The court is not open to individuals and a complaint is not an appeal. Recent such cases include Saunders v United Kingdom (case 43/1994/490/572) under Article 6, and Laskey, Jaggard and Brown v United Kingdom (case 109/1995/615/703-705) under Article 8.

1.1.4

6

Criminal Litigation

1.2

Procedure There are two forms of criminal trial in England and Wales • Trial on indictment • Summary trial.

1.2.1

Trial on indictment

Trial on indictment is reserved for more serious offences. Trial takes place in the Crown Court before judge and jury. The term indictment is derived from the statement of offences with which the defendant is charged. Each charge in the indictment is called a count and it is to these that a defendant pleads guilty or not guilty at the start of the proceedings. Where there is a plea of not guilty, trial takes place before a legally qualified judge and a jury composed of 12 lay people. The judge controls the proceedings, rules on all matters of admissibility of evidence and determines all questions of law. The jury determines all questions of fact and is responsible for reaching a verdict. If the defendant is convicted, the judge decides on sentence and has greater powers of sentencing than the magistrates’ court. A defendant can be sentenced to imprisonment and/or fined up to the maximum allowable for that offence. 1.2.2

Summary trial

Summary trial takes place in the magistrates’ court. At the start of the proceedings the defendant pleads guilty or not guilty to a charge in a document called an information. The case is usually heard before unpaid lay magistrates who sit part-time. Magistrates determine both questions of law (on which they are advised by legally qualified clerks) and fact. A small number of magistrates are stipendiaries who are full-time, paid and legally qualified. Stipendiaries normally sit alone whereas a minimum of two lay magistrates are required to try a case and it is usual for them to sit as a bench of three magistrates. If the defendant is convicted, magistrates have limited powers of sentencing. They cannot generally sentence a defendant to more than six months for any one offence or more than 12 months for any two or more offences or fine a defendant more than £5,000. Magistrates can in certain circumstances commit the case to the Crown Court for sentencing.

Courts and Procedure: an Overview

Classification of offences

7

1.3

Where a case is heard depends on its classification. There are three categories of offence • Offences triable only on indictment • Offences triable only summarily • Offences triable either way. Offences triable only on indictment

Serious offences such as murder, rape, etc can only be tried on indictment. However, in its early stages the case is dealt with by a magistrates’ court, where the charges must pass through a procedure known as committal proceedings to transfer them to the Crown Court. Magistrates in committal proceedings have always been known as examining justices, although the proceedings may be conducted by a single justice and in the majority of cases their role is now administrative rather than judicial. The purpose of committal proceedings is to determine whether there is sufficient evidence on which a reasonable jury could convict, not would convict. This means the standard of proof that the prosecution has to satisfy is a low one. In practice, most committal proceedings result in a committal to the Crown Court for trial, since the CPS should have filtered out doubtful cases beforehand. If the CPS decides to proceed, CPS lawyers prepare the case for the prosecution to lay before the magistrates’ court. The defence still has the right to require them to show that there is actually a case to answer. Alternatively, the defence may not dispute that such a case exists, in which case committal will be an administrative formality. See Chapter 10. Despite initiatives for fundamental reform, such as the aborted transfer for trial procedure, there are still two forms of committal, either • with consideration of the evidence: s 6(1) of the Magistrates’ Courts Act (MCA) 1980, or • without consideration of the evidence: s 6(2) of the MCA 1980. However, in neither case may any oral evidence be given (although the documentary evidence may at the court’s option be summarised by the lawyer conducting the proceedings for the CPS) nor, irrespective of the type of committal, may the defence adduce any evidence. Whatever form the committal takes, the proceedings are therefore limited to documentary evidence presented by the prosecu-

1.3.1

8

Criminal Litigation

tion and either a submission of no case to answer or concession that there is such a case by the defence. Such concession does not prevent the defendant pleading not guilty at trial, since committal is not a trial, but only a quality review of the prima facie case. The magistrates have no power to exclude prosecution evidence under ss 76(2) or 78 of the Police and Criminal Evidence Act 1984: Criminal Procedure and Investigations Act 1996 (Schedule 1, paras 25 and 26). 1.3.2

Offences triable only summarily

The general principle here is that the least serious offences are only triable summarily. There are limited exceptions where the Crown Court may try a summary offence. 1.3.3

Offences triable either way

Either way offences are offences of medium gravity which may be tried in either the magistrates’ court or the Crown Court, depending on the facts of a particular case. The trial venue is determined by a procedure known as mode of trial through which all either way offences must pass. At the mode of trial proceedings the magistrates determine which court of trial is the most suitable venue. The nature and seriousness of the offence are major factors in making that decision. If the magistrates decide that the case is serious enough to be dealt with by the Crown Court, the defendant has no choice about trial venue and the hearing will continue as committal proceedings. Only if they decide that the case is suitable to be heard by them will the defence have an opportunity to elect summary trial in lieu of trial by jury. Even if the case is heard summarily, the court may still commit to the Crown Court for sentence after conviction. The reasoning behind these rules is that while a defendant cannot be deprived of trial by jury if it is available for the offence charged, nor can the justices be compelled to try such an offence summarily if they choose to decline to do so.

Courts and Procedure: an Overview

Self-assessment questions 1

Do all criminal cases start in the magistrates’ court? 2 Can a defendant in a criminal case make an appeal to the European Court of Human Rights? 3 What are the maximum penalties for one offence on conviction in the magistrates’ court? 4 Where does summary trial take place? 5 What is a stipendiary? 6 What sort of offences are summary offences? 7 What is an either way offence? 8 What is meant by the magistrates’ ‘limited powers of sentencing’? 9 Is there any way in which their powers can be increased? 10 In the Crown Court, what is the role of (a) the judge, and (b) the jury?

9

Chapter 2

Criminal litigation practice

Introduction Criminal litigation has many management similarities with the proper conduct of civil litigation and with the same ends in view, ie the proper representation of the client and the avoidance of claims of unsatisfactory work on the solicitor’s part which may lead to unwelcome sanctions. Such claims may be of • Inadequate professional services • Unbefitting conduct, or • Actual breaches of the rules of professional conduct. In the case of the first of these there may be a reference to the Office for the Supervision of Solicitors (which has recently replaced the Solicitors Complaints Bureau) and then, if necessary, the Legal Services Ombudsman, and, in the case of the latter two, to the Solicitors Disciplinary Tribunal. Note

Any of these references is serious enough, but the possibility also of civil claims for negligence, which have an adverse effect on your firm’s professional negligence insurance, is another hazard for which you should be vigilant. Consequently, you need to be on top of a great deal of law, practice and good management, as, contrary to the impression created in the cases of John Mortimer’s fictional character Horace Rumpole, not all criminal clients are as familiar with criminal law and practice as those from the criminal dynasties whom Rumpole defends, and you should not expect to be bailed out of your inadequacies by a client more experienced than you are!

The rules of professional conduct may be found in the current edition of Professional Conduct of Solicitors (7th edn, 1996) and as a trainee you should be familiar not only with the general rules which most affect your crim-

2.1

12

Criminal Litigation

inal work, but also with the specific rules dealing with work for the prosecution and the defence. Apart from this defensive aspect of practice, the ultimate aim is, of course, to work cost-effectively within the framework of billable hours, as above all the firm is a commercial organisation aiming to make a profit and not a charity providing legal services. You must therefore preserve a proper balance between correct professional standards on the one hand and commercially driven procedures within a suitable professional framework on the other.

2.2

Working in a criminal litigation practice Generally it will not be for you, as a trainee solicitor, to set up the necessary management systems, either as far as office administration and organisation goes, or for individual file management as such, but scrupulously to observe those already in place in the firm in which you are a trainee. The most important element of any such system is likely to be proper time recording so that the correct amount may be charged to the client at the conclusion of the case and sufficient detail of the billable work be recorded so as to enable the bill to be substantiated if challenged. This will still be important even though much criminal litigation is conducted on legal aid, so that standard fees will be widely applicable. This is because • Not all cases (such as in the upmarket field of ‘white collar crime’) will attract legal aid • Proper management of a criminal case load essentially requires time recording or the office would very soon subside into disorder – not conducive to a profitable practice. The busy criminal has become more sophisticated and demanding of his lawyer, and appreciates modern methods: an appearance, at least, of order gives him confidence! Otherwise he or she may feel the need to shop around so as to conduct a notional beauty parade of the practitioner’s competitors, and prison is a notorious location for swapping such tips and references. Providing a service which encourages loyalty in existing clients is especially important as criminal litigation can usually rely on a reasonable amount of repeat business from satisfied clients!

Criminal Litigation Practice

Time recording

13

2.3

Some firms have very sophisticated methods of time recording, breaking every activity into minute based units, eg six minutes (so that any short telephone call of a lesser duration counts as one unit, letters received, unless of ‘extra length’, two units and so on) and costs clerks usually use the unit base for drafting the eventual bill. Some firms usually record the actual time spent. Whatever method is prescribed in the firm, you should follow it and ensure you record all the following • Telephone calls, in and out • Letters, in and out • Attendances, whether on client, witnesses or third parties • Conferences with counsel • Time spent working on the file, including drafting • Travelling and waiting time for court • Actual court time.

Diaries Diaries are as important in criminal litigation as in civil. However, the emphasis is slightly different in that, in civil litigation, as well as not missing time limits you need to adopt an essentially proactive approach so as not to allow the other side to take over the driving seat, whereas in criminal litigation the prosecution is the proactive party. It is the prosecutor who must both take the first step in deciding whether, and if so how, to proceed at all when a prosecution is first considered, and then go on to prove the prosecution case; the defendant’s solicitor may legitimately sit back and wait to see how the prosecution gets on. However, once a case is on foot the defendant’s solicitor needs to be alert to its progress – particularly of when the clock started running – and a diary will need to be kept of key dates and specific steps to be taken, for example • Custody time limits: ❍ s 42(8) of the Police and Criminal Evidence Act 1984 (no more than 24 hours without charge unless the offence is a serious arrestable offence) ❍ s 40 (36 hours on review by an inspector or higher ranking police officer which is permitted by s 37(2) to secure or preserve evidence)

2.4

14

Criminal Litigation

s 43 (up to 96 hours if authorised by a magistrates’ court) ❍ Custody Time Limits (Prosecution of Offences/Custody Time Limits) Regulations 1987 (SI 1987/229) (70 days between first appearance at the magistrates’ court and committal, 56 days before summary trial) ❍ s 128 of the Magistrates Courts Act (MCA) 1980 (eight days at a time when on remand – no time limit if on bail) ❍ s 128A (28 days if the court has previously remanded the defendant in custody for the same offence, provided he or she is before the court and a date can be set for remand on which it is expected that the next stage of proceedings will take place) ❍ s 128(3A) of the MCA 1980 (eight clear days on each of three successive remands without being brought back to court, provided the defendant consents and has a solicitor acting for him, whether present in court or not, ie 32 days in total) ❍ s 10(3) of the MCA 1980 (three weeks on remand in custody after conviction by the magistrates – successive periods of four weeks if not in custody) • Appeal time limits: ❍ between the magistrates’ court and either the Crown Court or Queen’s Bench Divisional Court: ss 108–11 of the MCA 1980 and the Crown Court Rules, r 7(5) (21 days) ❍ for judicial review: s 31 of the Supreme Court Act 1981, Rules of the Supreme Court (RSC), Order 53 (three months) ❍ between Crown Court and Court of Appeal (Criminal Division): s 1 of the Criminal Appeal Act 1968 (28 days of conviction or sentence) ❍ between Court of Appeal Criminal Division and House of Lords: s 33 of the Criminal Appeal Act 1968 (14 days of the court’s decision) Although there are no actual time limits for correspondence with the prosecution to obtain the information to which the defence is entitled, a record should be kept and a note diaried forward to follow up if replies are not ❍

Criminal Litigation Practice

15

received reasonably promptly. The police, the CPS and the Court Service (the executive agency of the Lord Chancellor’s Department which runs both magistrates’ courts and Crown Courts) all have service standards which aim to meet at set times within which they will respond both to correspondence and take the various steps in a criminal case. The CPS aims to reply within three working days but, if that is not possible, to acknowledge letters immediately and to send a full reply within 10 working days.

Files

2.5

Each firm will have its preferred system of filing, but the overall requirement is one of organisation so that any file may be taken up by any member of staff, found in easy to follow order and worked on without difficulty. This is particularly important, not only for unavoidable absences and holidays but where for efficiency in deploying personnel files must be taken to court by an advocate not usually dealing with office work. A file should be conveniently subdivided according to the firm’s method into categories, eg • Documents, such as witness statements • Correspondence, and • Financial details, such as disbursements. Note

Nothing should ever be left as a matter of memory where it can be made a matter of record and files should be serviced promptly.

For ease of access to key information, the following are usually noted on a pro forma in a conspicuous place in the front of the file: • Client’s name, address and telephone numbers (home and work) • Police/CPS reference numbers and telephone numbers • Stage reached in the action, nature and date of the next hearing.

Professional relations with the client A criminal client is entitled to exactly the same client care as a civil one and in the case of a private client, all the usual rules about informing them on likely fees (either

2.6

16

Criminal Litigation

fixed fee or best estimate together with hourly charge) will apply. The usual client care letter must be dispatched at the start of the case and payment on account will usually be obtained, as in a civil case. Practice Rule 15 (see Solicitors’ Practice Rules 1990) must be observed as to informing the client of the complaints procedure and the usual pattern of supplying information of each material development must be adhered to (see 3.2.2 as to the duty of care and skill owed by a solicitor with a retainer). Note

The Law Society is so concerned about the relationship between the solicitor and client that it has recently issued a new client care guide, to be sent to every firm in the country, which aims to bridge the gap between law school teaching and the art of client care in real practice. The new guide is based on material drawn from the files of the Office for the Supervision of Solicitors and its predecessor, the Solicitors’ Complaints Bureau. The Society has also issued a consultation paper on its proposal to combine Rule 15 on client care and the costs information requirements of the Written Professional Standards into a single code to be attached to a new Practice Rule 15.

2.7

Practice management It will not be for you, the trainee solicitor, to manage the criminal litigation practice. However you should appreciate that the irregular pattern of such a practice, with uneven workload and both extra quiet and extra busy periods to cope with, makes special demands, and you must be flexible about hours and ways of working. A busy practice may give you unexpected opportunities to practise your advocacy and to gain valuable experience. Sometimes it will be necessary to ease the workload by instructing counsel where the work cannot otherwise be done (see 2.8). Note

Instructing counsel may be a valid cost-effective method of management for the firm, given the economical rates payable to members of the junior Bar for work which would disrupt the office of a firm with much higher overheads. For this reason, it is sometimes a false economy not to instruct young counsel if the alternative is that an important fee earner is out at court instead of doing significant billable work in the office.

Criminal Litigation Practice

However, while the full range of magistrates’ court work (and bail applications before the Crown Court and High Court) should be well within the competence of the average trainee solicitor, unfortunately, trainees’ only rights of audience are in those cases for which their principals are prepared to allow them to take responsibility before masters and district judges. This is still the case even if a trainee was previously a legal executive exercising wider rights. Thus, in the criminal department, you must bide your time as usefully as possible until qualified in merely observing other advocates and preparing cases for them – itself a valuable exercise (see 2.8.4). Opportunities for solicitor advocates are increasing all the time and recently solicitors have taken to the practice of instructing other solicitor advocates as an alternative to young junior barristers, so that if a solicitor is going to a particular court he or she may be asked to take on advocacy for other solicitors with cases at that court that day, because this is often more cost-effective. Note

1 Keen trainees who want to become solicitor advocates should therefore think ahead and take every opportunity to work on their advocacy, both by practising it as often as possible and by observing other solicitors and counsel instructed. This is especially important if you want to obtain the Higher Courts Advocacy Qualification as soon as possible. Apart from the passage of time from qualification – three years on the roll including two years’ relevant advocacy experience – you will require two references from members of the judiciary or colleagues who can speak at first hand about your relevant advocacy experience, so the sooner you set about acquiring a suitable profile the better. 2 At last year’s count there were 420 solicitor advocates (236 criminal and 88 civil, with 96 with the combined civil and criminal qualification) of whom about half are members of the Solicitors Association of Higher Courts Advocates. According to a research report from the University of Bristol, some large firms are apparently contemplating the introduction of dedicated advocacy teams, although this would usually only make economic sense where a firm has only one or two specialist areas of practice. Nevertheless, there seems to be potential for all in-house litigation teams which include advocates, and this in turn seems to offer opportunities to criminal litigators who like to do their own advocacy and are thus able to work on a whole case without involving the Bar.

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2.8

Instructing counsel: PCS 20.03

2.8.1

Liability for counsel’s fees

An important point to remember when instructing counsel is that it is the instructing solicitors, and not the clients, who are liable for counsel’s fees, whether or not the firm is in funds for this purpose: PCS 20.06. Care should therefore be taken to have those funds in hand or to obtain legal aid if applicable. 2.8.2

Content of instructions

Instructions to Counsel are not substantially different in a criminal case from those in a civil case, save in so far as the subject matter of the case will inevitably shape the list of enclosures, eg the tape of the recorded police interview will be required as well as the balanced summary, and all papers served by the prosecution and the defence statements, including those of the defence witnesses. When drafting the covering ‘Instructions’, you should aim not merely to repeat the contents of all the documents sent to counsel (which is a singularly useless exercise, as it merely increases counsel’s reading time) but to provide counsel with a summary of the course of the action to date, detailing the background history of the matter, plus the charges and the purpose of instructing counsel. 2.8.3

‘Instructions’ and ‘briefs’

Where written instructions to counsel are prepared, although it is correct to speak of ‘instructing’ counsel when preparing all such documents, it is usual, if the instructions are to appear on behalf of the client in court, to refer to those instructions themselves as a brief. If the instructions are to advise, either in conference or in writing, it is correct merely to use the word ‘Instructions’, thus reserving the term ‘brief’ for court work only: technically the two words are not interchangeable, although the verb ‘to instruct’ is applicable to both situations. Counsel may be instructed for many reasons, ranging from the interpretation of obscure points of law to general advice on the running of a case throughout. Sometimes the instructions will be ‘to advise in conference’ which will give counsel some background in a case of complexity, eg a complicated fraud case involving bulky documentation, so that counsel can give considered advice at the conference having perused the necessary papers.

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Sometimes after a conference counsel will be asked to confirm oral advice already given in writing, which transforms it into a formal ‘Opinion’. Whether or not there is a conference at that stage, it is common to ask for written advice on evidence. The solicitor’s view of the case

Trainees sometimes wonder how much of a solicitor’s own opinion the Instructions to Counsel should contain. One view is that since counsel is being instructed for advice and expertise, it is inappropriate for the solicitor to state personal views, but the other, diametrically opposed, is that solicitors should set down all their thoughts in the matter to assist counsel. The better view is usually somewhere between the two. Counsel belongs to a specialist referral profession whose job is not to redo the work already done by the solicitor but to bring expertise to bear on specialist aspects of the case. Although, this is principally the job of advocacy before the court, it includes written advocacy. In the future, when through reform of criminal as well as civil litigation, oral submissions may be significantly restricted, such written advocacy skills will come to be valued even more than they are at present in the preparation of skeleton arguments and grounds of appeal. However, counsel also brings an independent mind to the facts, evidence and law, the first two of which the solicitor will usually have been heavily involved in collating. The work of solicitor and counsel is therefore not duplicated, as the lay client sometimes thinks, but complementary. Because the solicitor has had the benefit of direct contact with the client and with the witnesses (but counsel usually has not), it is essential that the Instructions, together with the documents enclosed, should convey all that counsel initially needs to know. Because the solicitor has been close to the case from the start (but counsel usually has not), counsel will be able to perform the valuable service, for which the solicitor is usually instructing him in the first place, of bringing a completely independent professional mind to the case. Thus, your first aim should be to present the basic information as clearly and succinctly as possible, directing counsel’s attention to the relevant documents where he or she may find the detail, and only then to add any view or additional information that you may have to offer, such as the result of your own independent researches.

2.8.4

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Note

You should not feel embarrassed if you in fact have no such view and you have undertaken no such researches – this is what counsel is paid for and the mark of a good set of Instructions is not whether you have already done counsel’s work, but whether the Instructions are sufficiently comprehensive to enable counsel to do counsel’s work!

It is, however, a common misapprehension that counsel will be offended if you express any opinion at all. While a dogmatic approach is naturally unsuitable, the key element of good Instructions is not the solicitor’s view of the matter but the substructure on which counsel’s must be based, and if this substructure includes such researches as led you to decide to instruct counsel in the first place, that will only be helpful in indicating both the train of thought and the historical progress in the case to date.

2.9

Conferences with counsel The necessity for a ‘conference’, as all meetings with counsel are called, will arise either where counsel needs to see the client to find out more about the case or to advise the client on the routine progress of the case, eg to discuss tactics, or a specific matter, such as on the appropriate plea of guilty or not guilty where this will be materially relevant to sentence, or more generally as a routine step before trial. If the client is in custody, the conference will obviously have to take place at the jail where the client is being held on remand, but if the client is on bail it will usually be at counsel’s ‘chambers’ (the name for counsel’s office) although the Bar’s rules of professional conduct now allow counsel to hold conferences elsewhere, such as at a solicitor’s office. Many ‘conferences’ are not formal but brief discussions held at the door of the court or elsewhere in the court building just before the case comes on, often with a view to checking that a client has not had a change of mind, eg about a plea or giving evidence. As a trainee attending counsel at a formal conference, you should take a good note (especially of any action to be taken before trial or next meeting with the client) and be ready to assist counsel with information as required but otherwise to leave the conduct of the conference to counsel. You should, however, make a note of any action

Criminal Litigation Practice

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which counsel advises should be taken before trial, or before next meeting between client, counsel and solicitor, and of any liaison required between any of these key participants in the case.

Building up a criminal practice This will not concern you during the training contract, save in so far as conscientious attention to detail, observance of the rules of professional conduct and an enthusiastic approach to the work will undoubtedly be reflected in the success of the principal’s practice as well as laying the foundation of automatic good practice for you. It goes without saying that all contacts should be fostered, against the day when you will be taking on your own work, rather than managing a case load which comes from existing clients of the firm. No opportunity should be lost to form good relationships with other members of the profession, both barristers and solicitors, and above all with court officials who often have it in their power to be of assistance (or conversely to be negative and unhelpful) whether it is in a matter of listing, where indulgence can be very important for the busy solicitor, or in an appropriate case something more complex, such as access to the judge. Additionally, and in particular, good relations with the Crown Prosecution Service may facilitate approaches to the prosecution when it appears that it might be possible to negotiate reconsideration of a decision to prosecute. Note

There is a Code for Crown Prosecutors which regulates such reconsideration.

Favourable indications for reconsideration include such factors as the • Triviality of the offence • Oppressive nature of a stale prosecution • Youth or old age • Illness or mental illness or stress on the part of the offender • Reluctance of the complainant • Public interest • Merely insufficient evidence to warrant a prosecution. Should one or more of these grounds apply, you may be able to suggest that a caution in lieu of prosecution might suffice.

2.10

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Unfortunately, criminal clients themselves tend to be ungrateful and fickle and therefore sometimes difficult to keep as regular clients, even when they have no difficulty in remaining active in their chosen ‘profession’! There are many reasons for this and you should not take such defections to heart. All you can do is to do the job as well as possible – no one can do more – and take an intelligent, critical and constructive approach to each case, where opportunities for the competent to shine will inevitably arise at least as often as difficulties to overcome. With luck and good advice from supervising principals, and the observance of proven routines designed to avoid fundamental error, such difficulties can usually be handled with some style, and due credit obtained in the firm for the manner in which problems are dealt with as much as for the occasional flash of brilliance. In the last analysis it is your firm (not the clients) who write the references: they are the ones to impress.

Self-assessment questions 1

Why is it important to record time spent on a case? 2 Is client care a feature of a criminal litigation practice? If so, to what extent? 3 What is the difference between ‘instructions’ and ‘briefs’? 4 Should Instructions to Counsel contain a section on the instructing solicitor’s view of the case? 5 What should a trainee solicitor do at a conference with counsel? 6 Does ‘public relations’ have any role to play in a criminal litigation practice? 7 Who is liable for counsel’s fees? 8 To which body should a complaint be made for a solicitor’s inadequate professional services? 9 Who deals with unbefitting conduct and/or breaches of the professional conduct rules? 10 Does counsel’s work duplicate that of the solicitor?

Chapter 3

Professional conduct

Introduction All solicitors have two yardsticks against which they must measure their conduct • As Solicitors of the Supreme Court (which makes the solicitor technically an officer of the court and sometimes creates a built-in dichotomy), and • As members of the solicitors’ branch of the legal profession. It is the perception of the public as to what you should be and do which is of primary importance in dictating the format and application of the solicitors’ rules of conduct. Many of the rules are therefore based on ordinary commonsense together with good professional and communication skills. Thus, if you base your professional performance on such universal essentials, you will • Give the sort of easily understandable (and as far as possible non-technical) explanations to your client at the start of a case which the public repeatedly tells regulators it wants • Keep the client informed throughout the various stages of a case • Avoid unnecessary delay and other instances of poor service • Be sensitive to the need for tact in domestic matters • At all times strive to avoid discourtesy Research shows that it is such mundane shortcomings which are at the root of many a complaint made about solicitors. Complaints often turn out to be nothing to do with the technical rules of conduct in the solicitors’ profession but merely classic examples of a lack of basic good service and case management. Building on these more obvious general indications, the formal rules of professional conduct are therefore partly based around, and endeavour actually to spell out, what might be called ‘a safe system of work’ for solicitors which protects the public. Thus, the rules are only partly specific rules of the profession dictated by

3.1

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particular transactions and on which formal guidance would therefore be of practical use and it is a good understanding of the framework of the rules which is required rather than a verbatim knowledge of them. The 31 chapters of the Professional Conduct of Solicitors (Law Society, 7th edn, 1996), which incorporates the Solicitors Practice Rules 1990 (as amended) and is usually abbreviated to ‘PCS’, is your basic source of guidance when engaged in criminal litigation as it is when you are working in any other field.

3.2

General rules applicable to criminal specialists as to all solicitors

3.2.1

The retainer Freedom to accept instructions: l2.01

Principle: A solicitor is generally free to accept instructions from any particular client. Certain difficulties may arise in connection with criminal litigation: • Where you are acting on legal aid, the legal aid certificate must specify a named practising solicitor. This may cause problems if you need to discontinue acting or if the client determines the retainer, either of which may happen if your client wants you to do something which you are prohibited from doing by the rules of professional conduct. • You cannot be retained by someone who does not have mental capacity. This is a matter of law, although it should be borne in mind that different levels of capacity are required for different activities. In criminal litigation there is special provision in the Criminal Procedure (Insanity) Act 1964, as amended, for determining whether an accused is fit to plead. Note

As far as instructing a solicitor is concerned, legal capacity is presumed unless the contrary is shown, and if in doubt as to the mental capacity of a client or potential client, you should seek an opinion from the client’s doctor.

• A solicitor instructed to sue his client’s former solicitor, eg where the client has a claim in negligence against that solicitor, should accept instructions if competent do so, unless this would cause

Professional Conduct

embarrassment (such as where the two solicitors or their partners are friends). In this case you should assist your client to find suitable representation by another solicitor, preferably out of your area. Apart from this type of case, you cannot refuse litigation where you do not like the subject matter. • A solicitor is not obliged to take on any client who wishes to instruct that solicitor – provided there is no breach of some other rule. (This is different from the Bar’s ‘cab rank’ rule.) Anti-discrimination: 7.01

Principle: Solicitors must not discriminate on grounds of race or sex in their professional dealings with clients, employees, other solicitors, barristers or other persons. There is a code of practice on the avoidance of sex and race discrimination which applies to the position of solicitors within their firms as well as to dealings with clients and members of the Bar. Otherwise, however, while a solicitor is free to accept instructions from any person, he or she is not obliged to do so and a particular client may be refused provided such a client does not lack mental capacity and unless another principle applies to limit such a refusal, eg 21.20 commentary, para 2, where the client’s instructions are such that the solicitor should seek the approval of the court to withdraw from the case or 12.10 where the retainer must be determined for some good reason. Example

A client wants you to instruct a white male barrister. You must endeavour to persuade your client to change those instructions if they appear to be given on discriminatory grounds, and if the client refuses to do so, must cease to act. Competence to act: 12.02

Principle: A solicitor must not act or continue to act in circumstances where the client cannot be represented with competence or diligence. Such a situation arises where you either have insufficient experience or insufficient time to handle a case. This might apply to a young sole practitioner since in a large firm it will usually be possible both to obtain advice and assistance from senior solicitors and the necessary staff support to run the case (personnel can be allocated from other jobs or taken on specially, eg in a complex fraud

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where there is extensive documentation the latter will routinely have to be done). Note

As a young sole practitioner you could still take on a case which might otherwise be beyond your own skill and resources if experienced counsel is instructed, as counsel will supply the specialist knowledge and familiarity with practice in that type of case, leaving you to accept instructions and prepare the case, tasks which do not significantly vary from case to case. Moreover, you will then learn the idiosyncrasies of that specialism ‘on the job’ and may build a speciality practice as a result. Duress or undue influence: 12.03

Principle: A solicitor must not accept instructions where he or she suspects that those instructions have been given by a client under duress or undue influence. In a criminal context this may arise where instructions originate from a parent or relative of the client, often when the client is detained at the police station, a situation in which such persons sometimes both offer to pay for the client’s defence, and suggest ways in which it might be conducted. Accepting such instructions is unobjectionable providing you see the client alone to obtain confirmation of those instructions. Third party instructions: 12.04

Principle: Where instructions are received not from a client but from a third party purporting to represent the client, a solicitor should obtain written instructions from the client that he or she wishes the solicitor to act. In any case of doubt the solicitor should see the client or take other appropriate steps to confirm the instructions. The point here is that you must advise your client without being influenced by the source of the instructions, eg from a wealthy client whose business is valued. This is because there must be a free choice for the client in selecting a solicitor, who must be able to give frank impartial advice free from pressure as the solicitor-client relationship is one of confidence and good faith. Example

An established business client wants you to act for her nephew who, she says, is of low intelligence and has got into bad company, as a result of which he is currently in custody awaiting appearance at the magistrates’ court the next morning on a charge of aggravated vehicle taking. She wants you to persuade him to plead guilty and get it over

Professional Conduct

with, whereupon she will pay all the costs and any fine, after which she plans to ship him to Australia to work on a sheep farm. She shows you a near illegible and ill-spelt note asking her to ‘look after him’.

Here you can certainly offer your services to her nephew but you must obtain his personal confirmation that he wants you to act for him, and he must give his own instructions for the conduct of the case. Conflict of interest when instructions must be refused: 15.01

Principle: A solicitor or firm of solicitors should not accept instructions to act for two or more clients where there is a conflict or a significant risk of a conflict between the interests of those clients. A conflict of interest will only arise in criminal cases where relevant knowledge has been obtained in acting for another client which would be of material value in acting for the present client: see 15.02. A co-defendant of the present client for whom work has been done previously in an unrelated non-contentious matter, will not create such a conflict. However, if it appears that there is a conflict between two co-defendants where one is already a client of the firm, another member of the same firm should not act for the second co-defendant, not even if the second approach is made to a branch office some distance from the office in which the existing client’s work is being done. The client’s consent makes no difference. Relevant confidential information: 15.02

Principle: If a solicitor or firm of solicitors has acquired relevant confidential information concerning a former client during the course of acting for the client, the solicitor or the firm must not accept instructions to act against the client. This places a solicitor in an impossible situation if while acting for a former client he or she acquired information relevant to a new client’s retainer, since he or she is under a duty to inform that client of all matters relevant to the retainer, yet is precluded from divulging information about the former client without that client’s consent. Conflict arising between two or more current clients: 15.03

Principle: A solicitor or firm of solicitors must not continue to act for two or more clients where a conflict of interests arises between those clients. This does tend to have an impact in criminal cases: see 3.3.4.

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Appointments leading to conflict: 15.06

Principle: A solicitor must decline to act where either the solicitor or a partner, employer, employee or relative of the solicitor holds some office or appointment as a result of which • a conflict of interests or a significant risk of a conflict arises, or • the public might reasonably conclude that the firm had been able to make use of the office or appointment for the advantage of the client, or • the solicitor’s ability to advise the client properly and impartially is inhibited. This principle will preclude accepting instructions where any perceived conflict of interest may arise, eg where you or someone else in the firm exercises any judicial function in the Crown Court or county court, or as a justice of the peace, coroner or as a member of a tribunal. The principle also extends to membership of gaming boards, police authorities, legal aid committees and the Criminal Injuries Compensation Board. Basically, a solicitor-advocate should not appear before any of these in the region where an appointment is held except the Area Legal Aid Committee, where you may act or continue to act for an applicant provided you declare an interest in that case when it comes up for adjudication and you withdraw from that adjudication. However, where adjudication has already taken place, clearly you cannot then accept instructions from that applicant, though a partner or other member of your firm can. The solicitor as a witness: 21.12

Principle: A solicitor should not accept instructions to act as an advocate for a client if it is clear that he or she or a member of his or her firm will be called as a witness on behalf of the client, unless his or her evidence is purely formal. This arises rarely. Where it does you must exercise judgment and not act as an advocate unless your evidence will be of a purely formal nature. This must be contrasted with the situation where a member of your firm is giving evidence as a witness of fact as to what happened, eg while advising a client at a police station. A general view should be taken here, on the one hand, of the interests of justice and, on the other, of the difficulty the client would experience if you were to withdraw.

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The malicious client: 12.01 para 6

Principle: A solicitor must refuse to take action which he or she believes is solely intended to gratify a client’s malice or vindictiveness. This is self-explanatory. Where another solicitor is already instructed: 12.05

Principle: A solicitor must not accept instructions to act in a matter where another solicitor is acting for the client in respect of the same matter until the first retainer has been determined. In the context of criminal litigation, the relationship between the two solicitors will depend on whether the first solicitor is on the record. If this is not the case, there is no duty to inform the first solicitor that the second has been instructed unless the first solicitor’s retainer has not been determined. Note

You may always give a ‘second opinion’ provided you do not use the opportunity to try to influence the client to determine the first retainer.

If you are asked by a third party to act for a new client, eg the nephew in the example illustrating 12.04, you should always check that no other solicitor is already acting, eg the duty solicitor or another solicitor who may appear on the court record as representing the client. If in doubt, you should check with the court that no solicitor has been assigned, eg if a legal aid application had been made. Duties owed by a solicitor with a retainer Care and skill: 12.06

Principle: A solicitor must carry out a client’s instructions diligently and promptly. This principle was stated in Gordon v Crocker (1939) and the statutory duty is now also embodied in s 13 of the Supply of Goods and Services Act 1982. The important point is that you must remain within your client’s express authority; this will often be of extreme importance in relation to plea bargaining. If the retainer is limited in any way it is therefore important for the limitation to be precisely defined and for you to confirm it in writing with the client. All the usual client care under the Solicitors’ Practice Rules 1990 and the Written Professional Standards set out in PCS 13.05–13.11 will apply to the setting up of the

3.2.2

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retainer. Trainees working in criminal litigation should be no less familiar than in a civil context with Rule 15. This requires every solicitor in private practice to ensure, unless it is inappropriate in the circumstances, that the client knows the • Name and status of the person responsible for day to day conduct of the client’s case, together with the name of the principal responsible for overall supervision • Name of the person to approach if there is a problem with the service provided. It is also essential for the purposes of Rule 15 that the client is given at all relevant times any appropriate information about the issues raised and the progress of the case. Confidentiality: 16.01– 04 (subject to 5.04)

Principle: A solicitor is under a duty to keep confidential to his or her firm the affairs of clients’ business and to ensure that staff do the same. This extends to all staff, admitted or unadmitted, and reinforces the need to set up files in such a way that confidential information is not inadvertently communicated by inexperienced staff. The principle applies regardless of the source of such confidential information: 16.02. However, confidentiality is subject to the important qualification in the case of a client on legal aid due to the principal in 5.04. This expressly addresses confidentiality in criminal legal aid cases. Where a client is legally aided in a criminal matter the duty to disclose all relevant information remains with the client. However, if the solicitor becomes aware of information which indicates that the client’s circumstances have changed, or that the client did not disclose relevant information at the outset, the solicitor must advise the client that unless the client informs or permits the solicitor to inform the clerk to the justices or the appropriate officer of the Crown Court, the solicitor will have to cease acting. There is a limited obligation to disclose information confidential to the client concerning drugs, terrorism and child abuse. Note

1 The duty of confidentiality, unless overridden for some reason such as the above, extends beyond the determination of a retainer and even beyond the death of the client: 16.01 paras 3 and 4.

Professional Conduct

2 A client is not entitled to confidentiality if he or she consults a solicitor prior to the commission of a crime as providing a helpline for the active criminal is not within the scope of the solicitor’s retainer: 16.02. Not taking advantage of the client: 12.07

Principle: A solicitor must not abuse the solicitor/client fiduciary relationship by taking advantage of the client. This places an onerous duty on a solicitor with a fragile criminal client, whether the client is old, inexperienced, in ill-health, uneducated, commercially inexperienced, emotional or otherwise vulnerable, whatever the reason for the client’s disadvantage. Such a client will require extra care and vigilance but you may not effectively be able to charge for this, including where your client is on legal aid. Keeping the client informed: 13.04

Client care – General information for clients – Rule 15(2)(c): one of the objects of the rule is stated to be to help clients who are unfamiliar with the law to understand what is happening. A solicitor is under a duty to keep the client properly informed and to comply with reasonable requests from the client for information concerning his or her affairs. Obviously, the extent and frequency of the information provided will be limited by circumstances, even though you are supposed to give the same standard of professional service to a client on legal aid as to a private client (see 5.01 – which expressly addresses the duty to advise the client on the availability of legal aid and requires legal aid clients to be treated in the same way as privately funded clients). In reality, it will rarely be possible in practice to give the same time to legal aid clients as to those who are able to pay for all the time that they want to spend on the matter; keeping the legal aid client as fully informed as private clients could be if they wished may be a first casualty of legal aid time restrictions, particularly under the Green Form and ABWOR. This is, of course, not the only instance in which you will have to work super-efficiently on legal aid where time allowances are not generous. In the circumstances the rule recognises that different levels of information may be agreed or will be appropriate for different clients. The rule suggests the use of explanatory leaflets and highlights the importance of at least telling the client the issues and explaining the steps to be taken, the important documents, the reasons for any delay and, when the case is concluded, what further

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action to be taken by either client or solicitor. Further, if the client is to be represented in court, it is suggested that the advocate’s name be communicated to the client in advance of the hearing. Note

Although your retainer includes implied authority to bind your client in certain exceptional circumstances when it is impossible to obtain express authority, this can very rarely be the case in criminal litigation. Advice on legal aid: 5.01

Principle: A solicitor is under a duty to consider and advise a client on the availability of legal aid where the client might be entitled to assistance under the Legal Aid Act 1988. This is one of the most important aspects of the criminal solicitor’s work. Any failure to draw the client’s attention promptly to the possible availability of legal aid might result not only in the Law Society taking action for unbefitting conduct but also provide the foundation for a claim in negligence by the client. Thus, if a client is eligible for legal aid and no application is made, the reasons should be recorded on the file. Emergency legal aid should always be borne in mind. Example

The established business client of the firm in the example of rule 12.04 has offered to pay for her nephew’s defence. You must still draw to the attention of both the established client and her nephew the availability of legal aid, and if he ultimately confirms her instructions and becomes your private client, you should record on his file why legal aid was not applied for. Termination of retainer: 12.10

Principle: A solicitor must not terminate his or her retainer with the client except for good reason and upon reasonable notice. While a client can determine the retainer at any time and for whatever reason, your duty is to carry out the purpose of the retainer unless there is very good reason for not doing so. Inevitably, some retainers will be determined for reasons beyond the control of either party, eg bankruptcy or lack of mental capacity of either the solicitor or the

Professional Conduct

client (although in the case of the client’s mental illness you would still be under a duty to take such steps as might be necessary to protect your client’s interests, such as contacting relatives, the Official Solicitor or the Court of Protection). Otherwise, good reasons for your determination of the retainer would be • Any requirement by the client that you should breach the rules of professional conduct • Where there is a breakdown of confidence between solicitor or client • Where for other reasons it is not possible for you to obtain clear instructions. The solicitor’s lien on papers: 12.11–12.12

Principles: On termination of the retainer a solicitor should, subject to any lien, account to the client for any money still held on behalf of the client and, and if so requested, deliver to the client all papers and property to which the client is entitled or otherwise hold them to the client’s order (12.11). It is not unprofessional for a solicitor to retain papers and property belonging to the client, pending payment of professional costs owed by that client, where the retention is a proper exercise of a solicitor’s lien (12.12). Clearly this will be of great importance in a criminal context where the case is not finished, although there is not likely to be a problem where the client is legally aided (as the legal aid order or certificate will secure the solicitor’s costs). In the case of a privately paying client, the court has power to order you to deliver up a client’s papers, notwithstanding the existence of the solicitor’s lien: s 68 of the Solicitors’ Act 1974. The Law Society recommends that papers should be released to a new solicitor subject to a satisfactory undertaking for unpaid costs, although for the reason given above this should not be asked for in a legal aid case except as to any pre-certificate costs. However, in a legal aid case, the first solicitor should not hand over papers until the legal aid certificate is transferred to the successor, although the papers should be made available for inspection or copies supplied so that the client is not prejudiced.

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3.3

The key areas of concern to the criminal litigation solicitor There are two key areas about which you should be particularly aware • The particular sensitivity of your position under Practice Rule 1 as both an officer of the court and defender of the liberty of the subject. This is the source of the eternal dichotomy for the criminal litigation solicitor as it will, in particular, limit the solicitor’s ability to do what the client wants since the solicitor must frequently reconcile the duty to the court and the duty to the client. Basically, you can only use your skills as an advocate to do for your client everything within the technical potential of the law which your client could do for themselves if they personally had the knowledge and skill, and you must draw the line where, in doing that, you would breach either the letter or the spirit of some rule of professional conduct. • The particular relevance of those parts of the Guide (especially Chapter 21), which deal with litigation and advocacy, to the special situations which arise in the work of the criminal solicitor. The general position of the criminal solicitor under Practice Rule 1 is of primary importance since this is intended to develop the correct attitude (with which the solicitor will already be acquainted through familiarity with purely civil matters). Rule 1 is of special importance in a criminal context because of the obvious conflict between your duty to do the best for the client and the public interest in the due administration of justice, quite apart from your dual position as a member of an independent regulated profession providing a service to the public and your status as an officer of the court. In contrast, PCS Chapter 21 provides a simple overview of essentially criminal work which addresses particular areas where ethical problems may arise and provides some of the answers which you as a trainee will find helpful in your day to day work.

3.3.1

Practice Rule 1 and the public perception: 1.01 and 1.02– 3.3.1 Rule 1.01

Principle: A solicitor shall not do anything in the course of practising as a solicitor, or permit another person to do anything on his or her behalf, which compromises or

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impairs, or is likely to compromise or impair any of the following: • The solicitor’s independence or integrity • A person’s freedom to instruct a solicitor of his or her choice • The solicitor’s duty to act in the best interests of the client • The good repute of the solicitor or of the solicitors’ profession • The solicitor’s proper standard of work • The solicitor’s duty to the court. The rule stems from your position as a Solicitor of the Supreme Court. This gives you your standing and, as such, requires each and every solicitor on the Roll to live up to both the solicitor’s perceived professional position and the technical qualification as a solicitor. The rule formalises as a professional conduct rule the basic ethical duty imposed on you by the common law and seeks to bring home to you the importance of your independence and integrity and the standards which the public has a right to expect your profession to display. This standing in turn dictates the general standards expected of such a regulated profession, so that the profession as a whole, you personally and the firm for which you work shall all be seen by the public as above reproach and not wanting in any respect. The rule further directly addresses the potential conflict between the twin requirements of your duty to act in the best interests of your client and your duty to the court. The commentary to Rule 1.02, which comprises additional guidance on the basic principles, expressly states that where two or more of the Rule 1.01 principles conflict, it is the public interest which decides the order of priorities between them, in particular the interests of the due administration of justice; this may have important significance in the criminal context. Rule 1.08

Principle: A solicitor is an officer of the court and should conduct himself or herself appropriately. It is your formal standing as a Solicitor of the Supreme Court, whether practising or not, which dictates the necessity for Practice Rule 1.08. It regulates your conduct in relation to your private life outside the confines of practice. This means that you dare not act, even

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in a business context outside practice or in your private life, in a manner which might bring the profession into disrepute. Thus, your conduct is not only regulated by a bulky body of professional conduct rules but also by the long shadow of Rule 1 impacting upon both your professional and private life. Ethical problems therefore inevitably will arise and while PCS aims to give guidance, no solicitor is necessarily expected to know the instant and perfect answer to any complex situation. For this reason the Law Society provides a number of helplines to deal with queries on professional ethics, together with a team of solicitors permanently engaged on correspondence dealing with postal enquiries on the same subject. Additionally, solicitors may need to look at the Solicitors’ Act 1974, the Administration of Justice Act 1985 and the Courts and Legal Services Act 1990 for specific points affecting their profession, although other statutes, such as the Financial Services Act 1986 in relation to the financial services they can provide, are also relevant in their context. Together with the various orders, rules and regulations, codes and guidance in PCS, it may also be necessary to refer to Cordery on Solicitors (9th edn, 1995) the authoritative work on the general law on solicitors, for the resolution of any less than straightforward problem not apparently dealt with by the rules. 3.3.2

The basic duties of the criminal litigation solicitor

These fall under three main heads: • Generally ❍ Duty not to mislead/deceive the court: 21.07 ❍ Duty not to disobey the court: 21.14 ❍ Duty not to make improper allegations: 21.08 ❍ Duty on interviewing witnesses : 21.10 ❍ Duty on payments to witnesses: 21.11 ❍ Duty not to communicate privately with the judge: 21.09 ❍ Duty to attend counsel: 20.04 ❍ Duty when giving statements to the press: 21.18 • When acting for the defence ❍ Duty not to breach the client’s confidentiality: 21.20

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Duty when receiving inconsistent instructions: 21.20 ❍ Duty when there is an equivocal plea: 21.20 ❍ Duty when the client commits perjury: 21.13 ❍ Duty when asked to stand bail for a client: 21.15 ❍ Duty when there is a conflict of interest between co-defendants: 15.01– 3 • When acting for the prosecution ❍ Duty as a minister of justice: 21.19 There is a certain overlap between some of these categories and sometimes between the specialist duties of the criminal solicitor and the general duties already discussed (which you will spot as you become more experienced). ❍

Generally Duty not to mislead or deceive the court: 21.07

Principle: Solicitors who act in litigation, whilst under a duty to do their best for their client, must never deceive or mislead the court. Here it is essential to distinguish between taking any and every point which is fairly arguable on your client’s behalf and either directly or indirectly misleading the court, eg by failing to draw its attention to omissions or inaccuracies in both case law and statutory provisions applicable to the case, even if that assists the other side. This duty extends to drawing attention to any documents – such as an affidavit which has been filed but obviously overlooked – because that is evidence already notionally within the court’s knowledge, but (except when acting for the prosecution, when special rules apply – see 21.19 at 3.3.5) you are not under any duty to tell the court about any facts, or of the existence of a witness or other evidence which might affect the outcome of the case. In other words, unless you are acting for the prosecution, there is no duty to prepare the other side’s case for them if they cannot manage it themselves! The duty not to mislead means that facts presented to the court must not be untrue to your knowledge, in particular where untrue facts which at first appear to be a harmless deception are in fact material and significant to the outcome of the case. Note

‘Mislead’ does not include your belief, as in a case of a strong suspicion that those facts are untrue where that

3.3.3

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suspicion is not backed up by proof that would satisfy at least a common sense assessment of the matter. Example

The Law Society took successful disciplinary proceedings in 1987 against John Francis Bridgwood who was contacted by a regular client appearing on criminal charges at a magistrates’ court. The client had given the police false particulars of her identity and date of birth and Mr Bridgwood advised her to correct these particulars since, as he pointed out, her identity would be revealed by fingerprint evidence anyway. However, when the case came to court two weeks later the prosecution had not managed to discover her true identity and in the very short time before Mr Bridgwood went into court on her behalf he failed to dissuade her from pleading guilty in the false name she had given. As she was pleading guilty, he took the decision in the heat of the moment that he could make a plea in mitigation on her behalf provided he did not refer to her false name nor to her character. This resulted in his being committed to the Crown Court for acting in a manner tending (and with the intention) to pervert the course of justice, which earned him nine months’ imprisonment from the court and a subsequent fine of £2,000 from the Solicitors’ Disciplinary Tribunal. The reason was that as police records are based on the twin controls of name and date of birth, using a false name enables a client to obtain a lighter sentence through excluding previous convictions. (The Bridgwood case is reported at [l988] Gazette 9 November 53 and see PCS Annex 21G.) Note

A ‘false name’ in this context is a name which is adopted for the purpose of deceiving the court and it is your duty to satisfy yourself in the case of any change of name that comes to your attention that this is a bona fide change of name. It follows that a married name or a name taken by deed poll for valid reasons or, indeed, a simple change of name by repute (since the law is that a person’s name is that by which he or she is known) could not be a false name, but more dubious name changes, eg an informal and/or recent change adopted for no other apparent reason than to deceive, will be.

The Law Society’s Common Law Committee have recommended in any case where a ‘false name’ is put forward by the client that you first attempt to change the

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client’s mind. If the client refuses, you should cease to act, pointing out that if they are on legal aid this may result in a difficulty with the legal aid certificate as you will have to apply to the court for release from the duty to act on it and (due to the duty of confidentiality and legal professional privilege) you will not be able to tell the court why. Note

This advice would also apply where it is only the address or date of birth which is falsified as the records depend on date of birth to distinguish between those with the same names and to identify the correct record or absence of one: see PCS Annex 21G. Duty not to disobey the court: 21.14

Principle: A solicitor must comply with any order of the court which the court can properly make requiring the solicitor or the firm to take or refrain from taking some particular course of action; equally a solicitor is bound to honour any undertaking given to any court or tribunal. A breach of this principle may well be contempt of court. In any event, it would be unwise to ignore the power of the court to enforce its orders and undertakings (and the latter being undertakings to the court have all the force of an actual order for this purpose). Care should therefore be taken on two points • You must not aid or abet a client who refuses to obey a court order, and you should take care to balance your competing duties to the client and to the court to secure your client’s attendance at the Crown Court. This has been the subject of Law Society guidance reported at [1987] Gazette, 22 July, 2201, most recently reviewed in PCS Annex 21F. Note

This is important in the context of claiming for the cost of work done and unit costs incurred in attempting to ensure that your client attends court.

The Lord Chancellor’s Department has also issued detailed guidance to circuit taxing coordinators as to allowances to be made for contacting clients prior to a case coming into the list. • You must be careful of the precise words in which you give undertakings as you will be obliged to make good any undertaking you give to the court.

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If you are not sure if you can do this, an undertaking to use your best endeavours is obviously preferable to giving one in unqualified terms. Not to make improper allegations: 21.08

Principle: A solicitor must not make or instruct counsel to make an allegation which is intended only to insult, degrade or annoy the other side, the witness or any other person. This principle precludes you from making or instructing counsel to make any allegation that is merely scandalous or insulting without first being satisfied that there are reasonable grounds for such a statement. Note

In any litigation it is good practice to avoid naming in open court third parties who are neither parties nor witnesses in the case: the practical alternative is to ask the court for leave to write down the names and other particulars of such a person. Duty on interviewing witnesses and on payments to witnesses: 21.10 and 21.11

Principles: It is permissible for a solicitor acting for any party to interview and take statements from any witness or prospective witness at any stage in the proceedings, whether or not that witness has been interviewed or called as a witness by another party: 21.10 A solicitor must not make or offer to make payments to a witness contingent upon the nature of the evidence given or upon the outcome of a case: 21.11. The first of these principles enables you to interview a witness (since there is no property in a witness) such as a witness whose existence is disclosed by the prosecution, but it precludes you from doing so in order to invite the witness to change testimony already given. You should therefore take care when interviewing witnesses whose statements have already been taken, eg by doing so only in the presence of a representative of the other side. You should also take care to tell any witness when seeking a statement that they need not give evidence and, once the witness is giving evidence in the case, you must not discuss the case with the witness – not even, for example, during an adjournment or at weekends. The second of these principles spells out the obvious point that bribing witnesses is wrong! However, there is no objection to paying reasonable expenses and reasonable compensation for loss of time in attending court.

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Indeed, under principle 20.01 there is an implied obligation to pay a reasonable fee (though not to those subpoenaed) unless you have expressly disclaimed this liability in advance. The Crown Court office pays fees and expenses of witnesses in Crown Court cases and you should explain this to the witnesses and agree in advance if you accept responsibility for any expenses beyond the Crown Court scale. In legal aid cases the witnesses’ fees and disbursements will be taxed; you should expressly mention this to such witnesses. Note

When advertising for witnesses, you should not draft the advertisement so as to set out in detail the testimony sought! Duty not to communicate privately with the judge: 21.09

Principle: Except when making an application to the court, the solicitor must not discuss the merits of the case with a judge, magistrate or other adjudicator before whom a case is pending or may be heard, unless invited to do so in the presence of the solicitor or counsel for the other side or party. The reason for this is obvious – justice must be seen to be done. Thus, if there is to be any communication, written or oral, with the judge, written communications should be copied to the other side, and oral communications should be made orally after prior notice to the other side. Similarly, authorities which are to be brought to the attention of the judge who is preparing a reserve judgment should only be communicated after giving prior notice (although the other side should not object even if the authority is against their case). Duty to attend counsel: 20.04

Principle: Where counsel has been instructed, the instructing solicitor is under a duty to attend or arrange for the attendance of a responsible representative throughout the proceedings save that attendance may be dispensed with in the magistrates’ court or in certain categories of Crown Court proceedings where, in either Case, the solicitor is satisfied that it is reasonable in the particular circumstances of the case that counsel be unattended and, in particular, that the interests of the client and the interests of justice will not be prejudiced. This is not a rule designed to cater to counsel’s vanity, but to provide a proper service to the client. Thus, it is

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usually perfectly permissible not to attend counsel where the case is a committal for sentence, appeal against sentence or guilty plea, providing that this was made clear when the brief to counsel was prepared – a solicitor as well as counsel is not really needed on these occasions. However, you should normally attend when the client is at risk (this term may include clients who are juveniles, foreigners with inadequate knowledge of English, mentally ill or mentally handicapped, deaf, blind or partially sighted, with speech difficulties, or otherwise in some sort of obvious difficulty). Here your presence, in addition to that of counsel (who will usually not be as familiar to the client), may be useful. Note

There is no complete list of such clients and you should exercise judgment in such circumstances. Equally you should be there if the client is ‘difficult’ and counsel may need help!

The other category of case in which you should attend is where the client for some reason may not ‘enjoy’ the court appearance, eg where there is likely to be a substantial prison sentence, or where the client will receive a prison sentence for the first time, or where counsel is not that originally instructed and the client’s interests may require your presence. In any case where you decide not to accompany counsel to court, counsel must be told and a full and detailed brief must be delivered in sufficient time before the hearing for counsel to say so if they consider that you should attend so that a representative can – and in such a case should – be sent (see PCS Annex 20A for guidance on this point). In any event, the client must be told counsel’s name and that you will not be there. Duty when giving statements to the press: 21.18

Principle: A solicitor who on the client’s instructions gives a statement to the press must not become in contempt of court by publishing any statement which is calculated to interfere with the fair trial of a case which has not been concluded. The Law Society is coming under pressure from the higher judiciary to introduce new curbs on solicitors similar to those which prevent counsel from commenting on cases which have not been concluded. This is particularly relevant to high profile criminal matters, although some solicitors feel this is inappropriate since it is clear

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that the police often tip off the media, for whatever reason, so that any curb would prevent defendants’ solicitors from attempting to redress the balance of adverse reporting; also, some solicitors consider it part of their job to deal with the press for the protection of their client. The Law Society has nevertheless begun a review of whether there should be a rule requiring solicitors not to comment at all. At present the only restriction as such is on you expressing personal opinions on the facts or issues, and of saying anything which could be contempt of court likely to prejudice the interests of justice. Duty not to breach client’s confidentiality: 16.01– 16.02

There is always a duty of confidentiality owed by a solicitor to clients save in the most exceptional circumstances: 16.01–02 (see 3.2.2). However, this is of particular significance to the criminal solicitor who is under no duty to the court to disclose matters that would not be in the clients’s interests to disclose – unlike the prosecution, who must reveal all relevant information whether for or against the prosecution’s case. It is for this reason that the defence solicitor must not disclose any privileged material, including information about the client’s character and antecedents, such as by confirming antecedents as correct at the request of the court. This duty must be compared carefully with the obligations imposed by the duty not to mislead the court or you may fall into the Bridgwood trap: see PCS Annex 21.G and 21.07 and 3.3.3. When acting for the defence: 21.20

Principle: A solicitor who appears in court for the defence in a criminal case is under a duty to say on behalf of the client what the client should properly say for himself or herself if the client possessed the requisite skill and knowledge. The solicitor has a concurrent duty to ensure that the prosecution discharges the onus placed upon it to prove the guilt of the accused. Generally, this means that the defence solicitor, unlike the solicitor for the prosecution, is precluded by the duty of confidentiality to the client from disclosing the client’s statements as they are protected by professional privilege. This is what enables you (as the defence solicitor) to sit back and to say nothing if speaking up would be to your client’s detriment, provided you do not positively indicate agreement with an incorrect prosecution version or fail to correct facts that the prosecution gets wrong.

3.3.4

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The prosecution is left to try to establish a sufficient case against your client. It is also what enables the Law Society to advise defence solicitors in PCS Annex 21G to decline to confirm lists of previous convictions as either ‘accurate’ or ‘a full list’ when invited to do so by magistrates’ clerks! It also means that if you are instructed that your client is ‘not guilty’, you must put your client’s defence to the court even if your client does not give evidence, as it is for the prosecution to prove guilt beyond reasonable doubt; you may use any technical defence although you must not, of course, actually fabricate evidence. You are not obliged to enquire if the client is telling the truth, unless put on enquiry, in which case you should check your client’s story in so far as is practical, bearing in mind that what your client says will go as evidence before the court. Commentary para 5

This paragraph deals with your proper conduct if your client admits guilt; it is of great significance. You must acquire a good grasp of the dilemma in which this places you and of the solution to it. Apart from the essential professional conduct aspect, it is a favourite topic with the members of the public who, on social occasions, frequently ask ‘What do you do when your client admits that he is guilty?’ There are two possible answers: • If your client thinks he is guilty, but in fact is not because he has understood the law – your client can still plead not guilty • If your client is in fact guilty – your client can only plead not guilty if certain stringent rules are followed. In the first case, you should follow the rules for the equivocal plea situations: see below. In the second you cannot continue to act unless your client is not giving evidence, in which case you are under a duty to put the prosecution to such proof as will establish its case. Moreover, in such a situation you are even entitled to submit, if appropriate, that there is no case to answer if they fail to do so, because such a submission would only be successful precisely because the prosecution had failed to establish its case.

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Note

The one thing you cannot do in such a situation is to protest your client’s innocence, including suggesting that someone else had committed the offence.

If your client is not happy with this restriction on your freedom of action on their behalf, all your client can do is to determine your retainer and instruct another solicitor. When acting as an advocate a solicitor is entitled to present a case in the manner which he or she considers appropriate. Indeed, this is an implied term of every retainer, one which cannot be excluded by the client without this entitling the solicitor to withdraw from the case (seeking the approval of the court to do so without disclosing the reason, as that is protected by client confidentiality). In addition to these general rules, there are certain specific situations where the criminal solicitor acting for the defence may need guidance. Where the client gives inconsistent instructions: 21.20, commentary para 6

Where you receive inconsistent instructions, this would not on its own be a ground to withdraw, even if what the client is saying appears on the face of it to be wholly unjustifiable bearing in mind other known facts. On the other hand, if it is clear that the client requires that false evidence be tendered, that of course would leave you no alternative but to withdraw because you must not actually mislead the court. However, in general terms, you should be slow to assume the proper role of the court in deciding the case against the client in advance of the trial. Where the client’s plea is equivocal: 21.20 commentary para 7

With the possible exception of the professional criminal, clients are not usually trained lawyers; hence, they sometimes have difficulty in deciding how to plead correctly, some thinking that if they physically did the act charged, no element of intention is ever relevant, and others that the choice of ‘Guilty’ or ‘Not Guilty’ is one of whether to get to the sentence quickly or more slowly! You must expect and be patient with this sort of problem, and be ready to explain the ingredients of the offence. Where, for example, your client is insisting on pleading guilty while at the same time claiming a version of events which if true would lead to an acquittal, you

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must seek to persuade your client that there may not after all be any merit in ‘getting it all over as quickly as possible’. You should point out that it would actually be improper to plead guilty if your client really has not committed the offence and also that after a guilty plea the facts that it would be more appropriate to contest cannot be used in mitigation, whereas if your client pleads not guilty that material could be used to suggest, on a submission of no case to answer, that the prosecution has not proved its case. Sometimes clients, instead of making equivocal guilty pleas, cannot be dissuaded from making unequivocal pleas of guilty which are plainly untrue and from which they cannot be budged. Example

In R v Lee (1984) the accused, who was of low intelligence, insisted on changing his plea of ‘Not Guilty’ to one of ‘Guilty’, on the basis that a guilty plea would get him a place in a special mental hospital which he found more attractive than prison. This was in spite of the unhappiness of his legal advisers, not least because there was significant independent evidence that he was not guilty. When his innocence was subsequently confirmed by a Sunday Times investigation, and possibly becoming disenchanted with the hospital place he had wanted, Lee applied to the Court of Appeal for leave to appeal out of time, apparently in all seriousness on the basis that he had been prevented from pleading ‘Not Guilty’ by his own intense desire to swap prison for the mental hospital! Reluctantly the court had to agree with him and accede to his request. (The solicitor who appears for such a client who will not listen to reason can only continue to do the best in the circumstances for the client within the limitations of the guilty plea.) Client committing perjury: 21.13

Principle: Where a client, prior to or in the course of any proceedings, admits to his or her solicitor that the client has committed perjury or misled the court in any material matter in continuing proceedings in relation to those proceedings, the solicitor must decline to act further in the proceedings, unless the client agrees fully to disclose his or her conduct to the court. This is obviously a very serious matter and is only an extension of the basic duty not to put forward, or in any way to endorse, false evidence as explained above at 3.3.3.

Professional Conduct

Solicitor standing bail: 21.15

Principle: It is undesirable for a solicitor to offer to stand bail for a person for whom the solicitor or any partner is acting as solicitor or agent. This also includes any indirect method of standing bail such as indemnifying a third party to stand as a surety for the client (which is in fact also unlawful, whether done by a solicitor or anybody else). Conflicts of interest between co-defendants: 15.01– 03

Principle: A solicitor or firm of solicitors should not accept instructions to act for two or more clients where there is a conflict or a significant risk of conflict between the interests of those clients: 15.01. Principle: If a solicitor or firm of solicitors has acquired relevant knowledge concerning a former client during the course of acting for that client, the solicitor must not accept instructions to act against the client: 15.02. Principle: A solicitor or firm of solicitors must not continue to act for two or more clients where a conflict of interest arises between those clients: 15.03. This has already been mentioned in outline above (see 3.2.1) and 15.01– 03 spells out what you must do in any case of actual or potential conflict of interest between clients in any conflict situation. In a criminal litigation context, difficulties will most commonly arise where you are acting for two or more codefendants and one or more of them changes their plea. You may not then be able to continue to represent any of them. The problem is that your duty of disclosure to the retained client or clients required by any retainer (see 3.2.2) potentially or actually will conflict with your duty of confidentiality to the other(s) (which is also owed under 16.01 and pursuant to the retainer, see 3.2.2). Thus, whereas you might not take on a new client in a situation where a conflict of duty would arise, there is not much you can do about it when the conflict arises inadvertently in the context of actual criminal litigation without letting one or the other client down, especially as client confidentiality lasts forever: see 16.01 at 3.2.2. You may thereby be placed in an impossible situation of being unable to act properly for either. This is at the root of the principle that a solicitor who would feel embarrassed acting against a former client should not do so: 15.02, commentary, para 1.

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However, it is only where you have relevant knowledge which should not be disclosed and that conflicts with the positive duty of disclosure to a client that the potential conflict is actual. Thus, in practice what matters is whether you have relevant knowledge. When this situation arises, which may be inconveniently in the middle of a trial, you must ask yourself whether you have any information relating to the other(s) which may be relevant to the one(s) for whom you are going to continue to act: see R v Ataou (1988). This is because you also have a duty under 12.10 (see above at 3.2.2) not to determine your retainer on insufficient notice in circumstances which would be prejudicial to your client. If therefore you do not have confidential information you should still seek the consent of the other(s) before continuing to act: 15.03, commentary, para 1. If that consent is not forthcoming, you should only continue to act if there is no good reason for the other(s) refusing consent. Sometimes conflict situations can be headed off in advance when you suspect that of two or more defendants, one may blame or seek to implicate the other. Hence, watch for this situation even if at first it looks as though pleas may be consistent because the real conflict may arise at the mitigation stage where one may try to say that the other was the ringleader. Note

This is particularly important where the current legal aid economy drive results in an attempt to assign the same solicitor to both or all the parties. Sometimes any conflict can be resolved by instructing separate counsel, but the best course is to try to prevent conflict arising at all.

As a practical suggestion, if you are assigned on legal aid to two defendants, you should interview them separately and then, depending on what the first interview reveals, take the appropriate action. If the first client discloses a potential conflict, the second need not be interviewed, as they will certainly need separate advice. If no conflict appears likely, the second may be interviewed and if no conflict is then apparent, you may act for both. If on the other hand there is a conflict disclosed at that stage, confidentiality established with both will prevent you acting for either.

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Also bear in mind that any criminal client, especially in a rural or suburban area where a firm has a network of offices, may have been a client on a previous occasion. If confidential information has been obtained which could in any sense be used against one client for the benefit of the other, you cannot act for either. This may be particularly relevant where firms amalgamate, when the clients will become clients of the new firm. If the interests of such clients conflict, the new firm will almost certainly be unable to act for either, although in some exceptional circumstances a ‘Chinese Wall’ could enable an amalgamated firm to continue to act for one, or possibly both clients, usually where there is geographical separation between the personnel acting. However, this would be very rare in litigation of any sort, and only where the best interests of the client(s) or one of them demanded it. Guidance on this unusual situation is contained in PCS Annex 15A. When acting for the prosecution: 21.19

Principle: Whilst a solicitor prosecuting a criminal case must ensure that every material point is made which supports the prosecution, the evidence must be presented dispassionately and with scrupulous fairness. The prosecution acts not as an avenging angel but as a minister of justice and its task is therefore to see that all relevant facts and law are put before the court in as dispassionate a manner as possible. This precludes the use of emotive language and the expression of opinion, although, even making due allowance for the exaggeration of press reports, it is clear that this often tends to be observed in the sense of limiting rather than entirely excluding such opinion in presenting the case. Additionally, the prosecution has a duty to disclose any evidence in its possession which it does not intend to use, whether this is actual documentary evidence or merely of the existence of witnesses, or even of facts which are inconsistent with the prosecution’s case. This formerly professional duty has been extended by enactment in statutory form by the Criminal Procedure and Investigations Act 1996 which provides a new disclosure regime and code of practice for investigators which has also generated a new CPS Code of Practice. The initial responsibility for sifting evidence is with the police which will then be the subject of further decisions by the CPS and possibly prosecuting counsel: see below, especially Chapters 11 and 12.

3.3.5

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Note

1 This duty always used to apply even if the prosecution did not think much of the evidence or witness or facts, but the new threshold test for primary disclosure under the Act depends on what in the prosecutor’s opinion might undermine the prosecution, so it remains to be seen how it will work in practice. Alternatively, the prosecutor can give a written statement that no such material exists, which is again a potential grey area. 2 The prosecution also has a duty, the same as for the defence, to reveal all relevant cases or statutory provisions, whether favourable to the prosecution’s case or not, and whether or not the particular point in question is to be argued by the prosecution. These duties continue after the conclusion of the trial and throughout the mitigation stage.

3.4

Using the Guide Changes in the rules are published from time to time by the Law Society and there is a new edition of PCS about every three years. Meanwhile the Professional Standards Bulletin, published about three times a year, contains new rules and Law Society Council statements, while the Gazette announces forthcoming changes and either reproduces or summarises new professional conduct requirements. Thus, as a trainee, you should have no difficulty in keeping up to date and, if all else fails in finding a solution to a problem which is not covered in one of the above, you should contact the Professional Ethics Division either by telephone or in writing, where ad hoc advice can usually be given on a confidential basis.

Self-assessment questions 1

2

3

Are solicitors practising in criminal litigation obliged to observe a ‘cab rank rule’ similar to the Bar’s when approached by clients wishing to instruct them? Can a solicitor accept instructions to act for someone in custody if asked to do so by a relative or friend? Can a solicitor act for two or more co-defendants?

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4

Can a solicitor take over a criminal case from another solicitor if the client is dissatisfied with the solicitor already acting? 5 Must legal aid clients in criminal cases receive the same standard of service as those who are paying privately? 6 Must an established private client be offered legal aid in a criminal matter? 7 Does a criminal solicitor owe a first duty to the court or to the client? 8 Can you represent a client who tells you that he or she is guilty? 9 Must you continue to act for a client who will not accept your advice and interferes in your handling of the case in court? 10 What should you do if a client tells you he or she has committed perjury?

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Chapter 4

Substantive law: driving offences

Criminal procedure takes place in the context of substantive law The following sections set out basic legal notes and definitions for offences which often come before the criminal courts of England and Wales and with which you will need to be familiar during the early years of practice in criminal litigation. • Road traffic offences, especially ❍ Dangerous driving ❍ Careless and inconsiderate driving (usually called ‘careless driving’) ❍ Taking a conveyance without authority ❍ Aggravated vehicle taking ❍ Causing death by dangerous driving ❍ Driving etc under the influence (various offences) ❍ Speeding ❍ Disobeying traffic signals ❍ Driving while disqualified or uninsured ❍ Falling to report an accident. • Other offences, such as ❍ Theft ❍ Burglary ❍ Robbery ❍ Assault occasioning actual bodily harm (‘ABH’ – s 47 of the Offences Against the Person Act (OPA) 1861) ❍ Wounding and causing grievous bodily harm (‘GBH’ – ss 18 and 20 of the OPA 1861). The choice of these offences reflects the business of the magistrates’ court and the fact that solicitor-advocates have only limited rights of audience in the Crown Court without the Higher Courts Advocacy Qualification.

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Road traffic offences are dealt with in this chapter and the other offences in Chapter 5. It may be helpful at this stage if you consult and become familiar with the relevant statute creating each offence: you can find these in either Archbold or Blackstone’s Criminal Practice, the practitioners’ books with which you will be working in the training contract and ultimately in independent practice.

4.2

Dangerous driving

4.2.1

Definition

It is an offence for a person to drive a mechanically propelled vehicle dangerously on a road or other public place: s 2 of the Road Traffic Act (RTA) 1988, as substituted by the RTA 1991. Under s 2A of the RTA 1988, a person drives dangerously if the way in which he or she drives falls far below what would be expected of a competent and careful driver and it would be obvious to such a driver that driving in that way would be dangerous. A person also drives dangerously if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous. In determining the state of the vehicle, regard may be had to anything attached to or carried on or in it, and to the manner in which it is attached or carried: s 2A(4). Dangerous refers to danger either of injury to any person or of serious damage to property. In determining what would be expected of, or obvious to, a competent driver in a particular case, regard must be had not only to the circumstances of which the accused could be expected to be aware, but also to any circumstances shown to have been within the accused’s knowledge. 4.2.2

Category of offence and sentencing

Cases should be tried summarily unless the court considers that one or more of the following features is present in the case and that its sentencing powers are insufficient • Alcohol or drugs contributing to dangerousness • Grossly excessive speed • Racing • Prolonged course of dangerous driving • Degree of injury or damage sustained • Other related offences.

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The maximum penalty on summary conviction is six months’ imprisonment and/or a £5,000 fine. On indictment the maximum penalty is two years’ imprisonment and/or an unlimited fine. Other penalties are obligatory endorsement (3 –11 penalty points) of the driving licence, obligatory disqualification and compulsory retesting. Dangerous driving is not an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984: see Chapter 8.

Careless driving Definition

4.3 4.3.1

It is an offence for a person to drive a mechanically propelled vehicle on a road or other public place • Without due care or attention, or • Without reasonable consideration for other persons using the road or other public place: s 3 of the RTA 1988 as substituted by the RTA 1991. The offences which go under this name should now properly be called ‘careless and inconsiderate driving’ following amendments in 1991. These in effect create two offences that still go under the same popular description of ‘careless driving’. However, those drafting indictments or summonses need to think clearly which form of driving they are charging: see the note below at 4.3.3. The two offences Driving without due care and attention

The test to be applied for this offence is whether the driver exercised the degree of care and attention which a reasonable and prudent driver would have exercised in the circumstances. A driver falling below this standard commits the offence, whether the driving was due to a deliberate act, an error of judgment or for any other reason. The standard is an objective standard and applies equally to all drivers, whether they be learner drivers, qualified drivers or even drivers of emergency vehicles. It is a question of fact whether the accused has fallen below the objective standard. Note

Observance or non-observance of the Highway Code can be used to establish or disprove liability.

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A mechanical defect in the vehicle will be a defence unless the defendant knew of the defect or could have discovered it by exercising reasonable prudence. Driving without reasonable consideration

In order to commit this offence there must have been other road users using the road at the time of the offence. Other road users include passengers in the accused’s vehicle and pedestrians. For example, the offence can be committed by driving through a puddle and splashing pedestrians. 4.3.3

Category of offence and sentencing

Both offences are triable summarily. The maximum penalty is a £2,500 fine. In addition, conviction means obligatory endorsement (3 – 9 penalty points) of the driving licence and possible disqualification. Note

An information which charges both offences is bad for duplicity.

Neither careless nor inconsiderate driving is an arrestable offence.

4.4

Taking a conveyance without authority

4.4.1

Definition

A person shall be guilty of an offence if • He takes any conveyance for his own or another’s use without having the consent of the owner or other lawful authority, or • Drives it or allows himself to be carried in it or on it knowing that it has been taken without lawful authority: s 12(1) of the Theft Act 1968. Taking

A conveyance must be taken in order to commit the offence. It is unnecessary to prove driving but some evidence of movement is required and that the vehicle was used or intended to be used as a conveyance. Example

Where a car was pushed round a corner as a practical joke no offence was committed: R v Stokes (1983), but where a defendant sat inside a car and allowed it to coast downhill he committed the offence: R v Bow (1977).

The offence will also be committed if a conveyance is taken, even though it is not used as a conveyance,

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provided that it is taken for later use as a conveyance: R v Marchant (1985). Unauthorised use by a person in lawful possession may constitute a taking. Example

An employee who takes his employer’s vehicle outside the period of his authorisation, usually a working day, ‘takes’ it: R v Wibberley (1966). Similarly, an employee, whose use of the conveyance during the authorised period shows that he has assumed control of it for his own purposes, also takes it: McKnight v Davies (1974). Conveyance

This means any conveyance constructed or adapted for carrying one or more persons by land, water or air. It does not include a conveyance constructed or adapted for use only under the control of a person not carried in it or on it: s 12(7)(a) of the Theft Act 1968. Owner

This includes a person in possession of the conveyance under a hiring or hire purchase agreement: s 12(7)(b) of the Theft Act 1968. Owner’s consent

The taking must be without the consent of the owner or other lawful consent. However, where consent is obtained fraudulently, no offence is committed. Example

Where a defendant used a driving licence that he had found to misrepresent himself fraudulently to a car hirer, no offence was committed: Whitaker v Campbell (1983), nor where consent to loan of a vehicle was obtained by a false representation as to the destination and reason for borrowing: R v Peart (1970). But note that once the defendant used the vehicle outside those terms, the taking became without consent: R v Phipps and McGill (1970).

Defence of belief of lawful authority

A person does not commit an offence by anything done in the belief that he or she has lawful authority to do it or would have the owner’s consent if the owner knew of what was being done and the circumstances of it: s 12(6) of the Theft Act 1968.

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4.4.3

Ancillary offences

It is also an offence to drive a conveyance, or allow yourself to be carried in it or on it, knowing that it has been taken without the owner’s consent or other lawful authority. 4.4.4

Category of offence and sentencing

The offence is triable only summarily. On conviction, the maximum penalty is six months’ imprisonment and/or a £5,000 fine. If the conveyance is a motor vehicle then discretionary disqualification from holding a driving licence applies but no endorsement or penalty points are applicable. Taking a conveyance without authority is an arrestable offence. 4.4.5

Trial in Crown Court where linked/indictable offence

Although the offence is only triable summarily, a count under s 12(1) of the Theft Act 1968 may be added to an indictment if it is founded on the same facts or evidence as a count charging an indictable offence or if it is part of a series of the same or similar character as the indictable offence which is also charged, provided that the facts or evidence on which the offence is based were presented at committal. On conviction, the Crown Court’s sentencing powers are restricted to those of the magistrates: s 40 of the Criminal Justice Act (CJA) 1988. Note

This is an exception to the general rule that summary offences must be tried in the magistrates’ court.

4.5

Aggravated vehicle taking

4.5.1

Definition

A person is guilty of aggravated vehicle taking if he or she • Commits an offence under s 12(1), ie taking a conveyance without authority, in a mechanically propelled vehicle, and • After the s 12(1) offence is committed and before the vehicle is recovered ❍ the vehicle was driven dangerously in a public place, or

Substantive Law: Driving Offences

❍

❍

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an accident occurred and injury to a person or property arose, or if damage was caused to the vehicle: s 12A, of the Theft Act 1968 (inserted by the Aggravated Vehicle Taking Act 1991).

Two offences, not one

4.5.2

Since the maximum penalty is greater where death is caused (see 4.5.3), s 12A creates two offences rather than one: see R v Courtie (1984), R v Button (1994). Category of offence and sentencing

4.5.3

This is an either way offence. On conviction the maximum penalties are (in the Crown Court) two years’ imprisonment and/or an unlimited fine (or five years’ imprisonment if the accident caused death) or (in the magistrates’ court) six months ‘imprisonment and/or a £5,000 fine. In both cases there will be obligatory endorsement of the licence with 3–11 penalty points. Aggravated vehicle taking is an arrestable offence.

Causing death by dangerous driving Definition

4.6 4.6.1

Where a person causes the death of another person by driving a mechanically propelled vehicle dangerously on a road or other public place, that person is guilty of the offence of causing death by dangerous driving: s 1 of the RTA 1988. (This is a completely separate offence distinct from dangerous driving itself.) Apart from the causing of death, the driving element required for this offence is the same as under s 2 (see 4.2). Basically, the prosecution needs to establish that death resulted from the defendant’s dangerous driving. Category of offence and sentencing

This offence is triable only on indictment. On conviction the maximum penalties are 10 years’ imprisonment and/or a fine, obligatory disqualification for two years and endorsement of 3–11 penalty points, plus mandatory retesting by way of an extended driving test: s 36. Causing death by dangerous driving is an arrestable offence.

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4.7

Driving etc under the influence (various offences)

4.7.1

Driving, or being in charge, when unfit through drink or drugs Definition

A person who, when driving or attempting to drive a mechanically propelled vehicle on a road or other public place, is unfit to drive through drink or drugs is guilty of an offence, as is a person who when in charge is unfit to drive through drink or drugs: s 4 of the RTA 1988. Three separate offences under s 4, not one

The section creates three separate offences: • Driving • Attempting to drive • Being in charge of the vehicle in question. However, it is permissible to charge the accused with this being due to ‘drink or drugs’ without the charge being duplicitous or bad for uncertainty. ‘Drugs includes medically prescribed drugs including insulin, although decided cases show that courts are reluctant to ascribe impairment to injected insulin alone: see Watmore v Jenkins (1962), Ealing Magistrates Court ex p Woodman (1994). Category of offence and sentencing

These offences are summary, though they could be tried at the Crown Court under s 41 of the CJA 1988, see 9.2.2. For driving or attempting to drive the maximum penalty is six months’ imprisonment and/or a fine up to £5,000, plus endorsement of 3–11 penalty points and obligatory disqualification for one year. For being in charge the maximum is three months’ imprisonment and/or a fine up to £2,500 plus endorsement of 10 penalty points and discretionary disqualification. The difference in the amount of the fine is because for the former offences the magistrates may impose their maximum fine (£5,000) or a fine up to Level 5 on the Standard Scale of fines for summary offences prescribed by s 37(2) of the CJA 1992 (also £5,000), whereas for the last offence the appropriate fine is at Level 4 of the scale (32,500). The offences are non-arrestable offences. However, s 4(6) specifically gives a constable a power of arrest without warrant if the constable has reasonable cause to

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suspect that a person is or has been committing an offence under the section. Driving, or being in charge, with excess alcohol in the breath, blood or urine Definition

A person who drives or attempts to drive a motor vehicle on a road or other public place after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit is guilty of an offence: s 5 of the RTA 1988. This is sometimes called being ‘over the prescribed limit’ (OPL). Three separate offences under s 5, not one

This section creates three separate offences: • Driving • Attempting to drive, or • Being in charge of a vehicle while having a concentration of alcohol in the body which is over the prescribed limit. As with the s 4 offences, it is permissible to vary the charge to allege a concentration of alcohol in any of the three bodily substances, as what is essential to the offence is driving with the excessive concentration of alcohol, not precisely where that concentration may be evidenced: Fenwick v Valentine (1994). Consuming is not confined solely to drinking since ingestion of therapeutic medicines containing alcohol also qualifies: DPP v Johnson (1994). Category of offence and sentencing

Offences under s 5 are similar to those under s 4 in being summary, but it is possible to send the case to the Crown Court under s 41 of the CJA 1988. Driving or attempting to drive attracts a maximum of six months’ imprisonment and/or a fine up to £5,000, obligatory disqualification and endorsement of 3 –11 penalty points, while for being in charge the maximum is three months’ imprisonment and a fine of up to £2,500, on the same tariff as for s 4, plus endorsement of 10 penalty points and discretionary disqualification. The offences are non-arrestable offences but see Note below. Note

Section 6 of the RTA 1988 makes failure without reasonable cause to provide a specimen of breath an offence where a

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constable in uniform has reasonable cause to suspect that a person driving, attempting to drive or in charge of a motor vehicle on a road or other public place has alcohol in the body, or has committed a traffic offence or been involved in an accident while the vehicle was in motion.

If the result of the test gives the constable cause to suspect that the person is over the prescribed limit, or if the test is refused without reasonable cause, the constable may arrest that person, and may for the purpose of requiring the test to be taken enter ‘any place’ where the constable suspects the person to be, in either case without a warrant.

4.8

Speeding

4.8.1

Definition

A person who drives a motor vehicle on a road at a speed exceeding a limit imposed by or under any enactment to which the section applies is guilty of an offence: s 89 of the Road Traffic Regulation Act 1984. 4.8.2

Proof of the offence

Opinion evidence of speed is admissible, but by s 89(2) corroboration is required of the opinion evidence of one person that the speed limit was being exceeded. This is, however, often not difficult to obtain, eg by the Traffic Offenders Act 1988 evidence from ‘an approved device’ is admissible, besides which a radar speed trap has been held to be a computer and its reading therefore admissible as corroboration of the evidence of a constable without a certificate under s 69 of the Police and Criminal Evidence Act 1984: Darby v DPP (1994). The reading of a police car speedometer is capable of being both factual evidence and also corroboration of opinion: Nicholas v Penney (1950). Neither police speedometers nor the various police radar devices need to be tested, since they are presumed to be in working order at the material time: Castle v Gross (1984), Burton v Gilbert (1984). The evidence of an accident examiner is regarded as factual and not opinion evidence although, as an expert, the examiner could give opinion evidence: Crossland v DPP (1988). 4.8.3

Category of offence and sentencing

This is a summary offence which could be tried in the Crown Court under s 41 of the CJA 1988, and which

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attracts a fine of up to £1,000 (Level 3 on the standard scale) endorsement of 3–6 penalty points and discretionary disqualification. The offence is non-arrestable within the meaning of s 24 of the Police and Criminal Evidence Act 1984.

Disobeying traffic signals Definition

4.9 4.9.1

A person who fails to comply with a traffic sign while driving or propelling a vehicle is guilty of an offence: s 36 of the RTA 1988. The signs specified (by the Traffic Signs Regulations and General Directions 1981, SI 1981/859, made under s 34 of the Road Traffic Regulation Act 1984) include stop signs at junctions, double white lines and red traffic lights. Category of offence and sentencing

4.9.2

This is a summary offence attracting a fine of up to £1,000, endorsable with three penalty points and carrying discretionary disqualification. It is a non-arrestable offence.

Driving while disqualified Definition

4.10 4.10.1

A person who drives while disqualified commits an offence: s 103 of the RTA 1988, as substituted by RTA 1991. Category of offence and sentencing

4.10.2

This is a summary offence although it may be tried on indictment under s 40 of the CJA 1988 (see 9.2.2) and attracts six months’ imprisonment and/or a fine up to £5,000, plus six penalty points on the licence, and discretionary disqualification. The relatively high number of penalty points reflects the seriousness of driving while disqualified because this will usually mean that the driver is also uninsured against third party risks with consequent potential danger to the public (although in practice the Motor Insurers Bureau meets claims in such cases). It is a non-arrestable offence.

Driving while uninsured Definition

A person who uses, or permits the use of, a motor vehicle on a road without the required third party risks insurance being in force commits an offence: s 143 of the RTA 1988.

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This must be the appropriate type of policy for the vehicle so that this requirement may be contravened, for example, by obtaining insurance by misrepresentation or non-disclosure of material facts or by accepting ‘petrol money’ which goes beyond an informal social arrangement if the vehicle used has more than eight seats and should therefore be reclassified outside the category for which its social use would qualify it: DPP v Sikondar (1993). 4.11.2

Category of offence and sentencing

This is a summary offence which could be committed to the Crown Court if appropriate under s 41 of the CJS 1988: see 9.2.2. A fine of up to £5,000 may be imposed, together with 6– 8 penalty points and discretionary disqualification.

4.12

Failing to stop and failing to report an accident

4.12.1

Definition

Where there has been an accident due to the presence on the road of a mechanically propelled vehicle and personal injury is caused to a person other than the driver of that vehicle, or there is damage other than to that vehicle or to an animal or any property adjacent to the road, the driver must stop and if required to do so give his or her name, address and vehicle registration number, and also the name and address of the vehicle owner. If, for any reason, these particulars are not given at the time, the accident must be reported to a constable or to a police station as soon as possible or within 24 hours, and the driver must produce the relevant insurance certificate within seven days if not produced at the time of the accident, or the driver commits an offence: s 170 of the RTA 1988. 4.12.2

Meaning of the section

The section creates various offences. By s 170(1) there is a mandatory duty on the driver to stop where the damage specified has occurred. By s 170(2) the offence of failing to provide particulars can be committed in various different ways. By s 170(3) a separate offence is committed by failing to report the accident. By s 170(7) another offence is committed by failing to produce the insurance certificate. 4.12.3

Category of offence and sentencing

The offence is summary but may be committed to the Crown Court under s 41 of the CJA 1988: see 9.2.2. It is

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punishable by up to six months’ imprisonment and/or a fine up to £5,000 and endorsement of 5–10 penalty points, with discretionary disqualification. It is not an arrestable offence.

Other offences

4.13

It is common for additional offences to come to light when the accused is charged with one of the above, and for these charges to be dealt with at the same time, eg failing to stop when required by a police constable, no MOT certificate and numerous offences in connection with the defective condition of the vehicle driven. Mostly these are not endorsable but you should check Schedule 2 of the RTA 1988 which contains a list of 30 such offences which are endorsable.

Sentencing for road traffic offences The relationship between endorsement and disqualification Endorsement

In the absence of special reasons, the court dealing with an offender for an endorsable offence must order the particulars (date, offence, court and sentence) to be endorsed on the offender’s licence: s 44 of the Road Traffic Offenders Act 1988. An offender charged with an endorsable offence must therefore take or post the licence to the court: s 27 of the RTA 1988. Note

1 Failing to produce the licence is itself a summary offence, but it is a complete defence if the offender has applied for a new licence and not received it through the post from the DVLC. 2 Any penalty points more than four years old will not be taken into account unless they were given for a drinkdriving offence involving obligatory disqualification, in which case they will remain on the licence for 11 years. The period is usually counted from the date of commission of the offence but if the driver was disqualified, the period runs from the date of the conviction. 3 Whenever penalty points have expired the driver can obtain a new licence omitting any mention of them.

Any special reasons for not endorsing must be connected with the offence rather than the offender, so where an

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offence is endorsable, endorsement will usually not be avoided. Disqualification

Disqualification may be either obligatory or discretionary. Obligatory disqualification

Causing death by dangerous driving and drink driving offences carry obligatory disqualification. By s 36 of the RTA 1988 any court dealing with an offender for such an offence must disqualify the offender for at least one year (two years for causing death by dangerous driving) unless there are special reasons. If there was a previous drink driving offence in the past 10 years, this one year minimum is increased to three years. However, these are minimum terms so, as the period for which the court may disqualify is unlimited, the minimum may be significantly exceeded. Courts frequently make use of this power in cases where there was an excessive proportion of alcohol in the driver’s system – more than twice the legal limit is the usual trigger. As in the case of endorsement, any special reasons to be successfully argued against obligatory disqualification must be connected with the offence itself, and not with the offender. Example

A medical reason causing the offender to retain alcohol unmetabolised for longer than might be expected was not a reason not to disqualify, nor to reduce the period of disqualification, as that was a reason connected with the offender, not the offence: R v Jackson (1970).

This sometimes works harshly against the offender, as the result is that exceptional hardship to be suffered following disqualification (such as losing employment for which the offender needs to be able to drive) will never qualify (since it is connected with the offender, not the offence). However, an offender may be let off if, for example, a non-alcoholic drink consumed was laced unknown to the defendant – since there would then not have been any means of knowing that the defendant was driving while over the prescribed limit – or if the reason for driving recklessly was to take a seriously ill person to hospital – since in both these cases the excuse would be connected with the offence itself. The court has a checklist against which it assesses whether there are ‘special reasons’:

Substantive Law: Driving Offences

• • • • • • •

Distance the vehicle was driven Manner in which it was driven The state of the vehicle Whether the driver intended to drive further Condition of the road and traffic on it Potential danger for contact with other road users Reason for driving the vehicle at all: Chatters v Burke (1986).

Discretionary disqualification

Any court dealing with an offence for which discretionary disqualification is available may, but need not, disqualify the offender: s 34(2) of the RTA 1988. No statutory limits are provided for discretionary disqualification but periods of disqualification are generally not lengthy since this tends only to tempt further offending. Thus, discretionary disqualification is not a frequent penalty because the alternatives of fine and endorsement are more satisfactory. The sort of case where discretionary disqualification might be imposed would therefore be a bad case of an endorsable offence, eg • A bad case of careless driving, or • A bad case of speeding. Even then periods of such disqualification might be short, eg 2– 4 weeks. Note

1 A court cannot impose disqualification to start in the future, so as, for example, to give consecutive sentences of disqualification. Thus, if an offender is already disqualified, the court cannot impose a further period of disqualification to start when the existing one has finished, but can simply disqualify the offender again for a period long enough to finish after the existing period of disqualification. 2 As any disqualification takes effect immediately, if an offender is so foolish as to come to court by car, he or she will not be able to drive away unless the disqualification is suspended pending an appeal. 3 There are disadvantages in asking for such a suspension pending appeal. If the appeal is unsuccessful the disqualification will then run from the date of the appeal, not the date of the original sentence, so none of the disqualification period will in the meantime have been used up.

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Moreover, sometimes by the time the court hears the appeal much of the period of disqualification has already passed and the court may therefore decide that such a period is sufficient and not prolong disqualification further. Moral: advise the client to use public transport, or take a friend to drive home! Disqualification under the penalty points procedure

By s 35 of the RTA 1988, where an offender is being sentenced for an endorseable driving offence which will take the total penalty points on the licence above 12, he or she must be disqualified for six months unless there are special reasons for not doing so. For this purpose only, points added in the past three years count towards the total and if the offender has been disqualified since the date of the last points endorsed, those points already on the licence will be discounted since disqualification wipes the slate clean. However, unlike in the case of obligatory disqualification, there may be some scope for arguing against disqualification under the penalty points system. For this purpose the court can take into account any grounds for mitigating the normal consequences of the conviction, including reasons personal to the offender as they are allowed to have regard to ‘all the circumstances of the case’. Thus, the exceptional hardship of losing employment (either through being unable to drive or through public transport not being available) which cannot be argued against obligatory disqualification, is available here: Owen v Jones (1989). This is subject, nevertheless, to s 35(4)(a), (b) and (c) which are designed to stop chronic minor offenders using feeble excuses – especially the same feeble excuses – to avoid disqualification on a regular basis. • By s 35(4(4)(a) claims of a merely marginal transgression are prohibited in respect of either the past or present offences. Example

The offender who says he or she was ‘only just’ going through the red light or ‘not much’ over the speed limit will be caught by s 35(4)(a): Woodage v Lambie (1971).

• By s 35(4)(b) hardship is restricted to ‘exceptional hardship’ .

Substantive Law: Driving Offences

Example

The offender who claims that it is inconvenient to travel by public transport, if it actually exists on the route that must be taken as opposed to a case where public transport is virtually non-existent or not available at all, will be caught by s 35(4)(b).

• By s 35(4)(c) repeated use of the same grounds to avoid disqualification is expressly prohibited. Example

The numerous offenders who repeatedly try to claim that losing their licence would involve loss of their jobs.

The period for which the court disqualifies will reflect • How many offences are involved • How serious they are • The offender’s previous record, and • Any other relevant circumstances. One previous disqualification within the preceding three years will increase the six-month disqualification to a year, and if the offender has more than one such disqualification to two years. The offender may give sworn evidence on his or her own behalf in mitigation. Disqualification under s 44 of the Powers of Criminal Courts Act 1973

Disqualification may also be imposed by a court convicting on indictment or sentencing for any offence carrying two years or more imprisonment if a motor vehicle was used in the offence. This applies even if the offender did not use the vehicle personally, eg where the offender was an accomplice. Endorsement or disqualification?

Endorsement and disqualification are not usually imposed together, since if the offence attracts disqualification that is considered sufficient punishment. Moreover, if several endorsable offences are committed at the same time, only the offence attracting the highest number of points will usually be endorsed, rather than a total representing the points for all the offences. However, there are exceptions to this general rule. Where the Schedule to the RTA 1988 gives a range of penalty points, the court fixes the number in accordance with its view of the seriousness of the offence.

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4.14.2

Other sentences for road traffic offences

Disqualification or endorsement may be the sole penalty for an offence but it is more usual that either is combined with a fine or even, in the case of a serious offence, eg causing death by dangerous driving, with a custodial sentence. General sentencing principles will be applicable: see Chapter 13, although there is certain specific guidance available which is tailored to the particular offences. General principles

Generally sentencing has become much more of a precise science than it used to be. There are two reasons for this • The changes in sentencing policy brought about by the CJA 1991 focus on the seriousness of the offence and the greater use of community penalties • Some degree of national standardisation has been achieved by the use of the Magistrates’ Association Sentencing Guidelines which suggest ‘entry points’ in the available tariff at the court’s disposal for sentencing each offence on the basis that it is of ‘average’ seriousness and assist the court to adjust the sentence up or down the scale according to the relevant circumstances. Note

The national standards for pre-sentence reports support this initiative as they require the probation officer or social worker preparing the report to focus on the seriousness of the offence in the light of any aggravating or mitigating factors, which might make the offence of more or less ‘average’ seriousness, thereby directly addressing the crucial matters which the court must take into account when sentencing.

The usual mitigation is available for motoring sentences as in any other case and so the following will need to be born in mind as possible reasons for discounts on the sentence that might be given • Guilty plea (now statutorily recognised by s 48 CJPOA 1994) • Addiction of any kind • Previous good character/previous convictions • Good response/failure to respond to previous sentence(s) • Behaviour following charge and assistance to the police

Substantive Law: Driving Offences

• Health or age (including that of close family members) • Voluntary reparation/apology • Signs of reform or settling down • Damage of a custodial sentence (including to family members) • Damage already suffered, eg loss of employment/professional status • Unrelated worthy conduct. Beyond this point each offence must be looked at individually, the entry point noted and the offence evaluated against the individual seriousness rating and mitigation factors. Dangerous driving

On indictment – two years’ imprisonment. Summarily – six months and/or £5,000 fine. • Entry point: community penalty • Serious: custody • Serious enough: community penalty or fine • Less serious: fine or discharge • Mitigation: sober, momentary lapse of concentration, no aggravating features, single incident, speed not excessive • Aggravating features: committed on bail, driving while disqualified or other infringements, racing, prolonged persistent bad driving, unroadworthy vehicle, extensive damage, disregarding passengers’ warnings, avoiding detection or apprehension, alcohol or drugs • Disqualification appropriate for bad driving. Careless driving

£2,500 fine. • Entry point: median fine • Mitigation: difficult weather/road conditions, minor risk, momentary lapse, minor damage • Aggravating features: deliberate bad driving, serious risk, excessive speed.

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Note

For dangerous or careless driving, injury or damage is not to be equated with the degree of seriousness but may indicate the appropriate degree. Taking a conveyance without authority

Six months’ imprisonment and/or £5,000 fine. • Entry point: community penalty • Mitigation: no damage, no traffic infringements, sober, keys in car, impulsive, misunderstanding with owner • Aggravating features: committed on bail, over prescribed limit, driving while disqualified, premeditated, group offence, alcohol, bad driving, damage to car or property • Serious: custody • Serious enough: community penalty or fine • Less serious: fine, compensation and/or discharge • Consider disqualification if serious. Aggravated vehicle taking

On indictment – two years’ imprisonment. Summarily – six months and/or £5,000. • Entry point: community penalty • Seriousness/mitigation: as for taking a conveyance without authority • Aggravating features: police chase, over prescribed limit, driving while disqualified. Causing death by dangerous driving

10 years’ imprisonment. • Mitigation: guilty plea • Aggravating features: more than one death caused, prolonged bad driving, alcohol or drugs, failing to stop/leaving victim, disregarding passenger warnings, racing. Beware especially the ‘motorised pub crawl’: per Lord Lane in R v Boswell (1984). Driving etc under the influence

Six months’ imprisonment and/or £5,000 fine. • Entry point: community penalty • Serious: custody • Serious enough: community penalty

Substantive Law: Driving Offences

• Less serious: fine or discharge • Mitigation: guilty plea, only once over the limit, no traffic infringements, driving because of emergency, short distance driven, single offence, driving while disqualified with no aggravating factors • Aggravating features: three times over the limit, over the limit and driving while disqualified, committed on bail, prolonged bad driving, road users at risk, attempting to avoid detection or apprehension. Driving while disqualified

Six months’ imprisonment and/or £5,000 fine. • Entry point: custody • Serious: custody • Serious enough: community penalty • Less serious: fine or discharge • Mitigation: emergency, short distance, single breach • Aggravating features: attempting to avoid detection, long distance, planned long-term evasion, recent disqualification. Note

The extreme seriousness of this offence is the flouting of the court’s order and the fact that the driver will almost certainly also be uninsured. Driving while uninsured

£5,000 fine. • Entry point: substantial fine • Mitigation; accidental oversight, genuine mistake, inappropriate insurance held, recently/less recently expired insurance, responsibility for obtaining insurance not the offender’s, smaller vehicle (eg moped) • Aggravating features: deliberately driving without insurance, heavy goods or public service vehicles or mini cabs, no sign of insurance ever being held. Falling to report an accident/failing to stop

Six months and/or £5,000. • Entry point: median/substantial fine for each offence

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• Mitigation: failed to stop but reported, minor or no damage, stayed at scene but did not give full particulars, no one at scene but failed to report • Aggravating features: alcohol, serious injury or damage, failure to stop or remain at the scene. The more minor traffic offences

The Magistrates’ Association Sentencing Guidelines give detailed guidance on assessment of the correct number of penalty points but emphasises that this is not a tariff and that suggestions are only starting points.

Self-assessment questions 1

What factors make an offence of dangerous driving more likely to be tried in the Crown Court? 2 Can an offence of taking away a conveyance be heard in the Crown Court? 3 Can a driving licence be endorsed with penalty points where the offence is theft of a motor car? 4 Define aggravated vehicle taking. 5 Can a specimen of breath be refused by a driver if requested by a constable? 6 Is opinion evidence admissible on a charge of speeding? 7 Can driving while uninsured be tried in the Crown Court? 8 How many offences are created by s 170 of the RTA 1988 and what are they? 9 What is the significance of ‘special reasons’ within the meaning of the s 36 of the RTA 1988 and do they relate to the offender or to the offence? 10 Are endorsement and disqualification usually imposed together?

Chapter 5

Substantive law: theft and related offences

Introduction Apart from road traffic offences, the substantive law with which you will most commonly need to be familiar at a trainee level comprises • Theft (and other offences under the Theft Act) • Assault • Wounding • Burglary, and • Robbery. With regard to sentencing for these very common offences, the Magistrates’ Association’s sentencing guidelines have approached the issues of seriousness and offender mitigation in exactly the same way as for driving offences, suggesting an entry point for an offence of average seriousness. Thus, those preparing pre-sentence reports are required to focus on the seriousness of the offence in the light of aggravating or mitigating factors, in accordance with the national standards for such reports, the role of which is to assist the court to determine the correct sentence. Nevertheless, it remains a prime obligation of the solicitor addressing the court in mitigation to draw the court’s attention to all matters which would help the court in fixing the sentence. You will therefore need to bear in mind the usual mitigation and go through the standard checklist in case something therein affords a possible justification for a discount on the average sentence before the solicitor looks at the offence in the light of the sentencing guidelines and assesses it according to its individual seriousness rating and mitigation factors. The general checklist is • Guilty plea (s 48 of the CJA 1994) • Addiction of any kind • Previous good character • Good/bad response to previous sentence(s)

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• Behaviour following charge and assistance to the police • Health or age (including that of close family members) • Damage already suffered • Unrelated worthy conduct.

5.2

Theft

5.2.1

Definition

A person is guilty of theft if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it: s 1 of the Theft Act 1968. Appropriates: s 3 of the Theft Act 1968

The essence of appropriation is an assumption of the rights of an owner, eg to use, give, sell or destroy the property. An assumption occurs if any act takes place which adversely interferes with or usurps an owner’s rights or any of them: R v Morris (1983). It also includes any later assumption where a defendant innocently comes across property. Examples of appropriation include • Substituting price labels in a supermarket in order to obtain goods at a lower price • Obtaining property by a mistake and taking advantage of that error • A parent keeping property of another brought home by a child. Property: s 4 Note

1 Land or anything which forms part of land cannot be stolen except in limited circumstances. 2 ‘Property’ does not include electricity or obtaining rides on cars, coaches or trains. These are the subject of separate offences. Belonging to another: s 5

The essence of possession is physical control. Accordingly, it is possible to steal from yourself, eg R v Turner (No 2) (1971). Intention permanently to deprive: s 6

The court must be satisfied that the defendant had this intention or that he or she intended to treat the property

Substantive Law: Theft and Related Offences

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as his or her own. It may draw any proper inferences from the evidence. Dishonesty

The test for dishonesty is twofold: • Were the defendants’ actions dishonest according to the standards of reasonable and honest people? • If so, did the defendant realise that those actions fell below such standards: R v Ghosh (1982). Thus, a defence of moral justification will fail if D knew ordinary people would consider the conduct in question to be dishonest. A defendant will not be dishonest if he or she believed that • he or she had a legal right to deprive the other of property, whether that was exercised on the defendant’s own behalf or for another, or • The other person would have consented if he or she had known of the appropriation and the circumstances of it, or • The person to whom the property belonged could not be discovered by taking reasonable steps (except where the property came to the defendant as trustee or personal representative): s 2 of the Theft Act 1968. Category of offence and sentencing

Theft is an either way offence but should be tried summarily except where one or more of the following aggravating factors is present (1990 Mode of Trial Guidelines) • Breach of trust by a person in a position of substantial authority or in whom a high degree of trust has been placed • Commission or disguising of the offence in a sophisticated manner • Commission by an organised gang • The victim was particularly vulnerable, eg elderly or infirm • There is unrecovered property of high value. The maximum penalty on summary conviction is six months’ imprisonment and/or a £5,000 fine. On indictment the maximum penalty is seven years’ imprisonment and/or an unlimited fine. If the offence concerns theft of a motor vehicle, then the offender may be subjected to discretionary disqualification, but there are no penalty points to be endorsed.

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5.2.3

Special sentencing considerations

Sentencing for theft will be influenced by whether the theft is general, is theft from a shop or vehicle, or is in breach of trust. The Magistrates’ Association Sentencing Guidelines for general theft provide the following indications • Entry point: fine • Serious: custody • Serious enough: fine £270 (for average seriousness) or community penalty if a fine is insufficient • Less serious: fine, discharge or compensation (if discharge alone is not appropriate, compensation is a priority, with or without a fine as well) • Mitigation: impulsive action, small amount, voluntary restitution, plus the normal mitigation checklist, eg age, health (physical or mental), cooperation with the police and remorse – one third discount suggested for a timely guilty plea • Aggravating features: offence committed on bail, large amount, planned and/or sophisticated offence, vulnerable victim, previous convictions and failure to respond to previous sentences. The court must give reasons if not awarding compensation. 5.2.4

Theft from a shop

This type of theft is sentenced on the same principles as apply to generic theft but taking into account any ‘Fagin factor’, ie if the offender is an adult who has involved children and/or there is organised teamwork this will be a distinctly aggravating factor in assessing seriousness. 5.2.5

Theft from a vehicle

This also is sentenced in a manner similar to that used for the generic offence but taking into account any temptation which the offender may have had to resist, eg if the car was unlocked and therefore the theft was an impulsive action to which the offender easily succumbed – this will be a mitigating factor in assessing seriousness. Note

If the offence is tried in the magistrates’ court and the court feels that custody of more than six months is appropriate, the magistrates must commit the offender to the Crown Court for sentence and where a fine is imposed the court will increase or decrease the amount according to the financial circumstances of the offender.

Substantive Law: Theft and Related Offences

Theft in breach of trust

This is also sentenced on the basic theft principles, with the additional points that if (a) the offender is a senior employee who has committed a planned theft or series of thefts over a period, this will be an aggravating factor; conversely, (b) if the action was the impulsive theft of a junior employee and there has been voluntary restitution, this will be a mitigating factor. In addition, regard should be had to R v Barrick (1985) where the Court of Appeal gave guidance on the treatment of theft by persons in a position of trust, eg accountants, solicitors, bank employees, or postmen. Where a privileged and trusted position has been abused to effect the theft, whether from partners, clients, employees or the general public, unless the sum of money involved is very small, it seems that such a case attracts immediate custody however short, despite the fact that the offender will usually already have suffered the punishment of being dismissed for the theft and, in view of the reference that will have to be given by the dismissing employer, will almost certainly never again be able to secure similar trusted employment. Suggested terms for such offences are as follows, depending on the amount stolen • Under £10,000 – very short term, to 18 months • £10–50,000, 2–3 years • £50,000+, 3.5–4 years. All these periods would be subject to a discount for a timely guilty plea. Other matters to be taken into account (apart obviously from the size of the sum involved and the usual personal mitigations) are the quality and degree of trust placed in the offender, the period over which the thefts were committed, how the money was used, the effect on the victim and on fellow employees or business partners, and the effect on the offender. However, this case predates the Criminal Justice Act 1991 and it is clear from the prevalence of community sentences rather than custody in some serious fraud cases, that custody is by no means the only outcome in such cases, even where the sum involved is large. The rationale behind this is that the contemporary community penalty, involving a high number of hours and significant curtailment of the offender’s leisure, together with the performance of demanding work for the benefit

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of the community, is meant to be a serious alternative to custody. Moreover, Lord Lane CJ lost no time in making it clear that a significant number of hours should be so regarded since it not only deprived the offender of his or her leisure time while relieving pressure on prisons, but also afforded an opportunity for the offender to come under the guidance of those probation officers and social workers running the scheme while doing useful work. 5.2.7

Other Theft Act offences

Other offences (often charged alongside theft) which you may come across include • Handling stolen goods: s 22 • Abstracting electricity: s 13 • Obtaining by deception: s 15 • Making off without payment: s 3 These are all triable either way and on conviction in the magistrates’ court and attract a fine of up to £5,000 or six months’ imprisonment. Normally they will be tried summarily unless there are ‘professional hallmarks’. The various deception offences overlap extensively and may in fact be charged as theft, which is often easier to prove: see R v Gomez (1993). As regards handling, s 22 of the Theft Act 1968 stipulates that this offence is only committed otherwise than ‘in the course of stealing’. This prevents a thief becoming a handler before the goods are effectively stolen, ie there will have to be a theft which the prosecution will be obliged to prove, although they do not have to prove that the alleged handler is innocent of the original theft. There is in turn some overlap between theft and handling, and handling and the specialised offence of money laundering: see ss 93A–D of the CJA 1988 (inserted by the CJA 1993). Note

A detailed treatment of these offences is beyond the scope of this companion, and the offences are included merely for the purpose of drawing your attention to their existence as an alternative to theft. Should they be encountered in practice, reference to a good practitioners’ work, such as Blackstone’s Criminal Practice, which is updated each calendar year, or the current edition of Archbold, will be essential, and sufficient guidance will be found therein.

Substantive Law: Theft and Related Offences

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The Magistrates’ Association provides guidelines for sentencing all the above offences. In addition to the general theft guidelines, you must bear in mind the following particular points. Handling

• Entry point: fine • Mitigation: impulsive action, low value, single item for personal use • Aggravating factors: adult involving children, especially where there is any organisation or distribution, high value, item stolen to order. Abstracting electricity

• Entry point: fine • Mitigating: offence over a short period • Aggravating factors: high usage, prolonged period, special equipment. Obtaining by deception

• Entry point: fine • Mitigation: impulsive act, short period, small scale • Aggravating factors: offence over lengthy period, large sums, valuable goods, group action (two or more participants), vulnerable victim. Making off without payment

• Entry point: fine • Mitigation: impulsive act • Aggravating factors: deliberate plan, large sum, group action (two or more participants), vulnerable victim.

Assault Introduction

5.3 5.3.1

Assault may be committed either as the summary offence under s 39 of the CJA 1988 (‘common assault’ sometimes curiously called ‘assault and battery’) or as the indictable offence under s 47 of the Offences Against the Person Act 1861 (‘assault occasioning actual bodily harm’). Assault as a summary offence

This is the simpler offence of common assault or assault and battery. Technically, an ‘assault’ is a threat of physical force while a ‘battery’ is the application of that physical

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force, although in vernacular terms assault and battery is often referred to simply as ‘an assault’. Definition

Assault is committed when a person intentionally or recklessly causes the victim to apprehend the immediate infliction of unlawful force (compare a ‘battery’ when that threatened force is actually inflicted). Note

By referring to ‘assault and battery’ s 39 prohibits two separate offences, ie one of ‘assault’ and another of ‘battery’, so that an indictment which charges the two together as ‘assault and battery’ is duplicitous. If only the one offence of assault is to be charged, but there has been physical contact as well as threat of it, the correct phraseology is ‘assault by beating’: see DPP v Taylor (1992). Category of offence and sentencing

Common assault under s 39 is a summary offence but it may be included as a count in an indictment under s 40 of the CJA 1988: see 9.2.2. The maximum penalty is six months’ imprisonment or £5,000 fine or both. The Magistrates’ Association guidelines are as follows: • Entry point: community penalty • Serious: custody (though rarely justified) • Serious enough: community penalty or fine • Less serious: fine, compensation or discharge • Mitigating factors: impulsive action, provocation, trivial nature of the incident • Aggravating factors: group action, premeditated, offender in position of authority, vulnerable victim, victim a public servant. Note

Notwithstanding that custody is rarely appropriate, punching a fellow motorist in a ‘road rage’ incident will attract a custodial sentence: R v Fenton (1994) (where the offending motorist received seven days).

Common assault is an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984. 5.3.3

Assault occasioning actual bodily harm

This offence is sometimes colloquially referred to as ‘ABH’.

Substantive Law: Theft and Related Offences

Definition

A person commits assault occasioning actual bodily harm if he or she commits an assault and/or a battery which causes actual bodily harm; this is merely a question of causation, no further mens rea being required above the ordinary recklessness or intention necessary to commit common assault or battery. Any significant injury will suffice for ABH, eg ‘any hurt or injury calculated to interfere with the health or comfort of the prosecutor’: R v Miller (1954). Such injury can therefore include a hysterical or nervous condition brought about by the assault or battery, just as much as any quite minor painful blow, and also psychiatric injury caused by making silent telephone calls because this could cause the victim to apprehend the imminent application of force: R v Ireland, R v Burstow (1997). Category of offence and sentencing

ABH is an either way offence, punishable on conviction on indictment by five years’ imprisonment and/or an unlimited fine, and on summary conviction by six months and/or a £5,000 fine. It is normally tried summarily unless the National Mode of Trial Guidelines indications place the particular offence in a category of seriousness indicating a Crown Court trial. Such would be the case where there is serious injury, use of a weapon, use of kicking etc, or serious violence to persons working in contact with the public, such as public transport employees, taxi drivers, police, shopkeepers etc, or where the victim is in some other way vulnerable. The Magistrates’ Association guidelines suggest the following • Entry point: community penalty • Serious: custody or community penalty • Serious enough: community penalty or fine • Less serious: fine and/or compensation, compensation and/or discharge • Mitigating factors: impulsive action, minor injury, provocation • Aggravating factors: deliberate kicking, extensive injuries, group action, premeditated, weapon, offender in position of authority, vulnerable victim, victim serving the public. ABH is an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984.

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5.3.4

Other assaults

There are various other specialised assaults, such as assault on a police officer or obstructing a police officer, both under s 51 of the Police Act 1964. Assault on a police officer

This is the more serious of the two offences. Definition

Assault on a police officer occurs if there is any assault on a constable or someone assisting him ‘in the execution of his duty’. The latter precise condition is essential but the general duty of a police officer to keep the peace has been widely interpreted: Piddington v Bates (1961), Kerr v DPP (1994). No mens rea is required as to the fact that the person assaulted is a police officer, so it is to this extent an offence of strict liability. However, a defendant would still be able to rely on the defence that he or she honestly believed that he or she was acting lawfully if it can be can shown that the defendant did not have the necessary mens rea for an assault: R v Ball(1989). Category of offence and sentencing

This is a summary offence attracting a maximum of six months and/or a £5,000 fine. It is an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984. The Magistrates’ Association guidelines indicate • Entry point: custody • Serious: custody or community penalty • Serious enough: community penalty or fine • Less serious: fine or compensation, compensation and/or discharge • Mitigating factors: impulsive action, not realising the victim was a police officer • Aggravating factors: injuries, premeditated, group action, gross disregard for police authority, offence committed on bail. Note

The sentencing indications for ABH may also be relevant if injury has been caused.

Substantive Law: Theft and Related Offences

Obstructing a police officer

This is the less serious of the two offences but can very easily be committed when an offender is being apprehended for another offence. Definition

This offence occurs when any person resists or wilfully obstructs a constable, or a person assisting him, in the execution of his duty. Obstruction occurs whenever it is made more difficult for a police officer to carry out his duty. Obstruction is, however, neither defined nor narrowly interpreted, and whether any apparently ordinary conduct is obstruction in relation to the police may be a matter of degree. Obviously it may connote actual physical resistance (for which some positive physical action will be required) or it may be failure to do some act which is expected of the offender, as much as positively hindering the police. Thus, simple refusal to answer questions cannot be obstruction: Rice v Connolly (1966), nor advising a third party not to do so: Green v DPP (1993), though warning drivers of a police trap is: Betts v Stevens (1910), as is warning a publican of the presence nearby of police officers waiting to catch him selling drinks after hours: Green v Moore (1982). Whatever the action, it must be ‘wilful’ and some named constable, not a whole force in general, must be obstructed. Category of offence and sentencing

This is a summary offence punishable by a maximum of one month’s imprisonment and/or £1,000 fine. It is not an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984. The Magistrates’ Association provides the following sentencing guidelines • Entry point: fine (the guideline fine is £180) • Serious: community penalty • Serious enough: community penalty or fine • Less serious: fine or discharge • Mitigation: impulsive act, not realising the victim was a police officer, minor obstruction, genuine misjudgment • Aggravating factors: premeditated, group action, gross disregard for police authority, offence committed on bail.

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Note

In the case of both these offences it is no defence that the police officer was above the rank of ‘constable’! A ‘constable’ for this purpose means any police officer and also prison officers acting in a policing capacity.

5.3.5

Wounding offences: Offences Against the Person Act 1861 Two offences

• Section 20: wounding or inflicting grievous bodily harm (‘unlawful wounding’) which is an either way offence • Section 18: wounding with intent to cause grievous bodily harm (‘wounding with intent’) which is indictable only. The relationship between these offences, and their relationship to common assault under s 39 of the CJA 1988 and s 47 of the Offences Against the Person Act 1861, is complex, especially as there are other related offences with which an offender might also be charged in an appropriate case, eg ‘attempting to choke, suffocate or strangle with intent’: s 21 of the Offences Against the Person Act 1861 and ‘throwing corrosive fluid’: s 29 of the Offences Against the Person Act 1861. Assuming that you manage to avoid contact with such colourful variations at least early in your training contract, a good grasp will still be required of the ss 18 and 20 offences. Unlawful wounding

This offence is committed when a person unlawfully and maliciously wounds or inflicts grievous bodily harm (‘GBH’) upon any other person, either with or without any weapon or instrument. As such, it is clearly also an assault in the sense of battery occasioning ABH and the mode of trial guidelines are the same, although no direct assault is necessary. Thus, a verdict that the defendant is guilty of the alternative offence under s 47 can be returned: see 12.11.5. Clearly the GBH must include some injury and the injury should be serious. Category of offence and sentencing

As this offence is triable either way, the sentence varies from five years on indictment to six months and/or a £5,000 fine on summary conviction.

Substantive Law: Theft and Related Offences

The Magistrates’ Association guidelines are: • Entry point: custody • Serious: custody/community penalty • Serious enough: community penalty – usually too serious for a fine • Less serious: fine and/or compensation • Mitigation: impulsive action, minor wound, provocation • Aggravating factors: extensive injuries, deliberate kicking etc, premeditated, group action, weapon, offender in position of authority, vulnerable victim, victim a public servant, offence committed on bail. Unlawful wounding is an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984. Wounding with intent

This offence is committed wherever a person unlawfully or maliciously wounds or causes GBH with intent to cause such GBH or to resist or to prevent lawful apprehension or detention of any person. The offence clearly also includes both an assault and the lesser offence of unlawful wounding so that a judge may allow a jury to convict of the alternative offence under s 20. However, if this is to be done, the House of Lords has confirmed that it is preferable that the indictment specifically includes the alternative count, using the correct wording of s 18, as s 20 uses the word ‘inflict’ while s 18 uses the word ‘cause’. Since the words ‘inflict’ and ‘cause’ are not strictly interchangeable, defendants convicted of the lesser offence under s 20 when charged under s 18 were otherwise able to say that they had not been convicted of any offence known to law! Category of offence and sentencing

The offence tends to cover the more serious acts of violent wounding, including stabbing, ‘glassing’ (glass injuries inflicted by milk bottles, pub glasses etc) kicking, stamping (especially on the head) and throwing corrosive fluid. There are, of course, no Magistrates’ Association sentencing guidelines (the offence is indictable only) and attracts a maximum sentence of life imprisonment. However, the normal sentencing bracket is three to eight years, or over eight years in particularly serious cases. Mitigating factors tend not to be helpful in very serious cases, even where there is a plea of guilty or previous good character. However, provocation is taken into

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account and there are exceptional cases such as R v Hales (1983) where the offender, a mild man of previous good character, stabbed a male acquaintance of his wife when unbalanced by suspicion of her adultery with him (he received three years, half suspended) and R v Gordon (1987) where five and a half years was reduced to two on similar facts, a plea of guilty and evidence of remorse. Aggravating factors include extensive injuries, weapon, premeditation, and kicking or stamping on the victim. The Court of Appeal guideline case is R v Bibi (1980) which indicated that a medium or longer term is appropriate for all serious cases of violence. Wounding with intent is a serious arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984.

5.4

Burglary

5.4.1

Definition

Under s 9(1) of the Theft Act 1968 a person commits burglary if • He enters any building as a trespasser and with intent to commit any such offence as is mentioned in s 9(2), or • Having entered any building or part of a building as a trespasser, steals or attempts to steal anything in the building or that part of it, or inflicts or attempts to inflict on any person therein any grievous bodily harm. Section 9(2) provides that the offences referred to in s 9(1) are offences of stealing anything in the building or part of the building in question, of inflicting on any person therein any grievous bodily harm, or of rape of any woman therein, or of unlawful damage to the building or anything therein. Section 9 creates two separate offences, conveniently compartmentalised under ss 9(1)(a) and s 9(1)(b) • Entering the building or part thereof as a trespasser with the requisite intent: s 9(1)(a), and • Having entered as a trespasser and committing one of the four specified offences: s 9(1)(b). 5.4.2

Category of offence and sentencing

Burglary is an either way offence, but by the National Mode of Trial Guidelines should be tried summarily except where there was entry of

Substantive Law: Theft and Related Offences

• Premises in the daytime, but with the occupier present, or entry of a house at night which is usually occupied, whether or not there is anyone present in the house, or if the offence is one of a series, where there are professional hallmarks, unrecovered property of high value (ie at least £10,000) or there is any vandalism or similar damage • Other premises where there is violence or threat of violence to anyone lawfully on the premises, or if there are professional hallmarks, high value unrecovered property, extensive vandalism or the premises are a doctor’s surgery or pharmacy. In both cases the court must consider its sentencing powers insufficient. However, should any of the offences mentioned in s 9 as comprised in the burglary (either actually or by intent) be indictable, or if violence is committed, that offence of burglary will be triable only on indictment. Burglary is obviously a violent act and may include an assault, so that an alternative verdict under s 47 of the Offences Against the Person Act 1861 may be a possibility, as may be an alternative verdict of guilty of any underlying offence that the court considers the defendant committed in the building. The sentencing maxima are • For dwelling house burglary, 14 years on indictment, and on summary conviction six months and/or a fine not exceeded the statutory maximum: s 9(4) of the Theft Act 1968 • For non-dwelling house burglary, 10 years on indictment, and on summary conviction six months and/or a fine not exceeding the statutory maximum: s 9(4) of the Theft Act 1968. Where offences are tried summarily, the Magistrates’ Association provides the following guidelines. Dwelling house burglary

• • • •

Entry point: custody Serious: custody/community penalty Serious enough: community penalty/fine Less serious: fine with compensation, compensation and/or discharge.

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Note

Normally the offence will be too serious for the latter, but this sentence might be appropriate for a young adult on a walk-in burglary with no aggravating factors, as for theft.

• Mitigation: daytime, no damage, or forcible entry, low value • Aggravating factors: deliberately frightening occupants, group offence, night time, professional operation, vandalism or hooliganism, offence committed on bail. Non-dwelling house burglary

• • • •

Entry point: community penalty Serious: custody/community penalty Serious enough: community penalty Less serious: fine and compensation, compensation and/or discharge • Mitigation: daytime, no damage, disturbance or forcible entry, low value • Aggravating factors: deliberately frightening occupants, group offence, professional operations night time, ram-raiding, vandalism, hooliganism, offences committed on bail. Note

Factors in sentencing for burglary have recently been thoroughly considered and restated in the cases of R v Edwards, R v Brandy and R v Brewster, R v Thorpe, R v Ishmael, R v Blanchard, R v Woodhouse, R v H(R) (1997).

Burglary is an arrestable offence within the meaning of s 24 of the Police and Criminal Evidence Act 1984.

5.5

Robbery Robbery is committed if a person steals and immediately before or at the time of doing so, and in order to do so, he or she uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force: s 8 of the Theft Act 1968. A count may also inevitably be included in an appropriate case for an offence contrary to the Firearms Act 1968. Simple theft is obviously an alternative verdict here.

Substantive Law: Theft and Related Offences

Category of offence and sentencing

Robbery is triable only on indictment. The combination of theft and violence makes it the most serious of the offences of dishonesty under the Theft Act 1968. The maximum penalty for robbery as such is life imprisonment, as it is for assault with intent to rob: s 8(2) of the Theft Act 1968. The Court of Appeal guideline cases are R v Turner (1975), R v Daly (1981), and R v Gould (1983). Turner was a case of a series of gang robberies on banks and security vans, involving firearms and ammonia, though these were carried only to frighten. The starting point for such offences, per Lawton J, was 15 years, the lack of a previous record being not much of a mitigating factor. In Daly and Gould Lord Lane LCJ, confirmed the Turner guidelines, such cases being described as being ‘in the first division’, although ‘exceptional’ cases, such as the ‘Great Train Robbery’, would attract more – upwards of 18 years is the norm. The ‘irreducible minimum’ is said to be 11 years: R v Davis (1980).

Self-assessment questions 1

2 3 4 5

6 7

8

What are the special sentencing considerations applicable to (a) theft (b) theft from a shop (c) theft in breach of trust? Distinguish between common assault and ‘ABH’. Distinguish between ‘unlawful wounding’ and ‘wounding with intent’. Which categories of burglary should be tried in the Crown Court? What is the significance of the ‘underlying offences’ mentioned in s 9(2) of the Theft Act 1968? What aggravating factors would increase a sentence for dwelling house burglary? Could burglary (sentencing entry point custody) ever be suitably punished by a fine, compensation or discharge? If so, in what sort of case? Can a defendant convicted of robbery ever hope to avoid a custodial sentence?

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9

What mitigating factors (if any) might be worth bringing up on behalf of a first offender on a robbery charge? 10 Which assault offences can be included in an indictment under s 40 of the CJA 1988?

Chapter 6

Financing the defence

Introduction

6.1

This chapter deals with the various ways of paying for the criminal client’s defence, specifically • Professional conduct • The Green Form Scheme • Assistance by way of representation (ABWOR) • The Duty Solicitor arrangements • Full criminal legal aid, and • The privately paying client. Note

All references in this chapter are to the Legal Aid Act (LAA) 1988 unless otherwise stated. You will also need to consult the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (SI 1989/344) and the Legal Advice and Assistance (Scope) Regulations 1989 (SI 1989/550).

Professional conduct You have a professional duty to advise all clients who are eligible for legal aid of their rights under the Act. Failure to do so can result in disciplinary proceedings for ‘unbecoming behaviour’ and may give rise to a negligence action. Clients receiving legal aid must be treated as if they were paying privately and are entitled to the same standards of care: see PCS Principle 5.01. However, especially since the introduction of standard fees, there is concern that as the rates provided do not allow reasonable remuneration – so that criminal work has to be done at a loss – in practice the legal aid client cannot possibly receive the same standard of service as the paying client, as corners will inevitably be cut, eg by using unqualified staff to prepare cases – which could pose serious risk to the client. Nevertheless, in practice, suitable unqualified lower paid staff can be trained to do this work, much as managing clerks used to do it in the past. The problem will be that unless cover of this sort is available, qualified solicitors are going to find themselves over extended and underpaid in this context.

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The only useful advice to you may therefore be in the words of the late oil millionaire J Paul Getty: ‘Rise early. Work late’!

6.3

Green Form Scheme Legal advice and assistance is provided under this scheme: ss 2 and 8–13.

6.3.1

Services provided

Under the Scheme, you can provide legal advice and assistance but cannot represent your client: s 8 of the LAA 1988. However, the Scheme enables you to give advice and assistance on any aspect of English law. This covers preliminary matters, eg giving general advice and completing the forms for full Criminal Legal Aid. You can only charge for up to two hours’ work, plus VAT, unless the Legal Aid Area Office grants prior permission to exceed the limit. 6.3.2

Cost to the client

You complete Form GFI from financial information provided by your client and, using a ‘key card’ which is updated annually, determine whether your client is eligible for advice. If your client’s disposable capital or weekly disposable income exceeds the prescribed upper limits, then your client is ineligible for advice. If the disposable capital and weekly disposable income is below the prescribed limits, the client is entitled to completely free advice as there is no longer any contribution to be collected. Those on income support, family credit and disability working allowance are automatically entitled to free legal advice and assistance unless out of scope on capital grounds. Note

The current rates set the income limit at £75 per week, plus weekly dependents’ allowances. The capital limit is £1,000 plus allowances for dependents.

6.3.3

Remuneration

Payment is made at fixed rates and the amount will depend on whether the fee earner is within the London Legal Aid Area and on whether the firm holds a franchise contract with the Legal Aid Board or is a non-franchise firm. A franchise firm has the advantage of greater autonomy in making some decisions without reference to the Board and also enjoys certain payment benefits.

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An application can be made to the Area Office (or decided within the firm in the case of a franchise) to exceed the normal two-hour limit but this is rare in criminal cases. The two hours will usually cover filling in the form, taking the first statement and perhaps some preliminary collection of evidence. If work is done that is not covered by an extension, it is still possible to claim for it under reg 44(7) of the Legal Aid in Criminal and Care Proceedings (General Regulations) 1989 if • The interests of justice require that the representation or advice be provided as a matter of urgency • There was no undue delay in making an application for legal aid • The representation or advice was given by the solicitor who was subsequently assigned under the Legal Aid Order. Payment is claimed by completing the reverse of Form GF1 and submitting it to the Legal Aid Area Office.

Assistance by way of representation

6.4

Assistance by way of representation (ABWOR) is governed by ss 2 and 8–13. Services provided

ABWOR allows you to represent a defendant in the magistrates’ court where a defendant is not receiving and has not received legal representation for those proceedings and has not been refused full Legal Aid. Under reg 7 of the Legal Advice and Assistance (Scope) Regulations 1989, ABWOR can be granted where a magistrates’ court is satisfied that • The hearing should proceed the same day • The defendant would not otherwise be represented, and • Requests that a solicitor within the precincts of the court represent the defendant or approves an application from such a solicitor to provide ABWOR. ABWOR does not cover not-guilty pleas nor, usually, non-imprisonable offences. However, there have recently been some important extensions pursuant to the Legal Advice and Assistance (Amendment) Regulations 1997, which now cover:

6.4.1

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• persons at risk of imprisonment for failing to obey a court order, eg by failing to pay the community charge (see the ECHR decision in Benham v UK where there was held to be a breach of Article 6(1) of the Convention because legal aid was not available to him for representation) either where there is no duty solicitor or where the case is complex • prisoners detained at Her Majesty’s pleasure to be represented at Parole Board hearings reviewing their case • persons who are the subject of a removal order under s 47 of the National Assistance Act 1948, because they are for one reason or another in need of care and attention, such persons being by definition likely to be vulnerable and unable to prepare a case or represent themselves before magistrates. Use of ABWOR varies from court to court depending on the speed at which the court processes applications for full Criminal Legal Aid. This is because there would be no point in granting ABWOR if the defendant wants and is entitled to legal aid and that court can process the legal aid application without delay. Courts vary considerably in their speed in dealing with legal aid applications. Example

ABWOR would be likely to be granted if a defendant was before the court and without legal representation on a guilty plea and needed a solicitor for a straightforward plea in mitigation.

6.4.2

Cost to the client

ABWOR is subject to the same means testing as the Green Form Scheme except in the case where ABWOR is provided by the duty solicitor or before a mental health tribunal (see 6.5) when it is free. The financial limits are more generous than under the Green Form Scheme. Note

The current income limit is £162 per week with allowances for dependants as under the Green Form Scheme. No contribution is made if the applicant’s income is £67 per week or less (taking into account allowances for dependants if applicable). Over £67 per week the contribution will be £1 for every £3 of the excess over £67 and there is no upper limit of income at which this contribution ceases to apply. Those on the same state benefits as for the Green Form will

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automatically qualify. The capital limit for criminal ABWOR is £3,000, with further allowances for dependants.

Remuneration

6.4.3

You claim payment by completing the relevant forms and submitting them to the Legal Aid Area Office.

Duty Solicitor Scheme Services provided

6.5 6.5.1

The services provided are regulated by the Legal Aid Board Duty Solicitor Arrangements 1992, paras 51– 60. The Scheme provides for a rota of local solicitors (or their representatives) to attend at police stations 24 hours a day, and to give emergency advice and assistance at magistrates’ courts. At a police station free advice up to an initial limit of £90 can be given to someone in custody or attending voluntarily about an offence. The advice can be given by the detainee’s own solicitor as an alternative to the duty solicitor if the client prefers. At court a duty solicitor may give free advice and representation on one occasion per charge. If the case goes beyond a first hearing, the defendant must apply for full legal aid or pay privately. Usually, the duty solicitor will continue to act under the legal aid order. The client becomes the solicitor’s own client at this point. The duty solicitor can make bail applications, offer pleas in mitigation and seek adjournments. The scheme does not cover not-guilty pleas nor, usually, non-imprisonable offences, but see the ABWOR extensions above at 6.4.1. Cost to the client

6.5.2

The duty solicitor’s services are available free, without reference to the defendant’s means. There is no application form. Remuneration

Payment is made at a fixed hourly rate, obtained by completing the relevant forms and submitting them to the Legal Aid Area Office. There is a higher rate for duty solicitors providing ABWOR in warrants of further detention cases at unsocial hours.

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6.6

Criminal legal aid

6.6.1

Services provided

Criminal legal aid is available to cover proceedings in all courts with criminal jurisdiction: s 19 of the LAA 1988. Legal representation in the magistrates’ court is normally by solicitor only and in the Crown Court by solicitor and counsel. 6.6.2

Eligibility for legal aid

Eligibility for criminal legal aid is determined by a justices’ clerk, a single magistrate or a magistrates’ court. Applications can be made on the prescribed form (Form 1) or orally. A statement of means (Form 5) must be submitted in either case as a legal aid order cannot be made without it, although if the defendant comes to court from custody it may be impossible to produce such evidence, in which case the court should consider the application under reg 23 of the General Regulations (ie covering applications by those in receipt of benefits) and not either grant legal aid conditionally or indicate that it will be withdrawn if the necessary documentary evidence of means is not provided within a limited time: South Western Magistrates ex p Doyle and Bennett (1996). Some courts have apparently been trying to limit legal aid in the absence of means test evidence to bail applications only. This is unlawful as limited certificates are only permitted under s 21(3)(C) (second bail application where unrepresented at the first). In order to obtain a legal aid order the applicant must pass two tests: • The interests of justice test • A means test: s 22. Some offences automatically qualify for legal aid, ie it is assumed that it is in the interests of justice within the meaning of s 22 that legal aid is obtained when the defendant is charged with the more serious offences. It will be convenient to identify these offences before considering the interests of justice test itself. In November 1991, the Justices’ Clerks Society produced guidelines to promote consistency in grants of legal aid 1 Offences triable on indictment only. Legal aid should always be granted. 2 Offences triable either way. Legal aid should be granted in certain cases, including theft of a sub-

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stantial amount from an employer and any offence which is committed to the Crown Court. Either way offences are divided into two categories by the guidelines. Legal aid is normally granted for their (a) list, which apart from serious offences such as theft of a substantial amount from an employer, includes most of the serious offences against the person and against public order. Their (b) list contains the less serious offences of dishonesty and the more serious driving offences such as dangerous driving and the more ordinary cases of theft where legal aid should be granted only if the statutory factors are met, ie those in s 22. Otherwise, road traffic offences are placed in a separate list of those offences for which legal aid should not normally be granted, eg pleas of guilty to driving with excess alcohol or failing to provide a specimen under s 7 of the RTA 1988 and for all other less serious motoring offences, such as failing to provide a specimen of breath under s 5 of the RTA 1988 (see 4.7.2). 3 Summary offences. There are some summary offences for which legal aid should always be granted, eg assaulting a police officer (see 5.3.4). There is, however, a list of summary offences for which legal aid is only granted if the s 22 criteria are met. This includes assaults, obstructing a police officer, taking a conveyance and driving whilst disqualified. A further list contains offences for which legal aid should be refused save in exceptional circumstances. This includes drinking under age, being drunk and disorderly, prostitution, TV licence offences and littering. Note

Because legal aid will only be granted for taking away a conveyance if the statutory factors are met, for careless driving in exceptional cases (eg on a defence of ‘special reasons’), and for dangerous driving and cases of theft from an employer not of a substantial amount if the statutory factors are met, this type of case is the sort on which you will need to work hard on the application form to be sure of satisfying s 22.

For the full text of the guidelines see The Magistrates’ Court – A Guide to Good Practice in the Preparation of Cases prepared by the Criminal Law Committee of the Law Society and first published by the Society in 1993,

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obtainable from the Law Society shop. You should also use the Lord Chancellor’s Department Circular Guidance on Evidence to Support the Statement of Means issued in 1993 and the Justices Clerks Society’s Good Practice Guide issued in 1995. 6.6.3

The interests of justice test

Section 22 provides five factors which must be taken into account in deciding whether the test is met: • Loss of liberty, livelihood or reputation • Questions of law • Inadequate English or mental or physical disability • Tracing or interviewing witnesses or expert crossexamination • Interests of third party. It is very important when filling in the application form that you make clear that the applicant’s case satisfies these requirements. The fullest possible information should always be given under each relevant heading as otherwise the form may be returned asking for further details or the application simply turned down on the basis that the information supplied is inadequate. If the case is at all complex, a covering letter dealing with any difficulties may be appropriate because the space on the form is often insufficient. You should think through the trial process to identify where and why legal aid is essential, especially where clients realistically cannot be expected to manage essentially lawyers’ work on their own. In completing the case details at the beginning of the form, be specific about the offences, eg ‘stealing £5,000 from my employer’ and make sure that the information adequately reflects the seriousness of the charge. You also need to be aware of the potential for conflict of interest between co-defendants and to be ready to advise the client to seek separate representation or at least separate counsel where appropriate: see PCS 15.03 para 2 at 3.2.1. Separate representation in this situation is expressly allowed by the Regulations and is supported by a Justices Clerks Society circular which addressed the Legal Aid Board’s apparent reluctance to agree to such separate representation in the case of solicitors’ established clients.

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Taking the headings in s 22 the following points need to be carefully related to the questions numbered 1–10 on the form. Loss of liberty, livelihood or reputation

Would a conviction mean that is likely that the court would impose a sentence which would deprive the defendant of his or her liberty or lead to loss of livelihood or serious damage to reputation? The defendant’s liberty is relevant if the offence is serious in itself, or if there are aggravating circumstances, eg the defendant has a bad criminal record or is in breach of a suspended sentence. Loss of livelihood is relevant where a conviction will result in the loss of the defendant’s job, eg loss of driving licence where the defendant is a taxi driver. Serious damage to reputation is relevant where the defendant is of previous good character and stands accused of dishonesty or violence. Note

‘Loss of liberty’ now includes threat of a community sentence because these penalties, which certainly involve restriction of liberty despite falling short of a custodial sentence, are, since the CJA 1993, regarded as a serious alternative to custody: see R v Liverpool City Magistrates, ex p McGhee (1993). Thus, although the court may still be able to justify refusing legal aid on the basis that the accused is in fact now more likely to get a community penalty than a custodial sentence, it is suggested that the best approach to this type of case is to identify as many aggravating circumstances as possible, eg either those listed under the specific offence in the Magistrates’ Court Guide or external factors such as that the offence was committed on bail. Questions of law

Are there difficult points of substantive law or evidence which may be involved, eg the admissibility of a disputed confession? Legal argument may be required as part of the defence which would be beyond the lay client, eg as to the meaning of words such as ‘dishonesty’ or ‘possession’, or as to the appropriate sentence and whether custody or community sentence thresholds have been passed.

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Inadequate English or mental or physical disability

Has the defendant an inadequate command of the English language, or a mental or physical disability? This factor might well be extremely relevant, depending on how much reading has to be done in the case. Note

Never assume that clients have the same standard of literacy and the same ability to cope with formal documentation as your colleagues; ‘inadequate English’ may apply even if nothing else is special about your client’s disabilities. ‘Disability’ may apply if your client is on drugs – always check the antecedents for signs of such a habit as if your client still has or has resumed the habit it will effect concentration which would be essential to self-representing in court. Tracing or interviewing witnesses or expert cross-examination

Are any of these required? This factor is relevant where the specialist skills of a lawyer are needed. Remember that witnesses can be very uncooperative and that there may be a need for expert evidence, as well as for maps, plans etc so that it would be unreasonable for the defendant to deal with this sort of material. Thus it was held in R v Gravesham Magistrates ex p Baker (1997) that a motorist who wished to raise a plea of special reasons because a drink had been laced would need to cross-examine witnesses, so that such a driver should be granted legal aid even though it would normally be refused save in exceptional circumstances. The prosecution are also apt to call members of professional associations and a number of professional witnesses such as police officers which will further reduce the defendant’s ability to conduct the case. There is a question 10 on the form inviting the statement of any other reasons for the desirability of legal aid in the case and under this heading can be included matters such as the likelihood of committal to the Crown Court (or that the defendant will elect Crown Court trial) or that the case is especially complex. Full details will need to be given of the complexity involved. Interests of third party

Is separate legal representation in the interests of a third party? This may be relevant in sexual or violent offences so that the victim is not cross-examined by the defendant.

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Note

Any doubt should be resolved in favour of the defendant: s 21(7).

Under s 21(3), the interests of justice are automatically presumed to be satisfied where • The charge is murder, or • The defendant is unrepresented, is at risk of a further remand in custody and was unrepresented when he was so remanded – in this case the grant of legal aid is only mandatory for the part of the proceedings relating to bail, or • A person is remanded in custody for the purposes of inquiries or reports being made. In these three cases, a grant of legal aid will depend solely on the defendant’s means. The means test

6.6.4

Even if a client satisfies the interests of justice test, a grant of legal aid will not be made unless the client also satisfies the means test. The client simply completes a statement of means in Form 5 which requires details of income and capital to be given. Note

The Legal Aid (Functions) Order 1997 will transfer from the Legal Aid Assessment office of the Benefits Agency the task of assessing the means of persons seeking legal aid, at first only in relation to civil cases but ultimately also for criminal proceedings.

If income or capital exceed the present upper limits, legal aid will be refused. If income and capital are below the prescribed lower limits, the client will receive free legal advice. Within those limits, a client is eligible for advice but must pay a contribution to the court. A contribution from capital is made as a lump sum; a contribution from income is payable in instalments over six months: s 21(10). Note

A client in receipt of income support or family credit cannot be required to make a contribution.

Refusal of legal aid

A person refused legal aid can always make another application to the court, either orally or in writing.

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The decision to refuse legal aid can be reviewed by the Legal Aid Area Committee where • It was refused because the applicant failed the interests of justice test, and • The offence is indictable or triable either way, and • The review application is made within 14 days of receiving notification of refusal, and • The original application for legal aid must have been made at least 21 days before the date set for trial, where any date has been set. (A date will not usually have been set.) The decision cannot be reviewed where • The applicant failed the means test, or • The offence is a summary offence. Note

While there must be evidence of means, legal aid can be granted if it is clear that the documentation will in due course be forthcoming: Legal Aid in Criminal and Care Proceedings (General) (Amendment No 2) Regulations 1992. This can be after the case is completed: R v Highbury Corner Magistrates Court ex p Sonn & Co (a firm) (1995).

Entitlement to legal aid can be reassessed as the case progresses and may be withdrawn if the client’s means change. It would also be revoked if the assisted person failed to pay any contribution or instalment: s 24(2). Note

You should always try to obtain a ‘through’ legal aid order. Although magistrates normally only make an order to cover proceedings before them, and the order is then extended for the Crown Court, the new PDH system (Plea and Directions Hearings: see below Chapter 12) means that you have little time to prepare the case between committal and trial, whereas any work done before a legal aid order is made will not usually be paid unless it falls within reg 44(7) mentioned above. The through legal aid order is the answer to this problem.

Crown Court legal aid will usually cover advice on appeal, but if it does not this may be given on the Green Form and a new application made, eg if another solicitor is to be used.

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6.7

Criminal legal aid is available subject to means. The means test is explained at 6.6.4.

Remuneration

6.8

You must keep a full record of the nature of all work done and time spent on it, for example • Preparation • Advocacy • Travelling time. You are entitled to be paid for work actually and reasonably done: s 25. Payment is claimed by submitting the prescribed form to the Legal Aid Area Office within three months of the conclusion of the proceedings. You should submit a claim for work done in the Crown Court to the Crown Court Taxing Office. Standard fees

6.8.1

Standard fees are paid for most proceedings in the magistrates’ court. They include: • Guilty pleas, and • Summary trials, but do not apply to • Proceedings in which counsel has been assigned under the legal aid order • Proceedings at which costs are allowed at an enhanced rate, or • Extradition proceedings. Where standard fees apply, efficient organisation, time management and negotiating barristers fees in advance becomes extremely important. The fixed sum also includes payments due to any counsel in non-assigned cases and you must, therefore, negotiate counsel’s fees in advance.

The privately paying client The same standards are expected as in civil work and all the same practices and procedures will be expected by the private criminal client as by the private civil client: see 2.6. While come clients can afford to pay out of their own pockets, there is a growing tendency for clients to have legal insurance, often as part of their ordinary house insurance. This possibility should always be checked.

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Self-assessment questions 1

What sanctions can a solicitor face for not advising clients of their right to legal aid? 2 Can you represent a client in courts under the Green Form Scheme? 3 When can you use ABWOR? 4 Can a defendant’s ‘own solicitor’ give advice at the police station under the Duty Solicitor Scheme? 5 Is the Duty Solicitor Scheme free? 6 What two tests must an applicant pass to obtain full criminal legal aid? 7 In what circumstances will legal aid for dangerous driving be granted? 8 In what circumstances will legal aid for careless driving be granted? 9 Andrea has passed the merits test but refuses to disclose details of her means to the court. Will she be granted legal aid? 10 Is there a time limit for review of a refusal to grant legal aid?

Chapter 7

Bail practice and procedure

General principles ‘Bail’ permits the release from custody of a person charged with a criminal offence who might not otherwise surrender at a time or place appointed, either for further questioning, for trial or for sentence. In practical terms, bail is an essential part of the formal system of intervals between hearings of a case for which the technical term is adjournment and since effective arrangements need to be made to secure the reattendance of the accused at the court’s next hearing of the case against him, the technical term for achieving his return to court is known as a remand. Generally, an accused will prefer, for obvious reasons, to be remanded on bail rather than remanded in custody. Bail applications therefore provide a good source of work for the solicitor. There are strict rules as to the length of time during which such remands in custody can continue: see s 22(3) of the Prosecution of Offences Act 1985 and Custody Time Limits (Prosecution of Offences/Custody Time Limits) Regulations 1987 (SI 1987/229) after which the proceedings against the accused must be progressed (unless in exceptional circumstances the court agrees otherwise, in which case they will extend the time limits: see, eg R v Birmingham Crown Court ex p Bell) (1995). Otherwise the defendant should be given bail. Now that the Criminal Procedure and Investigations Act (CPIA) 1996 is in force, custody time limits will continue to run even after arraignment until either the jury has been sworn or a guilty plea has been entered or the start of a formal preparatory hearing in a long and complex case: s 71 of the CPIA 1996. Defence solicitors are considered to owe a duty to their clients to note the crucial dates when a bail application may be made in their diaries and not to alert the prosecution to the fact that the time limit is about to run out: R v Central Criminal Court ex p Abdullah (1996). Moreover, as this case establishes, the protection of the public is now not in itself seen as a sufficient ground for extending time

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limits, a view contrary to that held in R v Luton Crown Court ex p Neaves (1992). The grant of bail is a well understood and long established system and is principally governed by the Bail Act (BA) 1976 as amended, the Bail Amendment Act 1993, which inter alia permits prosecution appeals against the grant of bail, and more recent statutes which have added further refinements. Bail may now be granted either by the police at the police station or by the court, ie the magistrates or any other court dealing with a criminal case. The time and place of surrender will be fixed and notified in each individual case either immediately at the time of grant of bail or, eg where a person is committed to the Crown Court for trial or sentence, at a later time, but whichever applies the person will then be under a duty to surrender in accordance with those conditions: s 3(1) of the BA 1976. Failure to do so without reasonable cause constitutes the separate offence of absconding and the burden of proving reasonable cause lies on the defendant: s 6 of the BA 1976. Conviction of this separate offence in the magistrates’ court will earn the defendant up to three months’ imprisonment and/or a £5,000 fine and in the Crown Court it will be a criminal contempt for which the tariff is 12 months’ imprisonment and/or an unlimited fine). Note

Where a solicitor makes a mistake in advising the client of the date of the case this can amount to an excuse for a defendant’s failure to surrender to bail and may therefore be a defence under s 6. Whether it is such a defence will depend on the particular circumstances: R v Liverpool City Justices ex p Santos (1997).

There is also a distinction between failing to respond to police bail and to bail set by the court: see Practice Direction (Bail: Failure to Surrender) [1987] 1 All ER 128 which will affect the appropriate proceedings to be taken: R v Teesside Magistrates Court ex p Bujnowski (1997). Sections 25 –30 of the Criminal Justice and Public Order Act (CJPOA) 1994 have also made some changes in the law which have led to consequential changes in practice, the most important of which is the widening of police powers to grant bail at the police station: s 27 of the CJPOA 1994. However, where it has not already been granted by the police, defendants can still apply for bail to the magistrates in whose jurisdiction the offence is charged, and may do this at any time between the charge

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and the magistrates transferring the case to the Crown Court. Moreover, the wider police powers to grant bail from the police station inevitably means that solicitors attending the police station to advise clients now also have a wider role at the police station in making representations for their client’s release on bail where the police are initially disinclined to grant it. Thus, the solicitor’s bail work was in effect increased by the CJPOA 1994. Conditional and unconditional bail

7.1.1

The grant of bail may create both primary and secondary duties. Primary duty

The bailed person’s primary duty is to surrender at the place and time required, and not to abscond. This primary duty will arise whenever the question of whether to release a defendant on bail or keep that person in custody has to be considered, ie whenever a case is adjourned and the defendant is remanded, and the defendant is granted bail. Secondary duties

Depending on the particular case, bail may be granted unconditionally or the primary duty (to surrender as required) may be accompanied by secondary duties, eg to report to the police station or to keep a curfew within certain hours, in which case bail will have been granted with conditions and the defendant must not only surrender as required but also observe these conditions. Release will therefore be on either conditional or unconditional bail. The right to bail

Pursuant to s 4 of the Bail Act 1976, a defendant in fact has a right to bail, although this ‘right’ is not automatic since it must still be demonstrated that the particular person under consideration for bail does not fall into any of the exceptions which would qualify or remove that right, since the wording of the statute expressly states that bail shall be granted except as provided in Schedule 1 of the Act. You will therefore require a close acquaintance with this Schedule which sets out the circumstances in which a person to whom s 4 applies may nevertheless be refused bail. Schedule 1 of the Bail Act

Such a person will be an accused who is either charged or already convicted of an imprisonable offence, and the

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section is designed to refuse bail to defendants who might otherwise not return to court when required. Although the Schedule conveniently puts into statutory form those points which are likely to be most relevant in deciding whether the defendant should or should not be granted bail, in practice they comprise the matters which the court would, as a matter of commonsense, have regarded as important influences on the likelihood of the defendant’s returning to court as required. The thrust of this legislation is therefore that s 4 gives a technical ‘right’ to bail unless the court is justified in refusing it because of some ground in the Schedule. The practical result is that it is therefore for the prosecution to show that the court is justified in refusing bail on one of the Schedule grounds and the court may not refuse bail on some other ground not mentioned in the Schedule unless there is an alternative statutory justification, such as under the CJPOA 1994. This may seem like splitting hairs, but in practice the statute preserves the ideal of a right to bail consistent with the concept of the accused’s innocence until proved guilty, but at the same time allows bail to be refused for certain established good reasons where commonsense would suggest that it might be unwise to grant it. Paragraphs 2 – 6 of the Schedule provide that bail need not be granted if (a) The court is satisfied that there are substantial grounds for believing that if released on bail the person would (i) fail to surrender to custody (ii) commit an offence while on bail (iii)interfere with witnesses or otherwise obstruct the course of justice. (b) The offence charged is indictable only or triable either way and the person was already on bail when the offence was committed (this provision was added by s 26 of the CJPOA 1994) (c) The court is satisfied that the person should be kept in custody for his or her own protection or, if a juvenile, welfare (d) The person is already serving a custodial sentence (e) The court has had insufficient time to obtain information sufficient to decide (a) – (c) properly. (f) The person has already had bail during the course of the proceedings and has absconded.

Bail Practice and Procedure

The court must have substantial (and not subjective or fanciful) grounds for its belief. This strengthens the burden on the prosecution to show good (and qualifying) reasons against granting bail – but the ultimate decision is the court’s, not the prosecution’s. Paragraph 9 gives some practical guidance to the court in deciding the questions posed by (a) –(c) above. They should consider the • Nature and seriousness of the charge and the probable method of dealing with it, eg if a prison sentence is likely the defendant is more likely to abscond, interfere with witnesses, etc • Character, antecedents, associates and community ties of the defendant, eg a married man with a family and a mortgage has more to leave behind if he absconds than a youth of no fixed address Note

Bail may not be refused, merely because of a lack of a settled home: Home Office Circular 155 of 1975. However, antecedents may show a likelihood of absconding, eg because the defendant is in breach of a suspended prison sentence which is likely to be activated even if the present offence is trivial.

• Defendant’s past record for answering to bail which may indicate responsibility despite the re-offending • Strength of the prosecution’s case, although unfortunately this may not be evident until a later stage, and • Any other relevant circumstances. Note

Paragraph 9 is not exhaustive and any objections substantiated by the prosecution may still be met by obtaining suitable sureties to enter into recognisances to guarantee the defendant’s appearance to answer to their bail.

By s 25 of the CJPOA 1994, however, no bail is now available for a defendant charged with or convicted of • Murder or attempted murder • Manslaughter – if the defendant received a custodial sentence, or • Rape or attempted rape if previously convicted of any such offence.

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Where the defendant was convicted as a juvenile, a custodial sentence for this purpose includes a sentence under s 53 of the Children and Young Persons Act 1933, see 15.4.1). As mentioned above, by s 26, the defendant need not now be granted bail if the offence is indictable or triable either way, and the defendant was on bail at the date of the offence: s 26 inserted a new para 2A into Part 1, Schedule 1 to effect this restriction. 7.1.3

Bail outside the Bail Act 1976

The CJPOA 1994 gives the police wide powers similar (but not identical) to the Bail Act 1976 to release those arrested and/or charged at the police station on conditional bail unless their detention can be justified by certain exceptions: see s 38 of the PACE 1984. These powers are exercisable only by the custody officer (see Chapter 8) and by s 28 of the CJPOA 1994 do not have to be used if • The suspect’s name and address cannot be ascertained or those given are reasonably suspected to be false • The custody officer has reasonable grounds to believe the suspect will fail to attend court • Where the suspect has been arrested for an imprisonable offence and it is reasonably suspected that the suspect’s detention is necessary to prevent commission of another imprisonable offence • Where the suspect has been arrested for a nonimprisonable offence and the suspect’s detention is necessary to ❍ prevent injury to another person or damage to property, or ❍ interference with the administration of justice or the investigation of an offence or offences, or ❍ for the accused’s own protection. The custody officer must take into account para 22, Schedule 1 in exactly the same way as a court unless the accused’s name cannot be ascertained or identity is disputed, or detention is necessary for the accused’s own protection (or, in the case of a juvenile, in the accused’s own interests). Conditions likely to be imposed by the police include residence and, for example, not contacting witnesses which in

Bail Practice and Procedure

some cases may be a major concern. All conditions must be recorded in the custody record (see Chapter 8): Schedule 3 of the CJPOA 1994. Note

A requirement to reside in a bail hostel can only be imposed by a court.

A review may be requested by a second custody officer at the same police station, who may vary the conditions, including making them more onerous: s 3A of the Bail Act 1976 (inserted by s 27(3) of the CJPOA 1994). Appeal may be made to the magistrates from a custody officer (including from a custody officer’s review) to vary or to remove the conditions: Schedule 3 of the CJPOA 1994. This right is exercisable independently of any occasion on which the accused may have bail reviewed by the court when that would normally be done in any event. Example

An accused is on bail for a long period and considers the bail conditions too onerous. The accused may appeal to the magistrates to vary them without waiting for the first appearance in court, which may still be a long time ahead. Note

Failure to answer to police bail now results in arrest without warrant: s 46A of the PACE 1984 (inserted by the CJPOA 1994) The court will usually issue a warrant for arrest: s 7(1) and (2) of the BA 1976.

Thus, technically the ‘right to bail’ contemplated by the Bail Act 1976 applies only to non-convicted defendants appearing in court: s 4(2). The defendant is technically at the mercy of discretion in certain circumstances contemplated by s 4(4), ie • When arrested by the police, although the provisions of the CJPOA 1994 widening police powers to grant bail do require the police to apply para 2 of Schedule 1 exactly as the court would, so this may not (in the absence of circumstances excusing the police from granting bail) be much of a restriction, especially as s 47 of the PACE 1984 requires the suspect to be released or charged unless the custody officer authorises extended detention (see Chapter 8) • When a warrant for arrest is issued

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• When already convicted, unless there is a pre-sentence adjournment for preparation of reports. However, in any situation where there is technically no right to bail, the court has a discretion if it is remanding the accused, and in these circumstances there is no need to comply with the Schedule so that the court need not adhere rigidly to the requirement of substantial cause for belief in reasons (a)– (c). 7.1.4

Taking a decision on bail

The question of whether bail should be granted or the defendant remain in custody may arise either • At the end of a day’s proceedings, immediately prior to remanding it to another day, if a trial is already in process. Example

In mode of trial proceedings the court will first comply with all the requirements of the procedure under ss 18–20, of the Magistrates’ Courts Act 1980, and if there is no election for summary trial, then consider bail and legal aid

• Alternatively, bail may be the sole reason for appearing in court for example, where the defendant • Is committed in custody to the Crown Court for trial or sentence where he or she would need to apply to the Crown Court for bail pending the anticipated appearance in the Crown Court or stay in custody until then • Has been refused bail by the magistrates (so would appeal to a Crown Court judge or be obliged to remain in custody), or • Has been refused bail by a magistrates’ court and/or Crown Court judge (so would appeal to a High Court judge or be obliged to remain in custody).

7.2

Outline bail procedure If the grant of bail is opposed, the court will be addressed by the representatives of both sides (who will cover all the relevant matters set out above) but the decision is then one for the court. Any witness, eg a police officer, may be cross-examined and either the prosecution or the defence may suggest conditions with which the defendant is willing to comply which might meet the Schedule 1 objections.

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Note

The rules of evidence are relaxed for a bail hearing which is regarded as an informal inquiry rather than an ordinary court hearing.

The decision will always be announced immediately, but lay magistrates will often retire briefly to consider whether to grant bail, especially if release on bail is opposed by the prosecution, whereas stipendiary magistrates and Crown Court judges will normally make an instant decision as soon as the advocates have sat down. If the grant is unopposed by the prosecution, the decision to grant bail is usually a formality provided there is a s 4 ‘right’. Records, reasons, certificates and rights Records

Records must be kept of bail decisions: • When bail is granted either by a police officer or a court • When a defendant with the right to bail under the Act is remanded in custody by a court: s 5(1) of the BA 1976 • When conditions are attached to a grant of bail which was previously unconditional, and • When bail conditions are varied. Reasons

When bail is refused, the court must give reasons for its decision: s 5(3), these reasons must be entered on the s 5 record and a copy must be given to the defendant unless the decision was taken by the Crown Court, the defendant is legally represented and the representative does not request a copy. The purpose of this requirement for reasons is to enable the defendant to take an informed decision about making a further application for bail. If a defendant is charged with any one of five specified offences and a court grants bail notwithstanding that the prosecution has made Schedule 1 representations (see below), the court must state its reasons for granting bail and these should be entered on the s 5 record. Certificates

Recording their reasons does not exhaust the magistrates’ duty to the defendant to whom they deny bail. Under s 5(6A) they must also issue a certificate stating that they have heard full argument on the matter. This certifi-

7.2.1

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cate is required for the further application which the defendant will probably wish to make in the hope of securing bail from the Crown Court judge. The certificate is not needed for the alternative application to a judge of the High Court. Rights

The magistrates have a further duty to an unrepresented defendant, who must be informed of the right to apply to a High Court judge to be granted bail. If they are committing the defendant to the Crown Court for trial or have issued a certificate under s 5(6A), they must also tell the defendant of the right to apply to a Crown Court judge for bail.

7.3

Bail for non-imprisonable offences The grounds for refusing bail only apply to defendants charged with crimes punishable by imprisonment. Schedule 1 of the Act also covers bail in non-imprisonable cases where standards are more lenient for the obvious reason that the accused is less likely to abscond or indulge in the other activities to which the prosecution object if not in fear of a custodial sentence. Thus the grounds for refusing bail in this case are where the defendant • Requires protection • Is already serving a custodial sentence • Has been arrested for a bail offence in connection with the case, and • Has previously failed to surrender to bail and, in the light of that failure, the court is satisfied the defendant would not surrender to bail if released again. A condition may be attached to a grant of bail in these circumstances to ensure that the defendant does duly surrender to custody, eg surrender of the defendant’s passport or frequent reporting to a nominated police station.

7.4

Conditions Section 3 of the Bail Act 1976 provides for conditions to be attached to a grant of bail. The most common are sureties, security, reporting, curfew, residence and non-communication with prosecution witnesses.

Bail Practice and Procedure

Surety

The defendant may be required to provide sureties to guarantee surrender to custody if the court or police, after arrest or charge, considers it necessary. If the defendant can provide no sureties there will be no alternative to remaining in custody, although technically bail has been granted! A surety is usually a friend, relative or employer who agrees to enter into a recognisance to pay a sum of money in exchange for the defendant being released and will then be under an obligation to use every reasonable effort to ensure that the defendant surrenders to custody and attends court. If the defendant then does not appear, the recognisance will be estreated and the money must usually be paid into court: s 120(1) of the Magistrates’ Court Act 1980, R v Maidstone Crown Court ex p Lever and Connell (1996) where it was established that the absence of culpability on the part of the surety is not of itself enough to avoid estreat or reduce the amount estreated. However, judicial review was recently granted of a court’s decision to estreat the full amount in a case where the surety had been entirely free from blame: R v Bristol Justices ex p Ahmed (1997). A surety’s duties cease on arraignment however: R v Central Criminal Court ex p Guney (1996) (where the surety did not have to pay £650,000 after all when the defendant fled after arraignment at the preparatory hearing). A surety therefore needs financial resources, good character and lack of significant previous convictions, and proximity to the accused whether geographical or of relationship: see s 8(2) of the BA 1976. Suitability of sureties is usually determined by the police or court clerk, but appeal may be made to the court if a surety is rejected: s 8(4) of the BA 1976. Note

It is contrary to professional conduct for a solicitor to stand bail: PCS 21.15.

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Security

A defendant may be personally required to give security, eg a deposit of money by a foreign tourist or regular traveller. Reporting to a police station

This may be as frequent as the court wishes in order to operate as a constant check on the defendant’s continuing presence in the area. Curfew

This is commonly imposed to prevent a defendant with a history of night time offending from leaving home during the evening, night and early morning. Residence

The most common is a requirement to reside at a specific address (which may possibly be combined with local reporting and curfew as above) or in a bail hostel. Non-communication with prosecution witnesses

This is commonly imposed to avoid interference with witnesses and may mean that a defendant has to move elsewhere pending trial so as not to come into contact with such witnesses. Note

Conditions attached to a grant of bail can be appealed against.

7.5

Renewing an application for bail Magistrates who refuse bail to a defendant are obliged to consider the question of granting it on each occasion on which the defendant appears before them, provided that the defendant is still in custody and still has the ‘right’ to bail. Two applications for bail may be made on the basis of the same arguments without introducing any new considerations, after which the magistrates are not obliged to hear the same grounds any further without the introduction of new matter, eg a job or a surety becoming available which was not the position on an earlier occasion: s 154 of the CJA 1988 which inserted a new Part IIA into Schedule 1 of the Bail Act 1976 which is the origin of the requirement for the magistrates to issue the certificate mentioned above at 7.2.1 that they have heard full argument. In calculating the two occasions on which the same arguments may be used, the court ignores any hearing on which they were unable to make a decision due to insufficient information: R v Calder Justices ex p Kennedy (1992).

Bail Practice and Procedure

The 28 day schemes for remand in custody

Despite the normal requirement that a defendant may not be remanded for longer than eight clear days and so in practice is produced to the court weekly, an accused may, in certain circumstances, be remanded in custody for 28 days without being produced to the court during that period. This is permitted pursuant to s 128 of the Magistrates’ Courts Act 1960 • Where there are successive remands in custody, the accused has consented to a remand in absence (and has not withdrawn the consent) and is represented (whether the solicitor is in fact in court or not) the accused need only be produced every fourth week: s 128(3A) Note

The remand is still for a maximum of eight clear days: the court make the remand decision in the defendant’s absence on three successive weeks. On the fourth week, the defendant must attend in person. He or she can of course consent to a further remand in absence.

• Where the court has previously remanded the accused, who is before the court, for the same offence, and it can on that occasion set a date on which it expects the next stage of the proceedings to take place: s 128A inserted by s 155 of the CJA 1988. Note

The accused can always consent to long remands on bail, in which case there is no time limit: s 128. However solicitors should only advise clients to consent to such remands in exceptional circumstances. Custody limits for juveniles have now been brought into line with those for adults: s 52 of the CPIA 1996, Home Office Circular No 2 of 1997. Example

Mortimer is arrested and refused police bail on Sunday night. He appears before Gladbury Magistrates’ Court on the Monday morning of Week 1 when his solicitor makes a bail application which is refused. He is remanded in custody until the Monday of Week 2 when his solicitor makes a second application for bail which is refused and he is remanded in custody until the Monday of Week 3. In the meantime, Mortimer appeals to the High Court against the refusal of bail and is again refused. Mortimer has now used up both his two opportunities to make a bail applica-

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tion and had an appeal. At the hearing on the Monday of Week 3, the Gladbury Magistrates have to consider bail but Mortimer has no right to make a bail application. Mortimer agrees to a remand in absence. He is remanded in custody until the Monday of Week 4. Mortimer is absent and the Gladbury Magistrates remand him until the Monday of Week 5. At that hearing Mortimer is absent and is remanded until the Monday of Week 6. At the third successive hearing in Week 6 Mortimer is absent and is remanded until the Monday of Week 7. In Week 7 Mortimer is produced in court. If his case is still not ready to proceed he can consent to a remand in absence.

7.6

Appealing against a refusal Where the applications to the magistrates are exhausted, there are two possibilities. Appeal to the Crown Court

This is provided for under s 81 of the Supreme Court Act 1981 (as amended by the CJA 1982) • Where the magistrates have simply refused bail and issued a certificate of full argument • Where the defendant is committed to the Crown Court in custody (either for trial or sentence) • Where the defendant has already been convicted and given a custodial sentence by the magistrates and they have refused bail pending an appeal to the Crown Court. The appeal is heard by a judge sitting in chambers at either the Crown Court to which the case was committed or at the nearest Crown Court. Unless the appeal is made by the prosecution, the accused will not be present at the appeal although the Crown Court can grant permission. Appeals to a High Court judge

Under RSC, Ord 79, r 9, and s 22(1) of the CJA 1967, appeal may be to a High Court judge • Where the magistrates have refused bail • Where a defendant in custody applies to the Divisional Court of the Queen’s Bench Division of the High Court (QBD) for an order of certiorari to quash a decision of the magistrates’ court • Where a defendant in custody appeals by way of case stated to the High Court against a decision of the Crown Court, or applies for an order of certiorari to quash a decision of the Crown Court

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• Where appeal is against the conditions of conditional bail. The application is made by summons, supported by an affidavit. The summons, which will be heard by a High Court judge in Chambers, must be served at least 24 hours before the hearing. There is no criminal legal aid (though civil legal aid might – in theory though not often in practice – be available). As a result this avenue of appeal is expensive, and the Crown Court route will probably be preferred, although there is no need to go to the Crown Court first, and an accused may try them in turn in whichever order is preferred. However, if successive applications are made, the second judge should always be told about the earlier application to the other court.

Appeal by the prosecution against the grant of bail Section 1(1) of the Bail (Amendment) Act 1993, in certain circumstances, confers a right of appeal by the prosecution against magistrates’ decision to grant bail. This applies where bail is granted to a person who is charged with or convicted of an offence • Punishable by imprisonment of five years or more, or • Under ss 12 or 12A of the Theft Act 1968. The appeal is to a judge of the Crown Court and can only be made if the prosecution made representations that bail should not be given before the bail was actually granted. A new s 5A was inserted into the Bail Act 1976 by s 30 of the CJPOA 1994 which strengthened the prosecution’s position with regard to bail decisions by creating a new power to have bail revoked, or conditions attached to existing unconditional bail when new information has come to light since the original bail was granted. This only applies to indictable offences and those triable either way (and thus excludes TWOC offences as they are always summary only even though TWOC offences will still be covered by the Bail Amendment Act procedure above). However, the only requirement as to the ‘newness’ of the information relied on is that it should not have been before the court before. (This seems to absolve a slipshod custody officer or prosecution lawyer from the consequences of failing to access the information at the earlier stage.)

7.7

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Example

The defendant has a previous conviction for rape but through an oversight the prosecution fails to draw it to the attention of the court and the defendant is granted unconditional bail. An application can be made to have the defendant’s bail revoked.

Self-assessment questions 1 2 3 4 5 6

What is bail? How does it relate to remands? What is the ‘right’ to bail? When is there no right to bail? How and when should you apply for bail? What is the effect of s 154 of the CJA 1988? Under what circumstances and how may a defendant appeal against the refusal of bail by the magistrates? 7 What is the effect of the Bail (Amendment) Act 1993? 8 What is the advantage (if any) of applying to the Crown Court rather than to a High Court judge for bail? 9 What conditions may be attached to a grant of bail? 10 What is a certificate of full argument?

Chapter 8

PACE and police station procedure

Introduction

8.1

Detention, treatment and questioning of the suspect in the police station is governed by the Police and Criminal Evidence Act (PACE) 1984, the Criminal Justice and Public Order Act (CJPOA) 1994 and the PACE Codes made thereunder which regulate police station procedure. The significant matters regulated are • Police powers of arrest, search, detention and questioning • The right to free legal advice and assistance, and to have someone informed of the suspect’s detention • Identification procedures including parades • The volunteer, ie a person who has not been arrested but is ‘helping the police with their enquiries’, and • The importance of evidential considerations at every stage of the criminal process. (For the general principles of the law of evidence, see Chapter 16 et seq.) Note

The five Codes of Practice made under ss 60 and 66 of PACE 1984 are A Stop and search B

Search and seizure

C

Detention

D Identification E

Tape recording.

Arrest The police often do not need a warrant to make an arrest as they have wide powers to arrest without one.

8.2

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8.2.1

Arrest with a warrant

If they do have a warrant of arrest it will have been issued by a magistrate, to obtain which an information will have to be laid before a magistrate in writing and on oath. This is done by a constable. To obtain such a warrant the offence must be • Triable on indictment • Punishable by imprisonment, or • The person’s address is not sufficiently established for a summons to be served. The magistrate may if desired endorse the warrant for bail: s 117 of the Magistrates’ Courts Act 1980. If this is not done, unless the police choose to grant bail in the police station, the person arrested will have to go before the magistrates to obtain bail: see Chapter 7. 8.2.2

Arrest without a warrant

This is the more common form of arrest, and must be considered in relation to three distinct situations • Arrestable offences • Non-arrestable offences • Other situations. The arrestable offence is an important concept in the PACE scheme which consolidated and rationalised statutory powers of arrest, so it is important to understand what it is. Arrestable offences

If an offence is arrestable, a constable will have a power of summary arrest, ie immediate arrest without prior formalities. It is for this reason that some offences in Chapters 4 and 5 are identified as arrestable or not, eg theft and taking a motor vehicle without the owner’s consent under s 12(1) which are both arrestable offences. However, it is also possible to identify such offences generically. An arrestable offence means is one where • The sentence is fixed by law, eg murder, s 12(1) of the Theft Act 1968 • A first offender aged 21 or over may receive a prison sentence of five years or more, eg theft (the critical word is may as it is irrelevant that a defendant would not in fact receive such a sentence because of policy in relation to the species of theft, eg stealing low value goods)

PACE and Police Station Procedure

• The offence is one of attempting, conspiring, inciting, aiding and abetting, counselling or procuring any of the above offences (except s 12(1) of the Theft Act 1968). Where an arrestable offence is involved, a constable may arrest anyone who is or whom the constable has reasonable grounds for suspecting is • About to commit such an offence: s 24(1) • In the act of committing such an offence: s 24(4) • Has, on the constable’s reasonable suspicion, committed such an offence: s 24(6). Note

Such an offence may also be a serious arrestable offence, ie where it has led to the death of any person, or to serious financial loss (on an objective test) or serious financial gain (on a subjective test) or is likely to lead to any such consequences, or where there may be serious interference in the administration of justice or the investigation of the offence. This is an important concept in relation to some provisions of PACE which regulate activities at the police station, so that a superintendant may have to decide whether an offence is or is not a serious arrestable offence, in case of doubt by perusal of the Act. However a non-arrestable offence can never become a serious arrestable offence. Non-arrestable offences

There is a similar regime for non-arrestable offences, ie those which do not fall within s 24, such as careless driving. However, a constable may still be able to arrest immediately for such an offence if s 25 applies, ie if • The service of a summons would be superfluous because one or other of the general arrest conditions is satisfied, ie ❍ The suspect refuses to give a name or address or provides details which the constable has reasonable grounds to disbelieve, or ❍ The constable has reasonable grounds to believe that arrest is necessary to prevent any such persons – harming themselves or others, or – suffering physical injury, or – damaging property, or

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–

committing an offence against public decency, or – obstructing the highway. Equally a constable may arrest anyone whom the constable has reasonable ground to suspect • Is committing or attempting, or • Has committed or attempted to commit a nonarrestable offence ❍ provided it again appears to the constable that service of a summons is impracticable or inappropriate because one or other of the general arrest conditions is satisfied, but there is no power of summary arrest where the constable suspects that a non-arrestable offence is about to be committed and such an arrest is unlawful. Other powers of arrest

There are certain other statutory powers of arrest, eg where the potential arrestee is absconding under the Bail Act 1976 8.2.3

Duty to state that a person is being arrested and to give reasons

For an arrest to be lawful the arrested person must at least know that he or she is being detained and the reasons for it must be given to the suspect at the time or as soon as is practicable after arrest: s 28. There is no requirement to use technical language. It is sufficient that the person knows by what is said and done that he or she is no longer free to leave. It is at this stage that an appreciation of evidential considerations first becomes important since anything the accused says or does not say may now be used as evidence at the trial, and inferences might be drawn from silence under s 34 of the CJPOA 1994. (See Chapters 16 et seq, on this extensive topic.) At this stage onerous obligations are now also imposed on the police by the CPIA 1996 since they will meet the definition of an investigator (‘any officer involved in the conduct of a criminal investigation’) and have not only the duty to record and retain all relevant information but also that to pursue all reasonable lines of enquiry, whether these point to or away from the suspect: see the Code of Practice, para 2.1.

PACE and Police Station Procedure

Duty to caution on arrest

Code C, para 10 requires that an accused must be cautioned on arrest in the following terms: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.

Due to the changes made by ss 34 –39 of the CJPOA 1994 – which deal with the accused’s failure to mention facts later used in the defence and the inferences that may be drawn – this new form of caution draws the accused’s attention to those inferences. Failure to use the new form of caution would of course mean that such inferences could not be drawn at a later stage, but it is not essential that the precise form of words be used, if the sense is clear. Failure to caution at all is a breach of Code C. This does not, however, mean that the police have acted unlawfully, but the Codes are admissible in evidence, and breaches of them are excellent support when the defence wishes to challenge or exclude the prosecution’s evidence on the grounds that it is prejudicial to the defendant’s trial under s 78 of the PACE 1984. The precise extent of the changes brought about by the new statutory provisions removing the former ‘right to silence’ is still unclear. Opinions range from one extreme to the other. There are those who still say that a fundamental right against self-incrimination has been removed, and others who claim that it makes no difference because the accused can still explain away any silence as caused by fright, shock or advice from a lawyer, but see R v Roble (1997) which makes it clear that some reason must be shown for such advice being given, making this a very limited exception. However, as s 34 of the CJPOA 1994 now enables inferences to be drawn from any failure to reveal any relevant fact that might have been mentioned in the accused’s favour at the time when he was apprehended, when any such fact is subsequently raised in the accused’s defence (at arrest, questioning or charge, or at any stage in that process, including after charge), you must reassess the advice you give to clients in the police station and perhaps your general advice to regular clients as to what to do before you get there, ie at the pre-arrest encounter with the police and during the journey to the police station. (For further information you should again consult the chapters on evidence.)

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8.3

Search

8.3.1

Stop and search

Code A and s 1 of the PACE 1984 permits a police officer to stop and search any person or vehicle for stolen or prohibited articles, ie: • Offensive weapons, or • Articles made or adapted for use in ❍ burglary ❍ theft ❍ taking away a motor vehicle, and ❍ obtaining property by deception. The officer must have reasonable grounds to suspect that stolen or prohibited articles are being carried, the test for which is objective one: gut feelings are not enough, and reasonable suspicion must not be entirely generated or supported solely by obviously prejudicial factors such as racial origin, dress or previous convictions: see Code A, para 1. Code A, para 3 also provides that searches in public are limited to superficial examination of outer clothing, a suspect cannot in public be required to remove clothing other than an outer coat, jacket or gloves and search in public should be completed as soon as possible and any more thorough search should be done out of public view. Note

There is a general power of stop and search where it is reasonably believed that an incident involving serious violence may have taken place but an office of the rank of superintendant or above must give permission: s 60 of the CJPOA 1994.

8.3.2

Power to enter and search premises

Code B permits a police officer to enter and search premises • With the written permission of the occupier • For certain other purposes under s 17 ❍ to execute a warrant of arrest ❍ to arrest any person for an arrestable offence, or ❍ to save life or limb or prevent serious damage to property • After arrest for an arrestable offence pursuant to s 18, to search the arrested person’s premises for

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evidence relating to the offence or connected or similar arrestable offences, but this should be distinguished from trawling the premises for evidence generally (or planting it!) and a full record of all searches is to be made on the accused’s custody record: see 8.4.3 • On or after arrest under s 32 ❍ in the place where the arrest took place, or ❍ in the place where the accused was immediately beforehand to look for evidence relating to the offence for which the accused was arrested. Such a search may also be carried out if a constable reasonably believes that the accused may have concealed anything, eg in clothing that might assist escape from custody or which might be a danger to the accused or others • Under a search warrant. Code B paras 5 and 7 require that all searches should be carried out • At a reasonable hour (unless this might frustrate the purposes of the search), and • With due consideration for property and privacy. The occupier should be informed of the purpose, grounds and authority of the search and given a notice setting out police powers and the occupier’s rights and a written record of the search should be made by the officer in charge on return to the station.

Detention at a police station Once the suspect has arrived at the police station, the distinction in the PACE regime between arrestable and seriously arrestable offences becomes evident since for the former only 24 hours detention without charge will be permissible whereas for the latter such detention can last for up to 96, for monitoring of which there is a system of periodic reviews under which authority for continued detention of an arrested person without charge is granted by police officers of increasing rank and then by magistrates. All detention is supervised by the custody officer (see 8.4.3) who is the lynchpin of the system at all designated police stations. On arrival, the arrested person will, inter alia, be searched by the custody officer pursuant to s 54 of the PACE 1984, and he will open an individual custody

8.4

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record on which to record all significant details of the detention, including all property on the arrested person at that time. 8.4.1

Attending a client at the station Your ‘tool kit’

You will need to take with you the following materials: • PACE and the Codes* • ‘Advising a suspect in a police station’ (Law Society)* • Police Powers, Levenson and Fairweather (LAG) or PACE 1984, Zander (Sweet and Maxwell)* • A textbook on substantive criminal law • Home Office Circular 66/90* (provision for mentally disordered offenders) • Personal identification • Headed writing paper from your firm (and carbon paper or carbonless copies) • Legal Aid forms • Standard case report forms for contemporaneous use • Pens, paper, phonecards or change. Items marked * are prescribed materials for Legal Aid Board Duty Solicitor Arrangements 1990. Your aims at the police station

The purpose of your attendance at the station is fourfold: • Obtain information from the police • Advise your client in private, including on matters arising during the detention • Be present when your client is interviewed • Safeguard your client’s rights. Note

The amended Code C, note 6D, appears to favour a more positive and proactive role for the solicitor who ‘may’ now officially intervene to: • Seek clarification • Challenge an improper question or the manner in which a question is put, and • Advise that it should not be answered at all.

PACE and Police Station Procedure

Note

It is clear from the case of R v Condron and Condron (1996) and R v Cowan and others (1995) that you can safely advise your client to remain silent until a case to answer has been established at the station and that no inference from failure to answer questions can on its own prove guilt but from R v Roble that this is limited by the necessity to give a reason for doing so. Moreover, it is clear that you may if necessary be called as a witness by your client, without waiving legal privilege, to rebut an inference at trial of recent fabrication of a defence if you had good reason to advise your client not to remain silent at the police station. For further detail on this point see 22.6 below and, for the procedure adopted, 22.6.6.

Your role at the interview therefore requires you to: • Participate – not just to be a witness, although your mere presence will no doubt usefully inhibit the interrogators • Position yourself to maintain eye contact with your client and avoid police attempts to prevent this • Watch for police attempts to undermine your client’s silence. Remember • When a client refuses to answer questions this does not prohibit an officer from asking them: Code C, note 1B • You can still advise your client not to answer questions if you are satisfied that this is the correct response • Watch for offensive, threatening or insulting questions and object • Make sure your client’s version of events comes out • Make sure the Codes are complied with, especially recognised meal breaks and breaks every two hours • Be aware of what constitutes misconduct by a solicitor at interview: Code C, Note 6D Your role after the interview is to consolidate your client’s position and requires you to: • Obtain as much information as possible • Consider whether there is sufficient information for the police to charge your client or whether

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your client should be released immediately • Check review times and make representations on detention if appropriate • When the client is charged make bail representations • See the client again and keep in touch. 8.4.2

Serious arrestable offences: s 116 and Schedule 5 PACE 1984

The practical importance if your client is detained for such an offence is that you may not be told about your client’s detention until 36 hours have gone by since, while legal advice cannot be completely denied, Code C para 6, Annex B permits a superintendant to postpone the client’s right to see you provided there are reasonable grounds to believe that the exercise of the right to legal advice will lead to • Interference with persons or evidence • Warning of other suspects • Hindrance to the recovery of property. If this delay is occasioned, it will obviously be the more important that you should be familiarised with all that has happened during your client’s detention immediately on arrival and you are entitled to insist on reading the custody record and seeing your client privately at your own pace in order to do this, regardless of the length of time that has already passed. Generally, the position of legal advisers has been improved by the recent amendments to the Code. Code C para 6.12 enlarges the definition of a ‘solicitor’ to include trainees, clerks and legal executives, and the amendments appear to recognise that the adviser’s only job is to protect and advance the legal rights of a suspect even if that means being uncooperative and apparently obstructive. The Code still does not require the police to disclose their prima facie evidence before interview, although this was recommended by the Royal Commission, and this is a prime justification for you to be with your client at the station as soon as possible so that no advantage is taken. 8.4.3

The custody officer

The first person to see is the custody officer, a police officer of at least the rank of sergeant who has particular responsibilities for arrested persons at designated police stations, ie a police station which has adequate detention facilities, so that it is to one of these police stations that an

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arrested person who is to be detained for more than six hours must be taken: s 30 of the PACE 1984. The custody officer must not be involved in the investigation for which a suspect is detained and by Code C has the following duties • To provide specified information • To open and maintain the custody record • To ascertain and collect the property of an arrested person on that person’s arrival for which he may search: s 54 of the PACE 1984 • To investigate whether there is sufficient evidence to charge • To authorise continued detention • To consider and grant police bail • To ensure treatment of arrested persons is in accordance with PACE and the Codes • To release an arrested person if there are no proper grounds for detention. Information to be provided

The first act of the custody officer is to inform all arrested persons of their rights, whether the arrest has been the cause of arrival at the station or whether having attended at first voluntarily a suspect was then arrested at the station and thus prevented from leaving: Code C, para 3. These rights are • To have someone informed of the arrest: s 56 • To consult a solicitor: s 58 • To see the Codes. The custody officer must • Give the suspect a written notice setting out these three rights • Tell all suspects of their right to a copy of the custody record • Tell them the arrangements for obtaining legal advice • Give them a brief note of their entitlements while in custody • Give them a copy of the caution. The suspect should then sign the custody record to acknowledge receipt of these records and you should look for a record of all this and for your client’s signature when you arrive.

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The custody officer must then consider whether to charge the suspect and for this purpose must determine whether there is sufficient evidence and can detain your client for long enough to do so. In most cases, there will be insufficient evidence to enable the custody officer to charge before interviews have taken place at the station but Code C, para 16.1 provides that the custody officer should consider charging when an interviewing officer considers that • There is sufficient evidence to prosecute a detained person • There is sufficient evidence for a prosecution to succeed, and • The detainee has said all that he or she wishes to say about the offence. The custody record

The custody record is a chronological record of events taking place during the detention period: Code C, para 2. When your client is ultimately either released or taken before a court, you or your client can have a copy of the record on request and this right continues for 12 months after your client’s release: para 2.4. Amendments to Code C affecting the custody record

There have been numerous small but detailed amendments to Code C, not the least curious of which is the new C1, which implements the recommendations of the Royal Commission by providing that it is recognised that it is sometimes impossible to apply the requirements of the Code immediately. The new provision requires the custody record to note such delays and the reasons for them. By Code C3.4, the custody officer is now to note any comments made by the detainee as to any disagreement(s) with the arresting officer’s account of what happened at the time of the suspect’s arrest, but the suspect is not to be invited to make any comment on any such difference in the conflicting accounts of the matter. C3.5 requires a suspect who refuses legal advice to be asked why, and the answer noted: C3.5(a). Moreover, even if suspects initially refuse legal advice, they must now be told if a lawyer arrives at the police station to act on their behalf. You should look for this on the custody record if you are kept waiting when you do arrive. Where an accused has a change of mind about wanting legal advice and an interview is to be conducted

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with the accused in the absence of a solicitor, it is ‘recommended’ that an officer of the rank of inspector or above should ask the accused why and tape record the answer. Code C para 6.1 permits the inspector to give authorisation for such an interview over the telephone. Release by the custody officer

The detainee must be released unless the custody officer has reasonable grounds to believe that detention is necessary to • Secure or preserve evidence, or • Obtain such evidence by questioning and of course the latter is the usual reason for detention at the police station. See further the note at 23.8.2. Reasons for detention

8.4.5

The custody officer may therefore authorise a suspect’s detention, must inform the suspect of the grounds for detention as soon as practicable and before any interview starts, must enter them on the custody record preferably in the suspect’s presence: s 37(4) of the PACE 1984 and Code C, para 3.17. The suspect (if conscious and capable) should then be asked to sign the custody record, indicating whether legal advice is or is not wanted at this point. Right to free legal advice

The reason for this signature is that the suspect has a right to consult privately with a solicitor at any time if he or she asks to do so: s 58 of the PACE 1984. This solicitor may either be the suspect’s own or the duty solicitor if available: see 6.5. A suspect attending ‘voluntarily’ to ‘assist the police with their inquiries’ has the same right. No interview can take place or continue until that advice has been received unless • The offence in a serious arrestable offence, in which case the serious arrestable offence regime described above at 8.4.2 may operate to delay access to a solicitor • A solicitor has agreed to attend but waiting for the solicitor to arrive would cause unreasonable delay to the investigation, or • The solicitor requested ❍ cannot be contacted, or ❍ has indicated earlier that he or she does not wish/has declined to attend, and

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the suspect has been advised of the Duty Solicitor Scheme but has not requested the duty solicitor, or ❍ the duty solicitor is unavailable. In these circumstances, provided that an officer of at least the rank of inspector agrees to it, the interview may proceed without a solicitor present. Alternatively, if the suspect changes his or her mind and agrees in writing or on tape to the interview proceeding without a solicitor present and an officer of at least the rank of inspector also agrees the interview may then proceed: Code C, para 6.6. ❍

8.4.7

Improper denial of access

Where access to a solicitor is improperly denied any confession obtained in the absence of a solicitor may be inadmissible under ss 76 and 78 (see Chapter 23). 8.4.8

Payment for advice given at a police station

The Act provides that provision of legal advice and assistance at a police station in connection with an offence is free up to an initial limit of £90 (exclusive of VAT), which can be increased (see 6.5). 8.4.9

Right to inform someone of arrest

A suspect arrested and detained at a police station has a right to have a friend, relative or other person notified as soon as practicable of their arrest and whereabouts but this must be requested: s 56 of the PACE 1984. If the person selected cannot be contacted, the suspect may choose up to two alternatives: Code C, para 5. Note

Under Code C, para 5, Annex B where the offence is a serious arrestable offence and one or more of the grounds set out for delaying of legal advice for serious arrestable offences applies, the exercise of this right can be delayed for up to 36 hours so as not to alert accomplices.

PACE and Police Station Procedure

Interrogation Interviews What is an interview?

Code C para 11.1A provides a new definition of an interview: An interview is the questioning of a person regarding his involvement in a criminal offence which by virtue of para 10.1 of Code C would require to be carried out under caution.

It therefore follows that once an officer suspects, reasonably or not, that a person has committed an offence, any resulting question is an interview. Thus, as mentioned above, there may be evidential importance in an accused’s answers, or lack of them, even at this stage, before formal arrest or voluntary attendance at the police station. Note

When this new definition first replaced the law which was growing up around the concept of an interview, commentators initially remarked on the difficulties which would face the police in cases of urgency entitling them to interview outside the police station, since the warnings that by Code C para 10.5B must be given and the inferences that by Code C para 10.5A may be drawn from silence if no explanation is forthcoming could clearly be monitored by tape recording or by verbatim note when actually in the police station, but would present problems when the officer is outside that controlled environment. Some commentators thought the new requirements unworkable, others that the result would merely be a good deal of confusion at trial and an increase in appeals. However, the police appear largely to have been able to work within this regime: moreover Lord Taylor at an early stage drew attention to the importance of recording events – either what was said or the fact of silence – at the scene of the crime at the first opportunity in the formal interview: see Hansard, HL, Vol 556, col 1401. Decision to arrest

When the decision to arrest is initially made, the suspect must not normally be interviewed until suspect and police are at the police station.

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Interview after charge

After charge the only questions about the offence which can still be asked are those necessary to: • Prevent or minimise harm or loss to a third party or the public. • Clear up an ambiguity in a previous answer of statement. • Give the suspect an opportunity to comment on information which has become available after charge: Code C, para 16.5. 8.5.2

Cautioning

In addition to the caution on arrest, a suspect must be cautioned at the start of an interview and after any break: Code C paras 10.1 and 10.5. In R v Saunders (1988) evidence was excluded after an incorrect caution was given. This might not happen now if the substance of the new caution was conveyed. 8.5.3

Legal advice

The suspect must be reminded of the right to legal advice before the start of the interview and after any break: Code C, para 11.2 and s 58 of the PACE 1984. Such a request must delay an interview until you are able to arrive unless one of the provisions for delaying legal advice applies (see 8.4.2). 8.5.4

Recording interviews

An accurate contemporaneous record of an interview must be made unless this is impracticable: Code C, para 11.5, eg where the tape machine is broken and there is no one available to take a long-hand note in full. Where such a record must be made, it is usually done by writing down each question followed by the answer, verbatim. Where it is not practicable to make a contemporaneous record, one must be made as soon as possible: Code C, paras 11.7 and 11.9. The suspect must be given an opportunity to read the record and sign it as correct or to indicate how he or she believes it to be inaccurate, unless this is impracticable: Code C, para 11.10 but police station interviews should normally be tape recorded unless the offence is a summary offence only, although some offences, eg offences of terrorism and offences under s 1 of the Official Secrets Act 1911 are excluded from this requirement.

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Tape recording of interviews

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8.5.5

Suspect’s consent required

A suspect may object to an interview being tape recorded. Such objections should be recorded on tape. The officer has a discretion to continue tape recording but this may result in adverse comment in court: Code E, para 4.5 and note 4G. Procedure

Two tapes are used at an interview so that the master tape may be sealed at the end of the interview and signed by the suspect and solicitor or, if the suspect refuses, by an inspector. The master tape is then treated as an exhibit and usually can only be played in court: Code E, para 4.15. The second tape is the working copy, from which the police prepare a summary of the interview. You have a right of access to the working copy, and often need to hear it to check the accuracy of the police summary. Where serious disagreement occurs, a transcript for use at trial can be prepared. The master tape itself can be played in court where the way something was said is relevant. Detention conditions

Under Code C, para 12 and Annex C • Breaks in interviewing should take place at recognised meal times and for refreshments every two hours • Interview rooms should be adequately heated, lit and ventilated • Suspects at interviews shall not be made to stand • Suspects who are unable to appreciate the significance of questions and their answers through drink or drugs may not be questioned unless a superintendent considers that delay will involve an immediate risk of harm to persons or serious loss of or serious damage to property • In any period of 24 hours a detained person must be allowed a continuous period of eight hours rest, normally at night. Time limits for detention without charge Non-serious arrestable offences

In this case the suspect cannot normally be held for more than 24 hours from arrival at the station without charge: s 41(8) of the PACE 1984.

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Serious arrestable offences

In this case, a superintendent may authorise detention of 24 – 36 hours and provided there are reasonable grounds for believing that • It is necessary to detain the suspect without charge in order to secure or preserve evidence, or to obtain such evidence by questioning, and • The investigation is being conducted diligently and expeditiously: s 42(1) of the PACE 1984. Reviews of detention without charge

Detention continues subject to a regular regime of reviews. The first must be not more than six hours after detention was first authorised and then at nine-hour intervals. Such reviews are conducted by a review officer of at least the rank of inspector and not directly involved in the investigation: s 40 of the PACE 1984. You or your client must have an opportunity to make representations orally or in writing. The outcome of each review must be recorded in the custody record: Code C, para 15. The grounds for continued detention are the same as for initial detention, ie the review officer has reasonable grounds to believe that detention is necessary to secure or preserve evidence or to obtain such evidence by questioning: s 37(2) of the PACE 1984. If this cannot be established, the suspect must be released. However, a review may be postponed where • It is not practicable to hold it at the correct time • The suspect is being interviewed, and review would prejudice the investigation, and • No review officer is readily available. A postponed review must be conducted as soon as practicable and it does not delay subsequent reviews. Warrant of further detention

Detention beyond 36 hours even for a serious arrestable can only be authorised by a Magistrates’ Court: s 43 of the PACE 1984, and the grounds established must be the same as those for continued detention under s 42(1) above. The court may initially authorise continued detention for a further 36 hours and then extend that to a further 24 hours up to a maximum period of 96 hours in total from arrival at the station.

PACE and Police Station Procedure

Identification procedures Methods of identification Visual identification

This is covered by Code D which deals with • Identification parades • Group identification • Video identification • Confrontation • Photographs • Fingerprints. Identification parades

An identification parade gives a witness an opportunity to see the suspect as soon as possible after the offence and tests the witness’ ability to identify the suspect in a group of people of similar appearance. It also affords opportunities for mistaken identification unless carefully conducted which is the rationale behind regulation by the Code. For example, the new Code D para 2.0 provides that a written record should be made of the first description of a suspect given by a witness before the witness takes part in an ID parade. A suspect can refuse to take part in an identification parade or a group identification but the police can then use other methods of identification, ie a confrontation, which cannot be refused, although the least evidential weight is accorded to identification on a confrontation. Where identification evidence is disputed and the suspect wants an identification parade, one must be held unless it is not practicable to do so: Code D, para 2.3 – 5. Where it is not practicable to hold an identification parade, a group identification may take place or (as a last resort) a confrontation. Conduct of an identification parade Under Code D, Annex A requires that the parade must involve a line of at least eight people (in addition to the suspect) who, as far as possible, resemble the suspect in age, height, general appearance and position in life. The suspect may select the position in the line in which he or she wishes to stand and may change position if there is more than one witness. Each position in the line must be clearly numbered. An officer must be in charge of the parade who is at least of the rank of inspector and not involved in the investigation and must ensure that witnesses do not

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• • • •

Communicate with one another See the suspect before or after the parade See any member of the parade beforehand On that occasion see or be reminded of any photograph or description of the suspect or any other indication of the suspect’s identity. Witnesses should be brought in one at a time. They should not be told of the composition of the parade or whether a previous witness has made a positive identification. The officer in charge should tell them that the offender may or may not be on parade and that if they cannot make a positive identification that they should say so. A positive identification should be made by indicating line position, eg ‘It is number 8’. You should attend the parade and your role is to • Check the appearance of your client, who if detained overnight may need to freshen up to reduce the risk of mistaken identification by looking crumpled • Ensure that the parade members are acceptable or object to them • Ensure your objections are recorded if the parade proceeds regardless • Check the route taken by witnesses to the parade and that there is no opportunity for communication between them • Ensure that there are no accidental meetings between your client and the witness(es) • Be alert throughout and ensure Code D is complied with. However, deliberate leading of witnesses by police will invalidate the witnesses evidence! Proper conduct of the identification parade is very important because it may confirm weak identification evidence: see Turnbull guidelines – 28.2.1. Group identification

This is covered by Annex A of Code D. Where your client refuses to take part in an identification parade or fails to attend, or where a parade is impracticable, a group identification may be an alternative. This still gives a witness the opportunity to see the suspect in a group of people, preferably outside a police station, eg in a park or shopping centre: Code D, paras 2.6–9.

PACE and Police Station Procedure

Your client can also refuse to take part in a group identification but the officer in charge of the identification has a discretion to proceed, if it is practicable. Video identification

A video film of your client can be shown to a witness (providing the suspect consents) where the suspect has refused to participate in an identification parade or a group identification. Even if the suspect refuses consent, the identification officer has a discretion to proceed with a video identification, if it is practicable: Code D, paras 2.10–12, and Annex B. The film, like an identification parade, must include the suspect and at least eight other persons of similar age, height, general appearance and position in life. You should be given reasonable opportunity to view the complete film before it is shown to witnesses. The police must take reasonable steps to deal with any objections. Confrontation

If no parade, group identification or video confrontation is arranged, because your client refuses or none of the other procedures are practicable, the suspect may be confronted by the witness. Your consent is not required for this procedure, although the suspect must be confronted independently in your presence by each witness who must be asked ‘Is this the person?’: Codes 2.13–14 and Annex C. Note

Before an identification parade, group identification or video identification is arranged, Code D, para 2.15 requires the identification officer to explain to your client, inter alia: •

The purposes of the identification

•

The suspect’s entitlement to free legal advice

•

The procedures for holding the identification

•

That the suspect can refuse to participate but if that happens, the refusal may be adduced in evidence and a confrontation may be arranged.

Photographs

The use of photographs is also regulated by Code D. Photographs should not be shown to witnesses for identification purposes if there is a suspect available to stand on an identity parade. Witnesses must be shown 12 photographs (or photofit or identikit pictures) at a time.

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If a positive identification is made, other witnesses should not be shown the pictures but an identity parade should be held instead and where a witness has been shown photographs, photofit or identikit pictures, you and your client must be told before the parade is conducted (see generally Code D, para 2.18 and Annex D). Under Code D, para 4, photographs cannot be taken without the suspect’s written consent unless the suspect has been charged with a recordable offence. Note

A recordable offence is an offence for which convictions are recorded in national police records: s 27(4) of the PACE 1984.

The new Code D para 2.2A covers the showing of films, videos and photographs and embodies the guidance given by the Court of Appeal in R v Caldwell and Dixon (1993). The guidance and general principles for videos and photographic identification are unchanged and include that showings should be on an individual basis to avoid any possibility of collusion. Fingerprints

Fingerprints may not be taken without the suspect’s written consent unless authorised by a superintendent or the suspect has been charged or informed that they will be reported for a recordable offence: s 61, Code D, para 3.

8.7

Volunteers Persons who help the police with their enquiries always remain ‘volunteers’ unless and until placed under arrest and may leave the police station at any time They are entitled to legal aid as of right but need not be informed of that right unless cautioned (Code C, para 3.15) or arrested. If a volunteer is placed under arrest, the period of detention runs from the time of arrest, because the volunteer will not have been ‘detained’ before.

8.8

Vulnerable suspects Code C paras 1.5 –1.7 and 1.4 –1.8 respectively require an appropriate adult to be informed and to be asked to attend the station where a juvenile or mentally disordered or handicapped suspect is to be questioned.

PACE and Police Station Procedure

Self-assessment questions 1 2 3

What makes theft an arrestable offence? What has PACE 1984 done to powers of arrest? Must a constable give reasons for an arrest and if so when? 4 Which PACE Code regulates powers to stop and search? search and seizure? identification methods? detention? recording of interviews? 5 What should a solicitor do first on arriving at a police station to advise a client? 6 How could a non-arrestable offence become a serious arrestable offence? 7 What is the definition of an interview? 8 What happens if a suspect objects to an interview being tape recorded? 9 How many persons should be present in a group identification? 10 When can a volunteer leave a police station?

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Chapter 9

Election of the mode of trial

Introduction

9.1

An offence which is ‘triable either way’ is so called because it may be tried either in the magistrates’ court or in the Crown Court. Special proceedings are required which in fact take place in the magistrates’ court but are neither a committal nor a trial – in order to effect election of the mode of trial. This requires an understanding of the classification of offences for trial purposes.

Classification of offences The Magistrates’ Courts Act 1980 divides offences into three categories: • Offences triable on indictment • Offences triable summarily • Offences triable either way. Despite these broad categories in relation to type and therefore court of trial, by ss 40 and 41 of the Criminal Justice Act (CJA) 1988, some summary offences can in fact go to the Crown Court. This is, however, a matter of convenience for all concerned as such an exception will only apply if the offences arise out of the same incident in such a way that the accused needs to be tried in the Crown Court for an indictable offence in any event, since certain summary offences could in such circumstances either actually be included in an indictment and tried in the Crown Court under s 40 or pursuant to s 41 a guilty plea to others could be sentenced by the Crown Court at the same time as they deal with the indictable offence which has been committed for trial by them, thus saving time and trouble to court and accused: see 9.2.2. Example

A defendant might be charged with robbery (the most serious of the theft related offences which are indictable because of the violence usually involved: see 5.5) and also with common assault (a summary offence) because the same incident necessarily involved a trivial assault as well

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as the more serious offence. Pursuant to s 40 they can conveniently be tried together on indictment, although there is no way they could be tried together by the magistrates however convenient that might be.

9.2.1

Indictable offences

Historically the most serious offences, such as murder, manslaughter, rape, conspiracy to corrupt public morals, child destruction, incest and buggery, the old common law offences, have always only been triable only on indictment. When statutory offences came to be created, some statutes specified a separate penalty for a conviction on indictment, thus making them too indictable offences. Example

The Public Order Act 1986 makes the offence of riot indictable, and the Road Traffic Act 1972 created an indictable offence of causing death by dangerous driving which is completely separate from the distinct offence of manslaughter which already existed.

The Supreme Court Act 1981 assigns all proceedings on indictment to be tried before the Crown Court: s 46(1). An either way offence will be able to be tried in the Crown Court in the same way as an indictable offence, if the election of mode of trial proceedings decide that this shall be so: see 9.2.3. 9.2.2

Summary offences

On the other hand, summary offences which do not fall into the either way category can never be tried by the Crown Court, unless they qualify for s 40 of the CJA 1988. Again historically, this is because they are minor and less serious offences or more serious and thought to be suitable for summary trial. All summary offences have been created by statute. Examples of the more minor sort include common assault, not paying the community charge or television licence fee, travelling without a ticket on the underground or railway, and cruelty to animals, and of the more serious offences driving when unfit to drive through drink or drugs (see 4.7.1), assaulting a constable in the execution of duty (see 5.3.4) and using threatening words or behaviour. Those which may be actually included in a count charging them in an indictment and committed for trial to the Crown Court under s 40 of the CJA 1988 are those which qualify under two separate heads:

Election of the Mode of Trial

Generically, such offences must be • Founded on the same facts or evidence as the indictable offence or offences • A part of a series of offences of the same or similar character as the indictable offence or offences. Specifically, they must be found in the list of summary offences to which s 40 applies, and which the Secretary of State has by statutory instrument specified for the purposes of the section • Common assault • Taking away a conveyance • Driving while disqualified • Criminal damage. Note

Under s 40(4), the Secretary of State could add any summary offence which is punishable with imprisonment or which involves disqualification from driving – but only the above are so far specified.

A summary offence which is included in an indictment is tried in exactly the same manner as if it were an indictable offence, but if the defendant is found guilty of that offence the sentencing powers of the Crown Court are limited to those of the magistrates’ court. Thus the defendant receives all the conveniences of Crown Court trial without the significant disadvantage of a higher sentence than the magistrates could give. The same convenience arises from s 41 whereby certain other offences (while not eligible for trial in the Crown Court) can be sentenced there if the accused is in any case going to the Crown Court for trial there of an either way offence and happens to have pleaded guilty, or is going to do so, to an offence covered by s 41. It is important to note that this section covers only either way offences not those triable only on indictment. In this case the category is wider than under s 40 since it covers any summary offence, provided it is punishable with imprisonment or disqualification from driving, as long as the offence arises out of or is connected with the same circumstances as that of the offence which is to be tried in the Crown Court. In this case the summary offence is not actually included in the indictment. Although s 41 states that the magistrates ‘may also commit him for trial’, in fact, under s 41, the magistrates only commit the defendant

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for a plea in respect of the summary offence or offences. Thus if the defendant pleaded guilty or is found guilty of the either way offence, the court, having ascertained that the conditions in s 41(1) are satisfied, will then ask the defendant to plead (guilty or not guilty) to the summary offence. Provided the defendant pleads guilty, the Crown Court may then sentence for the summary offence within the magistrates’ court bracket, and again the defendant will have benefited from a single court appearance for both offences without attracting a higher sentence than the magistrates could have given. Note

If the defendant pleads not guilty, time and convenience will have been lost and unnecessary work and aggravation caused, as the powers of the Crown Court in respect of the summary offence would cease at that point and the defendant will have to be sent back to the magistrates for trial of the summary offence.

9.2.3

Either way offences

Those offences which are neither exclusively indictable nor exclusively summary may be tried either summarily or on indictment and are called either way offences. A classic example is theft. In a case of theft, if the value of goods is small, eg shoplifting a bar of chocolate, the magistrates might consider that it is more appropriate to deal with it summarily. On the other hand, they might decline jurisdiction even if the value of the goods stolen is not very high if the circumstances warrant it, eg the case is one of theft from an employer, which Court of Appeal guidance has always indicated is a more serious offence than theft from a supermarket because of breach of the trust which such a relationship often entails, giving the defendant opportunities which a member of the public using a supermarket does not have. Offences which are technically triable either way and in practice regularly require election of the mode of trial include • Theft (several offences under the Theft Act) • Obtaining property by deception • Handling stolen goods • Burglary • Assault occasioning actual bodily harm • Going equipped for burglary, theft or cheat

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• Dangerous driving • Affray. Offences triable either way are either specified to be so by the statute which created them or are offences which you will find in s 17 and Schedule 1 of the Magistrates’ Courts Act 1980.

Election of the mode of trial

9.3

A defendant charged with an either way offence will require and is entitled to advance disclosure of the prosecution’s case: Magistrates’ Court (Advance Information) Rules 1985, SI 1985/601 which have not been affected by the new regime of disclosure in either summary trials or trials on indictment pursuant to the Criminal Procedure and Investigations Act 1996. Such advance disclosure enables an informed decision to be taken in relation to the ‘election’ which clearly cannot proceed without such information, eg to assess the strengths and weaknesses of the prosecution’s case: see 9.3.1. Usually copies of the written statements of the prosecution witnesses will be supplied, but it might be a summary of the evidence instead depending on local practice, although the Working Group on Pre-Trial Issues has now recommended common national standards for the preparation of prosecution files. Procedure

The procedure to be adopted in order to determine the mode of trial of offences triable either way is contained in ss 18–21 and 23 of the Magistrates’ Courts Act 1980 as amended by the CJA 1991. As mentioned above, this hearing is in the magistrates’ court. The clerk will first read the charges against the defendant and will make sure that the defendant understands his right to advance disclosure of the prosecution case and if necessary adjourn the hearing while proper disclosure is provided. Following changes made by s 49 of the Criminal Procedure and Investigations Act (CPIA) 1996, the next stages of the procedure are shortened and simplified. The clerk first explains to the defendant that if he or she intends to plead guilty he or she will be treated as having done so at summary trial before the magistrates, who would then go on to sentence him or her, also explaining that they could still commit him or her to the Crown Court for sentence if they felt their powers in that respect

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were inadequate. The defendant is then asked to indicate a plea and if the plea is one of guilty, the election will be made at that point and the hearing will proceed as for a summary trial: see Chapter 11. If no plea indication is made or the defendant indicates that it will be a plea of not guilty, the remainder of the procedure for election of mode of trial must continue. This requires the prosecution to make representations to the magistrates, which involves explaining the nature of the charge, indicating why, in the prosecution’s opinion, the charges should be tried summarily or on indictment, eg that the offence is trivial without serious result and therefore is suitable for summary trial or is a serious offence with equally serious results which would be more suitable to the Crown Court. The advocate for the defendant is then given the same opportunity to make similar representations. The magistrates then consider whether they should accept or refuse jurisdiction. Pursuant to the s 19(3) of the Magistrates’ Courts Act 1980, in making their decision, the magistrates must take into account: • The nature and seriousness of the offence • The manner and the circumstances in which the offence was committed • Whether the limited sentencing powers which they possess would be adequate to deal with the offence • Any other circumstances making it more suitable for one venue rather than the other. Note

The case of R v Flax Bourton Magistrates Court ex p Commissioners of Custom and Excuse (1996), has confirmed that the justices are mandatorily required to address the s 19(3) considerations which do not give them discretion, and if they are in doubt as to their powers they should seek advice from their clerk, eg in relation to the aggravating factors in relation to offences specifically mentioned in the Mode of Trial Guidelines. However, if they do accept summary jurisdiction, s 19(3) does give them an unfettered discretion to commit a defendant to the Crown Court for sentence where their sentencing powers are inadequate.

When making their decision, the magistrates should not be given, and should on no circumstances take into account, any information which discloses the defendant’s previous convictions. Nor should they decide that trial on

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indictment is more suitable because one of the jointly charged defendants wishes to elect Crown Court trial: R v Brentwood Justices ex p Nicholls (1992). Moreover, the prosecution should not invite the magistrates to try serious offences summarily although it may be convenient and expeditious. If the magistrates decide that the case is not suitable for summary trial, the defence has no choice and the case will be committed for trial following committal proceedings in the normal way (which will usually involve an adjournment to a future date). If they decide to accept jurisdiction, the clerk will explain to the defendant that there is a right to jury trial, but that even if a defendant elects to be tried summarily by the magistrates they may still commit him or her to the Crown Court for sentence if it subsequently emerges that their powers of sentencing are inadequate. The defendant then makes the relevant decision. If that decision is for summary trial and the plea is guilty, the magistrates will proceed immediately to sentence, but if not guilty, again, the case is likely to have to be adjourned to a future date for trial. If the election is for trial on indictment, no plea at all will be taken because the case must be adjourned for committal proceedings to take place. Note

Representations may not be necessary in practice. Both sides may agree on what is suitable.

National mode of trial guidelines

To assist magistrates to decide whether or not to accept jurisdiction for summary trial or to commit either way offences for trial in the Crown Court, National Mode of Trial Guidelines were issued in October 1990 and in March 1995 were updated by the Lord Chief Justice to take account of provisions in the CJA 1991. The Guidelines are not intended to constrain the magistrates but merely to provide guidance as to how their powers may be exercised. They contain both general observations and some references to certain specific offences: • The court should never make its decision on the grounds of convenience or expedition • The magistrates should assume that the prosecution version of the facts is correct

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• Neither the defendant’s previous convictions nor personal mitigation should be taken into account. The fact that the charges are only specimen charges is a relevant factor to consider but the fact that the defendant will ask for other charges to be taken into account is not. Where the case involves complex questions of fact or difficult questions of law, committal to the Crown Court should be considered. However, in practice, summary trial will be the presumption unless an aggravating factor referred to in the guidance on specific offences is present, for example in relation to burglary, day time entry of an occupied house, night time entry of a house normally occupied, entry of a pharmacy or doctor’s surgery, a series of offences, soiling, ransacking, damage, vandalism, professional hallmarks or unrecovered property of high value (ie normally about £10,000) would indicate Crown Court trial, whereas if any person in a dwelling is subjected to violence or threat of violence, the offence cannot be tried by the magistrates: Schedule 1, para 28(c) of the Magistrates’ Courts Act 1980. There is similar guidance in relation to s 47 assault (use of a weapon likely to cause serious injury, violence to the vulnerable, more than minor injury caused by kicking, head butting, serious violence on those whose work brings them into contact with the public, eg police, bus drivers, shopkeepers, publicans, or if the offence has clear racial motives), also theft (organised gang, vulnerable victim, unrecovered property of high value) and dangerous driving, which is called ‘reckless driving’ in the guidelines (alcohol, drugs, grossly excessive speed, racing, prolonged course of reckless driving, other related offences). 9.3.3

Either way criminal damage offences tried summarily where the value is small

Low value criminal damage cases are to be tried summarily: s 22 of the Magistrates’ Courts Act 1980. If the offence is one specified in Schedule 2 of the Act (offences under s 1 of the Criminal Damage Act 1971, aiding or abetting or inciting the commission of such offences and aggravated vehicle taking) the court must first consider whether the value exceeds the relevant sum (at present £5,000) and if it does not, the case can only be tried summarily. If it is not clear to the court whether the value involved does or does not exceed the relevant sum, the

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court may, as in the case of any other either way offence, try the offence summarily if the defendant so consents. Non-compliance with procedure

9.3.4

The magistrates are obliged to act within their jurisdiction, which in respect of dealing with either way offences derives from ss 18–20 of the Magistrates’ Courts Act 1980. If they fail to comply with the procedure set out therein, they will inevitably be acting outside their jurisdiction and are liable to judicial review which will quash their decision: see R v Cardiff Magistrates Court ex p Cardiff City Council (1987), R v Road Justice ex p Constable (1981) and R v Flax Bourton Magistrates Court ex p Commissioners of Custom and Excise (1996). Application to change the election

Under s 25(2) of the Magistrates’ Courts Act 1980, the magistrates have a discretion to allow the defendant to change the original election, whether that is from summary trial to committal to the Crown Court or vice versa. This often arises where the defendant was not originally represented at the election of mode of trial proceedings, when there was scope for confusion as to his legal position or of the significance of the choice that was made at the time: see R v Birmingham Justices ex p Hodgkiss (1985). In order to avoid such problems, most courts will now ask the unrepresented defendant whether he or she would like an adjournment to obtain legal advice or put the matter back for the defendant to consult the Duty Solicitor. If they do have to exercise their discretion, the magistrates will also take into account the defendant’s age, knowledge of court procedure and intellectual capacity and may allow the defendant to change the election at any stage before the close of prosecution evidence. Summary trial

However, where the defendant has elected summary trial and a guilty plea has been accepted, the magistrates cannot thereafter discontinue the summary trial in favour of transfer for trial: R v Dudley Justices ex p Gilliard (1986). Trial on indictment

Sometimes the prosecution will agree to a change to summary trial where it becomes evident that the gravity of the case was over-estimated. This mostly arises where in an ongoing case the police have not completed their investigations when charges are brought. Subsequent investigation may exonerate the defendant from any

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further involvement, making summary trial an obviously attractive option, especially if the defendant intends to plead guilty. 9.3.6

Advising the client on election of mode of trial Advantages in favour of the Crown Court

These include • Better chance of acquittal before a jury (magistrates are notoriously case hardened, especially to the usual human failings, such as alleged shoplifters ‘forgetting to pay’ – jury members are usually new to the work and the court whereas magistrates often know regular police witnesses) • Better opportunities to exclude prejudicial evidence (magistrates decide both fact and law, whereas admissibility of evidence is decided in the absence of the jury in the Crown Court) • Better advance disclosure is available in the full written statements provided before committal proceedings, whereas the prosecution can get away with a summary before mode of trial hearings Advantages in favour of summary trial

These include • Speedier trial, less formality than the Crown Court and probably therefore less stress for the defendant • Costs are less, which will be relevant to a defendant with a contributory legal aid order and/or if ordered to pay any of the prosecution’s costs on conviction in the Crown Court • Limited sentences (maximum six months or £5,000 fine) although this might be balanced by the magistrates’ power to commit to the Crown Court for sentence where their powers of sentencing are felt to be inadequate. 9.3.7

Adjusting the charges

The prosecution sometimes charge the defendant with an either way offence and, after the defendant elects Crown Court trial, withdraw the either way charge and substitute a summary only offence. While the defendant may consider that the prosecution is seeking to avoid a Crown Court trial because the evidence is weak, even if the sole purpose of the substitution is to deprive the

Election of the Mode of Trial

defendant of a jury trial this is an entirely lawful tactic, unless you can show bad faith: R v Canterbury and St Augustine justices ex p Klisack (1982).

Self-assessment questions 1

Distinguish indictable offences, either way and summary offences. 2 What are election of mode of trial proceedings? 3 What is advance information? 4 Can one co-defendant elect summary trial if the magistrates are willing to accept jurisdiction? 5 What should magistrates take into account in accepting or declining jurisdiction in either way offences? 6 Can a defendant change the election after choosing Crown Court trial? 7 Can the prosecution change the charge from an either way offence to a summary one after the defendant has elected Crown Court trial? 8 What are the consequences of the magistrates’ failure to follow the election of mode of trial procedure correctly? 9 Does convenience and/or expedition ever influence a mode of trial decision by the magistrates? 10 To what extent do the magistrates’ limited sentencing powers affect a mode of trial decision?

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Chapter 10

Committal proceedings

Committal to the Crown Court for trial

10.1

A defendant charged with an indictable offence (or an either way offence where jury trial is elected) will be tried on indictment in the Crown Court. For this purpose formal committal proceedings must be held in order to determine whether there is a prima facie case against the accused, and if so to make the order formally to commit that accused to the Crown Court for trial. In such committal proceedings the magistrates sit as examining justices, although a single magistrate is sufficient for committal proceedings.

Committal procedure The Criminal Justice and Public Order Act (CJPOA) 1994 sought to abolish committal proceedings and to replace them with a process called transfer for trial, a process which was similar to the existing procedure for such transfer in complex fraud cases and in those involving child witnesses which has been in use respectively since 1987 and 1991: see 1.2.1. However, these provisions were never brought into force and, in the face of strong opposition from the Law Society and the Justices Clerks Society, were eventually abandoned in favour of a refinement to the existing committal procedure which has created the ‘modified committal’: see Part V of the Criminal Procedure and Investigations Act (CPIA) 1996 which inserts new s 5A–F into the Magistrates’ Courts Act 1980 and amends s 6 to provide a paper-based procedure which is now entirely without oral evidence, although there may still be oral submissions by advocates for the prosecution and the defence. As 93% of all committals in recent years have been in the short form (or ‘paper committal’) style under s 6(2), and only 7% made use of the old style (or long form) s 6(1) procedure ‘with consideration of the evidence’, this change is unlikely to prove a fundamental reform, while it should still streamline committals and expedite the business of the examining justices. The prosecution must still satisfy the magistrates that there is sufficient prima

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facie evidence to put the accused on trial by jury at the Crown Court. 10.2.1

Committal with consideration of the evidence: s 6(1)

This is the procedure which will be followed unless the prosecution offers the short form under s 6(2): see below, and best shows the impact of the CPIA 1996. Since no witnesses will now take part, the prosecution evidence is either read aloud or orally summarised. The order of events is as follows • The charge is read to the accused but no plea is taken • The clerk asks if the defence wants reporting restrictions lifted • The defence may make a submission of no case to answer • The magistrates announce the decision either to commit for trial (ie there is a case to answer in which case bail and legal aid will be considered: see 10.3) • Discharge the defendant (ie the submission was upheld because there was an insufficient prima facie case). 10.2.2

Committal without consideration of the evidence: s 6(2)

This will be the procedure in most cases, since the prosecution no longer have any incentive to ask for a s 6(1) committal because they cannot call any witnesses and so rehearse them for the Crown Court trial. They will therefore normally offer short form committal by letter, and will serve on the defence a bundle of documents complying with the new s 5B–E of the Magistrates’ Courts Act 1980 which comprises the evidence. It will then be up to the defence solicitor to consider these documents and to decide whether to accept s 6(2) committal or whether to ask for committal with consideration of the evidence. It may not be worth the defence doing this, since they cannot call any witnesses, unless they consider there is some advantage in a s 6(1) committal: see below at 10.2.5, and they may prefer the short form in which the documentary evidence is not even read out or orally summarised. The whole procedure is largely administrative, the magistrates do not even read the prosecution evidence and a solicitor with a legal aid certificate will not be paid for

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attending unless attendance is necessary. However, such attendance probably will be necessary because of the need to meet the client and obtain approval of the written defence statement within 14 days of the committal: see para 18–25(g) of the Regulations. The order of events is as follows: • The charge is read to the accused but no plea is taken • The clerk asks whether the defence wants reporting restrictions to be lifted • The clerk checks that the formalities for a s 6(2) committal have been complied with, ie ❍ the prosecution evidence complies with s 5B– E ❍ copies have been served on the defence ❍ the accused is represented by a solicitor (whether present in court or not), and ❍ the defence does not wish to make a submission of no case to answer • The defendant is then committed to the Crown court for trial. Various consequential matters will then need to be dealt with, ie legal aid, bail, any alibi warning and the PDH. Reporting restrictions: s 8 of the Magistrates’ Courts Act 1980

As committal proceedings usually take place in open court there are restrictions on reporting in the press anything other than formal detail (ie name of defendant, offence(s) charged, result of the proceedings, whether legal aid was granted etc). However, since the purpose of these restrictions is the protection of the defendant from prejudice, if potential jury members read about the case in the papers before the Crown Court trial, the defence has the right to ask for reporting restrictions to be lifted and often might exercise this right if publicity would help, eg to trace a helpful witness. Recognition of this right of the defendant is the purpose of the court clerk’s question in both s 6(1) and s 6(2) committals. A single defendant can insist on reporting restrictions being removed, but if there are two or more defendants and one wants the restrictions removed while the other(s) want them to continue, the justices must decide whether it would be in the interests of justice to allow pub-

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licity. If they do not lift restrictions, the publication of information in contravention of s 8, is an offence punishable by a fine of up to £5,000. 10.2.4

Permissible documentary evidence: s 5B – E of the Magistrates’ Courts Act 1980

Evidence at both forms of modified committal proceedings is restricted to the following • Written statements under s 5B of the Magistrates’ Courts Act 1980 • Any exhibits thereto (such statements must be in the same form as those for s 9 of the CJA 1967, ie signed by the maker, declaration of belief in truth and knowledge of use as evidence, served on the other party or parties) • Depositions under s 5C (ie a statement taken down by or document produced to a magistrate containing material evidence, and obtained pursuant to a summons where the maker would not make/produce it voluntarily, and served on the other party or parties) • Statements under s 5D (ie those which the prosecution reasonably believe will be admissible under ss 23 or 24 of the CJA 1988) • Documents under s 5E (ie those admissible under some other statute (eg DVLA certificate)). Note

The magistrates have no power to rule any of these inadmissible at committal. There is no power to exclude prosecution evidence under ss 76(2) or 78 of the Police and Criminal Evidence Act 1994 and no objection may be taken to written statements under s 5B (as might be done under s 9 of the CJA 1967).

10.2.5

Advising the client on committal

If the prosecution decides to have a s 6(1) committal this does not arise, since the defence will have no choice. If the prosecution offer a s 6(2) committal then there will be a decision to be made, since the defence solicitor must decide whether • a submission of no case to answer is to be made • it is worth trying to persuade the court to commit the defendant for trial on a lesser charge (eg GBH to ABH, see 5.3)

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• it is desirable to have reporting restrictions lifted for publicity purposes. Note

The defence cannot adduce any evidence at committal proceedings. Since the purpose of committal proceedings is to establish a prima facie case to answer, only the prosecution’s evidence may be tendered.

If one or more of the three possible reasons for a s 6(1) committal does not apply, not resisting a s 6(2) committal does not prejudice the defendant in any way since all available points about admissibility of evidence and credibility of witnesses can be taken at the Crown Court trial. There is no particular advantage to the prosecution in either form of committal, save that s 6(2) saves them time as it does the defence, since neither they nor the defence can call any witnesses, so the former prosecution edge which might have been achieved by rehearsing their witnesses at committal no longer applies (and equally the defence no longer has the chance to see them and assess their performance in the witness box). Moreover, the prosecution can always produce new witnesses at the Crown Court despite their evidence not having been available at committal, simply by serving a notice on the defence and the Crown Court. Nevertheless, there must be sufficient evidence actually before the court at the time of the committal proceedings for the magistrates to be justified in committing for trial: R v Bedwelty Justices ex p Williams (1996). Submission of no case to answer

This submission, which may be made by the defence at the close of the prosecution case in s 6(1) committals, must meet the Galbraith test, laid down in the case of R v Galbraith (1989). This test is: Is the evidence taken at its highest such that a jury properly directed could convict on it? This means that the defence must show either • that the prosecution has failed to prove an essential element of the offence, or • even taking the most favourable view of the prosecution evidence, the case against the defendant is so unreliable that a jury could not convict on it.

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10.3

Bail and legal aid Whether the committal proceedings are under s 6(1) or s 6(2), it will be necessary, unless the defendant is discharged at the end of a s 6(1) hearing, to consider bail and legal aid. An application should be made to the magistrates to extend legal aid to the Crown Court on a ‘through order’ so as to enable preparation to be started at once for the Plea and Directions Hearing (PDH, see 10.5) and unless the defendant’s circumstances have changed there should be no problem about this. A defendant already on bail would expect to have that bail extended, but if the defendant has in fact been in custody an application or a further application may be made at this stage: see Chapter 7. Sureties will normally need to be renewed.

10.4

Alibi warning Where appropriate, an alibi warning will be given to the defendant who is required to give notice of such alibi evidence to the prosecution. The court must inform the defence that they will not be permitted to give evidence of an alibi or call witnesses in support of an alibi without leave of the court unless particulars of such an alibi and the witnesses to it are given before the trial. The defendant will be asked to give such particulars, either to the court at committal proceedings or to the prosecution within the next seven days. Note

Do not serve an alibi notice before taking a proof of evidence from the alibi witness: see R v Seymour where no requirement was mentioned in the covering letter that the prosecution should take its statement in the presence of the defence. As a result the police obtained a statement which was used to destroy the credibility of the witness at trial. The defendant’s appeal against conviction was unsuccessful since the statement went only to credibility.

10.5

Voluntary bills of indictment An alternative to committal proceedings is for the prosecution to apply to the High Court for a voluntary bill of indictment: see 1.2.1. In practice, the prosecution will only apply for a voluntary bill of indictment either where committal proceedings have been held but the accused

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was discharged or where there are special circumstances that warrant adopting this procedure, eg where the violent behaviour of the accused might prevent effective committal proceedings being held: see R v Paling (1978). There is a Practice Direction (Crime: Voluntary Bills) (1990) 1 WLR 1633 for guidance on this matter.

Notices of transfer

10.6

Notices of transfer for trial in complex fraud and child witness cases will also continue to be used as previously: see 1.2.1. Fraud cases

10.6.1

In serious fraud cases the notice of transfer is given by the ‘designated authority’ to the magistrates’ court in whose jurisdiction the offence is charged. The ‘designated authority’, ie the DPP, the Director of the Serious Fraud Office, the Commissioner of Inland Revenue and the Commissioner of Customs and Excise, must consider that the evidence against the accused is sufficient for committal for trial and that the offence is a fraud of ‘such seriousness and complexity’ that it is appropriate to bypass committal proceedings so that the Crown Court can assume the management of the case. Child witnesses

In cases involving child witnesses, it is the DPP who is authorised to serve the notice of transfer and the DPP must be satisfied that • The evidence of the offence is sufficient for the accused to be committed for trial • A child who is either the alleged victim or alleged to have witnessed the commission of the offence will be called to give evidence • It is in the interests of the welfare of the child for the Crown Court to assume the management of the case and proceed without undue delay. The transfer notice must specify the address of the Crown Court at which it is proposed the accused will be tried on these charges. The accused may within 28 days of the service of the transfer notice apply to the Crown Court for a dismissal of the charges. The application will be determined by a judge who will dismiss the charge if the evidence against the accused is insufficient for a jury to convict.

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10.7

Preparation for Crown Court trial; the PDH When committing the case for trial at the Crown Court the magistrates must fix a date for the PDH. This date must be: • within four weeks if the defendant is in custody • within six weeks if the defendant is on bail. The prosecution’s duty of primary disclosure under the CPIA 1996 arises immediately on the committal of the defendant for trial at the Crown Court, so there will be a good deal of preparation to do and a limited time in which to do it, which underlines the importance of the through legal aid order mentioned at 10.3 if a through order has not already been granted to prepare for committal. This is because in the new regime much of the work required for the PDH should really be done before committal because of the shortage of time between committal and PDH, and even shorter time between committal and service of the defence statement now required in every Crown Court case. For this reason solicitors are advised to be unwilling to accept committal papers less than 14 days before committal hearings, or 10 if the defendant is in custody, so that they may peruse them and do the essential preparatory work for the PDH properly. Moreover the defendant will be expected to plead at the PDH, and is supposed to enter the true plea at that stage: see R v Kherbouche (1997) although since the PDH is a case management hearing this plea is not necessarily irrevocable: R v Diedrick and Aldridge (1997). If the plea is one of guilty, the defendant will probably be sentenced at the PDH: alternatively, if the plea is one of not guilty, the judge will require a good deal of information in order to enable a trial date to be fixed, which further underlines the need for the through legal aid order at an earlier stage than at committal. Plea/directions hearings (PDHs) have now been introduced at a number of Crown Court Centres and are planned to be extended to all centres by the end of the year. Under this new procedure the magistrates when transferring for trial fix a date, normally within four weeks, or six weeks if the defendant is on bail, for a PDH at the Crown Court. This gives the prosecution and the defence a date to work towards and is designed to speed up criminal litigation. At the PDH the defendant is asked to plead and the judge will usually sentence an accused who has admitted all or a significant number of charges.

Committal Proceedings

Where the plea is not guilty, a directions hearing follows at once. The Lord Chief Justice’s Practice Rules dated 25 July 1995 list all information that will be sought at the PDH, and prosecution and defence will both have to complete a judge’s questionnaire before the PDH. Guesswork is not encouraged and accurate answers are required so the case will need to be fully prepared instead of this being left to a date nearer the trial as was formerly often the case. Indeed, costs orders may be made in any case where insufficient preparation prevents the PDH from providing a thorough stocktaking of arrangements for the trial. The Law Society recommends that solicitors send advocates a brief three weeks in advance so as to leave adequate time for reading it in case a conference has to be arranged. Rules of professional conduct also make it the solicitor’s responsibility to send ‘adequate instructions, supporting statements and documents’ to counsel or other advocate ‘so far as practicable’ in ‘good time’: PCS 20.03. For full details of the new regime of statutory pretrial disclosure of evidence, see 16.2.8 below.

Self-assessment questions 1 2

What are committal proceedings? May the defence adduce evidence at committal proceedings? 3 May the admissibility of prosecution evidence be challenged at committal proceedings? 4 When is it appropriate to submit that there is no case to answer at committal proceedings ? 5 What is an alibi warning? 6 What is a voluntary bill of indictment? 7 What is a notice of transfer in complex fraud and child witness cases? 8 What is the role of the press at committal proceedings? 9 What is a ‘through order’ and what is its purpose? 10 What is the purpose of a PDH?

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Chapter 11

Summary trial

Summary jurisdiction of the magistrates It is important to distinguish between trial of a summary only offence and trial of either way offences, ie those hybrid offences which may be tried either on indictment or summarily. Trial of summary offences generally does take place in the magistrates’ court, although there are provisions for some summary offences to be committed for trial and/or sentence to the Crown Court under ss 40 and 41 of the Criminal Justice Act (CJA) 1988: see 9.2.2. Trial of either way offences may take place summarily in the magistrates’ court following election of mode of trial procedure: see above Chapter 9. Note

All references in this chapter are to the Magistrates’ Courts Act 1980 unless otherwise stated.

Where the summary trial is of a summary offence as such, the magistrates only have jurisdiction if the offence was committed within the county for which they hold their commission as magistrates unless • They are already trying the accused for another offence committed within their area: s 2(6), or • It is in the interests of justice that the accused be tried jointly with or in the same place as another person who is being tried by those magistrates: s 2(2). The rationale for this restriction is historic in that the commission of the peace has always had a local base to enable lay magistrates, who are not legally qualified but usually have local knowledge, to take account of local conditions which might assist them in their assessment of the evidence: see s 2. When the summary trial is of an either way offence, there is no such restriction. An accused who elects summary trial of an either way offence known to English law will have jurisdiction wherever the offence was committed. Note

In practice the prosecution, ie the Crown Prosecution Service (CPS) will decide where the accused will be charged and this will normally be in a magistrates’ court in the county where the offence was committed.

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11.2

Legal representation The prosecution and the defendant may both be represented either by counsel or solicitor before the magistrates. Alternatively, in the case of a private prosecution, the informant or complainant may conduct the prosecution case although the court has discretion to allow this to be done on behalf of either the complainant or the accused by a relative or a friend who is not a lawyer: see s 27 of the Courts and Legal Services Act 1990 which now embodies the former discretion which allowed the McKenzie friend: see McKenzie v McKenzie (1970). However, where an accused is legally represented, the court may proceed with the case even in their absence, except where some enactment or recognisance expressly requires their presence: s 122. Note

Since the establishment of the CPS, most prosecutions are conducted by the CPS (unless it is an offence which is prosecuted by another agency, eg the Inland Revenue, Customs and Excise, etc) although there are still a very small number of private prosecutions.

11.3

Legal aid

11.3.1

Scope

Application should be made to the justices’ clerk for legal aid where appropriate: see Chapter 6, especially 6.6. Legal aid is available for representation in summary trial for: • Remand hearings • Bail hearings • Sentence • At a hearing to deal with failure to comply with a bail condition. 11.3.2

Standard fees

Standard fees apply to most proceedings in the magistrates’ court, including guilty pleas and summary trials. Note

Time management and negotiating barristers fees in advance becomes extremely important where standard fees apply. When working on a fixed fee, you must obviously organise that work efficiently, especially as the fixed sum also includes counsel’s fees. Outside legal aid cases

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the rules of professional conduct make a solicitor liable for counsel’s fees whether or not put in funds for the purpose: see PCS 20.06. It is therefore essential to negotiate counsel’s fees in advance.

The information

11.4

An accused will come before a magistrates’ court either by arrest, charge and production to court, or by laying an information followed by summons or warrant. Arrest

11.4.1

Where a person is arrested and taken to a police station, the custody officer is responsible for requiring the investigating officer to prefer a charge, if the custody officer is of the opinion that there is sufficient evidence to charge the detainee with an offence: see Chapter 8, so this will be the normal route to summary trial. Laying an information

The alternative method of initiating prosecution is by laying an information before the magistrates’ court followed by the issue of a summons or a warrant for arrest. This method is usually adopted in less serious cases such as road traffic offences although, technically, proceedings could be begun by summons even in the case of a serious offence. An information need not be in writing or on oath unless some statutory provision requires it, but usually is, and in any case should be, signed by the informant. Note

Where police initiate an information it should be signed by an individual officer, whether that is the officer who reported the offence or a senior officer in charge of prosecutions.

The written information is delivered to the appropriate magistrates’ court and is treated as having been laid as soon as it is received in the office of the justices’ clerk. This is significant because an information for a summary offence must be laid within six months of the commission of the offence or the magistrates cannot try that summary offence: s 127. Note

This rule does not apply to summary trials of either way offences although the statute creating the offence may lay down time limits for commencing prosecutions of such offences.

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After the information is delivered to the relevant court, it will be considered by the clerk or a magistrate who checks whether it is prima facie valid, and if so issues the summons. This is done by signing the draft summons which the police have sent with the information. The summons is then served on the accused usually by post. 11.4.3

Nature of the information

It is important that the information should be in order as otherwise there may be a defect in process. The defendant cannot object to trivial errors although an adjournment can be secured for the defence to be reconsidered if any variance between the information, summons or warrant was misleading: s 123. However an information might be bad for duplicity (see below) which could be fatal. Duplicity

The information must describe the offence clearly and without duplicity, which means without uncertainty. An information is ‘bad for duplicity’ when it alleges facts constituting two different offences in one charge. When a charge is bad for duplicity, the prosecution may amend the information at any time before trial but once the trial has commenced the situation cannot be rectified because the whole proceedings are invalid. Multiple offences

An information may contain several separate charges which may arise from one incident, eg driving without due care and attention with a separate charge of driving without insurance. A single charge may also include facts constituting two or more criminal acts, if they form two sections of a single activity, eg taking and killing two red deer without a licence one after the other in the same location: Jemmison v Priddle (1972). Where two or more offences are charged at the same time the justices should inquire whether either the prosecution or the defence objects to the informations being heard together. If either party objects, the justices should consider their submissions, take advice from their clerk and decide whether it is in the interests of justice to try the charges together or separately. The interests of justice include • the risk of injustice to the accused, and • the convenient presentation of the prosecution case.

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Co-defendants

More than one accused may be joined in the same information if the act alleged involved the participation of one or more persons acting jointly in the commission of the crime. Again the justices should inquire whether any of the parties has an objection to the informations being tried together, and if any party objects should again decide whether , in the interests of justice, they should be tried separately.

Advance information under the statutory disclosure scheme

11.5

Advance information required before summary trial is no longer restricted to the Magistrates’ Court (Advance Information) Rules 1995 in the case of either way offences and the goodwill of the CPS in summary offence cases, since the Criminal Procedure and Investigations Act (CPIA) 1996 creates a statutory regime of disclosure even for summary trial, although this prosecution duty to disclose does not actually arise until an accused has pleaded not guilty at summary trial upon which disclosure must take place ‘as soon as practicable’. This disclosure regime is supported by a Code of Practice, which requires all information acquired during an investigation to be retained and revealed to the prosecutor who, provided the accused pleads not guilty, must in turn reveal significant material to the defence. The DPP announced extensive training for police and crown prosecutors in observing the Code which substantially alters their previous practice. Primary disclosure (ie on the part of the prosecution)

In the case of summary offences neither the accused nor defence previously had any legal right to copies or even a summary of the prosecution case against the accused, and unless the local CPS was cooperative had only the facts contained in the information to go on, although the right did exist (under the Advance Information Rules, see 11.5 above) in the case of either way offences tried summarily to see either copies of the witness statements or a summary of the evidence they contained. Thus in some summary cases the CPS would disclose witness statements before the trial, while others refused access to anything, and the prosecution could always refuse to disclose on the grounds that a witness might be intimidated.

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The object of such pre-trial disclosure of the prosecution case against the accused was and is, of course, to help to assess the strength and weakness of the case against the accused and to assist defence solicitors and counsel in advising the client on the most appropriate mode of trial of an either way offence. Of course it also assists in the conduct of a summary trial even though the right only arises after plea. In the era of case management statutory disclosure has been extended to all contested summary trials. The prosecution must now • disclose to the defence any previously undisclosed prosecution material which the prosecutor considers might undermine the prosecution case, or • confirm in writing that there is no such material: s 3 of the CPIA 1996 and must do this as soon as is reasonably practicable after the defendant pleads not guilty at summary trial: ss 12 and 13. Example

The prosecution has details of convictions of prosecution witnesses, statements from prosecution witnesses which are inconsistent with other evidence that they are expected to give, a weapon carrying blood which could be the victim’s plus fingerprints which are not the accused’s, and a statement which is in favour of the accused but contradicts other evidence on which the prosecution will rely: the prosecution must disclose all these items to the defence.

For full details of the new statutory scheme of pre-trial disclusure, see 16.2.8 below. 11.5.2

Defence disclosure: ss 5 and 6 of the CPIA 1996

Before the CPIA 1996, with limited exceptions (eg if claiming an alibi in trial on indictment) the accused was generally under no obligation to disclose any defence before trial. The position now is that once the prosecution has made primary disclosure, the accused may make a defence statement but is under no duty to do so, although if no defence disclosure is made, the prosecution’s obligations are exhausted once their primary disclosure has been made. If a defence statement is given it must disclose • the general nature of the defence, eg accident, self-defence, etc

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• the matters on which the defence takes issue with the prosecution and their reasons for doing so, eg accused did not do it, and the witnesses could not have seen what they claimed they saw and if the defence includes an alibi, particulars of it, ie ❍ names and addresses of the alibi witnesses ❍ any information helpful in tracing any such witness whose name and address is not known to the defendant and the Act provides for regulations to be made about time limits for defence disclosure. Secondary disclosure (ie of the prosecution)

11.5.3

If the defence statement indicates that there is previously undisclosed material which might reasonably be expected to assist the accused the prosecution is thereupon under a duty to disclose it and in any event to confirm in writing that there is no such material if that be the case: s 7 of the CPIA 1996 and must take one of these steps ‘as soon as practicable’: s 7 of the CPIA 1996. Note

There is some material that must not be disclosed, eg where because of national security it is not in the public interest to do or where disclosure would put valuable informants at risk, a matter on which the court will rule where necessary. Otherwise the prosecution has a continuing duty of disclosure until the accused is either acquitted or convicted: s 9 of the CPIA 1996and if at any time after secondary disclosure the defence reasonably believes that the prosecution has not complied with this duty, they can apply to the court for an order for such disclosure. Further if time limits are not complied with this could result in a stay of proceedings for abuse of process on the basis that the defendant is being denied a fair trial.

Non-compliance by the defendant

Any non-compliance by the defendant, eg missing time limits, significantly inconsistent defences or failure to observe the alibi procedure, permits such comments to be made by the court (or with leave by any other party) as may be appropriate. Further when deciding if the defendant is guilty, the court or jury may draw inferences from this non-compliance and/or discrepancy, although no accused can be convicted solely on the basis of such inference.

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Note

It is, however, arguable that a person who simply puts the prosecution to proof and does not make any defence statement is not therefore advancing any defence at all (as such an accused is entirely entitled to do) and that logically inferences cannot in such a case be drawn. On this and other tactical points see the Law Society publication Active Defence.

11.5.5

Further preparation

You will need to interview the client, interview witnesses and since the statutory disclosure scheme only starts on plea of not guilty, write to the prosecution for any voluntary earlier disclosure they feel inclined to make, for details of the accused’s criminal record (often more reliable than the accused’s own recollection), records of interviews with the client and a copy of the custody record (unless in your area this is available directly from the police). It may also be necessary to make a site visit, prepare plans and a photograph (eg if the defence statement, as in the example above, is going to say that the witnesses could not have seen what they claim) and instruct an expert, in which case this expert evidence must be disclosed to the prosecution: s 20 of the CPIA 1996. You should preferably also ask the Legal Aid Area Office for authority if the defendant is on legal aid, as otherwise the costs might not be recoverable if such expert evidence cannot be justified. Witness summons will have to be issued by the clerk to the justices if there are witnesses who otherwise would not attend: s 97(1) of the Magistrates’ Courts Act 1980 and application must be made for this in writing as soon as practicable after the defendant pleaded not guilty: s 97(2B) inserted by s 51 of the CPIA 1997, preferably enclosing a written refusal or evidence of a written request to which no response has been received from the witness. Witness summonses should then be served personally on each witness. 11.5.6

Absent witnesses

Non-controversial evidence can always be given by either prosecution or defence by written statement under s 9 of the CJA 1967 (provided it is in proper form, copy served on the other party or parties and no objection has been received within seven days) but clearly neither side is going to allow this where the evidence in question is

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not non-controversial. It will therefore be necessary to make arrangements to include documentary hearsay under ss 23 and 24 of the CJA 1988 where appropriate (ie a prescribed reason for not calling the witness personally and leave of the court).

Absence of parties

11.6

Unlike a Crown Court trial, in a summary case the magistrates may proceed with the hearing even if the accused is not present in court and not represented: s 11 Magistrates’ Courts Act 1980. Alternatively, the trial may be adjourned pursuant to s 10. Moreover s 12 of the Act permits a plea of guilty to certain offences to be made by post. Absence of the accused

Except where the personal presence of the accused is required by any statute or recognisance an accused who is legally represented is in any event deemed not to be absent. However, even where these conditions do not apply, eg the accused is absent and unrepresented, s 11 permits the magistrates to proceed with the case. The magistrates must of course have regard to the importance of ensuring a fair trial and must therefore, before taking such a decision, provide the accused with an opportunity to be present, to hear the prosecution’s case and to rebut their evidence, so if for example the defendant is absent through illness and has submitted a medical certificate in support, the court should not proceed without satisfying themselves that it is proper to do so: see R v Bolton Justices ex p Merna (1991). In any other case before proceeding in the accused’s absence, they must be satisfied that the summons was served on the accused a reasonable time before the hearing, or that the accused had previously appeared in answer to the information: s 11(2). A summons may be served by delivering it to the accused, leaving it for the accused with some person at the accused’s last known or usual address or sending it by post to the accused’s last known address. Where it is sent through the post or left at the last or usual address and the accused is charged with an indictable offence, the prosecution must prove that the summons actually came to the knowledge of the accused in order to prove that the summons was duly served. Where the offence charged is summary, the presumption in s 7 of the Interpretation Act 1978 applies and

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proof that the summons was sent to the last known address of the accused by first class post is sufficient proof of service. However, if the accused had no knowledge of the summons, by s 14 a statutory declaration to that effect may be made at any time during or after the trial, and if this declaration is served on the clerk of the court within 21 days of the date on which the accused heard about the proceedings, all subsequent proceedings will be void and the prosecution would have to start all over again. Issue of the warrant

However, where the magistrates have to adjourn the proceedings due to the absence of the accused, they may, if the information has been sworn, and the offence is imprisonable, issue a warrant for the accused’s arrest: s 13 of the Magistrates’ Courts Act, which has been amended by s 48 of the CPIA 1996 so that the warrant will only be issued where the court is satisfied that the summons was served on the defendant within a reasonable time of the trial or has appeared on a previous occasion and was informed of the next hearing date. However, if the non-appearance of the accused constitutes failure without good reason to answer to bail , they can try the case even without the prosecution proving that the defendant had knowledge of the hearing, although if the accused has been interviewed by the police and statements indicate that a defence would be offered, the magistrates must adjourn and give the accused an opportunity to attend and plead not guilty: DPP v Gokceli (1988). Note

The magistrates can issue a warrant only if the offence charged is punishable with imprisonment.

11.6.2

Absence of the prosecutor

If the prosecutor fails to appear, the court may either dismiss the information, adjourn to another date or, if evidence has been adduced on a previous occasion, hear the case in the absence of the prosecutor. 11.6.3

Plea of guilty by post

This is a special case pursuant to s 12 of the Act where the accused is summoned to appear before the magistrates’ for any summary offence carrying a maximum of three months’ imprisonment, but in practice use of the section has been restricted to motoring offences.

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Strict adherence to the statutory provisions is required. The prosecutor must notify the clerk of the court that the following documents have been served on the accused with the summons • A statement in the prescribed form, setting out the facts relating to the charge, which will be placed before the court by or on behalf of the prosecutor if the accused pleads guilty by post • A notice explaining how the accused may plead guilty by post. The clerk of the court must also • Have received a notification from the defendant (or a legal representative acting on the defendant’s behalf) that the defendant wishes to plead guilty without appearing before the court, plus, if appropriate, a statement in mitigation and the plea in writing, and • Have informed the prosecutor of the receipt of such notification from the defendant (or the defendant’s legal representative). Provided that the defendant does not in fact appear at the hearing and service of the relevant documents on the defendant is proved to the satisfaction of the court, the plea of guilty by post may be accepted, in which case the magistrates may not hear evidence other than the statement of facts sent to the defendant in the statutory notification. The magistrates will then decide whether the charge is proved, take into account any mitigation, impose an appropriate sentence and possibly order the defendant to pay costs if claimed by the prosecution. They do, however, have a discretion not to accept the plea of guilty by post, in which case they would adjourn it and notify the defendant to attend, eg where the statement in mitigation indicates that the defendant might have a valid defence. Sentencing in the accused’s absence

While the magistrates may hear a case and convict in the absence of the defendant , they may not pass a sentence of imprisonment or detention: s 11(3), nor disqualify from driving in the defendant’s absence without first giving an opportunity to be present : s 11(4). In either of these cases the magistrates should issue a warrant, except in a s 12 case when they should adjourn and notify the convicted defendant to attend: s 13. However, failure to attend on that will result in the issue of a warrant.

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11.7

Plea on summary trial Whether the accused is charged with a summary offence or charged with an either way offence elects summary trial, the charge is read and the accused asked to plead. If the accused pleads not guilty, except in the case of a very minor offence, the case is likely to be adjourned and a date fixed for summary trial. If the accused stays silent or enters an equivocal (ambiguous) plea, the magistrates must enter a not guilty plea and the course of trial will be as below at 11.8. If the plea is guilty, the magistrates will hear the prosecution and any plea in mitigation and may then pass sentence or adjourn for pre-sentence reports, after hearing: see Chapter 13.

11.8

The not guilty hearing There is no jury in the magistrates’ court and the magistrates are judges of both law and fact. Witness, apart from the defendant and any expert(s) should sit outside the court until called, so as to safeguard evidence from being influenced by what previous witnesses have said.

11.8.1

The prosecution case

The prosecution opens and calls evidence in chief, which may be oral, written pursuant to ss 23 and 24 of the CJA 1988 or s 9 of the CA 1967 or a mixture of both. Oral testimony will be examined-in-chief, cross-examined and re-examined. If the defendant is not represented, the clerk must explain the defence right to cross-examine prosecution witnesses. In order to ensure a fair trial, the court must satisfy itself that only relevant and admissible evidence is adduced at the trial, and may exclude inadmissible evidence, eg under ss 76 or 78 of PACE 1984, although there is no procedure for a voir dire in the magistrates’ court. If the court considers such evidence unfair or prejudicial, the magistrates can either refuse to admit it or wait until objection to the evidence is raised, hear it, and then rule on its admissibility, when they may decide to disregard it: see Chapter 23. 11.8.2

Submission of no case

At the end of the the prosecution case, the defendant or defence advocate may make a submission of no case to answer. This is much the same as in committal proceedings, ie

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• there was no evidence to prove an essential element, or • the prosecution case was so discredited or so unreliable that no reasonable magistrates could convict on it: see Practice Direction [1962] 1 WLR 227. Such a submission gives the prosecution a right of reply. If the submission succeeds, the case is dismissed and the defendant discharged. Otherwise the defence will follow.

The defence case

11.9

The defence may make either an opening or closing speech, so does not usually open the case, but proceeds immediately to adduce oral and documentary evidence to refute or discredit the prosecutions’ evidence The accused may also give evidence, although not obliged to do so. Again witnesses giving oral evidence will be examined-in-chief, cross-examined by the prosecution and re-examined by the defence. Throughout the trial, the burden of proof remains on the prosecution and not the defence. At the conclusion of the evidence for the defence, the prosecution might ask leave to call evidence to rebut defence evidence that might not reasonably have been foreseen, eg alibi evidence since, unlike trial on indictment, the accused need not give advance notice of an alibi defence at summary trial, but evidence in rebuttal is rare.

Submissions

11.10

Since both sides have only one speech, usually the prosecution does not make a closing speech, although they may reply to a point of law raised by the defence at any time during the trial as of right. However, both the prosecution and the defence may, with the leave of the court, address the court a second time: Magistrates’ Courts Rules, r 13. Where both parties address the court twice, the defence has the right to go last.

Verdict The magistrates must decide whether the charge(s) against the accused have been proved. Stipendiary magistrates who are legally qualified and sitting alone, normally announce the verdict immediately while lay justices who form a bench of two or three or more

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normally retire to consider the verdict, which is by majority, and sometimes calls their clerk to assist them on issues of law before announcing the verdict. Magistrates have no power to bring in a guilty verdict for a lesser offence where they find the accused not guilty of the offence charged, eg an unsuccessful charge of ABH charge may not be substituted with one of common assault. It is all or nothing unless the defendant was specifically charged with both ABH and common assault: see 5.3 above. The position must not be confused with that in the Crown Court which is the reverse (see 12.11.5). 11.11.1

Power to rectify mistakes

The magistrates have the power to revise their decision. If, after making an order, they consider that it is not in the interests of justice to permit their decision to stand: s 142 of the Magistrates’ Courts Act 1980. This may enable them to substitute a valid sentence for an invalid one or even to reopen a case. This only applies where the accused pleaded not guilty or was convicted while absent and not apply to cases where the accused has pleaded guilty.

11.12

Costs Where the accused is discharged, and is not legally aided, the magistrates may order that costs be paid either by the prosecution or ‘out of central funds’, ie a government fund for the purpose, unless the defendant’s own conduct contributed to the charges being brought, and a legally aided defendant who is acquitted may have any legal aid contribution refunded. No order for costs should be made in favour of a public authority, eg the police, CPS, government departments or local authorities.

11.12.1

Wasted costs order

There may be scope for this order under s 19A of the Prosecution of Offences Act 1985 in accordance with the Costs in Criminal Cases (General) Regulations 1986 where such costs have been incurred by one party’s ‘unnecessary or improper act or omission’.

Summary Trial

Self-assessment questions 1

How does an accused come before the magistrates’ court for summary trial? 2 What is ‘laying an information’? 3 What happens if the accused fails to attend court? 4 For what offences can a defendant plead guilty by post? 5 Can the magistrates sentence a defendant in the defendant’s absence? 6 Can the prosecution use any written statements in the absence of the maker of the statements? 7 What is a ‘submission of no case’? 8 What disclosure is required in summary trial under the CPIA 1996? 9 What special steps must be taken about expert evidence in summary trial? 10 Can the magistrates’ court order costs against the accused?

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Chapter 12

Trial on indictment

Introduction

12.1

Trial on indictment takes place in the Crown Court, following committal by the magistrates. Only indictable offences, offences triable either way or s 40 of the Criminal Justice Act (CJA) 1988 summary offences can be tried on indictment.

Preparation for trial

12.2

A Crown Court trial is preceded by a Plea and Directions Hearing (PDH) which will have been fixed by the magistrates when committing the case for trial: see Chapter 10 and, for the new statutory regime for pre-trial disclosure of evidence, 16.2.8 below. There are time limits within which a PDH must take place: four weeks from committal if the defendant is in custody or six weeks if on bail. The PDH

The object of the PDH is to obtain a plea from the defendant, together with further information which will assist the smooth running of the trial. If the defendant pleads guilty, sentence will often take place at the PDH. If the plea is not guilty the judge will require the following information: • a summary of the issues in the case • the number of witnesses giving oral evidence • the number of witnesses giving written evidence • details of facts formally admitted • alibi details if applicable • a summary of points of law or admissibility of evidence which may arise • a time estimate for the trial, and • dates of the availability of witnesses and advocates. Note

The plea is expected to be that which the defendant will maintain at the trial, although it is not impossible to change the plea at a later stage. The defence solicitor should notify

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the court as soon as it is known that there will be a guilty plea so as to facilitate the preparation of sentencing reports. Occasionally, after the PDH the accused may have a change of mind and decide to plead guilty after all, particularly, for example, after hearing counsel’s assessment of the evidence and the likely sentence a court may impose if a guilty verdict is returned, in which case you should contact the court and CPS as soon as possible. This will avoid the need for prosecution witnesses to attend court and so minimise costs.

Early identification of guilty pleas is also important, so as to earn the maximum discount under s 48 of the Criminal Justice and Public Order Act (CJPOA) 1994. See Chapter 13. 12.2.2

Preparation for a PDH with not guilty plea

Considerable preparation will be required for the advocate appearing at the PDH to provide all the information which the judge will want if a not guilty plea is to be entered so that the trial will go ahead. In turn this imposes onerous burdens on the defence solicitor because in addition to telling the judge at the PDH which witnesses will give oral and which written evidence the defence must also notify the prosecution which of their witnesses are accepted as giving written evidence under s 9 of the CJA 1967 at least 14 days before the PDH, also have served on the prosecution any defence s 9 statements, and have checked witnesses’ availability. Any complex issues of law and admissibility of evidence should also have been identified. The counsel of perfection is further to have identified any mitigating factors (which would be needed on conviction in any event) in case the defendant after all pleads guilty at the PDH. The practical reality is that if this is not done prior to committal, in view of the time limits set out above, there will not be time to do it between committal and PDH. If the accused was remanded in custody by the magistrates’ court, you may also consider making a bail application, either to the Crown Court or High Court: see Chapter 7. For legal aid purposes, a second file should be opened at this stage to distinguish relevant work for the purposes of reg 40 of the Legal Aid in Criminal and Case Proceedings (General) Regulations 1989. 12.2.3

Pre-trial rulings

The judge is also empowered to make binding rulings on any question of law or the admissibility of evidence

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(eg under s 23 of the CJA 1988) at any pre-trial hearing (which includes a PDH) either on the application of the prosecution or the defence or on the judge’s own motion. Such a ruling can be discharged or varied, but remains in force unless until either the judge disturbs, again either on his own motion or if an application is made by the prosecution or defence (who must be able to point to a material change of circumstances in order to do so). Briefing counsel

Counsel will need to be involved as early as possible since the Law Society recommends that counsel should have the brief three weeks before the PDH, since a conference may be required, and clearly counsel’s brief should be comprehensive and cover all the information needed for both PDH and Crown Court trial. Counsel might also ask you to obtain an expert’s report which might take time to arrange. Where the prosecution intends to rely on additional evidence which was not tendered at the transfer for trial stage, the prosecution will serve the relevant witness statement on you by way of Notice of Further Evidence. If so, ask your client for comments on the additional evidence and either include it in the brief or get it to counsel as soon as possible. Criminal briefs are basically no different from others in litigation for which precedents exist in the leading litigation textbooks. The following should be covered: • Background (details of the defendant, the charge, any relevant history of the case, including bail if applicable) • The prosecution case (summary of each witness’ evidence, identifying which witnesses will give oral and which written evidence) • The defence case (similar summary and details) • Evidence (this rates a separate section, including any significant points, eg on admissibility that may arise) • Mitigation (in case the defendant is convicted). The layout should follow the conventional format and be in the third person unless your firm favours the first person and a more informal style in general). In practice, counsel are grateful when the brief is concise but informative, relevant and contains something else besides the request that ‘Counsel will please represent the defendant’. The listing office will normally notify the defence

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solicitor) of the date from which the case will be in the Warned List, unless it is necessary to take a fixture for a long and complicated case. You should tell your client as soon as either of these applies and make clear that it is essential to keep in touch with your office on a daily basis towards the relevant date. You should already have obtained copies of interview tapes, a copy of the custody record, details of the prosecution witnesses’ previous convictions, and the CPS’ unused material on primary disclosure, the duty to make which arises as soon as the accused pleads not guilty. Note

Disclosure follows the same form in the Crown Court as in the case of summary trial (see Chapter 11), save that in trial on indictment, the defence is obliged to serve a defence statement, which is optional on summary trial, and also to observe the time limits.

12.3

The indictment Trial on indictment takes its name from the formal document containing the charge or charges on which the accused has been committed by the magistrates or under one of the special notice procedures: see 1.2.1. against the accused. It must be signed by an Officer of the Crown Court: s 2(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, although it will be prepared for signature by the CPS or in a complex case by counsel on their instructions. An unsigned indictment is invalid and any conviction based on it will be quashed: R v Morais (1988). Drafting of the indictment is regulated by the Indictment Act 1915 and the Indictments (Procedure) Rules 1971. Each charge is known as a count. If the indictment charges more than one offence, it will contain several counts, each of which must contain a statement of offence (ie the name of the offence and if that is statutory details of the statute contravened) and particulars of offence (ie the name of the accused and the facts by which that offence is allegedly committed). The indictment is issued in the name of the Queen against (usually written ‘v’) the named accused and the heading (called the commencement) will also identify the court in which the case will proceed. Thus every indictment contains three parts: • the commencement • the statement of offence

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• the particulars of offence. The indictment is drawn up on the basis of the committal papers and may contain any offence which is disclosed therein regardless of whether the accused was actually committed for that particular offence, provided there was sufficient evidence before the magistrates and provided that the offence • is in substitution for or in addition to counts in which there was a committal for trial, and • can be lawfully joined in the indictment of the offence(s) for which there was a committal. A bill of indictment must be preferred within 28 days of committal, although this period may be extended by a Crown Court judge before or after the original 28 day period has expired: Indictment Rules 1971.

Joinder of offences

12.4

Charges for any offence may be joined in the same indictment if those charges are founded on the same facts, or are a part of a series of offences of the same or similar character: r 9 of the Indictments Rules 1971. Founded on the same facts

12.4.1

Example

The accused is involved in a road rage incident, which leads to a fight in the course of which he assaults a woman occasioning her actual bodily harm and also causes damage to her car: he can be charged with both actual bodily harm and criminal damage in the same indictment because the charges have a common factual origin. The accused steals a credit card from A and uses it to purchase goods from B and assaults C, a police officer, who tries to arrest him: he can be charged with theft, obtaining by deception and assault with intent to resist arrest in the same indictment, even if the assault on C occurs two days after the theft.

Part of a series of offences of the same or a similar character

The rule is not restrictively construed and is satisfied if the offences merely exhibit such similar features as to show a prima facie case that they can properly be tried together in the general interests of justice: R v Kray (1969). The House of Lords has held that

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• Two offences can constitute a ‘series’ within the meaning of the rule • Both the law and the facts should be taken into account in deciding whether the offences are of a similar character • Rule 9 is not restricted to cases where the evidence upon one charge is admissible upon the others • Rule 9 should not be given an unduly restricted meaning: Ludlow v Metropolitan Police Commissioner (1970). Example

The facts of Ludlow: the accused is charged with two offences: attempted theft from a public house in Acton and robbery from a different public house in Acton 16 days later: the two charges can be properly joined because the offences are similar in law and fact, they both involved public houses and the interval between them was only 16 days.

Nevertheless this does not permit complete disregard of the requirements of r 9 . Example

The accused is charged with: (a) conspiracy to defraud the London clearing banks using cheque cards, and (b) dishonest handling of stereo equipment in the same indictment: there is no connection between the two counts apart from the fact that they both involve dishonesty: this is a misjoinder for the purposes of r 9 since the common element of dishonesty is neither sufficient nor of a similar nature: see R v Haward (1981).

12.5

Separate trial of counts Even where several counts have been properly joined in one indictment, the trial judge has a discretion to order separate trials of one or more of the counts if ‘the accused would be prejudiced or embarrassed’ in defending it: s 5(3) of the Indictment Act 1915. Example

The accused is charged with two offences: (a) indecent assault on a boy, and (b) exposing his person: the two offences are alleged to have been committed within 15 minutes of each other: if the defendant is tried together on

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both counts and convicted the Court of Appeal Criminal Division is likely to allow an appeal, as even if evidence on one count is admissible on the other, its prejudicial effect is bound to exceed its probative value, so that separate trials should have been ordered: see R v Fitzpatrick (1963).

Improper joining of counts

12.5.1

Where counts have been improperly joined in one indictment, this cannot be cured by severing some of the counts: R v Newland (1988) although the prosecution could either ignore the invalid indictment, and seek leave to prefer a fresh indictment out of time, or amend the indictment deleting some of the counts. Joinder of defendants Two or more defendants charged in a single count

Where two or more persons are involved in the same offence, whether as principal offenders or by aiding and abetting, they can be charged together in one count. Thus, where A and B commit a burglary and C acts as the lookout, they can all be charged with burglary in the same count. Where a number of defendants are charged with one offence in the same count the prosecution need not prove that they were engaged in a joint enterprise. If the evidence at trial indicates that an accused is guilty of the offence but acted independently of the others, the accused can nevertheless be convicted on that count: DPP v Merriman (1973). Different defendants in separate counts

If a criminal enterprise involves several offenders where each commits a different offence, subject to the discretion of the court they can still be charged with separate counts in a single indictment if the evidence shows that the offences are related in time or by other factors. There are no definite rules which detail the circumstances in which an indictment may include separate counts each naming a different defendant. Such joinder is not limited to cases where the defendants have acted together. It is essentially a matter for the trial judge to decide whether, in the interests of justice, several defendants can be tried together by the same jury: R v Assim (1966). Statute may expressly provide for this, eg s 27(1) of the Theft Act 1968 which provides that ‘any number of persons may be charged in one indictment with reference

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to the same theft, with having, at different times or at the same time handled all or any of the stolen goods, and the persons so charged may be tried together’. 12.5.3

Separate trials of co-defendants Charged jointly in the same count

If two or more defendants are charged jointly in the same count, the judge has a discretion to order separate trials. However, where several defendants are jointly charged with participation in one offence, a judge should order separate trials only in very exceptional circumstances: R v Moghal (1977). Joint trials save time and money but also enable the jury to get a complete picture of the facts. Unless a trial is likely to be long and complicated, or it would prejudice a particular defendant, joint offences can still be tried jointly even though it may involve the jury hearing evidence which is admissible against one defendant but inadmissible against another as the trial judge should warn the jury that the evidence is not admissible against one of the accused: R v Lake (1977). Charged with separate offences

If defendants are joined in one indictment but charged with separate offences, the judge again has a discretion to order separate trials, and is more likely to do so than where several defendants are charged in a single count. 12.5.4

Alternative counts

Where the facts alleged by the prosecution contain the necessary elements of more than one offence, the indictment may include counts for all the offences that might be proved against the defendant. Example

The accused is found in possession of a credit card which had been stolen a few hours earlier: the accused can be charged either with theft or handling stolen goods and the prosecution may include both offences in the indictment. Although the indictment itself will not expressly state that these are alternative counts, counsel and the judge will explain to the jury that if they find that the defendant did what the prosecution alleged they should convict the accused of one of the offences but not both or all.

12.5.5

Duplicity

Each count in the indictment must allege only one offence or it is ‘bad for duplicity’.

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Example

A is charged with wounding B and C on 1 July 1997. If A admits wounding B but not C it would be impossible for A to plead to this count. Similarly, if A is charged with stealing a shirt from John Lewis and pair of shoes from Debenhams, it would again be bad for duplicity. The prosecution can apply to the judge to amend the indictment before the defendant is asked to plead but if they fail to do so, the defence should bring a motion to quash the count.

It is not always necessary to charge separate activities under separate counts. The rule is practical rather than rigidly technical rule, so several different acts can sometimes be included in the same count, eg if A steals several items from different parts of B’s shop, they could be all included in one count: R v Wilson (1979). Amending the indictment

The court can order a defective indictment to be amended unless that would cause injustice: s 5 of the Indictment Act 1915. An indictment may be defective • when it is bad for duplicity • because the particulars do not disclose any offence • where it is not in accordance with the evidence given at the trial; or • where the evidence at the trial discloses more than one offence. A completely new count can be included or new counts substituted for those existing. Such an amendment may be ordered at any stage in the trial provided it does not cause injustice and any order made should take into account the court’s power to order separate trials on one or more counts or of one or more defendants The trial can be postponed if further time is needed to prepare it in the light of any amendment. Applying for an amendment

An application for an amendment of the indictment on the basis of evidence given at the committal should be made before the arraignment, although it can be made later. However, the longer the interval between the arraignment and the amendment, the less likely it is that it could be made without injustice. If an application for an amendment is made after several prosecution witnesses have given evidence, it may cause an injustice

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because you may have adopted a different strategy had you known the new or the amended count including cross-examining the prosecution witnesses on an entirely different basis. Example

1 An indictment which alleged receiving ‘three’ paintings was amended to ‘eight’ and the Court of Appeal held that there had been no injustice: R v Hall (1968). 2 A count alleging express false representation was amended to a false representation by conduct after the prosecution had closed its case and after a submission of no case had been rejected and it was held that no injustice could have resulted from the amendment: R v Harris (1976). 3 A count of receiving was added, at the end of the prosecution case, to an indictment alleging theft. The court stated that it should have been added at the outset, that it was not possible to say that the conduct of the defence up to the close of the prosecution would not have been adversely affected by the omission of the second count from the indictment, and the court was not satisfied that the amendment did not cause injustice: R v Thomas (1983).

12.5.7

Motion to quash the indictment

The defence or the prosecution may apply to the judge to quash the indictment, either in its entirety or in part. Although it is more appropriate to make such an application before the accused has pleaded, the judge may grant such an application at a later stage. However, this step is of limited use because the prosecution can often amend the indictment.

12.6

Arraignment Technically trial on indictment begins with the arraignment of the accused but this is now done at the PDH. Arraignment consists of • Calling the accused by name • Reading the indictment to the accused, and • Asking the accused to plead. If the indictment contains several counts, a plea must be taken in respect of each count. The accused must plead personally and through counsel. Where the counts are for

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alternative offences, if the accused pleads guilty to the first count put, the alternative count is then withdrawn, but if the accused pleads not guilty to the first count, then the alternative count should be put and a plea taken on it.

Pleas

12.7

These are now taken at the PDH. Plea of guilty

12.7.1

A plea of guilty will obviate the necessity for a trial, leading directly to sentence. However, where there is more than one accused, and one pleads guilty and the other(s) plead not guilty, the usual practice is to postpone the sentencing of the accused who pleads guilty until the end of the trial of the accused who pleads not guilty. Plea of guilty to a lesser offence

12.7.2

The accused may plead not guilty to the offence charged and plead guilty to another offence of which the accused might be found guilty on that indictment. Example

An accused charged with burglary (s 9(1)(b) of the Theft Act 1968) may plead not guilty to that offence and guilty to theft (s 1 of the Theft Act 1968).

If the prosecution accepts a plea to the lesser offence and the judge approves it, the accused will be acquitted of the offence charged and sentenced for the lesser offence. If the prosecution refuses to accept a plea of guilty to the lesser offence, the trial must proceed on the basis of the offence as charged and if the jury acquits the accused of that offence, the accused cannot be sentenced for the lesser offence even though there might have been a plea of guilty to it: R v Hazeltine (1967). Ambiguous pleas

This arises where an accused expressly pleads guilty but at the same time makes statements which qualify the plea. Example

An accused charged with handling stolen goods by receiving them pleads guilty adding ‘but I did not know they were stolen’.

If the accused persists, a not guilty plea should be entered. Where the plea is ambiguous and the court wrongly considers it to be a guilty plea, the Court of

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Appeal may either quash the conviction or order that a not guilty plea be entered and the appellant tried on the indictment. 12.7.4

Refusal to plead

Where the accused refuses to plead or remains silent when asked to plead, a plea of not guilty should be entered: s 6(1) of the Criminal Law Act 1967. 12.7.5

Unfit to plead or to be tried

This arises where the accused is under a disability sufficient to preclude either a proper plea or participation in the trial. Example

The accused is unable to comprehend the nature of the charge, communicate with legal advisers, challenge a juror or follow the evidence. Where this is brought to the notice of the judge by either the prosecution or the defence before the arraignment, or the judge decides to raise it, the issue of fitness to plead must be decided by a jury. Two or more medical practitioners, at least one of whom is approved by the Secretary of State, must give written or oral evidence to this effect to enable fitness to plead to be determined: s 4(6) of the Criminal Procedure (Insanity) Act 1964.

12.7.6

Pleas of autrefois acquit or autrefois convict

These two pleas – meaning ‘previously acquitted’ and ‘previously convicted’, respectively – are based on the fundamental principle of English law that a person is not to be prosecuted twice for the same offence. Where one or the other plea is successfully raised, it bars all further proceedings for the same offence. 12.7.7

A plea to the jurisdiction and demurrer

A defendant may plead that the court had no jurisdiction to try the charges preferred. This would be appropriate where the offence alleged has been committed outside the territorial jurisdiction of the English courts or the defendant has been charged in the wrong court. A demurrer, is an objection to the form or substance of the indictment apparent on the face of it. The defendant may plead demurrer in addition to pleading not guilty to the charges. Both these pleas must be in writing. 12.7.8

Not guilty plea

An accused may plead not guilty to some or all the counts on the indictment. The prosecution may decide

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not to proceed with the counts to which the accused has pleaded not guilty, in which case it can either offer no evidence on those counts (when a formal verdict of not guilty will be recorded) or ask the court that those charges be left on file marked ‘not to be proceeded with’ without the leave of the court or the Court of Appeal, when they would not normally proceed further with them unless convictions on the other counts were set aside by the Court of Appeal. This saves time and money. Change of plea

12.7.9

An accused may, with the leave of the court, change a plea of not guilty and plead guilty to all or some of the counts. The charges must be put to the accused again for the accused to plead guilty to them. An application to change a plea of guilty to not guilty may also be made, with the leave of the judge, at any time before the sentence. Note

The judges’ discretion in this matter must be exercised judicially, ie the judge must take into account, inter alia, whether the accused •

Understood the nature of the charge

•

Genuinely intended to plead guilty.

Trial by jury

12.8

An accused charged with an indictable or either way offence who has elected Crown Court trial must be tried by judge and jury. The Lord Chancellor, acting through officers of the Crown Court, is responsible for summoning jurors who are summoned at random from the Electoral Register. Eligibility

Every person other than those listed in Schedule 1 of the Juries Act 1974 ineligible or disqualified is qualified to serve as a juror. Judges, barristers, solicitors, coroners, police officers, probation officers, ministers of any religious denomination and persons sectioned under the Mental Health Act 1983 are all ineligible. Any person who has been sentenced to life imprisonment or a term of imprisonment or youth custody of five years or more; or a person who in the last 10 years has served any part of a sentence of imprisonment or youth custody or has received a suspended sentence of imprisonment or a community service order is disqualified.

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Usually, the number of persons summoned for jury service at a particular Crown Court exceeds the number actually required for the trials that have been listed, but if for some reason there is a shortfall, any person in or near the court building can be summoned to serve on the jury: s 6 of the Juries Act 1974. 12.8.2

Non-compliance with the Juries Act 1974

Section 18(1) of the Juries Act 1974 provides that a verdict reached after a trial by jury shall be stayed or reversed if, inter alia, the provisions of the Act on summoning or empanelling jurors have not been complied with or any juror was unfit to serve, ie physically or mentally. However, in practice it is quite difficult to invoke this section successfully, although clearly there might be cases where it could be argued that the effect of noncompliance with s 1 of the Act makes the conviction unsafe: see 14.2.5 below. Example

In R v Chapman and Lauday (1976), it was discovered after a unanimous verdict that one of the jurors was partially deaf and heard only half the evidence, but the defendant’s appeal against his conviction failed.

12.8.3

Challenging and swearing in the jury

The court swears in a jury of 12 from the panel of jurors brought in by an usher who chooses the names at random by ballot. At this stage both prosecution and defence have the opportunity to object ‘for cause’ to each juror going into the jury box and this objection must be taken before the juror in question swear the oaths. The prosecution also has the right to ask jurors to ‘stand by’. All jurors swear on the appropriate holy book or affirm that they will ‘faithfully try the defendant and give a true verdict according to the evidence’. Where any challenge succeeds, the juror will be asked to leave the jury box to be replaced by another juror in waiting. Note

A challenge ‘for cause’ is appropriate where the juror is ineligible, disqualified or potentially biased, eg a juror who is employed by the complainant, or shown to be hostile to the defendant. Any challenge for cause is tried by the judge. The burden of proof is on the party who makes the challenge and there must a prima facie case before a juror can be cross-examined. The prosecution’s common law

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right to ask a juror to ‘stand by’ requires no reason but should be sparingly used in exceptional cases only, such as those involving terrorism and nationality where the Attorney personally authorises the challenge, and where the juror is manifestly unsuitable and the defence consent: Attorney General’s Guidelines on Exercise by the Crown of its Right of Stand-by [1989] 88 Cr App R 123.

Jury vetting

12.8.4

The prosecution and defence are entitled under s 5(2) of the Act to inspect the panel of jurors and to make inquiries about their background, connections, opinions etc, although in practice the defence is unlikely to have the resources to carry out such investigations. The prosecution, on the other hand, have the right to use all the resources of the police investigate whether the members of the jury panel have criminal records, R v Mason (1981), and in the course of such investigations may discover that a juror in waiting has disqualifying convictions or, although not disqualified, is nevertheless unsuitable by reason of a previous offence. However, such checks should not go beyond checks for previous convictions unless there is some involvement with terrorism or national security is involved so that part of the evidence will be given in camera: Attorney General’s Guidelines 1989. Judges powers as to the composition of jury

12.8.5

At common law the trial judge has a discretion to discharge a juror even if there is no objection from the prosecution or the defence. This discretion should only be used to discharge a juror who is incompetent. Note

This power should not be used to change the racial or religious composition of juries as it is not the function of the judge to achieve a racial balance or to empanel a more ‘representative’ jury. The selection of the jury is the function of the Lord Chancellor and not the judge: R v Ford (1989).

Discharge of a juror or the jury

After the jury had been sworn, the judge may discharge a juror or the whole jury if necessary, or up to three jurors without affecting the trial. Jurors are discharged for illness, death, misconduct (eg talking about the case to the prosecution or police), even going on holiday: Winsor v R (1866) or any other reason: s 16 of the Juries Act 1974, and

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the judge may question anyone about any such irregularity: R v Ketteridge (1915), R v Chandler. If the judge discharges the whole jury the defendant will be tried by a new jury. 12.8.7

Giving the defendant in charge to the jury

Once the jury are sworn and the clerk has explained that they must determine whether the accused is guilty or not guilty, the accused has been ‘given in charge to the jury’ who will then have to be asked to bring in a verdict even if the accused subsequently confesses and changes the plea during the trial.

12.9

Procedure The order of proceedings is similar to the magistrates’ court on summary trial.

12.9.1

The prosecution case

Prosecution counsel opens their case, explaining the charges against the accused and outlining the evidence in support of the prosecution case. Counsel must not use emotive language that could prejudice the defendant and evoke sympathy for the victim. Where defence counsel has objected to certain evidence on the grounds of admissibility, prosecution counsel should not refer to it in the opening speech, as this will have to be ruled on in the absence of the jury before such evidence is adduced. This is done in a separate process called the voir dire, which comprises a ‘trial within a trial’. If the evidence is ruled inadmissible the jury will not hear it. For procedure to secure exclusion of such evidence, see 23.5. It should also be noted that there is now power to make binding rulings on the admissibility of evidence at the PDH: see 10.7 and 12.2.3 above. Note

Written statements made by both the accused and prosecution witnesses will have been carefully edited so that such statements do not contain material that should not go before the jury, eg to exclude information relating to other offences not relevant to the case being tried which might otherwise appear in the transcript of a police interview which the accused may contain. Prosecution counsel will usually have conferred with defence counsel to agree on an edited version. If there is a dispute, the judge (without the jury) will rule on how best the statements should be edited (see the Lord Chief Justice’s Practice Direction [1986] 2 All ER 511 on editing witness statements).

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Prosecution counsel must call witnesses whose names appear on the back of the indictment unless the witness • Has not come to court despite the prosecution’s reasonable efforts to secure attendance • Is not capable of belief. Submission of no case

After the prosecution has called all its witnesses and tendered all its documentary evidence, the prosecution will close its case saying ‘that is the case for the prosecution’. The defence may then make a submission of no case to answer in the same way as in the magistrates’ court, ie if the defence considers that the prosecution has failed to prove an important element of the offence charged or that no jury properly directed would convict the defendant on the prosecution evidence taken at its highest, ie on its most generous interpretation. Such a submission must be made in the absence of the jury. The proper approach is that set out in R v Galbraith (1981). 1 If there is no evidence that the crime alleged has been committed by the defendant the outcome is clear and the judge will stop the case. 2 Where there is some evidence but it is of tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence: (a) where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty to stop the case (b) where the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. See also R v Shippey & Others (1988). If the judge decides that there is no case to answer, the jury will be recalled, the decision explained and the jury asked to bring in a verdict of not guilty on the judge’s direction. If there is more than one count and the judge

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upholds the submission of no case on some and not on others, the judge will tell the jury that at the end of the trial they will be directed to return not guilty verdicts on counts in respect of which the judge upheld the submission. In relation to the remaining counts, the trial will proceed and the jury will hear defence witnesses. 12.9. 3

The defence case

If the defence only calls the accused or the accused and character witnesses, there is no right to make an opening speech for the defence. If, however, the defence calls witnesses to give evidence on disputed facts, defence counsel is entitled to make a speech outlining the case for the defence and pointing out the weaknesses of the prosecution evidence. The defence evidence is then called. Where the defence intends to call two or more witnesses to the facts of the case and the accused is one of them, the accused must be called first: s 79 of the Police and Criminal Evidence Act 1984. The accused is a competent but not a compellable witness, ie the accused need not give evidence but has the right to do so. Even if the accused does not give evidence, the defence could call other witnesses to rebut the prosecution’s case and support the accused’s version of events. Unless there is a good reason, such as disorderly conduct or violence, the accused, like any other witness, should give evidence from the witness box and not from the dock. An accused who gives evidence and every other defence witness will be be cross-examined by prosecution counsel and then re-examined by defence counsel to clarify matters raised in cross-examination. Note

See 19.4.6 below for the procedure which must be adopted to draw to the accused’s attention the potential inferences to be drawn if the accused does not give evidence.

12.9.4

Alibi evidence

If the defence calls ‘evidence in support of an alibi’, notice should have been given at committal or within seven days afterwards in accordance with s 11(1) of the CJA 1967 but even where the defence fails to comply with this provision the judge may permit such evidence to be adduced provided that it would not disadvantage the prosecution. If necessary the judge may adjourn the case for the prosecution to investigate the alibi witnesses.

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Alibi notice is only appropriate where it is alleged that the accused committed a particular offence at a particular time: s 11(8) of the CJA 1967. Where it is a continuing offence and it is alleged that this offence was committed within a certain period, alibi notice is not appropriate, but the accused should not be prevented from adducing evidence to show absence during the whole or part of that period from the place where the offence was alleged to have been committed: see R v Hassan (1970), R v Fields (1991), R v Lewis 1969) and R v Sullivan (1971). Closing speeches

Once the accused and defence witnesses have given evidence and defence counsel has read any witness statements permitted under s 10 of the Criminal Justice Act 1967 (see Chapters 20 and 22), the defence will close its case. Prosecution counsel can then make a closing speech unless the accused is not represented by counsel and calls no evidence or only gives personal evidence and does not call witnesses to the facts. Where the defendant is represented by counsel, prosecution counsel has the right to make a closing speech even if no evidence is called by the defence: s 2 of the Criminal Procedure Act 1865. In the course of the closing speech prosecuting counsel will • Summarise the most important parts of the prosecution evidence • Comment upon the improbable parts of the defence evidence. The prosecution may now comment on the accused’s failure to testify: s 167(3) and Schedule 2 of the CJPOA 1994 (abolishing s 1(b) of the Criminal Evidence Act 1898). Defence counsel (or an unrepresented defendant) has a right to make a closing speech. This right is exercised after the prosecution’s closing speech or, if there is no prosecution closing speech, at the close of defence evidence. In making the closing speech defence counsel is not confined to comments on the evidence but may demonstrate that the prosecution evidence is capable of several different interpretations or that the scenario favoured by the prosecution was not the only possible one. However, defence counsel should not assert as facts matters on which no evidence has been given: R v Bateson (1991).

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12. 10

Summing up The judge then sums up, including giving all necessary directions to the jury, before they retire to consider its verdict. The summing up is crucial as if the judge fails to give a proper direction to the jury, the accused may have good grounds to appeal against conviction.

12.10.1

Matters of law and matters of fact

The judge explains that the jury must take guidance from the bench on all matters of law and that they should decide on all matters of fact. They should also be told that they are not bound to accept any comments or opinion the judge may make on any factual evidence that was adduced. 12.10.2

Burden and standard of proof

The judge should explain the burden and standard of proof. In criminal cases, this is on the prosecution throughout the trial except where the accused • raises the defence of insanity • relies on an exception or proviso in a statutory provision which creates the offence, or • where the burden of proof is cast upon the accused by the statute. The trial judge must stress that it is the prosecution’s task to prove that the accused committed the offence and not the accused’s task to prove that they did not. Furthermore, the prosecution must prove beyond reasonable doubt that the accused is guilty. To put it another way, as is sometimes said in the Court of Appeal, the ‘jury must be sure’ of the defendant’s guilt. 12.10.3

Elements of the offence

The judge must explain to the jury, as far as possible in simple English, the main elements of the offence, eg where the accused is charged with obtaining property by deception, the judge should explain what the prosecution must prove, ie property, deception, obtaining and dishonesty. Where the accused admits obtaining the property but disputes dishonesty, it may be necessary to give clear guidance on that issue, ie a Ghosh direction: R v Ghosh (1982). 12.10.4

Specific aspects

In some cases, it may be necessary to give a direction on a specific aspect of the case, eg because of the nature of the

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offence, the nature of the defence, or the type of witnesses that gave evidence, eg where the accused is charged with indecent assault, although this is no longer technically required, the judge should warn the jury of the danger of convicting the accused on the uncorroborated evidence of the victim and explain what corroboration means. Although the CJPOA 1994 abolished the need for such a corroboration warning, it is likely that the court may still consider it desirable to scrutinise such evidence with care and so warn the jury of the special need for caution. Similarly, where the issue is the identity of the accused, the judge should caution the jury about identification evidence, ie a Turnbull direction: R v Turnbull (1977) (see 28.2.1). Co-defendants and joinder of offences

12.10.5

Where the accused is jointly charged with other defendants, the judge should direct the jury that they should consider the evidence against each defendant separately, and where the accused is charged with more than one count in the same indictment the jury should be asked to consider the evidence on each count separately: it should be explained that just because they conclude that the accused is guilty of one count, they should not assume that the accused is also guilty of the other counts. Presenting the evidence

The judge must summarise the evidence fairly. Although the judge is entitled to express an opinion, the jurors must be informed that they can disregard this. The judge should not use intemperate and emotional language against the accused: R v Jackson (1992). Following the CJPOA 1994, the judge may now make adverse comments about the defendant’s failure to deny the offence under the caution or to answer questions when interviewed at the police station: see R v Sullivan (1967). Although the judge may comment on the defendant’s failure to give evidence at the trial, if the comment is excessive the conviction is likely to be quashed on appeal. In R v Mutch (1973) the Court of Appeal approved dicta of Lord Parker CJ in R v Bathurst (1968) that ... the accused is not bound to give evidence, that he can sit back and see if the prosecution have proved their case, and that, while the jury have been deprived of the opportunity of hearing his story tested in cross-examination, the one thing that they must not do is to assume that he is guilty because he has not gone into the witness box.

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Note

Section 35 of the CJPOA 1994 deals with silence at trial and provides that the court may ‘draw such inferences as appear proper from [the accused’s] failure to give evidence or his refusal without good cause to answer any question’. However by s 38(3) a person cannot be convicted of an offence ‘solely on an inference drawn from such a refusal or failure as is mentioned in ss 34(2), 35(3), 36(2) or 37(2)’ of the Act. Thus there is no other evidence against the accused than that he or she refused to answer, there will be no case against him or her, and he or she will have to be acquitted. See further in the evidence chapters on this topic.

12.10.7

Directions as to unanimity

The judge will then request the jurors to elect one of their members as foreman to act as their spokesperson and ask them to retire to consider their verdict. The Practice Direction issued by Lord Parker CJ in July 1967 (51 Cr App R 454) advises that the judge should direct the jury in the following manner: As you may know, the law permits me in certain circumstances to accept a verdict which is not the verdict of you all. Those circumstances have not as yet arisen so that when you retire I must ask you to reach a verdict upon which each one of you is agreed. Should, however, the time come when it is possible for me to accept a majority verdict, I will give you further directions.

12.11

The verdict

12.11.1

Retirement of the jury

To consider its verdict the jury retires to a convenient place. The court usher takes the oath not to permit any third party to speak to them and not to speak to them personally (except to ascertain whether they are agreed upon their verdict) and then escorts the jurors to their room. Once the jury has retired it must at all times remain in the custody of the usher (referred to at this stage as the jury bailiff) who must refrain from discussing anything with the jurors except for the purpose of passing messages to and from the judge. Nor should jurors speak to third parties. Example

In R v Neal (1949) the conviction was quashed on appeal because the jury, after retiring to consider its verdict, left

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the court and went to a restaurant for lunch, convicting the defendant on its return. Although they had obtained the judge’s permission to retire to the restaurant, the bailiff had not accompanied them.

The jurors should not leave their room or separate except with the permission of the judge, although the judge may permit a juror to leave or separate in the case of ‘evident necessity’, because it is important that the whole jury deliberates on the case. It is also important that the jurors do not have any opportunity to discuss the case with or be influenced by third parties: see R v Godson (1975) and R v Alexander (1974). Once the jury retires, even an officer of the court should not enter into discussions with the jury or answer any questions put to them by jurors. If the jury has any questions or requests, the bailiff should be asked to address them to the judge by means of a written note. Once the judge receives a note, counsel and the accused are asked to return to the court and the judge reads out the note so that the counsel can comment on the appropriate response. The jury is then called back and, after confirming its question, the judge gives the appropriate answer. No additional evidence after the jury retires

Once the jury retires, it must not be given any additional evidence or material which was not adduced in evidence at the trial, although it may ask the judge to repeat any evidence that was given, as that would be a material irregularity that might result in the conviction being quashed on appeal. The jury may ask for the exhibits of the case, but such a request should be dealt with in open court so that counsel has an opportunity to ensure that only the proper exhibits are seen by the jury. Example

In R v Devichand (1991), the jury, having retired, asked to see some tins of paint which were exhibits, and when they examined the paint tins they noticed for the first time that the price labels on them were potentially inconsistent with the defence version of events. The judge directed the jury to ignore the labels and they returned a guilty verdict but the conviction was quashed on appeal because the labels were new evidence and the jury might not have been able to ignore the new information.

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12.11.3

Majority verdicts

In less complicated cases the jury will usually give a unanimous verdict within a reasonably short time, the jury bailiff will communicate this to the judge and the jury will then be asked to come back to court. The clerk next asks the foreman whether the jurors have reached a verdict and if so whether it is the verdict of them all. If the foreman confirms that they have and it is, the clerk then asks for the verdict on each count and if there are co-accused the clerk will ask for a verdict in respect of each person named in the indictment in turn. However, since 1967 majority verdicts have been possible if the jury is unable to be unanimous verdict after: ... such a period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case; and the Crown Court shall in any event not accept such a verdict unless it appears that the jury have had at least two hours for deliberation (our emphasis): CJA 1967 now contained in s 17(4) of the Juries Act 1974. Following the CJA 1967, it was recommended that two hours and 10 minutes should elapse between the jury retiring and returning with a majority verdict: see Practice Direction (Crime: Majority Verdicts) [1967] 1 WLR 1198. The additional 10 minutes is possibly to allow for the time the jury will spend going to and from the court: see R v Gilbert (1978) and R v Tricketts and Tricketts (1991). Where the jury consist of all 12 members the majority verdict has to be by 11 to 1 or 10 to 2. If the jury is reduced, the majority may be by 10 to 1 or 9 to 1. If the jury is reduced to 9 the verdict has to be unanimous. The jury may either convict or acquit by a majority verdict. If the verdict is guilty, the foreman must state in open court the majority by which it convicted the accused. 12.11.4

Alternative counts

Where an accused is charged with alternative counts, eg theft and handling, the clerk will ask the foreman whether the jury finds the accused guilty of either offence. If answer is in the affirmative, the foreman will next be asked on which count the jury finds the accused guilty and the verdict is taken on that count. The judge then discharges the jury from giving a verdict on the other count. If the foreman answers ‘no’, the clerk will confirm that the jury acquits the accused on both counts.

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12.11.5

Normally the jury will merely consider whether the defendant is guilty or not guilty of the offence charged. However, in certain circumstances it may bring in a verdict of not guilty to the offence charged but guilty to some other offence: s 6(3) of the CJA 1967. In certain offences the count expressly includes another offence, eg robbery would include an allegation of theft. Another offence would be included by implication if the allegation in the indictment is capable of including an allegation of another offence. Example

1 If the accused was charged with GBH contrary to s 20, of the Offences Against the Person Act 1861, the accused may be not guilty as charged but guilty of ABH since GBH will necessarily involve an assault and some injury, see R v Wilson (1984) and DPP v Parmenter (1992). 2 Section 6(2) of the CLA 1967 provides for an alternative verdict of manslaughter or other lesser offences, or of attempt where an accused is not guilty of murder. 3 Section 6(4) provides for conviction of an attempt as an alternative to the full offence. However, at the judge’s discretion, even where the facts show commission of the full offence, if the indictment actually charges an attempt a verdict of guilty of that offence may still be accepted. 4 On a count of reckless driving or causing death by reckless driving, the jury may return a verdict of careless driving: s 24 of the RTA 1988. Note

Under s 40 of the CJA 1988 (ie trial of a linked summary offence on indictment) creates a special case. It is no longer possible to bring in an alternative verdict of common assault upon a charge of ABH unless it is actually specified as a separate count on the indictment.

Discharging the jury from giving a verdict

If a jury, having deliberated for some reasonable length of time and after being given a majority verdict direction, finds that it cannot even agree by majority, the judge will discharge the jury and there may have to be a retrial depending on whether the prosecution decides to proceed with a further trial. A jury must not be put under any pressure to reach a verdict.

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Example

In R v McKenna (1960), where a judge said he would be leaving the court in 10 minutes and that unless they reached a verdict by then the jury would have to be kept overnight, the Court of Criminal Appeal quashed the conviction on the ground that his may have been construed by the jury as a threat!

The Court of Appeal has disapproved more subtle forms of pressure such as a pronouncement that failure to agree may result in another trial: see R v Wharton (1990) and R v Boyes (1991).

Self-assessment questions 1

What preparation is needed for Crown Court trial? 2 When can more than one charge be joined in the same indictment? 3 When can two or more defendants charged in the same indictment, seek severance of the indictment in order to have a separate trial for one of them? 4 Can you include several charges which have been committed in different places and on different dates in one indictment? 5 What is an alternative count? 6 What is the meaning of ‘bad for duplicity’? 7 What is a majority verdict? 8 Who is not eligible to serve as a juror? 9 What is an alternative verdict? 10 What is a voir dire?

Chapter 13

Sentencing of adult offenders

Introduction

13.1

This chapter deals with sentencing of offenders aged 18 and over and the wide range of sentences available to the court. Sentences for offenders under 18 years are dealt with in Chapter 15. Sentencing is a highly complex and technical field and it is only possible to give an overview within the scope of this book. Moreover, since the focus is on the work likely to be undertaken by the trainee, some obvious exclusions are casualties of the restricted space available even for an outline, eg murder, for which the sentence is life imprisonment if the offender is 21 or over, or custody for life if between 18 and 20, is not covered. Solicitors may expect a good deal of sentencing work, ie after guilty plea or conviction on summary trial, on briefing counsel for the Crown Court and also a limited right of audience of their own in Crown Court sentencing. Even a generalist will need to consult the specialist sentencing reports for more detailed guidance than this introduction is able to offer.

Procedure before sentence If the accused has pleaded Guilty at a Crown Court PDH it may be possible to proceed immediately to sentence as all necessary information should already be available if there has been sufficient warning of the likelihood of the guilty plea. On the other hand, if the accused is found guilty, either on summary trial or in the Crown Court, the court may need to adjourn to obtain reports on the offender. If the court decides to adjourn, the offender may be remanded in custody or on bail, at the court’s discretion. Note

It might be necessary to adjourn anyway, to await the outcome of a co-accused’s trial so that, in the event of another conviction, the co-defendants can be sentenced together.

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The same essential sentencing procedure is followed in both the Crown Court and magistrates’ court. The following will be required: • An outline of the facts • The offender’s previous record (called the ‘antecedents’) • Character evidence • Pre-sentence reports on the offender • Mitigation. 13.2.1

Facts of the offence

If the offender is convicted at trial, the court will have heard the evidence and be fully aware of the facts but if the offender pleads guilty, so that there is no trial, the prosecuting advocate will outline the facts of the offence for the benefit of the court. The offender may challenge the prosecution’s version and, and where the difference between the prosecution and defence as to what occurred is too slight to affect sentence, the court may sentence on the basis of the facts alleged by the prosecution without hearing evidence. However, where the dispute of fact between defendant and prosecution creates an otherwise unresolvable conflict which is material to the level of the sentence, eg because of the manner in which the offence was committed, the prosecution might have to prove its allegations by evidence despite the plea of guilty. This investigation is called a ‘Newton hearing’ after the case of that name in which the procedure was first adopted: R v Newton (1982) and R v Mudd (1988). Note

A Newton hearing must be confined to the facts of commission of the offence to which the offender has pleaded guilty. There is no scope to find the offender guilty of an offence more serious than that to which the plea has been made: R v Courtie (1984), nor may the judge use this essentially sentencing inquiry into the facts of an offence as a means of deciding that the offender has committed similar offences on other occasions! The court cannot take into account in sentencing conduct not proved or admitted: R v Kidd, R v Canavan, R v Shaw (1997).

13.2.2

The antecedents

Once the facts are established, one of the police officers dealing with the case is called to tell the judge what is

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known about the offender. The officer will give evidence on oath, and usually merely reads the antecedents which will have been prepared from police records. At this stage the normal rules of evidence are usually relaxed and the prosecution advocate may lead the officer through the antecedents, but it is improper for the defence advocate, if asked to do so by the court clerk as occasionally happens, to confirm the accuracy or otherwise of the antecedents: see the Law Society advice on this point in PCS Annex 21G. The defence will have the opportunity to cross-examine on the antecedent evidence. Note

The creation of the National Criminal Intelligence Service (NCIS), which has been in existence without any statutory basis since 1992 but is now established under the Police Act 1997, should eventually much facilitate accuracy in criminal records since it will finally be possible to collate reliable records nationally. See 27.5 below for spent convictions.

The antecedents should contain the following details of the offender • Age • Education • Past and present employment • Domestic circumstances and income • Details of arrest, remand in custody or on bail • Date of the last release from prison or other custodial institution, if applicable. Convictions which are spent pursuant to the Rehabilitation of Offenders Act 1974 are not normally referred to and have no influence on the sentence. Reports

Pre-sentence reports are usually obtained from a probation officer or social worker to assist the court to determine the most suitable disposal. There is normally a probation officer present in court to receive any request for a report. The probation officer usually interviews the offender before writing the report, unless the offender refuses to be interviewed. The report will contain an expanded version of the antecedents and describe the offender’s background, circumstances, income and any particular social problems. A copy of the report must be given to the defence advocate or, if the offender is unrepresented, to the offender personally. The defence may require the probation officer who prepared the report to

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give evidence, eg where they wish to challenge unfavourable comments about the offender in the report. The court will usually ask for such reports if considering a community based penalty since in practice they need essential information from the agencies responsible for supervising such penalties before they can impose such a sentence, but it is no longer obligatory to obtain and consider a pre-sentence report before sentencing an adult to imprisonment for an either way or indictable offence: Schedule 9, para 39 of the Criminal Justice and Public Order Act (CJPOA) 1994, except when considering the threshold of seriousness for the offence, s 31(1) of the Criminal Justice Act (CJA) 1991. This significantly widens the power of magistrates and judges to pass custodial sentences and may mean that pursuant to s 29 of the CJA 1991 they inevitably take a previous bad record into account to aggravate the offences and decide not to obtain a pre-sentence report which might have enabled a probation officer to suggest (as was the philosophy and intention of the CJA 1991) a community based order as the most suitable penalty. The CJPOA 1994 also created a special rule for appeals. By the CJA 1991, although a custodial sentence could be passed without a pre-sentence report, where such a sentence was appealed there was at that stage at least an obligation on the appeal court to obtain such a report. Now, under Schedule 9, which amends the CJA 1991 by inserting a new s 4A, where the court below was satisfied that the pre-sentence report was unnecessary, in most cases the appeal court need not now obtain one either. Moreover, if the court below was not so satisfied, the appeal court can now say that since under the new provision such a report is not necessary, they themselves, ie the appeal court, need not obtain one either. (See further 13.6 and 13.10 for other restrictions on the court’s custodial sentencing powers, which are not changed.) These provisions, together with those of the CJA 1993 (which returned the law to the pre-1991 situation where previous convictions could aggravate seriousness), significantly limit what were only a short time ago seen as fundamental changes made by the CJA 1991. Note

These rules do not apply to the Youth Court where a presentence report must still be obtained unless there is a previous report in existence, and if there is more than one such report the most recent will be considered: Schedule 9 of the CJPOA 1994 (amending s 3(2A) of the CJA 1991). See Chapter 15.

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In the magistrates’ courts, the defence will also have to supply a means inquiry form which the court will need so as to consider whether any financial penalty would be appropriate. Mitigation

The defence will next make its speech in mitigation. The defence advocate should deal with the following: • The immediate circumstances of the offence, stressing any factor which may lessen its gravity, and if possible explaining any negative factors, eg offence committed on bail, provocation if the offence is one of violence, serious financial difficulty, dishonesty etc. • The circumstances of the offender, mentioning especially ❍ age (extreme youth or age may assist) ❍ previous good character ❍ any difficulties that the offender may have been going through ❍ remorse and reparation ❍ any positive factors which may assist in the offender’s keeping out of trouble in the future and, eg, assistance to the police by confessing and/or naming others/enabling property to be recovered, and good behaviour since the offence ❍ the effect of conviction and sentence, eg on seriously ill partner, exceptional effect on employment such as disqualification where the offender needs to drive and if possible explaining any negative factors, eg failure to respond to previous penalties. Note

A discount for an early plea of guilty now has statutory recognition: s 48 of the CJPOA 1994. The stage in the proceedings at which the plea of guilty was made and the circumstances in which the indication was given, whether before the sentencing court or another court, will be taken into account as it saves police and court time and public resources and saves victims the stress of having to give evidence. The judge or bench giving credit for the guilty plea must state openly that it has imposed a less severe sentence than would otherwise have been given: s 48(2). Obviously the most generous discount will be given for guilty pleas

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entered as early as possible, ie when the prosecution case is initially served on the defence.

13.2.5

Character witnesses

It is sometimes useful to call witnesses to the offender’s character. Such witnesses are be cross-examined by the prosecution and the judge/magistrates but it is still usually worth calling them, although they might if more convenient give written evidence, because of the superior impression created by a convincing character witness. For evidence of character and convictions, see Chapter 27, especially for spent convictions at 27.5. 13.2.6

Taking other offences into consideration

Sometimes the defence will ask that other offences (for which there has been no guilty plea or no conviction at the trial) should be ‘taken into consideration’ at the sentencing stage. In these circumstances, the defence will mention these when making the plea in mitigation because they will be relevant to the overall sentence to be expected, and will seek to make a virtue out of the offender’s desire to own up to everything at once and make a fresh start. The purpose of this is to enable • the police to clear up unsolved crimes • the offender to wipe the slate clean and at the same time to do so whilst receiving a fraction of the penalty that might have been received if actually convicted and sentenced for all the offences in question, and this is the incentive for admitting offences of which the offender has not been formally convicted. Both the Crown Court and the magistrates’ court have power to take other offences into consideration. The procedure is that, usually at the investigation stage, the police prepare a list of the other offences which they believe or suspect that the offender has committed. The offender identifies those which he or she claims to have committed and would therefore like to be taken into consideration. The offences denied will be deleted and the offender should sign the edited list. Committal for trial then follows for the offence with which the offender has been charged, and at the sentencing stage the prosecution inform the court that it understands that the offender wishes to have other offences taken into consideration, which leaves the judge or magistrates, who will be given the list of offences, to ask the offender to confirm

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that they are to be taken into consideration. The sentence is then likely to be marginally increased for the extra offences, but will be nowhere near the tariff which the offender might have expected had they all been sentenced individually. Note

Sometimes where there are many instances of one type of offence for which there is sufficient evidence for the accused to be charged, one only will be selected as a specimen charge to be included in the indictment and the remainder will be ignored. However, sentences will not take such charges into account as guilt will not have been proved.

Deferring sentence In most cases the court will pass sentence immediately after conviction or after an adjournment for preparation of reports, but there is a power to postpone sentence for a period to permit the offender to show evidence of remorse and reform by way of offence free track record. In these circumstances, if the offender whose sentence has been deferred commits no further offences during the period of postponement, the sentence eventually imposed is unlikely to be a custodial one and the offender might even be discharged. The Powers of Criminal Courts Act 1973 permits deferred sentences on these terms: • The period of deferment must be six months or less • The offender must consent to the deferment – the court cannot defer against the offender’s will and the offender must be told why sentence is being deferred, ie that it is an opportunity to improve behaviour and to avoid the custodial sentence the court is minded to impose: R v George (1984) • Deferment is possible only if the court considers it is in the interests of justice, having regard to the offence and the character and circumstances of the offender • If the offender is convicted of another offence and tried during the period of deferment, the court should curtail the period of deferment and sentence the offender for the original offence at the same time as the second one: Practice Direction [1974] I WLR 441

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• If the period of deferment expires without the offender committing further offences, the magistrates consider the appropriate sentence but may commit the offender to the Crown Court for sentence • If the Crown Court deferred sentence (and it may do so for an offender committed to it for sentence), it may pass any sentence it could have done on the offender’s conviction before it • Sentence should be passed by the same bench of magistrates or the same judge who deferred it and if this is not possible, the sentencing court should be told what sentence the court had in mind.

Determining the sentence 13.4

The CJA 1991 (as amended by the CJA 1993) has provided a structured sentencing scheme, based on the standard penalty of a fine, alongside the alternatives of • community and custodial sentences for offences which are more serious than those suited to a fine, and • discharges for offences which are less serious than those for which a fine would be appropriate. This scheme provides nine possible sentences and the range of options available to the sentencing court in any case will be determined by • the circumstances of the offence, and • the age of the offender. The options, within the four distinct bands thus created, are • An absolute or conditional discharge • A fine • A supervision order • An attendance centre order • A curfew order • A probation order • A community service order • A suspended sentence (for exceptional circumstances only) • An immediate custodial sentence.

Sentencing of Adult Offenders

Guidelines for custody and community sentences

The CJA 1991 created a scheme for deciding whether and when to impose a community or custodial sentence, which was designed to keep more offenders out of prison through sentencing them to community service which placed different restrictions on their liberty as well as providing them with the opportunity to do work useful to the community. Nevertheless, 1993–96 statistics show an 8% rise in imprisonment (88% of which is from the Crown Court and 37% is sentences longer than four years). A community sentence should not be passed unless the court is of the opinion that the offence, or the combination of the offence and one other associated with it, was serious enough to warrant such a sentence: s 6(1). They should not impose a custodial sentence unless • The offence (in combination with one or more other offences associated with it) is so serious that only a custodial sentence is justified, or • The offence is a violent or sexual offence, and only a custodial sentence would be adequate to protect the public from serious harm: s 1(2) as amended by s 66(1) of the CJA 1993. Note

‘Associated with’ means an offence for which conviction or sentence took place at the same time. ‘Serious harm’ is defined in s 31(3) and ‘violent or sexual offence’ in s 31(1). By s 2(2)(b) a longer custodial sentence is exceptionally permitted than would be commensurate with seriousness.

The overall effect of these provisions was the creation of a distinct hierarchy in sentencing bands as set out above The notion of grouping sentences within a tier of bands indicates that the primary aim of sentencing should be proportionality, ie the sentence should be proportionate to the seriousness of the offence. Under s 29(1) of the CJA 1991 as amended by s 66(6) of the CJA 1993 • The court may take into account any previous convictions of the offender or any failure of the offender to respond to previous convictions, and • If the offence was committed while on bail, the court may treat that fact as an aggravating factor. The court takes aggravating or mitigating factors, in connection with either offence or offender, into account in deciding seriousness: s 3 of the CJA 1991.

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13.5

Absolute and conditional discharge A discharge is appropriate when it is inexpedient to impose punishment, ie the offender is technically guilty but in fact blameless as it has no adverse effect on the offender (which the court will explain) and may be absolute or conditional, ie provided that during a specified period, not exceeding three years from the date of the order, the offender commits no further offence: see ss 1A–C and s 7 of the Powers of Criminal Courts Act 1973. The offender’s age is irrelevant but a discharge cannot be used for an offence for which the punishment is fixed by law. It may be combined with an ancillary order (see 13.9), but not with any other sentence for the same offence, although if an offender is dealt with for more than one offence there may be a discharge for one and another sentence for the other(s). If an offender is conditionally discharged and does not commit an offence during the period of the discharge, the offender is never sentenced for the original offence. Where an offence is committed while subject to a conditional discharge, the consequences are the same as if the offender had been on probation at the time of the offence: the offender may be sentenced for the original offences as well as the subsequent offence, in which case the discharge ceases to have effect. Alternatively, the court may choose not to sentence the offender for the original offence, in which case the offender will still be subject to the discharge.

13.6

Community sentences: ss 6(1) and 6(4) of the CJA 1991 The following is available: • Probation order • Community service order • Combination order • Curfew order. For offenders up to age 20 only • Attendance centre order. Note

A supervision order as such is not an adult sentence and is only available for those aged 10 –17: see Chapter 15. Adult supervision is by probation order.

There is a threshold requirement (see 13.6.1 and 13.6.6) for the imposition of a community sentence, in the same

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way as there is for a custodial sentence. However, unlike a decision to impose custody (which can be based on the need for public protection), a community sentence can only be justified on the basis of the offence’s seriousness: s 6(1) either of that offence, or the combination of the offence and one other offence with it, which is the same yardstick as in s 1(2)(a) for custody: see 13.6.6. Objectives for community sentences

13.6.1

If the offence passes the community sentence threshold the court must choose the appropriate order: • The restrictions on liberty imposed by the order(s) must be commensurate with the seriousness of the offence • The sentence must be the most suitable for the offender: s 6(2) of the CJA 1991. Note

If the court is dealing with two associated offences, it can take into account the whole of the offender’s pattern of offending in determining the degree of restriction that ought to be imposed.

Pre-sentence reports

13.6.2

Section 7(3) of the CJA 1991 makes such reports mandatory before imposing a • Probation order which includes additional requirements authorised under Schedule 1A • Community service order • Combination order. Consent to community orders

13.6.3

The consent of the offender is required before the following community orders can be imposed: • Probation order • Community service order • Combination order • Curfew order. but the court may impose a custodial sentence where the offender refuses to consent, in which case the imposition of a custodial sentence constitutes an exception to the usual need to find s 1 justification: s 1(3) of the CJA 1991. Probation order

These are governed by s 2 of the Powers of Criminal Courts Act 1973 as substituted by s 8 of the CJA 1991.

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Application and effect

Probation is restricted to offenders aged 16 or over, and subject to the threshold and reports may last between six months and three years. The effect of the probation order is that the offender must accept the supervision of, and keep in touch with, a probation officer. It is therefore incompatible with a custodial sentence, even suspended. Purpose

The purpose of a probation order is to • Rehabilitate the offender, and • Protect the public from, and prevent the commission of further offences by, the offender. Requirements of a probation order

The ‘probationer’ must agree to being supervised by a probation officer who must be visited at times fixed by the officer, who will be one of those attached to the magistrates’ court for the petty sessional area in which the probationer resides, which has certain responsibility for the enforcement of the order and is known as the supervising court. Standard conditions are usually included in any probation order requiring the probationer to • Be of good behaviour, by staying in touch with the probation officer. Additional conditions might relate to • Residence • Activities, eg to attend a probation centre where nonresidential rehabilitational facilities are available • Requirements for sexual offenders, eg offenders convicted of sexual offences may be required to receive psychiatric treatment • Drug or alcohol dependency conditions – treatment at a specified place. 13.6.5

Breach of probation and revocation of community orders

Unlike a discharge, probation is a sentence passed on conviction. Breaches of any community order will generally result in summons or arrest and reappearance before the supervising court. If the court finds that the offender has failed without reasonable excuse to comply with the requirement(s) of the order, it may • Impose a fine of up to £1,000 (a level 3 fine) • Make a community service order of up to 60 hours

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• Make an attendance centre order (if appropriate) • Revoke the order and deal with the offender as if just convicted (this only applies where the order was made by a magistrates’ court) • Commit the offender to the Crown Court if the order was made there. If the offender re-offends during the period of the order, the offender will not necessarily be in breach of the order, but the order may nevertheless be revoked. A probation order may also be revoked on the basis of the probationer’s good conduct and community orders may be amended on the basis of a change of circumstances, eg the offender no longer requires psychiatric treatment. Community service orders (CSO)

13.6.6

Under s 14 of the Powers of Criminal Courts Act 1973, community orders are available in both the Crown Court and magistrates’ court and are intended as a realistic alternative to imprisonment on the following conditions: • The offence in respect of which the order is to be made is punishable with imprisonment • The court has considered a pre-sentence report • The court considers the order appropriate for the offender and the offence • The effect and the consequence of breach of the order have been explained to the offender • The offender has consented to the order being made. The offender must perform unpaid work as specified for a period of 40 –240 hours, usually spread over a period of 12 months and in the offender’s own time, eg helping elderly people, decorating, or gardening. The work is supervised by a probation officer or other appointed social worker and is intended to make an impact on the offender’s leisure time as well as to make reparation to the community. The order may be combined with a probation order: see 13.6.4 or with a fine but not with imprisonment so is incompatible even with a suspended sentence where such imprisonment is unlikely to have effect. Breach may be dealt with as for breach of a probation order, and the usual penalty is a fine unless the breach is wilful when imprisonment might follow. Combination orders: s 56 of the CJA 1991

These are a mixture of probation orders and community service orders. The probation element in the combination

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must be a minimum of 12 months instead of six months and the maximum is three years. The community service element must between 40–100 hours instead of the usual maximum of 240 hours when not as part of a combination order. The following conditions apply: • The offence must be punishable with imprisonment • The court must obtain and consider a presentence report before imposing the order: s 7(3), of the CJA 1991 • The court must be satisfied, before making the order, that it is ❍ desirable in the interest of securing the offender’s rehabilitation, or ❍ will protect the public from the offender, or ❍ will prevent the offender committing further offences • The court can insert any of the additional requirements which it could have inserted into a probation order, provided that they do not prevent the fulfilment of the community service element of the order: s 11(3) of the CJA 1991 • The community service element must be completed within 12 months of the making of the order: s 15(2) of the Powers of Criminal Courts Act 1973. 13.6.8

Curfew orders: s 12 of the CJA 1991

Curfew orders may be imposed with other community orders and financial penalties (see 13.11) or alone as a community sentence, for imprisonable or non-imprisonable offences, require a pre-sentence report as before and must be for not less than two and not more than 12 hours in any one day and for up to 6 months. Electronic monitoring (tagging) may be an additional requirement of a curfew, where provisions have been made locally for the implementation of a scheme. 13.6.9

Attendance centre orders: ss 17–19 of the CJA 1982

The consent of the offender is not required for this order which requires attendance for supervised activities and is available up to the age of 21.

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13.7

Imposition of a fine is by far the most common penalty for summary offences, the most frequent penalty for offences which are triable either way, and is the ‘base rate’ from which all non-custodial sentences are graduated. Besides fines other financial orders may be imposed on an offender, such as to pay • Compensation to the victim, and/or • Legal costs. An order for confiscation or forfeiture may also be imposed. Maximum fines

13.7.1

The Crown Court can impose an unlimited fine on an offender who has been convicted on indictment or committed for sentence under s 38 of the Magistrates’ Courts Act 1980. The magistrates can impose a fine up to £5,000 on summary conviction for an offence triable either way. For summary offences, the maximum fines which can be imposed on a standard scale of fines in relation to levels Level Amount of fine 1 £200 2 £500 3 £1,000 4 £2,500 5 £5,000 Determining the fine

13.7.2

The fine must be of such amount as in the opinion of the court reflects the seriousness of the offence and takes into account the financial circumstances of the offender: s 18 of the CJA 1993. The court can make a financial circumstances order against an offender to give the court, within such period as the order specifies, such information about the offender’s circumstances as the court may require: ss 20(1) and (1)(A) of the CJA 1993, and Schedule 3, para 2(1). Time to pay

A court imposing a fine is under a duty to give the offender time to pay. Even when it is not under a duty to do so, the court always has a discretion to allow time. The only occasions on which a court may refuse an offender time to pay are when • The offence is imprisonable, and the offender appears to have the money to pay immediately

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• The offender is of no fixed abode or is likely to leave the UK, or • The offender is already serving a custodial sentence, or is given a custodial sentence by the court at the same time as it imposes the fine: s 31(3) of the Powers of Criminal Courts Act 1973 and s 82, of the Magistrates’ Courts Act 1980. 13.7.4

Motoring offences

Fines are often used as a penalty for motoring offences, alongside disqualification: see Chapter 5.

13.8

Custodial sentences This section covers adult imprisonment, immediate or suspended, and detention in a young offenders’ institution (for those aged 18–21).

13.8.1

Minimum age for imprisonment

The minimum age for a sentence of imprisonment is 21: s 1(1) of the CJA 1982. 13.8.2

Requirements for custodial sentences

A court must abide by certain statutory requirements when considering imposing a custodial sentence, particularly: • A first sentence of imprisonment cannot be passed on an offender who is not legally represented without giving the offender a chance to be legally represented, on legal aid if entitled: s 21 of the Powers of Criminal Courts Act 1973 • A custodial sentence cannot be passed unless the court is satisfied that it is justified on the criteria set out in s 1(2) of the CJA 1991, see 13.4.1 • In relation to seriousness, the court must still obtain and consider a pre-sentence report: s 3(1) of the CJA 1991 • The court must take into account all available information about the circumstances of the offence: s 3(3) of the CJA 1991 • Any court passing a custodial sentence must state its reasons: s 1(4) of the CJA 1991. 13.8.3

Concurrent and consecutive sentences

When a court deals with an offender for two or more offences by means of a sentence of imprisonment, it may either order that the terms of imprisonment will run at the same time as each other (concurrent sentences), or that they will run one after the other (consecutive sen-

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tences). Where consecutive sentences are imposed for two or more offences, the aggregate sentence may exceed that which could have been imposed for any one of them, but such sentences would be wrong in principle if they are imposed for offences which, although distinct in law, arose out of a single act so that the offender really only committed one crime. Length of custodial sentence

The criteria for determining the length of a custodial sentence is clearly set out in s 2(2) of the CJA 1991: • For such term (not exceeding the permitted maximum) as in the opinion of the court is commensurate with the seriousness of the offence, or the combination of the offence and other offences associated with it, or • Where the offence is a violent or sexual offence, for such longer term (not exceeding that maximum) as in the opinion of the court is necessary to protect the public from harm from the offender. Proportionality is the keystone of this system: s 2(2)(a). Aggravating or mitigating factors are taken into account: s 3 of the CJA 1991. A pre-sentence report is as important for the purposes of the decision on length of sentence as in relation to the custody threshold although the sentence is not invalidated if the report is dispensed with: s 3(1). Where loss of liberty is inevitable, the sentence should be kept as short as possible: per Lord Lane in R v Bibi (1980). Maximum sentences are those fixed by statute (in the Crown Court) or six months, or less if there is a lesser maximum fixed by statute (in the magistrates’ court, including a tariff for mandatory life sentences: s 35 of the CJA 1991. When this is fixed at the outset of the sentence, the Home Secretary has no subsequent power to increase the time served: R v Secretary of State for the Home Department ex p Pierson (1997). Part I of the Crime (Sentences) Act 1997 has also introduced new mandatory and minimum sentences for certain repeat offenders unless there are special circumstances, ie those convicted more than once of specified sexual and violent offences, eg seven years for Class A drug trafficking for an offender with two previous convictions, at least three years for domestic burglary. Subsidiary legislation has yet to refine this system and it may be that the Lord Chancellor, who has announced consultation with the

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judges on sentencing policy in future, will adopt a different approach from that of the last government in view of the high calibre judicial criticism which has condemned the system as fatally flawed in principle. 13.8.5

Suspended sentences General principles

The court may suspend a sentence of imprisonment, ie on an offender over 21, the youngest age at which imprisonment may be imposed. A custodial sentence against a person 18– 20 (ie of detention in a young offender institution, since the minimum age for imprisonment is 21) cannot be suspended. The custodial sentence provisions in ss 1–3 of the CJA 1991 apply equally to passing suspended custodial sentences. The power to suspend a sentence of imprisonment applies to all sentences of up to two years, upon which the court may provide that unless during the operational period, ie the period of suspension specified in the order (which may be 1–2 years but obviously not more than two years), the offender commits no further imprisonable offence, it will never be served, even if further offences are committed after the end of the operational period. The following points are crucial to an understanding of the operation of suspended sentences: • If the offender has not previously been sentenced to imprisonment the court cannot impose a custodial sentence and therefore cannot impose a suspended sentence of imprisonment unless there is no other appropriate method of dealing with the offender • The period of imprisonment specified must not exceed two years, but there is no statutory minimum • A suspended sentence cannot be combined with ❍ a probation order: s 22(3) ❍ a sentence of immediate imprisonment • The sentence should only be passed if, but for power to suspend, the court would have imposed a sentence of immediate imprisonment • Two or more suspended sentences may be imposed on the same occasion, so long as the total period of any term the offender may have to serve under them does not exceed two years, ie four

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concurrent sentences of two years suspended on each charge • Suspended sentences may be combined with fines or compensation orders. Breach of a suspended sentence

If an offender is convicted of a further offence punishable by imprisonment committed during the operational period, there a number of options open to it. Any magistrates’ court can deal with a breach of a suspended sentence passed by itself or another magistrates’ court. The Crown Court may deal with a breach of a suspended sentence passed by any court but a magistrates’ court cannot deal with a breach of a Crown Court suspended sentence. It must instead commit the offender to the Crown Court or deal with the offender for the further offences and notify the Crown Court of the breach of its sentence. Under s 23, the court may • Activate the suspended sentence and order that the offender serve the whole of the term suspended either concurrently with or consecutively to any sentence of imprisonment imposed for the offence which put the offender in breach of it, and if they do not select this option, reasons for not activating the sentence must be given in the judgment • Activate the suspended sentence in part, again concurrently or consecutively; which will mean that the unactivated parts cannot later be revived and ordered to be served • Extend the operational period of the suspended sentence by up to two years but without activating any part of it • Make no order on the suspended sentence, the operational period then continues to run unaltered and none of the term suspended is served unless the offender reoffends within the operational period and is on that future occasion ordered to serve it. Suspended sentence supervision orders

Although an offender may not at the same time be given a suspended sentence and put on probation, under s 26 the Crown Court can in effect achieve this result by passing a suspended sentence and ordering that for a period not exceeding the operational period of the suspended sentence, the offender shall be placed under the supervision of a probation officer provided that a term of

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more than six months is passed and suspended in respect of one offence. Note

A suspended sentence supervision order puts upon the offender an obligation to stay in touch with the probation officer exactly as under a probation order.

13.8.6

Custody for offenders under 21

Adult offenders under 21 are sentenced to one of two alternative custodial sentences: • Detention in a young offenders’ institution • Custody for life. The statutory criteria and procedure for custodial sentences are found in s 2(2) of the CJA 1991 and above apply to sentences of detention in a young offenders’ institution in the same way as to prison sentences. Sometimes the distinction in institution is cosmetic, ie a wing of an ordinary prison. Sentence of detention in a young offenders’ institution

This is by far the most common sentence given to offenders 18 –21. The term of detention may never exceed the maximum term of imprisonment that could be imposed for the offence if the offender was 21 or over. Subject to this limitation, the terms which may be imposed are prescribed in s 63 of the CJA 1991 and are 21 days up to the maximum term of imprisonment which can be imposed for the offence. The term may be ordered to run concurrently with, or consecutively to, each other whenever the court is dealing with an offender for two or more offences on one occasion and when the offender is already serving a young offenders’ institution term. 13.8.7

Custody for life

An offender aged 18 –20 cannot receive life imprisonment and instead s 8(2) of the CJA 1993 (as amended by s 63(5) of the CJA 1991) provides that an offender of that age will be sentenced to custody for life. Such an offender is in practice usually detained in prison, but the Home Secretary may order that a male under 22 or a female of any age may instead be detained in a young offenders’ institution. 13.8.8

Serving the sentence

Provision for early release, ie for good behaviour was made by ss 32–51 of the CJA 1991, but the Crime (Sentences)

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Act 1997 which gives effect to the Conservative government’s White Paper ‘Protecting the Public’, promotes their stated object of achieving transparency in sentencing and abolishes early release on parole in favour of a new system of prescribing the term to be served at the outset together with a different scheme supervision and liabilities after release.

Other orders

13.9

Regardless of whether proceedings are summary or on indictment, the court has power to make one or more orders additional to or in lieu of penalties imposed on sentence as follows for • Binding over • Compensation • Restitution • Costs. Binding over order

On conviction of an offence, any court may, instead of passing sentence at once, require that the defendant guarantees to appear later for judgment by entering into a recognisance, ie to pay a sum of money: s 115 of the Magistrates’ Courts Act 1980 and s 1 of the Justice of the Peace Act 1861. Note

1 The court may require sureties for the recognisance, ie persons other than the offender who will put up their own money to guarantee the offender’s later appearance. 2 A binding over order is in effect a means of postponing sentence, although the power to defer sentence described at 13.4 is more widely used. 3 An order obviously cannot be made when the sentence is fixed by law, ie for murder or treason.

The power to bind over the offender to keep the peace for a stated period can also be used as an alternative to sentence, and in practice is similar to a conditional discharge. Both the magistrates’ court and the Crown Court may make the order on convicting the accused but can also do this even where the accused has been acquitted or against a person other than the accused. This more extensive power is applicable where • The court considers that unless an order is made, there will be a breach of the peace in the near future

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either by, or as a result of the conduct of, the subject of the order • The subject of the order has been afforded an opportunity to object to it and prior notice of the court’s intention to make the order must be given to the intended subject, but where the person to be bound over has been convicted of an offence by the court, the practice is to combine the order with some other order in the nature of a sentence, rather than to make the binding over order alone. Note

Such an order made by a High Court judge is made in the judge’s capacity as a justice of the peace for the county in which the judge is sitting.

13.9.2

Compensation order

Any court which convicts an offender can order that offender to pay compensation to the victim of the offence for any personal injury, loss or damage resulting: s 35 of the Powers of Criminal Courts Act 1973. By s 67 of the CJA 1991 the order can be made • Instead of any other sentence • Without the victim having to make an application for it, or • In respect of an offence taken into consideration. The court determines the amount of the compensation, taking into account the evidence and any representations made by or on behalf of the prosecution. There is no limit to the amount of Crown Court compensation but the magistrates are limited to £5,000. Where the means of the offender are such as to give the court choice between imposing a fine and ordering compensation, it may at the same time impose a fine but should give preference to ordering compensation: s 67 of the CJA 1982. Where more than one victim claims compensation against the same offender in the same proceedings, the court is under no duty to make orders in respect of each, either for equal amounts or equal shares, but has a discretion to select which of the victims it will aid by an order if the offender’s means are inadequate to compensate all fully. An offender may appeal to the Crown Court against the making and/or amount of the order, or the time given to pay it by instalments.

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Note

1 The magistrates’ court can order deductions from Income Support for compensation orders and fines imposed but the Crown Court cannot. 2 The victim must give credit for the amount received under the order in later civil proceedings. The court can also order repayment of sums paid, or reduction of sums due under the order if in civil proceedings the amount of the injury, loss or damage is held to be less than the amount of the order.

Restitution orders

13.9.3

Where goods have been stolen and the offender is convicted of a related theft or has it taken into consideration, the court can order anyone with possession or control of the goods to return them to the person entitled to their possession, provided there is no doubt as to their true ownership. This order is appropriate where a thief or handler was caught in possession of the stolen goods. Costs order

An offender can be ordered to pay or contribute to the prosecution’s costs. If an accused is found not guilty, an order for payment of the defence costs out of public funds may be made if, and in so far as, those costs are not to be paid by the legal aid fund and this power exists whether the case was tried summarily or on indictment. However, in most cases, no order may be made for payment of defence costs by the prosecution. The amount to be paid by an accused who has been convicted must be specified in the order. The award of costs at the conclusion of a criminal trial is governed primarily by ss 16–21 of the Prosecution of Offences Act 1985. Note

Under s 19A of the Prosecution of Offences Act 1985 (inserted by the Courts and Legal Services Act 1990) the court can order a solicitor (or a barrister) to pay costs wasted as a result of any improper, unreasonable or negligent act or omission (including by a member of a solicitor’s staff).

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13.9.5

Forfeiture order

On conviction of any offence, the convicting court may order the forfeiture of any property which • Has been lawfully seized from the offender • Was in the offender’s possession or control at the time of apprehension for the offence, or when a summons was issued in respect of that offence: Powers of Criminal Courts Act 1973 as amended by s 69 of the CJA 1988. The court must be satisfied that • The property has been used for the purpose of facilitating the commission of an offence or was intended by the offender to be used for that purpose, or • The offence consisted of the unlawful possession of the property. When making the forfeiture order, the court must have regard to the value of the property, and the likely financial effect on the offender. Note

The order should not be made in respect of property not owned by the accused unless firm evidence is produced that its owner knew that it was to be used in criminal activities: R v Maidstone Crown Court ex p Gill (1986).

13.9.6

Recommendation for deportation

A person aged 17 or over who has no right of abode in the UK may, on being convicted of an offence punishable with imprisonment in the case of a person aged 21 or over, be recommended for deportation. The recommendation is made by the convicting or sentencing court, and the offender must be given seven days’ written notice of the court’s intention to make it. The decision to deport lies with the Home Secretary. Note

A deportation order is not in theory a sentence but it may be appealed against to the Court of Appeal.

13.10

Criminal Injuries Compensation Board Injured victims rarely have any prospect of recovering damages from their assailant as lack of money is usually the motive for the offence, especially in the case of theft and robbery. However, compensation may be obtained

Sentencing of Adult Offenders

from the CICB , a fund set up in 1964 by the government to compensate the victims of crime who suffer injury and loss through criminal activities, a scheme which has since been put on a statutory footing: ss 108–17 of the CJA 1988. Applicants need not show that the offender has, or even could be brought to trial, or that the offender has insufficient means to pay damages, but there is no entitlement to compensation if the Board, after having regard to the applicant’s way of life, deems it inappropriate to make such an order. The fund only covers injuries sustained through crimes of violence and only if the offender reported the offence without undue delay. The fund pays out approximately £35m per year, with a minimum of £400 in each case.

Self-assessment questions 1

What procedural steps must be taken before a defendant is sentenced? 2 When and why may the court defer sentence? 3 What is the effect of s 6(1) of the CJA 1991? 4 What is and when may the court impose a probation order? 5 What are the criteria for passing a custodial sentence? 6 What criteria are used for determining the length of custodial sentences? 7 When and how may the court impose a suspended sentence? 8 When and in what circumstances may the court impose ancillary orders? 9 What happens on breach of a community sentence? 10 What are antecedents?

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Chapter 14

Appeals

Introduction

14.1

The Criminal Division of the Court of Appeal hears appeals against • Conviction on indictment • Sentence following conviction on indictment • Sentence following committal to the Crown Court for sentence. Appeals from magistrates’ courts (which come either direct or via earlier appeal to the Crown Court) are heard by the High Court by way of • Case stated to a Divisional Court of the Queen’s Bench Division • Application for judicial review and one of the prerogative orders (certiorari, mandamus or prohibition). Appeals to the Divisional Court direct from the magistrates’ court by way of case stated are possible on point of law which arises during summary trial: see 14.5. The Criminal Appeal Act (CAA) 1995 made major changes to appeals by extensively amending the Criminal Appeal Act 1968.

Court of Appeal Criminal Division Appeal against conviction

Appeal is made against conviction on indictment to the Court of Appeal: s 1(1) of the CAA 1968. This is available only after a not guilty plea unless the appellant claims a guilty plea was equivocal: see Chapter 12. The grounds of appeal against conviction are • A question of law alone • A question of fact alone, or of mixed fact and law • Any other grounds which the Court of Appeal thinks sufficient. Leave of the Court of Appeal is required in all cases, except where the trial judge has certified that the case is fit for appeal: s 1 of the CAA 1968 as amended by s 1 of the CAA 1995. There is now only one exception to the

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otherwise universal rule introduced by the amended section, ie where the trial judge certifies that the case is fit for appeal, where no leave will be necessary from the Court of Appeal. Note

The new rule applies to all cases where the conviction was obtained on or after 1 January 1996.

14.2.2

Appeal against sentence

A person convicted by the Crown Court equally has no right to appeal against sentence, but must apply for leave to appeal. There can be no appeal where the sentence is fixed by law. Note

For these purposes, discharges and probation are classed as sentences: s 66 of the CJA 1991.

The Court of Appeal will interfere with the original sentence if it was: • Wrong in law, eg the court had no power to impose it, or • Wrong in principle, eg an unlawful combination, or • Manifestly excessive. Note

The amendment to the the CJA 1991 effected by Schedule 9 of the CJPOA 1994, dispensing with the former requirement of a pre-sentence report on appeal against sentence even if none had been found necessary below, will inevitably affect a defendant’s chances of a reduction in sentence on appeal (see 13.2.4).

14.2.3

Appeal where the trial judge has certified the case fit for appeal

The procedure in this case will follow the existing route whereby the appellant must serve notice of appeal on the convicting Crown Court within 28 days of conviction. The Crown Court then sends the notice to the Registrar of the Court of Appeal together with the case papers: see Practice Note [1988] 1 All ER 244. 14.2.4

Appeals in all other cases

Leave will now be required in all other cases, regardless of whether the appeal is based on law, fact, or mixed law and fact. The appellant must serve an application for leave to appeal within 28 days of conviction on the

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convicting Crown Court. There is power to extend the time limit but this is rarely exercised and the onus is on the appellant to show the reason for not complying with the procedure: R v Towers (1984). Grounds of appeal must then be drafted. These are formalised pleadings and must be sufficiently detailed to show the Court of Appeal the basis for the appeal. To discourage appeals which have no chance of success, but which are brought simply to delay the consequences of a conviction, the court has the power to order that any time spent in custody between the date the appeal is lodged and the date it is refused shall not count towards the sentence imposed: Practice Note [1980] 1 All ER 555 and R v Wanklyn (1984). Procedure and powers

The CAA 1995 made major changes in this area, significantly amending s 2 of the CAA 1968, although the amendments only in fact consolidate in statutory form the existing practice of the Court of Appeal, which has been to allow appeals on procedural and evidential grounds where there has a ‘lurking doubt’ about the conviction, and to dismiss those where there has a flaw in the process but where the conviction has not, however, been thereby rendered unsafe. Basically, this has meant substituting a new simplified test (whereby the court will allow the appeal if they feel the conviction is unsafe and dismiss it in any other case) for the old test (whereby one of the three overlapping grounds in s 2 of the 1968 Act had to be shown) and the entire proviso under s 2(1) whereby even if such a flaw were found the appeal might still be dismissed if the court were satisfied that no miscarriage of justice had occurred. With this much more straightforward approach, a large body of complex case law has become history. The old s 2(1) and the proviso is not mourned! The appeal is before three judges sitting in open court and, unless against the sentence only, requires the presence of the prosecution. The hearing takes the form of legal argument based on transcripts of the trial but, in exceptional circumstances, the court may hear oral evidence. By virtue of the amended s 2, the court will then decide the appeal on the basis only of whether they consider the conviction to be unsafe, ie where the court cannot point to any specific mistake or irregularity but is left with a lurking doubt as to the correctness of the

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conviction: R v Cooper (1969). Despite the simpler test now used, a material irregularity or mistake will still of course be relevant if such can be shown. A material irregularity includes procedural mistakes during the course of the trial. A mistake includes errors of law, eg such matters as misdirections by the judge to the jury, admission of inadmissible evidence or proceeding on a count bad for duplicity. Note

The revised test also applies to appeals against verdicts of insanity and findings of disability under ss 12 and 15 of the 1968 Act.

These amendments apply to all appeals where the hearing begins after 1 January 1996. Other powers

The Court of Appeal may • Quash a conviction • Substitute a verdict of guilty to some other offence of which the jury could have convicted • Order a retrial. A retrial has the obvious disadvantage of incurring extra expense and consuming court time, so the court is less likely to make such an order in cases where it is quite obvious that the only sensible result of a retrial will be another conviction. Fresh evidence

Section 4 of the CAA 1995 also amends s 23 of the 1968 Act. The Court of Appeal has discretion to receive fresh evidence in all cases without restriction under s 23(1) of the CAA 1968 and the amendments do not change this. Under s 23(1), as amended by s 4 of the 1995 Act, the Court must now receive fresh evidence: • If it appears to the court to be capable of belief • If it appears to the court that the evidence may afford any ground for allowing the appeal • It would have been admissible at the trial, and • It was not used at the trial and there is some reasonable explanation for the failure to do so, eg it was not available or the prosecution failed to disclose it before or during the trial. Thus, the amendments replace the old qualified duty of the Court of Appeal to receive fresh evidence and

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replaces the old more exacting test (whereby the evidence has to be ‘credible’) with the less demanding one that it should merely be capable of belief. This change was in accordance with the recommendation of the Royal Commission on Criminal Justice. Again, the new provisions apply only to appeals started after 1 January 1996. Powers of the Registrar

Section 6 of the 1995 Act inserts a new s 31A into the 1968 Act to enable the Registrar to take over some of the powers formerly exercised by a single judge of the Court of Appeal, ie to • Extend the time limit for appealing • Order a witness to attend for examination • Vary bail conditions if there is no objection by the prosecutor. Section 31A(4) permits an appeal from the Registrar’s decision to a single judge of the Court of Appeal, Criminal Division. Appeals on behalf of deceased persons

Section 7 of the Act adds a new s 44A to the 1968 Act to permit appeals to be made on behalf of deceased persons. The appeal may be begun or continued by an ‘approved person’, defined as a widow, widower, personal representative or other person having, though a family or similar relationship, a sufficient financial or other interest in the appeal. This radical new right of appeal is available only if application is made within one year of the death of the person convicted, so it will not enable convictions of those long dead to be appealed. However the Criminal Cases Review Commission will not be so restricted and in their case s 44A will apply to cases referred to them without the one-year time restriction applying. Legal aid is available for s 44A: Schedule 2, para 17 of the Legal Aid Act (LAA) 1988. A writ of venire de novo

This is an old and historic remedy which in the vast majority of cases will be irrelevant because the Court of Appeal will rely on the powers given to it by s 2 of the CAA 1968 to quash or uphold a conviction. The power given to them by the writ of venire de novo, which is not statutory and was inherited from the old Court of Crown Cases Reserved, does not achieve anything different from the power to order a retrial, as the effect of issuing

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the writ is virtually the same. As the power to issue the writ arises only where a procedural irregularity occurred before, or at the outset of, the Crown Court proceedings which was so fundamental that the appellant’s trial was a total mistrial, with the consequence that the appellant was never, at any stage of the hearing before the jury, likely to be validly convicted, the court may at its discretion simply quash the conviction as it is not obliged to order that the successful appellant be retried. In jurisprudential terms, as issuing of venire de novo presupposes that the appellant’s trial was a nullity, whereas each of the grounds for allowing an appeal set out in s 2 presupposes that it was not, there will never be circumstances in which the court can quash the conviction by virtue of its common law or statutory powers, but that does not mean that it must order a retrial if the conviction is quashed following issue of the writ of venire de novo.

14.3

House of Lords A decision of the Court of Appeal against sentence and/or conviction may be appealed to the House of Lords either by the prosecution or the defence provided • Leave is granted either by the Court of Appeal or by the Appeals Committee of the House of Lords, and • The Court of Appeal has certified that a point of law of general public importance is involved. The latter condition gives the Court of Appeal the power to stop appeals to the House of Lords, because the Lords cannot grant the certificate if the Court of Appeal does not. When and if appeals reach them, the House applies the same tests and has the same powers to quash the conviction and substitute alternative convictions as does the Court of Appeal: s 33 of the CAA 1968. The appellant cannot appeal to the House of Lords against a refusal by • The Court of Appeal to grant leave to appeal against conviction or sentence, or • The Court of Appeal or the High Court to grant leave for judicial review of the outcome of any proceedings If the Court of Appeal refuses leave to appeal to the Lords, an application to the House for leave must be lodged within 14 days of the Court of Appeal’s judgment of the case.

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14.4

An appellant may apply for judicial review of proceedings in the Crown Court or magistrates’ courts instead of leave to appeal to the Court of Appeal. An applicant for judicial review must have a sufficient interest in questioning the decision which it is sought to review. There is some uncertainty as to the meaning of sufficient interest and the concept has caused considerable difficulty in civil cases where the High Court has been asked to review the decision of an inferior tribunal, but it is clear that in criminal cases the prosecution and defence each have a sufficient interest to apply for judicial review, both of a magistrates’ court decision in a criminal case, and of a Crown Court decision upon appeal from the magistrates. Purpose

14.4.1

The purpose of judicial review is to • Prevent magistrates’ courts and other inferior tribunals which for this purpose includes the Crown Court exceeding their jurisdiction • Compel them to exercise the correct jurisdiction • Control the way they exercise that jurisdiction by compelling them to correct fundamental irregularities. Note

When magistrates are exercising their proper jurisdiction in the proper manner their decisions should be appealed by case stated, not by applying for judicial review (see 14.5).

Procedure

Application for judicial review is governed by in s 31 Supreme Court Act 1981 and RSC Ord 53. • The applicant must first obtain leave to apply for review which is usually determined by a single judge on the basis of a private perusal of the written grounds for review which must be filed at the High Court. • If leave to apply is granted, the substantive application is determined by the Divisional Court of the Queen’s Bench Division which will hear argument from the applicant and anybody who appears to have a sufficient interest in the outcome.

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The appellant applies for one of the prerogatives orders: certiorari, mandamus or prohibition. The effect of certiorari is to quash the inferior tribunals’ decision. When it grants the application, the Divisional Court can also remit the case to the inferior tribunal with a direction to reconsider it and reach a decision, pursuant to the orders of mandamus, to compel the inferior tribunal to carry out its duties, and prohibition which prevents an inferior tribunal acting, or continuing to act, in excess of its jurisdiction. Note

All three of these prerogative orders are discretionary, so case stated may be preferable.

14.5

Case stated An appeal may be made by way of case stated to the Divisional Court of the Queen’s Bench Division on a ground of pure law or jurisdiction following • An appeal to the Crown Court from conviction by the magistrates’ court, or • A committal for sentence to the Crown Court. Note

Either the magistrates or the Crown Court can be asked to ‘state a case’ directly for the consideration of the Divisional Court under s 111 of the Magistrates’ Courts Act 1980, but if this route is chosen, the right of appeal to the Crown Court from the magistrates is lost. However, not all cases qualify for case stated, eg Crown Court matters relating to trial on indictment. This is a complex and technical field of specialism, but in summary the High Court discourages judicial review where case stated is available because case stated enables the Divisional Court to hear all the facts before it, which will be particularly appropriate for a case ‘bristling with factual difficulties’ such as that of R v Ipswich Crown Court ex p Baldwin (1981).

Further appeal from the Divisional Court lies to the House of Lords.

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Appeal to the Crown Court Grounds for appeal

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14.6 14.6.1

Appeal against summary conviction by the magistrates is to the Crown Court on any ground of fact or mixed fact and law: s 108 of the Magistrates’ Courts Act 1980. If the appellant pleaded guilty, the appeal is restricted to an appeal against sentence unless the plea was equivocal: see ex p Sharma (1988) where magistrates failed to take steps to clarify the position. If the appellant pleaded not guilty, the appeal may be both against conviction and sentence. If the appeal is because of procedural irregularity, the appellant is not obliged to use the Crown Court appeal route, but may go for judicial review instead: R v Hereford Magistrates ex p Rowlands, R v Same ex p Ingram, R v Harrow Youth Court ex p Prussia (1997). Procedure

The appellant must give notice of appeal to the justices’ clerk and to the prosecution within 21 days of conviction, although this period may be extended by the Crown Court if good reason is shown. The appeal is a complete rehearing before a circuit judge or recorder sitting with at least two lay magistrates other than those who sat to hear the case at first instance. The decision is by a simple majority and the judge does not have a casting vote. The court may confirm, reverse or vary any finding or sentence imposed by the magistrates, but their powers of sentencing are no greater than the magistrates’, even if the offence is triable either way. It can, however, increase the sentence up to the maximum the magistrates could have imposed, or remit the case to the magistrates with a direction on how to proceed. On appeal, the court can only convict the appellant of an offence of which the magistrates could have convicted on the basis of the original summons. Note

Under s 142 of the Magistrates’ Courts Act 1960, magistrates already have power to reopen cases, rectify mistakes or order a rehearing, subject to various restrictions. Section 26 of the CJA 1995 widens their power under this section by removing the 28-day time limit for reconsidering cases, thereby enabling a court to reopen a case at any time if it appears to the court that it would be in the interests of justice to do so, regardless of the plea entered. The restric-

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tions on the composition of the court have also been removed. These amendments have obviously greatly widened the court’s powers to cure procedural flaws and to receive new evidence, thereby reducing the necessity to use other avenues of appeal.

However, s 142 is not available where an appeal has already been made to the Crown Court or High Court and a convicted person merely disagreeing with magistrates without there being a procedural flaw or new evidence will still obviously not be able to use s 142. Nevertheless, the amendment is a valuable contribution to the improvement in the availability of appeal.

14.7

Appeal to the Court of Appeal from the Crown and magistrates’ courts The only appeal to the Court of Appeal from a summary conviction is • Against sentence, and • The offender was committed to the Crown Court for sentence under s 38 of the Magistrates’ Courts Act 1980.

14.8

Appeal from magistrates to the Divisional Court Appeal against a magistrates’ courts’ decision in a summary trial on the grounds that the court exceeded its jurisdiction or that its decision was wrong in law is to the Divisional Court of the Queen’s Bench Division by way of case stated (see 14.5). Under s 14 of the Magistrates’ Courts Act 1980 the magistrates can ask the appellant to give some financial security for the court’s costs, and having first assessed the appellant’s means as sufficient to do so, may require a recognisance for this purpose. To start this process, the appellant must apply to the magistrates within 21 days of their decision asking them to state a case for the opinion of the Divisional Court. If the magistrates refuse, which they may only do so if they regard the application as frivolous, the appellant may apply to the High Court for judicial review and an order of mandamus to compel the case to be stated. Note

An appellant cannot appeal to the Divisional Court and to the Crown Court, s 111(4) of the Magistrates’ Courts Act 1980, so a choice must be made.

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Further appeal from the Divisional Court lies to the House of Lords, subject to the same conditions which apply to the grant of a certificate that a point of law of general public importance is involved, and requires the leave of the Court or the House of Lords

European Court of Justice

14.9

Appeal to the ECJ lies on questions of the interpretation and application of community legislation. Any court may refer a case to the court, but it is only when all local remedies have been exhausted that the case must be referred.

Other methods of ameliorating the effect of a miscarriage of justice

14.10

Compensation for wrongful conviction

14.10.1

The Criminal Appeal Act 1995 inserts a new s 4A into the CJA 1988 to formalise the criteria an independent assessor must take into account when assessing the amount of compensation a wrongfully convicted person should receive. These include the seriousness of the offence of which the claimant is wrongly convicted and whether the accused was of previous good character or had been convicted of other offences or previously imprisoned. The Criminal Cases Review Commission

Part II of the 1995 Act makes a radical change in the procedure for referring cases to the Court of Appeal where there may have been a miscarriage of justice. Previously, this has been done (or more often not done when it might have been) by the Home Secretary. The new Commission, however, is independent of both government and courts, and will investigate and refer such cases to the Court of Appeal, which will then determine referrals in the usual manner for such appeals. The Commission was set up on 1 January 1997, took over consideration of casework on 31 March 1997, and normally considers a case only after it has been through the judicial system, unless there are exceptional circumstances. It has no power to search premises, check police computers, or make arrests but can appoint someone who has those powers – such as a police officer – to investigate a case on its behalf, can instruct an expert and insist on seeing documents held by a public body (though not by private institutions or individuals). The Commission’s role ends when a case is referred to the

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Court of Appeal after which it is for the individual’s lawyers to present a persuasive case to the court.

Self-assessment questions 1

Which appeals go to the Criminal Division of the Court of Appeal? 2 What is a case stated? 3 When may an offender appeal against conviction? 4 Is leave to appeal always required to appeal against conviction? 5 When is leave to appeal required to appeal against sentence? 6 What are the prerogative orders and what do they achieve? 7 What is a writ venire de novo? 8 When may the Court of Appeal receive new evidence? 9 When may there be an appeal from the Court of Appeal to the House of Lords? 10 How do you obtain judicial review and what is it for?

Chapter 15

Juveniles

Definition

15.1

A juvenile is anyone under the age of 18: s 68 of the CJA 1991. Categories of juvenile

There are two categories of juvenile: • Children – aged 10–13 inclusive, and • Young persons – aged 14–17: s 68, and Schedule 8. Young adults 18 – 20

Special sentencing provisions exist for adult defendants aged 18 –20 and for this purpose only they must be distinguished from adult defendants aged 21 and over. It must be stressed that this category of 18–20 year olds, who are not technically juveniles, is only relevant to sentencing, despite sometimes being referred to in the vernacular sense in textbooks as ‘young persons’. Such adults are triable like any other adults and sentencing provisions affecting them are dealt with in Chapter 13. Children and young persons

The practical difference between children and young persons in the technical sense of the 10–13 and 14 –17 age groups is that a child (aged 10–13) is rebuttably presumed to be incapable of committing a crime unless it can be shown that the child knew that what he or she was doing was seriously wrong. As always in criminal cases, the burden of proof of such an allegation is on the prosecution and the standard of proof is beyond reasonable doubt. This is sometimes called the doli incapax rule. For the practical purpose of rebutting the presumption of innocence, many factors may be taken into account, including • Age – the nearer to 10 the more difficult it will be to rebut the presumption • Background – a bad home may indicate no likely acquaintance with the concepts of right and wrong, but a good one the reverse • Direct evidence of a previous criminal record.

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Note

1 Children under 10 are conclusively presumed to be incapable of committing a crime, and therefore cannot be tried by any court. 2 A child under 10, or a 10–13 year old, may be used by others to commit crimes. In this case the manipulator and not the child can still be convicted of the crime.

15.2

The Youth Court The normal venue for the trial of juveniles is the Youth Court. This court is a special type of magistrates’ court and in the context of the trial of juveniles the two separate benches should be distinguished as the ‘Youth Court’ and the ‘adult magistrates’ court’. Note

The Youth Court is the former Juvenile Court, renamed by the CJA 1991, and wherever you come across the words ‘Juvenile Court’ in textbooks, statues or other sources, you should understand then to mean the Youth Court.

15.2.1

Composition

The composition of the bench in the Youth Court is normally three lay magistrates, of whom at least one must be a woman, and at least one a man, although a stipendiary magistrate may also sit in the Youth Court, but should be accompanied by a lay magistrate. These rules may only be departed from if any imbalance arising in the composition of the bench could not have been foreseen and it is inexpedient to adjourn the hearing. All Youth Court magistrates must come from a special Youth Court panel. 15.2.2

Location

The location of the Youth Court is normally in the same building as the adult magistrates’ court but in London and other inner city areas, where the workload justifies special facilities, there are separate buildings devoted exclusively to Youth Court hearings and the adult magistrates’ court will never use those premises. These separate facilities are intended to separate the juvenile from the atmosphere of adult crime and, for this reason, if a Youth Court must use the same premises, especially if it uses precisely the same rooms as the adult

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magistrates’ court, one hour must pass between the rising of the adult magistrates’ court and any subsequent sitting of the Youth Court: s 47 of the Children and Young Persons Act (CYPA) 1933. Procedure

15.2.3

Procedure is informal and is designed to be as different as possible from the adult magistrates’ court. Unless the room used is an actual courtroom with traditional layout of bench and dock, it may not resemble a court as such at all, although the Royal Coat of Arms may be on the wall behind the magistrates, who, if not using a traditional court, usually sit on ordinary chairs behind plain tables, with their clerk at a similar table beside them. Opposite these chairs will usually be placed for the juvenile and parents. Parents are generally expected to accompany their son or daughter and, if they do not, the court has power to compel their attendance: s 34A of the CYPA 1933 (inserted by s 56 of the Criminal Justice Act (CJA) 1991). Such is the emphasis on informality, that, if the premises used involve resorting to a traditional court with a dock, the juvenile will sit in front of it, not in it, with his or her parents as before. Where a traditional courtroom is not used, tables and chairs will, of course, have to be provided for the lawyers in the case, and for the probation officers and social workers, and these will usually occupy the remaining space along the sides of the room. Note

There is no uniform rule on this so you will have to look carefully at all the participants in order to identify who is who.

Terminology

The distinct atmosphere of the Youth Court is emphasised by the difference in terminology used. Moreover, juveniles will be addressed by their first names. The magistrates do not ‘convict’ but ‘record a finding of guilt’ and they do not ‘sentence’ but ‘make an order upon a finding of guilt’: s 59 of the CYPA 1933. Nor is there an oath, but all witnesses (adults and juveniles alike) ‘promise before Almighty God to tell the truth, the whole truth and nothing but the truth’: s 28 of the CYPA 1963.

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15.2.5

Access General public

The general public is excluded from Youth Court hearings, access to which is restricted by s 47 of the CYPA 1933 to • The parties • Their legal representatives • Probation officers • Social workers and others directly engaged in the case • Court officials • The press. Note

The court may specially authorise the presence of law students. Press

The press are restrained from any identification of any sort of a juvenile who appears at a Youth Court, whether as witness or accused, unless the restriction is lifted: CYPA 1933. Such relaxation of the restriction would only be made in the case of injustice to the juvenile if it were not, eg where this might result in witnesses coming forward, for instance to support an alibi. Parents or guardians

Where a juvenile is not legally represented, the court may allow the juvenile’s parents or guardians to assist in that capacity, eg by cross-examining witnesses on the juvenile’s behalf. Note

Solicitors representing juveniles have no right to be in the Youth Court before their case begins, hence there may be a problem liaising with social workers and probation officers who often seem to remain in the courtroom regardless of whether they are personally involved in the case before the court.

15.3

The juvenile in other courts By a combination of s 46 of the CYPA 1933 and s 18 of the CYPA 1969, the usual forum for both first appearance and subsequent trial (summary in most cases) of juveniles is the Youth Court. However, where the juvenile is charged

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• Jointly with an adult • With aiding and abetting an adult in the commission of a crime (or vice versa) • With a crime arising out of the same circumstances or connected with a crime with which the adult is charged or, where • The magistrates have the case before them in the mistaken belief that the accused is 18 or over, a juvenile will first appear or be tried summarily in the adult magistrates’ court. In these four situations, what happens next depends on whether there is a joint charge with the adult, or whether the two of them are charged separately. Jointly charged with an adult

15.3.1

Where the juvenile is charged jointly with the adult and the offence is summary, the adult magistrates must retain the juvenile for trial with the adult before them, and try the two defendants together, unless the adult pleads guilty and the juvenile pleads not guilty. In this latter case they have a choice and may either • Retain the juvenile for trial by themselves then and there, or • Remit the juvenile to the Youth Court to be tried, and probably would do so, especially if they cannot try the case immediately themselves: s 29(2)(a) of the Magistrates’ Courts Act (MCA) 1980. Note

The reasoning behind this lack of choice in the first instance is the joint charge. This logically precludes separate trials on practical grounds if it can be avoided.

Aiding and abetting

The adult magistrates’ court has a choice where a juvenile is charged with: • Aiding and abetting an adult’s crime, or vice versa, or • A crime arising out of the same circumstances as, or connected with, the crime alleged against the adult. It may either: • Try the adult and the juvenile together, or • Try the adult and remit the juvenile to the Youth Court.

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The reason in this instance is that as the two have been charged separately there is no practical reason logically precluding separate trials for adult and juvenile. 15.3.3

Mistake as to the juvenile’s age

Where a mistake has been made about the juvenile’s age, the magistrates again have a choice. They may either go ahead immediately with the trial, or remit the juvenile to the Youth Court. Note

Their choice may be influenced by obvious convenience, eg whether the proceedings have actually started.

Where the offence charged jointly is summary, and the juvenile pleads guilty, the adult’s plea will be irrelevant: the adult magistrates’ court will be able to pass sentence on the juvenile immediately, but their powers of sentence are limited to • A fine • Conditional or absolute discharge • Requiring parents to enter into a recognisance, or • An ancillary order. If they consider these insufficient, they must remit the juvenile to the Youth Court for sentence: s 7(8) of the CYPA 1969. 15.3.4

Jointly charged with an adult with an indictable offence

Where the juvenile is charged jointly with an adult with an offence triable on indictment, the position is more complex. Section 24(1)(b) of the MCA 1980. If the offence must be tried on indictment, there will first have to be committal proceedings for the adult. If the offence is triable either way, the adult magistrates’ court must first follow the Mode of Trial Procedure under ss 19 –21 of the MCA 1980 so as to decide whether there will be committal proceedings or summary trial for the adult who, unlike the juvenile, has the right to elect jury trial and must not be deprived of it in a suitable case. If the decision is for summary trial, that will proceed in the adult magistrates’ court for both defendants as if the offence had been summary and the query as to destination court had not arisen. Where the adult is to be tried in the Crown Court, despite the inconvenience of separate trials for the jointly charged adult and juvenile, the adult magistrates’ court

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must specifically consider whether it is in the interests of justice for the juvenile to be committed for Crown Court trial with the adult. The magistrates must balance the desirability of a joint trial against the undesirability of the juvenile being in the Crown Court at all. If they decide that the juvenile must be committed to the Crown Court with the adult, the case will be committed for trial of both in the Crown Court in the normal way. Note

A juvenile whose case is committed for trial can have included in the committal any other indictable offences charged provided they arise out of the same or connected circumstances: s 24(2) of the MCA 1980.

If it is decided that it is not in the interests of justice for the juvenile to be sent for trial to the Crown Court, the juvenile will be asked to plead to the charge before the adult magistrates’ court. The procedure will then follow that which is usual for a juvenile before the adult magistrates for a summary offence where the magistrates have a choice. If there is a not guilty plea and they are not trying the adult at the same time, they can either try the juvenile themselves or remit the juvenile to the Youth Court (they will probably choose the latter). Conversely, if there is a guilty plea this will attract an immediate sentence from the adult magistrates unless they choose to remit the juvenile to the Youth Court for sentence because of the limitation on their powers: see 9.3.6. Note

If the charge is dismissed against the adult at the committal proceedings, s 24 ceases to apply and the juvenile will be asked to plead to the charge. The adult magistrates can then adopt the appropriate course described above depending on whether there is plea of guilty or not guilty.

Trial on indictment The second possible alternative court in which the juvenile could appear for trial is the Crown Court, where the juvenile may be sent for trial as described above. This will only be for trial on indictment in appropriate circumstances as all first appearances must be in the Youth Court or adult magistrates’ court.

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By s 24 of the MCA 1980, the juvenile must be tried summarily, ie in the Youth Court or the adult magistrates’ court, unless the juvenile is charged • With an offence of homicide, or • Jointly with an adult who is going to be tried on indictment, and the magistrates consider that it is in the interests of justice to commit both of them for trial, or • The juvenile ❍ is 14 on the date of the plea, ie a young person and not a child ❍ is charged with an offence punishable with 14 years’ imprisonment or more, and ❍ the magistrates consider that the juvenile could properly be sentenced under s 53(2) of the CYPA 1933 if convicted after trial on indictment. Note

1 In the case of homicide, the magistrates, whether in the Youth Court or adult magistrates’ court, have no discretion. They must hold committal proceedings and commit the juvenile to the Crown Court for trial on indictment. 2 In balancing the interests of justice, broadly speaking, the younger the juvenile and the less serious the charge, the less likely the juvenile is to be sent to the Crown Court.

15.4.1

Section 53(2)

In a s 53(2) situation, trial in the Crown Court will be the only way of giving a juvenile a lengthy custodial sentence for serious crime, and both the Youth Court and the adult magistrates’ court can use this power. Under s 53(2), the Crown Court has the power to sentence the juvenile to an extended term of detention in accordance with the Home Secretary’s directions, and the term will be for not more than the maximum prison sentence which could be imposed on an adult for the same offence. Conviction on indictment is essential to the operation of s 53(2), so, although the Youth Court has a power to commit to the Crown Court for sentence (see below), this does not permit the Crown Court to give the extended sentence for serious crime envisaged by the section, because the conviction will have been of the wrong type and in the wrong court (the Youth Court cannot convict on indictment). Thus, it is essential for magistrates to

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identify the type of case that might come within s 53(2) at an early stage as otherwise the essential conviction will be lacking if there is a finding of guilt following summary trial. It must be remembered that in order to invoke the provisions of s 53(2) on sentence the crime must be one of exceptional gravity so this will not be an option for the magistrates to consider merely because they think they might want to impose more than their usual minimum of 12 months. In R v Fairhurst (1986) it was held that detention under s 53(2) should be reserved for cases where the juvenile’s offences are serious but that it was not necessary for violence to be involved in order to achieve the high category of gravity required. Thus any sentence under s 53(2) of under two years will normally be considered to be wrong in principle and will be converted by the Court of Appeal into a sentence of 12 months or less in a young offenders’ institution. The Court of Appeal has said that courts should not hesitate to use Crown Court trial in appropriate circumstances, but it is reserved for very serious cases only. So, for example, it would not be suitable for simple domestic burglary and handling, but on the other hand a carefully calculated burglary which netted high worth property which was then cunningly ‘fenced’ professionally would qualify (see R v South Hackney Juvenile Court ex p RB and CB (1983)), as would such a case involving gratuitous violence of a particularly nasty variety. Note

A Youth Court can only pass a short custodial sentence on a young offender. An adult magistrates’ court cannot pass any sort of custodial sentence on a juvenile nor commit a juvenile to the Crown Court for sentence as only the Youth Court can do that. Thus, the magistrates should hear representations from both sides when considering whether or not to commit under s 53(2) and should not hear the accused’s previous criminal record as only the gravity of the offence charged is crucial: R v Hammersmith Juvenile Court ex p O (1987).

The adult magistrates may change their minds during proceedings when they are unsure whether they should send the case to the Crown Court or not. In the case of summary trial where they want to send the case to the Crown Court after all, they can do so before the end of the prosecution evidence: s 25(6). No switches are possible after a guilty plea as there is then no ‘trial’.

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Section 53 now applies to: • Children 10–13 if the offence is one that is imprisonable for an adult 14 –17 years old, or is an offence of indecent assault on a woman, and to • Young persons of 14 –17 if the offence is causing death by dangerous or reckless driving whilst under the influence of drink: s 16 of the CJPOA 1994.

15.5

Former juveniles Once over 18 a former juvenile becomes an adult and the Youth Court has no further jurisdiction. If a trial has already begun and the juvenile has pleaded, the Youth Court can finish it and sentence the juvenile as such. However, if the juvenile was 18 at the time of the plea, the Youth Court must treat the juvenile as an adult, ie the case must go to the adult magistrates and follow the normal procedure for adults there: Ex p Taylor (1992).

15.6

Sentencing

15.6.1

Sentencing principles

Sentencing principles are the same as for adults save that juveniles are always entitled to some discount on any sentence on account of their youth. However, wherever a juvenile is tried, the juvenile may not be sentenced by the same court as an adult, even if tried with one (see 15.3.3). Pre-sentence reports for juveniles are usually prepared by local authority social workers in the case of a child under 13, otherwise this work is, as usual for adult offenders, shared between the probation service and social workers. A copy of the report should be given to the parents of an unrepresented juvenile. There is a general rule in s 56 of the CYPA 1933 that, except in cases of homicide, a juvenile who is found guilty elsewhere than in a Youth Court should be remitted there for sentence unless the remitting court is ‘satisfied that it would be undesirable to commit’. This has since been qualified by Lord Lane LCJ in R v Lewis (1984) so as to justify Crown Court judges in retaining juveniles for sentence where: • The judge having presided over the trial feels better informed about the case than the Youth Court could be, or

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• An adult has been convicted at the same trial and a disparity of sentences is feared if the juvenile is remitted to the Youth Court for sentence, or • There would only be delay, duplicity of proceedings and expense if the juvenile were remitted to the Youth Court. Note

As the last of these can apply to virtually any case, the operation of s 56 seems to have been severely restricted.

Possible sentences

The following sentences are available in appropriate cases: • A sentence under s 53(1) of the CYPA 1933 of detention during Her Majesty’s pleasure for homicide, for those under 18 • The sentence under s 53(2) for serious crime (see 15.4.1), for those over 14 only • Detention in a young offenders’ institution for up to two years, for 15 –17 year olds only: s 17 of the CJPOA 1994 • Community service orders, including probation and combination orders, for 16 year olds and over only • An attendance centre order, for 10 –20 year olds • A fine • A supervision order, for 10–17 year olds containing requirements imposed under ss 12 and 12A–C of the CYPA 1969 • A hospital order under s 37 of the Mental Health Act 1983 • A conditional discharge • An absolute discharge • Disqualification from driving, including endorsement on a licence from the age when a licence would ordinarily be available if the juvenile is too young at sentence to hold one. There is also a power to require parents to enter into a recognisance, and s 58 of the CJA 1991 requires the court to bind over a parent of a juvenile under 16 to take proper care of the juvenile if the court thinks that would help the juvenile refrain from committing further offences. The court must state its reasons if it does not do so in a case where the power is available.

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Ancillary orders can also be made including unlimited compensation in the Crown Court, although the magistrates’ court and Youth Court are limited to £5,000 and the Youth Court should order the parents to pay the compensation. Costs ordered should not exceed the amount of any fine imposed. Secure training order

The CJPOA 1994 introduced a new sentence, the secure training order for offenders aged 12–14 years inclusive. This is an entirely new form of sentence, being a period of detention followed by a period of supervision. The combined period must not be less than six months and not more than two years, but half the total period, whatever that is, must be served in detention. It can only be used where the offender has committed an imprisonable offence after the age of 12 and has also committed three other imprisonable offences. On one of these occasions the offence must have been committed in breach of a supervision order or the offender must have committed some offence at some time while subject to a supervision order: see s 1 of the CJPOA 1994. For the purposes of ss 1– 4 of the CJA 1991, the secure training order is not a ‘custodial sentence’. This means that in the Youth Court more than the usual maximum of six months for one offence or 12 for two or more either way offences can be imposed on such a young offender, thereby making full use of the available two years for the secure training order. This is double the Youth Court’s normal limit for custody. On the other hand, the sentence is a custodial sentence for any other purpose including seriousness and threshold considerations and for pre-sentence reports. The length of the secure training order will be commensurate with the seriousness of the offence. The secure training order institutions are to be separate from any existing local authority accommodation and purpose built. The target is the persistent young offender – although there is no time requirement for the accumulation of such a track record. Offenders are apparently still ‘persistent’ even if they commit all the required offences on one day, or even during a shorter period. Interim arrangement will be made with local authorities until special secure accommodation becomes available. Post-custodial supervision will be provided by local authorities, social workers and probation officers: s 3 of the CJPOA 1994. The requirements of the offender’s

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supervision will be notified to the offender by the Secretary of State and not imposed at the outset by the court: s 3(7). If they are breached, the offender can be returned to custody for a maximum period of three months, or the remainder of the supervision period, whichever is the shorter, or fined: s 4(3). The courts’ powers Crown Court

The Crown Court has the most extensive power of juvenile sentencing in that it can impose any sentence available for a juvenile. In view of Lord Lane’s interpretation of s 56 of the CYPA 1933 in the case of R v Lewis, this means the Crown Court is unlikely to remit a juvenile to the Youth Court unless, perhaps, there are no pre-sentence reports available and the judge realises that he or she will not be available to pass sentence personally on the date to which sentence would have to be adjourned in the Crown Court. The Crown Court can therefore pass the maximum of one year’s detention in a young offenders’ institution available for a juvenile for one offence. If there is more than one offence, the Crown Court can pass further sentences for those but they will have to be concurrent so as not to exceed the total of one year’s custody. Youth Court

The Youth Court has the next most extensive powers. It cannot pass the extended custodial sentence for serious crime under s 53(2) of the CYPA 1933, but it can otherwise sentence a juvenile to the same maximum term of one year in custody as the Crown Court. However, it has to be expressed differently from the Crown Court format because the Youth Court is restricted to six months for any one indictable offence, with a maximum aggregate of one year for two or more offences. The Youth Court can, nevertheless, commit a 15–17 year old to the Crown Court for sentence if it feels its powers are inadequate, eg there is only one offence and six months’ detention in a young offenders’ institution is not considered enough: s 37 of the MCA 1980. The Youth Court does not have to have any particular reason for using this power, other than that it thinks that the term it is able to impose is insufficient, character and antecedents being completely irrelevant. In practice this will mean that such committals are restricted to cases of juveniles found guilty of a single indictable offence (where the Youth Court can only give six months) when the Crown Court has a further six months at its disposal

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for the single indictable offence, making a one year sentence possible. Adult magistrates’ court

The adult magistrates’ court has the most limited powers. It cannot pass any custodial sentence and cannot commit such a juvenile directly to the Crown Court under s 37. Instead, it must remit the juvenile to the Youth Court if it considers that custody and this ultimate sanction are appropriate. Otherwise, apart from the range of discharges, fines, disqualification and/or recognisances, the adult magistrates’ only other power is to make ancillary orders for costs, compensation, restitution, or confiscation: see Chapter 13. 15.6.4

Other differences between juvenile and adult sentencing

• Suspended sentences do not apply to those under 21. For this purpose a ‘juvenile’ also includes a 18–20 year old (see 15.1). There is no sentence of youth custody for those up to 18 and those 18 – 20 fall into the special category of young people for whom a custodial sentence is inappropriate for a first offence (see Chapter 13). • Detention in a young offenders’ institution for 15–20 year olds (that is the two separate groups of 15 –17s and 18 –20s) can never be for longer than an adult would get for the same offence. • The maximum for 15–17 year olds (unless the sentence is under s 53(2) of the CYPA 1933) is 12 months, and any accidental excess will be automatically remitted: s 1B of the CJA 1982 (as amended by s 63 of the CJA 1991). • Life imprisonment (wherever that is mandatory or the maximum) for 18–20 year olds is a sentence of custody for life: s 8(2) of the CJA 1982 as amended by s 63(5) of the CJA 1991. • There are some limits on juvenile fines – £1,000 in the adult magistrates’ court: s 36(1) of the MCA 1980, or £100 if under 14: s 36(2). There is no limit after a finding of guilt on indictment.

Juveniles

Self-assessment questions 1

Define the categories of juveniles. What age are young adults and why is this category of adult offender necessary? 2 What is the normal venue for the trial of juveniles? How does it differ from adult courts? 3 What court can pass custodial sentences for serious crimes under s 53(2) of the CYPA 1933 and what mode of trial is necessary for the conviction in this case? 5 What happens if a juvenile becomes 18: (a) during his or her trial (b)after he or she has been called for trial at the Youth Court but before pleading to the charge? 6 What happens if a juvenile is charged with an adult where the offence is summary? 7 Where is a juvenile tried who has aided and abetted an adult’s crime? 8 In what circumstances can a juvenile be tried in the Crown Court? 9 Is there any significant difference in principle in the sentencing of adults and juveniles? Are there differences in fact? 10 What new sentence for juveniles was introduced by the CJPOA 1994?

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Chapter 16

Evidence: an introduction

Evidence on the Legal Practice Course

16.1

Evidence is not a separate subject on the LPC Course. However, it is an integral part of litigation, and is a significant part of the teaching and assessment of criminal litigation.

Overview Scope of the subject

16.2 16.2.1

The laws, principles and practice of evidence answer the following questions: • How are facts proved in court, and what level of proof is needed? • Who may and may not give evidence? • What sort of evidence is and is not allowed in court, or does not have to be disclosed to the court or to the other party? • What warnings must a judge give to a jury in instructing the jury how to assess the evidence given? • In what circumstances will the court accept facts as true without hearing evidence on the matter? Proof of facts

Facts are proved in court by any combination of: • Oral evidence • Documentary evidence • Real evidence. Oral evidence

Oral evidence is given by witnesses in the witness box. The witnesses are: • Examined-in-chief by their own advocate • Cross-examined by the advocate for the other side • Re-examined by their own advocate.

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Note

1 There is some limited provision for certain witnesses to give evidence by video link or for witnesses’ written statements to be read out instead of the witness giving oral evidence. 2 Leading questions may not be asked in examination-inchief. 3 Witnesses may refresh their memory in court from previous written statements which were made contemporaneously with the events. 4 Witnesses may generally only give evidence of facts (not their opinion) that they have perceived with any of their own senses. Documentary evidence

Documents may only be used as evidence where the other side agrees or where the documents do not fall foul of the ‘hearsay’ rules. Further, the original document must generally be produced, though copies are allowed in certain cases. Real evidence

Real evidence is evidence of a thing in itself, eg a knife. Note

1 Sometimes, a document may fall within the category of real evidence. 2 Audio or visual records, computers and other technical devices, may be documentary or real evidence.

Using the above evidence – oral, documentary and real – the truth of the facts must be proved to the magistrate/ jury beyond reasonable doubt. There are also rules on who has the burden (obligation) of proving the facts to this level. It is usually the plaintiff, but the defendant sometimes has the ‘burden’ of proving facts or raising issues. 16.2.3

Who may give evidence?

There are rules restricting the types of person who can give, or be forced to give, evidence. Competence

Certain limited categories of person are not allowed to give evidence. For example, a co-defendant in a criminal trial cannot give evidence for the prosecution against their co-defendant(s).

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Such persons are said not to be competent to give evidence. Compellability

Alternatively, certain persons, although competent to give evidence, cannot be forced to give evidence. For example, a defendant at a criminal trial cannot be forced to give evidence if they do not wish to do so. Such persons are said not to be compellable to give evidence. Note

Adverse inferences may, however, be drawn against a defendant who does not give evidence. Court orders

However, most people are competent and compellable. If they refuse to give evidence, they can be served with a witness summons which are court orders that compel a person to come to court to give evidence. If they then refuse, they can be imprisoned or fined for being in contempt of court. See the Criminal Procedure (Attendance of Witnesses) Act 1965, as amended by ss 65–67 of the Criminal Procedure and Investigations Act 1996. What evidence is allowed?

All evidence is allowed as long as it is • Relevant to an issue in the case, and • Legally admissible. Whether a piece of evidence is relevant to an issue in the case is a question of fact and common sense. Much of these evidence chapters are concerned with the question of what types of evidence are not legally admissible. For various reasons, a variety of matters are not allowed to be given in evidence, even though a lay person might think such matters useful in proving the case. If a matter is allowed to be given in evidence it is said to be ‘admissible’, or it is said that it can be ‘adduced’ or ‘put in evidence’. Conversely, the following are ‘inadmissible’, ie they cannot generally be given in evidence: • Hearsay • Character and convictions • Confessions obtained by oppression or where they are unreliable • Evidence excluded at the court’s discretion • Self-supporting statements

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• • • •

Opinion Privileged information Evidence excluded on grounds of public policy Evidence excluded under s 78 of the PACE 1984, or at common law. Note

There are many exceptions to the general rules. Hearsay

Fundamentally, hearsay evidence cannot be given, ie you cannot give evidence of what someone else told you to be true. However, there are substantial exceptions to this, the main ones beings: • Under the Criminal Justice Act 1988 • Computer records • Confessions by the defendant • The res gestae rule. Character and convictions

Evidence cannot generally be given of the defendant’s character or previous convictions in order to say that ‘They’ve done it before, so they must have done it this time’. The main exceptions to this are • Where the similar fact rule applies • Where s 1(f) of the Criminal Evidence Act 1898 applies or where the defendant gives evidence of their good character. Note

Witnesses can be cross-examined as to their character and previous convictions, but there is an important rule that their answers to such questions cannot be challenged (their answers are said to be ‘final’) except in certain cases. Confessions

The prosecution cannot give evidence that the defendant confessed to the crime if the confession was induced by oppression or by something said or done which was likely to render the confession unreliable: s 76 of the PACE 1984. Court’s discretion

In a criminal case, the court has a discretion to exclude evidence from the trial • At common law, if its prejudicial effect, ie how much it prejudices the defendant, outweighs its probative value, ie what it proves, or

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• Under s 78 of the PACE 1984, if its admission into evidence would have an adverse effect on the fairness of the proceedings (meaning all the legal proceedings that have taken place, not just the trial). (On these grounds, evidence obtained by the police in breach of PACE procedures is often ruled inadmissible.) Self-supporting statements

A witness cannot generally give evidence that they have previously (before trial) said the same thing as they are saying now – ‘self-supporting’ or ‘self-made’ evidence. Opinion

A witness can only give evidence of facts perceived by them. They cannot generally give their opinion, ie the inferences they draw from those facts. The main exception is that experts can give their opinion on specialist matters within their expertise. Privileged information

Evidence is not admissible if it is privileged, ie it does not have to be disclosed to the court or to the other party by the party with the privilege. The following are privileged: • Communications made between solicitor and client for the purpose of the solicitor giving legal advice • Communications made between a solicitor/client and a third party, where the dominant purpose of the communication was preparation for existing or anticipated litigation • Self-incriminatory information – a person has a privilege against self-incrimination, ie a person does not have to answer questions or produce documents which could expose them or their spouse to criminal proceedings. Obviously, a defendant in a criminal trial cannot rely on this privilege to refuse to answer questions at trial. Public policy

Evidence may be inadmissible on public policy grounds if the judge decides that the public interest in non-disclosure of the evidence, eg on security or secrecy grounds, outweighs the justice of disclosing the evidence at trial. Admissibility and weight Admissibility

If a piece of evidence is inadmissible, a party will prepare their case on that basis. However, there will often be a

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dispute at trial as to whether a piece of evidence is admissible or not. In such cases, at the relevant point in the trial, both parties will make submissions to the judge/magistrates as to whether the evidence should be admissible. The judge/magistrates will then decide. The relevant point to decide on the admissibility of a piece of evidence is either • At the beginning of the trial, or before the • Prosecution or defence calls their evidence, or • Relevant witness gives evidence, or • Relevant point in the witness’s evidence, or • Relevant documentary or real evidence is produced, or • During or after the relevant evidence, on objection by the other side. In a jury trial, the issue of admissibility will be argued in the absence of the jury. The jury will be asked to leave the courtroom, without being told why. This is so the parties can argue about whether the evidence should be put before the jury, who is the finder of fact. This dispute over the admissibility of evidence, in the absence of the jury, is known as a voir dire. If the evidence is ruled inadmissible, the jury never hear about it. However, there is now power under s 40 of the Criminal Procedure and Investigations Act 1996 for the judge to make a pre-trial ruling on the admissibility of evidence in the case of a trial on indictment, thus obviating the need to keep interrupting trials and sending juries out of the court. The problem in a magistrates’ court trial is that the finder of fact (the magistrate) also rules on the admissibility of evidence. If they rule evidence to be inadmissible, they have still heard the evidence, but technically must put it out of their mind as it is not part of the evidence at trial. Alternatively, if evidence is wrongly allowed in at trial, the party who suffers can appeal against the judgment or conviction on that ground. This is often the cause of criminal convictions being quashed on appeal. Weight

Once evidence is admissible at trial, that does not mean it is accepted as true. It merely means that the evidence can be put before the finder of fact. It is then for the finder of fact – the jury in the Crown Court, the magistrates in the magistrates’ court – to decide how much

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weight to attach to the evidence, ie how much they believe it, and whether the evidence overall reaches the level of proof required for a conviction. Thus, you must always distinguish between the admissibility of evidence and the weight to be attached to it once it is admitted in evidence. In some cases, for example, evidence may just about be admissible, eg a doubtful confession, but the finder of fact may not attach much weight to it. Note

1 Although it is generally for the finder of fact to decide how much weight to attach to evidence, in some situations the judge may or must direct the jury as to how much weight to attach to evidence. For example: •

In the case of certain types of evidence, the judge may direct the jury to exercise caution before convicting on that evidence without supporting evidence

•

In the case of a statement by a defendant containing partly an admission of the offence and partly something favourable to the defendant, the jury should be directed to give less weight to the favourable part.

2 How much weight a jury attaches to pieces of evidence, and how they come to their decision in assessing the evidence, is, of course, confidential. A magistrate acting as the finder of fact, however, may give some indication on these matters when giving reasons for their decision.

Corroboration or caution warnings

16.2.6

In cases where there is evidence that a witness’ evidence might be unreliable, the judge may, in summing the case up to the jury at the end of the trial, give a special warning to the jury to exercise caution before acting on the unsupported evidence of that witness. This is a matter for the discretion of the judge. The judge must also direct the jury on how to assess any identification evidence, in accordance with guidelines set out in R v Turnbull (1977). Facts accepted as true without evidence

Under the following categories, the court will accept certain facts as being true without requiring evidence to prove the facts. Formal admissions

A party may, before or at trial, formally admit a fact to be true. See 22.2 on Formal Admissions.

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Judicial notice

The court will accept the truth of well-known public facts, eg that Christmas Day is 25 December. In other words, the court takes ‘Judicial Notice’ of such facts. Presumptions

There are certain facts which the law technically presumes to be true, eg that a child born during the mother’s marriage is legitimate. Many presumptions are rebuttable; ie the facts are presumed to be true unless the other side proves to the contrary. See 18.3. 16.2.8

Evidence in practice The parties

The prosecution should decide how they can prove each item of the charge beyond reasonable doubt. What evidence do they have on each point? On each element of the charge they must prepare • Oral evidence – however, they should prepare written statements in advance; although the defence in a criminal case is not required to disclose these, the prosecution are required to disclose to the other side, before trial, written statements of what their witnesses are going to say orally at the trial • Documentary evidence • Real evidence (material things in themselves). They must then decide in which order the evidence will be produced at trial, subject to the formal rules of trial procedure. In preparing the evidence, they must take into account • What evidence will and will not be admissible – they may have to prepare for a dispute as to the admissibility of certain evidence • Any formal procedures required before they can adduce the evidence, eg in many cases, pre-trial disclosure, service of notices, or permission (‘leave’) of the court is required. Similarly, the defendant will have to prepare in the above manner in order to challenge the prosecution on any issue, or to prove any issue where the burden of proof is on the defendant. Pre-trial disclosure

In the case of offences where the investigation did not begin before 1 April 1997, the Criminal Procedure and

Evidence: An Introduction

Investigations Act 1996 Part I provides the following scheme for pre-trial disclosure: • Primary prosecution disclosure (ss 3 and 7) The prosecution must disclose to the defence any material which in the prosecutor’s opinion might undermine the case against the accused, including unused non-sensitive material (s 4). • Disclosure by defence (ss 5 and 6) The defendant must in a trial on indictment and may in a summary trial serve on the prosecution a defence statement – setting out the nature of the defence and the matters on which they take issue with the prosecution and why – giving particulars of any alibi relied on, and the names and addresses of any alibi witnesses. The judge or prosecution, with the court’s leave, may make a comment to the jury, and the court or jury may make inferences if the defendant • Fails to serve a defence statement, or • Serves the statement late, or • Sets out inconsistent defences, or • At trial puts forward a defence different from that in the defence statement, or • At trial produces alibi evidence which has not been particularised in the defence statement. Advocates

An advocate will have to be ready throughout the trial to argue about or object to the admissibility of certain evidence. Appeal

The defendant may wish to appeal against a conviction on a point of evidence. You must take a careful note of all the evidence given and the summing-up to the jury. A misdirection to the jury on a point of evidence or the giving of inadmissible evidence is a common ground of appeal.

Self-assessment questions 1 2

What is the difference between documentary and real evidence? What are the three stages of examination of a witness?

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3

Distinguish between the ‘burden’ and the ‘standard’ of proof. 4 Distinguish between the different standards of proof for civil and criminal cases. 5 Who usually has the burden of proof? 6 What is the difference between ‘competence’ and ‘compellability’? 7 Distinguish between ‘relevance’, ‘admissibility’ and ‘weight’. 8 Outline the main types of inadmissible evidence. 9 What can you do if a witness refuses to give evidence? 10 What is a voir dire?

Chapter 17

Definitions and scope of the subject

Facts in issue

17.1

The rules of evidence state what matters may be considered in proving facts and, in some instances, the appropriate weight to be attached to the evidence admitted. The ‘facts in issue’ are simply all the facts which the prosecution defendant must prove to succeed in the case. What the facts in issue are in a given case will be determined partly by • Whatever substantive rules of law apply, and partly by • Reference to the charge and plea. Collateral facts

17.1.1

Collateral facts can be distinguished from facts in issue in that ‘collateral (or subordinate) facts’ are facts which may affect the proof of facts in issue in so far as • They may have some impact on the credibility of a witness testifying to a fact in issue, or • May affect the admissibility of an item of evidence offered to prove a fact in issue. Example

A witness seeking to give evidence which is relevant to a fact in issue may have his or her credibility undermined by proof that they are biased; or a police officer may have his or her credibility undermined in relation to a confession where the evidence is successfully challenged under ss 76 and 78 of PACE 1984 on the basis that the confession was not made voluntarily and reliably.

Relevance, admissibility, weight Relevance

All evidence relevant to prove or disprove a fact in issue is admissible unless one of the exclusionary rules which make up so much of the law of evidence applies. In DPP v Kilbourne (1973) it was stated that ‘evidence is relevant

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if it is logically probative or disprobative of some matter which requires proof’. 17.2.2

Admissibility

Quite simply, all evidence which is • Sufficiently relevant, and • Not excluded by any rule is admissible. However, evidence may be admissible for one purpose but not another. Example

A hearsay statement is admissible if the issue is whether it was made, but not if the issue is whether it is true. Where it is being tendered to prove merely that it was made it is termed as original evidence and will not infringe the hearsay rule; but where it is tendered to prove that the content of the statement is true it will be excluded and only admitted under common law or statutory exceptions (see Chapters 24– 26).

17.2.3

Weight

In a criminal case the weight of the evidence is a question of fact for the jury. Evidence which is of doubtful weight because of the risk of bias or imperfect observation may be excluded by the judge from the jury’s consideration. The weight (or ‘cogency’) of evidence may therefore be affected by, for example: • Contradictory evidence • Evidence of a character witness, ie as to the character of a person giving evidence • The ulterior motive of an accomplice in giving evidence.

17.3

Judicial evidence This can be divided into three distinct categories: • Oral testimony • Documentary evidence • Things, eg tapes and objects. These categories can be further classified as follows on the basis of their content and the method by which they may be admissible: • Direct testimony • Hearsay • Documentary evidence

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• Real evidence • Circumstantial evidence. Direct testimony

17.3.1

This is the assertion of a witness about a fact of which they have direct knowledge and which is offered as evidence of the truth of what is asserted. The testimony of the witness must relate to a fact in issue. Hearsay

17.3.2

This is known as indirect testimony in that it is the assertion of a person, other than the witness who is testifying, offered as evidence of the truth of what is asserted, rather than as evidence of the fact that the assertion was made (the latter being original evidence). In Subramaniam v Public Prosecutor (1956), it was stated that evidence is hearsay when the object of the evidence is to establish the truth of what is contained in the statement. To ascertain that an item of evidence is hearsay you must consider the • Source of the statement • Nature of the statement Note

A statement may be written, or oral or made by conduct, eg a nod in answer to a question.

• Purpose for which the statement is tendered. Hearsay evidence is excluded because of its unreliability. Example

D is charged with murdering his wife. His wife makes a statement implicating him at a time when her death was inevitable as a result of her head wounds – she died 48 hours later. She remained coherent until her death but never indicated that she knew she was dying. As she is not testifying in court, her statement would infringe the common law rule against hearsay, and may only be admitted, if at all, under the common law exceptions of the dying declaration or the res gestae rule.

Documentary evidence

This includes, inter alia, maps, plans, graphs, photographs, discs, tapes. If a document is to be proved, the original will often have to be tendered and authenticated; its due execution may also have to be proved.

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Note

Even if the above points are satisfied, the admissibility of statements in documents will depend on their satisfying the other rules of evidence, eg hearsay.

The contents of a document are, however, as a general rule, admissible provided the original is produced. Secondary evidence by means of copies is admitted in many cases, however, eg where the document is in the public domain, or lost. 17.3.4

Real evidence

This is admitted where the court draws an inference from its own observation of some material object rather than relying on that of witnesses, eg the physical condition of a document or other physical object, the appearance of handwriting, photographs or films, the information of the voices on a tape recording, video recordings and the appearance and demeanour of persons. Usually the admission of real evidence must be accompanied by the testimony of a witness to identify or explain it. 17.3.5

Circumstantial evidence

This is any evidence relevant to a fact in issue from which the existence of that fact may be inferred. An item of circumstantial evidence may be proved by any other evidence including other circumstantial evidence. Circumstantial evidence is sometimes contrasted with direct testimony in that facts in issue are indirectly inferred rather than directly perceived.

17.4

Judicial discretion to exclude evidence In criminal cases the judge has, at common law, more scope to exclude evidence than in civil cases, particularly where its prejudicial effect (the prejudice it causes to the defendant) outweighs its probative value (what it proves). Circumstances where the discretion may well be exercised are in relation to • Evidence of bad character, and • Confessions. However, at common law, evidence will not be excluded just because it was obtained unfairly or illegally by the police.

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Example R v Sang (1980) involved an allegation that an offence had been instigated by an agent provocateur (a police informer who induces the crime in order to trap the criminal). It was held that with the exception of evidence consisting of admissions and confessions and other evidence obtained from the accused after the commission of the offence (the meaning of this last part is unclear), the court had no discretion to exclude evidence obtained by improper or unfair means, the court being concerned with the relevance of the evidence and not its source. Note

The common law power to exclude evidence at the court’s discretion has been preserved by s 82(3) of PACE 1984.

However, in addition to the common law there is a statutory power of discretion under s 78 of the PACE 1984, which states that in any proceedings the court may refuse to allow evidence to be given on which the prosecution proposes to rely if it appears to the court that having regard to all the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The scope of s 78 is wider in its operation than the common law: see R v Smurthwaite (1994) on all the above.

Function of judge and jury In general the judge decides issues of law, including admissibility of evidence, and directs the jury as to the meaning of the legal rules which they must apply to the facts; the jury decides questions of fact, which include the credibility and the weight to be accorded to the evidence. The evidence has to pass to the judge before it can be put before the jury. Example

In relation to the admissibility of a confession which is being challenged by the defendant on the basis of its voluntariness, the trial judge may hold a voir dire, ie a trial within a trial in the absence of the jury, as to whether the confession was voluntary. If the evidence is held to be admissible by the trial judge, only then may its weight be decided by the jury.

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17.6

Judicial notice When a court takes judicial notice of a fact, it finds that it exists although no evidence of the fact has been given. A court takes judicial notice of facts which are commonly accepted to be true. There are many cases where this is enforced by the express provision of a statute or by settled practice of the courts. Note that one of the main objects of judicial notice is to save time and expense by not having to prove things which are already known to the tribunal because they are matters of common knowledge. Example

1 The court may examine appropriate works of learning, lectures, treatises, almanacs and tables to answer questions as to historical facts and past rituals. 2 Judicial notice may be taken of general customs which have been proved with some frequency in other cases. 3 Judicial notice is taken of the nature, functions and workings of scientific or technical instruments such as clocks, speedometers, and radar speed meters.

Self-assessment questions 1 2

3 4 5 6 7 8 9

Distinguish between ‘facts in issue’ and ‘collateral facts’. In a typical theft trial (a) What will be the facts in issue? (b) Who will have the burden of proof, and to what standard, in the case? (c) What collateral issues may arise at trial? What matters may affect the weight to be attached to a piece of evidence? Who decides how much weight to attach to a piece of evidence? Distinguish between direct testimony, hearsay and circumstantial evidence. On what grounds might the judge exclude evidence at their discretion? Will a court exclude evidence on the ground that it has been obtained unfairly by the police? What is the difference between ss 76 and 82(3) of PACE 1984? What is meant by the court taking ‘judicial notice’ of a fact?

Chapter 18

Burden, standard of proof and presumptions

Burden of proof

18.1

The phrase ‘burden of proof’ means • First, the duty of a party to persuade the tribunal of fact by the end of the case of the truth of certain propositions. The propositions which need to be proved and the nature of them will depend on the substantive rules of law and the charge. This burden is known as the legal burden, also referred to as the ‘risk of non-persuasion’ or the ‘fixed burden of proof’. • Second, one party’s duty to produce sufficient evidence for a judge to call on the other party to answer, ie the burden of raising an issue. The obligation to adduce (present) evidence fit to be considered by the tribunal of fact is commonly known as the evidential burden or the ‘burden of adducing evidence’ or the ‘duty of passing the judge’. In short, the legal burden of proof is the obligation to prove a fact. The evidential burden is the obligation to raise an issue. Legal burden in criminal cases

The general rule is that the legal burden of proof rests on the prosecution throughout the trial. It is not for the defendant to prove their innocence. In Woolmington v DPP (1953), W was convicted of murder. His defence was that it was an accident. The Court of Appeal stated: ... throughout the web of English Criminal Law, one golden thread is to be seen, that is, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory exception.

Therefore, in Woolmington, it was for the prosecution to prove mens rea. The defendant did not have to prove that it was an accident. Similarly, it is for the prosecution to disprove self-defence, not for the defence to prove it.

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This general principle is subject to three types of exceptions: • Express statutory • Implied statutory • Insanity. Express statutory exceptions

There are several statutes which expressly place the legal burden of proof on the defendant. The following are examples: • Under s 2 of the Prevention of Corruption Act 1916 once the prosecution has presented evidence that the money, gift or other consideration was part given or received, the defendant has the legal burden of proving that the money, gift or other consideration was not part given or received corruptly. • Under s 1(i) of the Prevention of Crimes Act 1953, if the defendant is found with an offensive weapon in a public place it is up to the defendant to prove that they had it with lawful authority or reasonable excuse. • Under s 139(5) of the Criminal Justice Act 1988, if the defendant is found in a public place with an article which has a blade or is sharply pointed, it is up to the defendant to prove that they had it with them: ❍ for use at work ❍ for religious reasons, or ❍ as part of any national costume. • Under s 2(2) of the Homicide Act 1957 the defendant must prove the defence of diminished responsibility on a charge of murder. Implied statutory exceptions

Many statutes create an offence subject to certain exceptions, provisos, qualifications and circumstances, where the actus reus will not be an offence. For example, assume that the actus reus of the offence is ‘selling liquor’. Here the offence might be: • Selling liquor ‘without a licence’ • Selling liquor ‘without lawful authority or excuse’ • Selling liquor ‘unless ...’ • Selling liquor ‘except in the following circumstances ...’. In such cases, where the defence is that an exception, excuse or special circumstance applies, the burden of proving the exception etc is on the defendant.

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In the case of summary trials, this rule is laid down in s 101 of the Magistrates’ Courts Act 1980, which provides that the burden of proving the exception, exemption, proviso, excuse or qualification shall be on the defendant. The common law applies similar principles to trials on indictment. Example 1 In R v Edwards (1975), the defendant was convicted of selling intoxicating liquor without a justices’ licence. He appealed on the ground that since the prosecution had access to the register of licences in force it should have presented evidence to show that no licence was in force. It was held that the legal burden of proving that the accused was the holder of a justices’ licence rested on the defence and not the prosecution.

2 In R v Hunt (1987), the defendant was charged with possession of a controlled drug. The defendant sought to rely on a statutory instrument which provided that it was not an offence to possess a compound containing a minute quantity of the drug concerned. The prosecution claimed that it was for the defendant to prove the relevant proportion of the drug in the compound. The court held that each case turns on the construction of the legislation concerned. Does, on construction, the statute place the burden on the defendant to prove an exception to the offence? In this case, it did not. Insanity

Where the defendant raises this defence the defendant bears the legal burden of proving it. Note

Either the prosecution or the defendant may raise the issue of being unfit to plead. Where the issue is raised by the defendant, the defendant must prove it on a balance of probabilities; where the issue is raised by the prosecution, the prosecution must prove it beyond reasonable doubt.

Evidential burden

This is the burden not of proving a fact but of raising an issue. Thus, although the prosecution has the legal burden of disproving, for example, self-defence, duress, or provocation, the defendant has the evidential burden of first raising the issue of, for example, self-defence – by showing that there is a reasonable possibility of the defence existing – before the prosecution has the legal burden of disproving the defence. However, as a general rule the party with the legal burden also bears the evidential burden. There are excep-

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tions at common law applicable to criminal cases. The prosecution bears the legal burden of proving the facts essential to the case but the defendant bears the evidential burden of adducing sufficient evidence for their defence to be left to the jury. Example

1 In Hill v Baxter (1958), the defendant in answer to a charge of dangerous driving pleaded that he became unconscious as a result of a sudden illness. No evidence of this was produced but the magistrates acquitted him. The prosecution successfully appealed to the Divisional Court which held that the evidential burden of raising the issue that the defendant was in a state of automatism must rest with the defendant. 2 In Mancini v DPP (1942), the court held that even though the prosecution bears the legal burden of negativing the issue of provocation on a charge of murder, the issue does not have to be put before the jury unless the defence has discharged the evidential burden of adducing sufficient evidence in relation to the issue of provocation. 3 In Bratty v AG for Northern Ireland (1963), B was convicted of murdering an 18 year old girl by strangulation. He raised two defences: insanity and insane automatism. It was held that the defendant had to adduce sufficient evidence in relation to the defences raised before the matter could be put before the jury.

18.2

Standard of proof In Miller v Minister of Pensions (1947), the court stated that the degree of cogency required in criminal cases before an accused is found guilty is proof beyond reasonable doubt, but this does not mean proof beyond a shadow of doubt, ie certainty. In Ferguson v R (1979), it was held that it is generally sufficient and safe to direct a jury that they must be satisfied beyond reasonable doubt so that they feel sure. Failure of the judge to direct the jury properly may be fatal to a conviction. However, where the legal burden of proof is on the accused in the exceptional cases listed in 18.1.1, the defendant need only discharge the legal burden by satisfying the jury on a balance of probabilities. Example

1 In Sodeman v R (1963), the court held that the burden on the defendant in cases of insanity was not higher than the burden which rests on a plaintiff or a defendant in civil proceedings.

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2 In R v Carr-Briant (1943), it was made clear that whenever an accused bears a legal burden the accused must prove it only on the civil standard of on the balance of probabilities.

Presumptions

18.3

A presumption may be defined as a conclusion which may or must be drawn until the contrary is proved or, alternatively, that it is a conclusion (‘presumed fact’) which may or must be drawn if another fact (the ‘basic fact’) is first proved. A presumption operating in their favour may assist a party in discharging a burden of adducing evidence. The law of presumptions can be conveniently described in defined categories. Rebuttable presumptions of law

Rebuttable presumptions of law arise where on the proof of a basic fact, at law, another fact is presumed but can be disproved. Legitimacy

A child is presumed legitimate on proof of birth or conception in lawful wedlock. Here the basic fact which needs to be proved is either that the mother was married at the time of conception or that she was married at the time of birth. The law will then presume that the woman’s husband is the father of the child. The presumption may be rebutted by evidence of non-access, impotence, or incompatible blood grouping, etc. Death

On the proof that • Persons exist who are likely to have heard from the deceased during an absence of seven years • Those persons have not heard of the deceased, and • All due enquiries have been made the presumption of death operates. Example

1 In Chard v Chard (1955), a woman who married her husband in 1909 was last heard of in 1917. She was of normal health. In 1933 she would have been 44. Her husband was frequently in prison. It was impossible to find anyone who since 1917 would naturally have heard of her. No registration of death could be found. In 1933 the husband remarried and in these proceedings he and his second wife sought decrees of nullity. The court granted the decrees on the basis that there

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was no evidence of the first wife’s death. The presumption of death could not arise here without proof of the basic fact. 2 In Prudential Assurance Co v Edwards (1877), the court held that someone has not been heard of if there is no reliable evidence that they have been heard of. In this case there was evidence from the man’s 20 year old niece who last saw a man in the street in Australia whom she thought was her uncle but the court took the view that only if it was satisfied that the identification was correct should it rely on this evidence. Note

It would appear to be a clear principle that death may be presumed at the end of a continuous period of absence of seven years, but that additional evidence is required if a party seeks to establish a particular date of death. Law of Property Act 1925 Under s 184, in all cases where two or more persons have died in circumstances which make it uncertain which of them survived the other or others, such deaths shall, for all practical purposes affecting the title to property, be presumed to have occurred in order of seniority and accordingly the younger is deemed to have survived the elder. Note

The presumption which arises from s 184 is irrebuttable because if it is possible to ascertain who died first the presumption will not arise. The basic fact which must be proved before the presumption arises is that it is not possible to decide whether one person survived another. The presumed fact is that the deceaseds died in order of seniority. Offences Against the Person Act 1861 Section 57 provides a

defence to bigamy for a person whose spouse has been continually absent for seven years – the prosecution must show that the first spouse was alive at the date of the second marriage in order to prove bigamy. Marriage

On proof of the facts that a marriage was celebrated between persons who intended to marry there is a presumption that the marriage was valid. In Mahadervan v Mahadervan (1963) it was held that the presumption can only be rebutted by evidence which satisfies beyond reasonable doubt that there was no valid marriage. On proof of the fact that a formally valid marriage was celebrated, the law presumes that the parties had the capacity to marry.

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It is also presumed that two people are married if they cohabit as man and wife and are reputed to be married. The presumption imposes a legal burden on the rebutter and strong evidence in rebuttal is needed. Note

Today the presumption is of minimal importance because of the efficiency of the system of registration of marriages.

Irrebuttable presumptions of law

18.3.2

These arise where on the proof or admission of a basic fact another fact must be presumed and the party against whom the presumption operates is barred from adducing any evidence in rebuttal. Example

The principle of doli incapax states that a child under 10 cannot be guilty of a criminal offence. Note

There is also a rebuttable presumption that a child between 10 and 14 is incapable of committing a crime. The prosecution must rebut the presumption by showing that the child knew their act was seriously wrong. This presumption was recently upheld by the House of Lords in C v DPP (1995). For a case example where the presumption was rebutted, see A v DPP (1997), where the court held that the 12 year old appellant knew that what he was doing was seriously wrong.

Presumptions of fact

These are inferences which may be drawn from certain facts and only place a tactical burden on the other party, ie the party against whom it may operate bears the burden of adducing evidence to disprove the facts. The following are illustrations of the principle. Doctrine of recent possession in respect of stolen goods

A person who is found in possession of goods very soon after they were stolen runs the risk of magistrates or a jury finding that they came by them dishonestly: R v Schama and Abramovitch (1914). Although the burden of proving that the defendant came by stolen goods dishonestly lies on the prosecution, the jury should be directed that they are entitled to find dishonesty in the absence of an explanation from the accused as to how they came by them: R v Langmead (1864).

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Intention

A person intends the natural consequences of their acts. Quite simply if a person acts in a particular manner, they normally intend to bring about the consequences of their actions. Conduct which appears to be deliberate rather than accidental or spontaneous will normally have been the result of a conscious decision to cause the result of that conduct. Note

Various other presumptions can be found in the standard texts.

Self-assessment questions 1

What is the difference between the ‘legal’ and ‘evidential’ burden of proof? 2 Who has the legal and who the evidential burden of proof in criminal cases? 3 In what circumstances is the legal burden of proof on the defendant? 4 Does the defendant have the burden of proving selfdefence? 5 In addition to the phrase ‘beyond reasonable doubt’, what others phrases do the courts use to define the prosecution’s standard of proof? 6 What standard of proof is imposed on a defendant who has burden of proof? 7 What is a presumption? 8 Distinguish between (a) A rebuttable presumption of law (b) An irrebuttable presumption of law (c) A presumption of fact. 9 What is the ‘doctrine of recent possession’? 10 A statute, passed in a time of rationing, provides that ‘a person shall not acquire rationed goods ... without surrendering coupons’. Does the prosecution have to prove that the defendant did not surrender their coupons, or is it for the defendant to prove that they did surrender their coupons?

Chapter 19

Witnesses

Introduction

19.1

In this chapter we are concerned with • The manner in which evidence may be given in court by witnesses, and • The basis upon which the competence and compellability of witnesses in criminal proceedings is decided.

Oaths and affirmation With the exception of some evidence given by children in criminal proceedings, no oral evidence may be given unless the witness has promised to tell the truth. The promise will normally take the form of an oath. Section 1(1) Oaths Act 1978 states that Christian witnesses should take the New Testament or, if Jewish, the Old Testament in their uplifted hand and state the oath. Under s 1(3) a person who is neither Christian nor Jewish may take an oath in any lawful manner. Note

It is unnecessary for a person to have religious beliefs in order to take the oath.

The form of the oath to be taken by the witness is: I swear by Almighty God that the evidence I give shall be the truth, the whole truth and nothing but the truth.

Muslims may hold the Koran as opposed to the Old or New Testament and substitute ‘Allah’ for ‘Almighty God’. Witnesses of other religions may have adjustments made for them. (Details can be found in Archbold.) A witness who objects to taking the oath may affirm under s 5(1) of the Oaths Act 1987. The affirmation is as follows: I (name) do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth, the whole truth and nothing but the truth.

In juvenile courts the oath to be taken by the juvenile should be ‘I promise before ...’ rather than ‘I swear by ...’. In R v Kemble (1990) the court held that whether an oath had been properly administered did not depend primarily on adherence to s 1 but, more importantly, on whether the oath had been taken was binding on the witness’s conscience.

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19.3

Competence and compellability The general principle which applies to both civil and criminal cases is that a witness is competent if they are allowed to give evidence and compellable if, being competent, they may be compelled by the court to do so.

19.3.1

Children

Section 33A of the Criminal Justice Act (CJA) 1988 (inserted by s 52(1) of the CJA 1991 provides that all persons under the age of 14 must give unsworn evidence, ie without an oath. (Section 52(1) repealed the provisions of the Children and Young Persons Act 1933 which only allowed young children to give unsworn evidence if they were sufficiently intelligent and understood the duty of speaking the truth.) Section 33A of the CJA 1988 (as amended by Schedule 9, para 33 of the Criminal Justice Act 1994) provides that a child’s evidence shall be received in criminal cases unless it appears to the court that the child is incapable of giving intelligible testimony and that their evidence should be ruled inadmissible. The parties argue this, in the absence of the jury, before the child gives evidence and the child may be questioned to ascertain if they are capable of giving intelligible testimony. Note

1 In DPP v M (1997), the court held that a child will be capable of giving intelligible testimony if they are able to understand questions and answer them in a manner which is coherent and comprehensible. The extreme youth of the child witness (51/2 years) in this case did not of itself demonstrate that she was not a competent witness. Where the judge thinks a preliminary investigation is necessary, the judge should assess whether the child is competent, by watching a video of the child and/or asking the child some general questions. 2 In G v DPP (1997), the court held that intelligible testimony is evidence that is capable of being understood. Further, the court held that expert evidence from a child psychiatrist on whether the child is capable of giving intelligible testimony is not appropriate. The court can decide for itself. Video recordings

The court has power to grant leave to allow a video recording of an interview between an adult and a child witness or victim to be offered as the child’s evidence-in-chief: s 32A of the CJA 1988 (inserted by s 54 of the CJA 1991), as amended by s 62 of the Criminal Procedure and Investigations Act 1996.

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The court will not grant leave if • The child witness will not be available for crossexamination, or • There has been unsatisfactory compliance with rules requiring disclosure of the video pre-trial, or • It ought not to be admitted in the interest of justice. Offences under s 32 of the CJA 1988

Provision has also been made for evidence by live video link to be given by a child witness if the offence falls within s 32 of the CJA 1988, as amended by s 62 of the Criminal Procedure and Investigations Act 1996, ie certain violent, sexual and cruelty offences. This is possible for proceedings in the Crown Court and in the Court of Appeal (Criminal Division), and in the magistrates’ court by virtue of s 55(2)–(6) of the CJA 1991. The video interview will stand as evidence-in-chief. The child will not have to appear in the court room and no further evidence-in-chief will be necessary provided the video covers all relevant points. The child will, however, have to attend court to be cross-examined. Note

1 The prosecution may ask the judge for leave to add further evidence by examining the child in chief in court in addition to the video: s 32(a)(5) and (6) of the CJA 1988, as amended by s 50 of the Criminal Justice and Public Order Act 1994. 2 The accused in person will not be permitted to crossexamine a child witness or victim in relation to sexual, violence or cruelty offences listed under s 32(2)(a) of the CJA 1988.

Witness of defective intellect

If a witness does not understand the nature of the oath, they are not competent to give evidence. If they do understand, the jury must decide what weight, if any, should be given to their evidence. If the judge is satisfied that a witness is competent, but during their evidence it appears that they are no longer able to give coherent evidence, they become incompetent and the judge may prevent them from continuing. As in the case of child witnesses, it is the duty of the judge to test the competence of a person of suspect mental soundness in open court.

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Note

Deafness and dumbness, in itself, is not a bar to competence. An interpreter may be sworn, to use sign language if possible.

19.3.3

The accused Competence and compellability

The accused is competent to give evidence on his or her own behalf by virtue of s 1 of the Criminal Evidence Act 1898, but the accused is not compellable, as explained above. The accused is similarly competent but not compellable for a co-accused: s 1 of the Criminal Evidence Act 1898. (A co-accused is a person who is being jointly tried with the accused.) If a person (X) has ceased to be a co-accused, X is both competent and compellable for the person who was X’s co-accused. This may occur where • X has pleaded guilty, or • X has been acquitted before the trial is over because the prosecution decides to offer no evidence or X makes a successful submission of no case to answer at the end of the prosecution’s case, or • An application to sever the indictment has succeeded so that X is not tried with the other accused. The accused or any other person tried with them is generally incompetent for the prosecution as a witness. The point here is that if D1 and D2 are jointly tried, D1 cannot give evidence for the prosecution against D2 unless D1 first ceases to be the co-accused of D2. D1 will cease to be a co-accused if: • D1 pleads guilty and ‘turns Queen’s Evidence’, or • The indictment is severed so that D1 is tried separately from D2, or • A nolle prosequi is entered by the Attorney General, ending the proceedings against D1, or • D1 is acquitted before the trial is over because the prosecution offers no evidence, or on a successful submission of no case to answer. Note

Where D1 turns Queen’s Evidence, the judge has a discretion whether to sentence D1 straightaway, to avoid D1 being motivated to get a light sentence in giving evidence against D2, or to sentence D1 at the end of D2’s trial, when all the facts are known.

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Spouses

The spouse of the accused is competent for the prosecution under s 80(1) of the PACE 1984. The spouse of the accused is only compellable to give evidence for the prosecution or for a co-accused if the offence • Involves assault on or injury or a threat of injury to the wife or husband of the accused or a person who at the material time was under 16, or • Is a sexual offence committed in respect of a person under 16, or • Consists of attempting or conspiring to commit or of aiding, abetting, counselling, procuring or inciting the commission of either of the above. The accused’s spouse is competent for the defendant or a coaccused: s 80(1)(b) of the PACE 1984. The spouse in this instance is also compellable for the defendant unless jointly charged with the accused: s 80(2). If the husband and wife are jointly charged, they are neither competent not compellable in the ways described above. Former spouses are competent and compellable as if they had never been married to the accused: s 80(5) of the PACE 1984.

Failure to testify The defendant is always competent to give evidence in their own favour: s 1 of the Criminal Evidence Act 1898. However, a defendant cannot be compelled to give evidence on his or her behalf: s 35(4) of the Criminal Justice and Public Order Act 1994. Nevertheless, the magistrates or jury may draw such inferences as appear proper from the failure of the defendant to give evidence, or their refusal without good cause, to answer questions in court: s 35(3). Further, prosecuting counsel can comment to the jury on the fact that the defendant has failed to give evidence or answer questions: s 168(3) and Schedule 11 of the Criminal Justice and Public Order Act 1994. In other words, the defendant’s failure to testify or answer questions can be used against him or her. The question remains, however, as to when the defendant’s silence will be used against them. In what circumstances may an adverse inference be drawn? And should it be an inference of guilt, or something less? How should the judge direct the jury on these points? The Act does not answer these questions.

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19.4.1

Case law

The leading case on s 35 at the time of writing is R v Cowan (1995), where the Court of Appeal gave the following guidance: • It is a matter of discretion for the judge in each case as to whether to direct the jury to draw adverse inferences and as to the direction on the nature and extent of those inferences; the Court of Appeal would not lightly interfere with the judge’s discretion; the court declined to lay down specific circumstances where the court should and should not draw inferences • The prosecution still has the burden of raising a prima facie case before any question of the defendant testifying or adverse inferences can arise; further, it still has to prove its case beyond reasonable doubt; s 35 does not alter the burden of proof. The defendant’s failure to testify may be used as a further evidential factor in support of the prosecution case. It cannot on its own justify a conviction • The judge should stress to the jury that the defendant’s right to silence remains • It could not be proper for a defence advocate to give reasons for the defendant’s silence without evidence being given in support of those reasons • The court rejected the submission that adverse inferences should only be drawn in exceptional circumstances • If the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference • The court specifically rejected the proposition that a good reason for not giving evidence would be that the defendant wanted to avoid cross-examination on their criminal record. See 27.3.6 • A sound guide is the full terms of a specimen direction by the judge to the jury, suggested by the Judicial Studies Board and set out in the judgment. Note

You are strongly recommended to read the judgment in full.

In R v Napper (1997), the Court of Appeal upheld the strict Cowan approach: attempts to minimise the operation of s 35 are contrary to its spirit. The court would be slow to inter-

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fere with a judge’s discretion on whether an adverse inference was capable of being drawn. When will adverse inferences be drawn?

19.4.2

It is suggested that such inferences will be drawn when • There is a strong, compelling prima facie case against the defendant which calls for an innocent explanation that the defendant should be able to provide if they are innocent – see the interpretation of similar provisions in Northern Ireland by the House of Lords in Murray v DPP (1993) • The defendant understands what is going on and is not confused or vulnerable. On the other hand, it is suggested that adverse inferences will not be drawn when • The prosecution evidence is weak, or is not put clearly to the defendant, or when • The defendant – is confused, weak, vulnerable or of low intelligence, or – has an ulterior motive for remaining silent, such as fear of reprisal, desire to protect others, or a desire to keep something secret for reasons unconnected with the case, eg their alibi is that they were having a secret affair. However, in R v Cowan, the court stated that there must be an evidential basis or some exceptional factors in the case making it fair for an adverse inference not to be drawn. What inferences will be drawn?

Even if the jury can draw an adverse inference as a result of the defendant’s silence, that does not mean that the inference will be that the defendant is guilty as charged. In fact, s 38(3) of the Criminal Justice and Public Order Act provides that the defendant cannot be convicted solely on an inference drawn from their silence. In other words, there must be other supporting evidence against the defendant. So, the inference may be something less than guilt. The inference may simply be that there is a likelihood that the defendant did one of the acts alleged (perhaps being only one element of the charge), or simply that the defendant has no innocent explanation for an event or act. Please note that, in all of the above discussion, the question is whether the judge can properly direct the jury that they may draw inferences. It is for the jury to decide whether in fact an inference should be drawn.

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19.4.4

Advice to the defendant

In advising a defendant client whether to give evidence, you should consider the above matters. Also, in practice, you should weigh up whether the harm that may be done by the defendant giving evidence will outweigh the harm from an adverse inference. In some circumstances it may be wiser for the client to remain silent (instead of coming across badly in the witness box) and then to argue that the prosecution has not proved its case beyond reasonable doubt, which they still have to do – the defendant’s silence does not change that. (See above for the rule that the defendant cannot be convicted on his or her silence alone.) It is doubtful whether a good reason for remaining silent at trial will be that the defendant remained silent on legal advice, although the strength of such an argument may increase depending on the reasons for that advice being given. (See the cases on s 34 in Chapter 22.) Further, in contrast to silence at the police station, at the trial stage the defendant cannot argue that they remained silent because they did not know the case against them. 19.4.5

Exceptions

Section 35 of the Criminal Justice and Public Order Act 1994 provides that an inference will not be drawn from the defendant’s failure to testify or to answer questions when • The defendant is below 14 years of age, or • It appears to the court that the defendant’s physical or mental condition makes it undesirable for them to give evidence. In R v Friend (1997), the defendant was 15 but had a mental age of nine and his comprehension and ability to express himself were limited. However, the trial judge held that it was not undesirable for the defendant to give evidence, and directed that an inference could be drawn from his failure to give evidence – the Court of Appeal saw no grounds for interfering with this decision and also held that having a mental age of nine did not bring the defendant under the first exception of being below 14, or • The defendant is entitled to refuse to answer a question by virtue of any statute or on the ground of privilege – these exceptions would be rare, eg refusal to answer questions on previous convictions under s 1(f) of the Criminal Evidence Act 1898 or privilege against answering questions which would incriminate the defendant’s spouse, or

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• The court in its general discretion excuses the defendant from answering a question. (It remains to be seen when the court will do this.) Note

The last two exceptions are the only grounds of ‘good cause’ allowed for not answering questions.

Procedure

At the conclusion of the prosecution’s evidence, the court must satisfy itself that the defendant is aware that evidence can now be given for the defence and that they can, if they wish, give evidence and that adverse inferences may be drawn if they fail to do so or refuse, without good cause, to answer any questions: s 35(2) of the Criminal Justice and Public Order Act 1994. The procedure for this stage has been laid down in a practice note given by the Lord Chief Justice at [1995] 2 All ER 499: • If the court is not informed that the defendant will give evidence, or if the court is informed that the defendant does not intend to give evidence, the judge should, in the jury’s presence, ask the defendant’s representative whether they have advised their client that they may now give evidence and that adverse inferences may be drawn if they do not give evidence or answer a question • If counsel replies that the defendant has not been so advised, the judge shall adjourn the case briefly to allow the representative to advise the defendant of the above matters • If the defendant is not represented, the judge must advise the defendant of their right to give evidence and the consequences of not doing so. In effect, the judge gives the defendant a caution. The practice note sets out what the judge must say. If the defendant does not give evidence or refuses to answer questions, the advocates will argue, in the absence of the jury at the end of the trial, as to whether any inferences should be drawn and, if so, what inferences. For example, it will be at this stage that the defence advocate will argue that the defendant had an ulterior motive for remaining silent or was confused, and that no adverse inference should be drawn, or that the inference should be something much less than guilt. Having decided the issue, the judge will, in summing up, direct the jury on whether it may draw an adverse infer-

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ence and, if so, what inference it may draw. It will be for the jury to decide whether it does draw an inference. An incorrect direction by the judge may be a ground for a successful appeal by the defendant.

Self-assessment questions 1 2

What Act governs the taking of oaths? What statement should a witness make before giving evidence if (a) They have no religious belief, or (b) Object to taking an oath? 3 Can a child (under 18) give evidence and swear an oath before doing so? 4 When can a child give evidence on video? 5 Can a defendant be forced to give evidence in their own defence? 6 Can a co-accused D1 give evidence for the prosecution against their co-accused D2? Can D1 give evidence in their own defence which incriminates D2? 7 Can the spouse of the accused give evidence for the prosecution against the accused? 8 What is meant by ‘turning Queen’s Evidence’? 9 Can a defendant’s failure to give evidence be used against him or her? 10 In what circumstances would you advise your client defendant to give evidence?

Chapter 20

Course of trial, examinations, opinion, documentary and real evidence

Introduction

20.1

In this chapter we are concerned with the course of the trial itself and the manner by which evidence will be adduced, specifically • Examination-in-chief • Cross-examination, and • Re-examination.

Basic principles Trial in open court

20.2 20.2.1

It is a fundamental rule that the whole hearing must take place in open court. This means that, with exceptions • The evidence must be given only at the hearing, by witnesses who are examined in public, but see 20.3.1 below • Anyone has the right to be present • Anyone may publish fair, accurate and contemporaneous reports of what took place. Evidence by video

Section 32 of the Criminal Justice Act (CJA) 1988, as amended by s 62 of the Criminal Procedure and Investigations Act 1996, allows evidence to be given in trials on indictment, appeals from such trials and in Youth Court proceedings by live television link to the court if the court gives leave, and the witness is • Outside the UK (although this part of the Act is not in force at the time of writing), or • A child and the offence involves assault, injury or threat of injury, or is a sexual offence against children specified in s 32(2).

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Alternatively, s 32A allows, in the above courts and cases (and with the court’s leave), a video recording of an interview between adult and child to be given instead of the child’s evidence-in-chief. The child can then be cross-examined by live video link.

20.3

Course of trial At the opening of the trial, the advocate for the prosecution presents a summary of the prosecution’s case, going through the elements of the charge and stating the issues and allegations/claims that the prosecution will make. The prosecution then calls its witnesses, who are examined-in-chief, cross-examined by the other side and reexamined by their own side. The defence then similarly calls its witnesses. The defence advocate does not usually make an opening speech. After all witnesses have been called, the parties make closing speeches, prosecution first. At appropriate stages in their evidence, the parties may call such documentary evidence or real evidence as is allowed by law.

20.3.1

Reading of witness statements

In certain cases witnesses do not need to attend to give oral evidence. Instead, their written statement will be read out. This will particularly apply: • under s 9 of the Criminal Justice Act 1967, where the other side does not object. This will usually apply where the statement is not disputed • under ss 23–28 of the Criminal Justice Act 1988, where the witness has a good reason for not attending. See Chapter 25 • under s 68 and Schedule 2 of the Criminal Procedure and Investigations Act 1996, the court may allow the witness’ written statement from the committal proceedings to be read out. However, the scope of this provision is unclear.

20.4

Examination-in-chief After a witness has been sworn or has made the necessary affirmation, the party calling the witness will proceed to examine them. The purpose of examination-in-chief is to adduce evidence which is relevant and admissible and which supports the contentions of the party who calls the witness. This must be done by asking questions in the proper form.

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Note

1 The statements of prosecution witnesses are disclosed to the defence in advance of the trial. In contrast, the defence is under no obligation to disclose their witness statements to the prosecution. However, the defence does have to serve a statement before trial setting out the nature of their defence: see 16.2.8 on pre-trial disclosure. 2 It is undesirable that the examination-in-chief of a witness should be constantly interrupted by cross-examination from the judge. However, if a judge finds it necessary to intervene, the judge may do so. Unreasonable interruption by the judge may be the subject matter of an appeal under s 2(1).

A witness’s evidence during examination is confined to their spontaneous answers in court. This rules out leading questions, prepared answers and out of court previous statements confirming what the witness now says in court (though there are some exceptions). Leading questions

A witness must not be asked leading questions; in other words, questions must not be framed in a manner which suggest to the witness the answers required or which assume the existence of disputed facts. Whether a question is leading is a matter of common sense. Example

1 ‘Did you see D’s car being driven erratically and too quickly?’ – the questioner should just ask ‘What did you see?’ 2 ‘What did you say before D stabbed you?’ – where whether D stabbed the witness is in dispute.

Leading questions which are merely introductory to others that are material or which relate to formal or undisputed matters are in general allowed to be asked in direct terms, eg name, address, occupation of witness. Alternatively, the judge or other side may indicate that they will not object to leading questions on certain issues. Leading questions may also be put in order to elicit a denial, eg ‘Did you kill X?’, answer ‘No’. Leading questions may be put to a witness called by a party who has been granted leave to treat the witness as hostile. An application to do so is made to the judge under s 3 of the Criminal Procedure Act 1865.

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Note

1 A hostile witness is one who, in the opinion of the judge, shows no desire to tell the truth in the witness box and displays animosity towards the party who has called them as a witness. 2 A distinction is made between a hostile witness and an unfavourable witness. The latter is one who, in the opinion of the judge, displays no animosity but one who has merely failed to come up to proof (does not say what they had previously said before trial) or gives evidence unfavourable to the case of that party. Such a witness may not be asked leading questions: Ewer v Ambrose (1825). (Hostile and unfavourable witnesses are covered further in Chapter 27.)

20.4.2

Refreshing the witness’s memory

The general rule is that a witness is not allowed to read from their ‘proof’ or any other document prepared for the purpose of litigation. A witness may, however, refresh their memory from a document made or verified contemporaneously with the events to which it relates as it is not the document but the oral testimony that constitutes the evidence. A witness may refresh their memory from the document before going into court or while giving evidence in court. A distinction is drawn between a situation where a witness reads over their statement before going into court to refresh their memory and reading from a document in the witness box. A line is drawn at the moment when a witness enters the box, when the conditions below must be satisfied. Note

If a witness has referred to documents before going into court, it is desirable but not essential that the prosecution informs the defence of this. (There is no reciprocal obligation on the defence.)

20.4.3

Refreshing memory in court

There are two conditions for a witness to be allowed to refresh their memory from a document in court. 1 The document must have been made or verified by the witness contemporaneously with the events to which it relates. A document, even if based on original notes made by the witness, may be used if at the time when it was written up, the facts were still fresh in the witness’s memory.

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Example

1 In R v Mills (1962), a police officer, who had heard and made a tape recording of a conversation between the two accused, was allowed to refer to his notes written up with the assistance of the tape recording, which was not in itself put in evidence. 2 In R v Whalley (1852), it was held that entries in a ship’s log made by the mate and verified by the captain about a week later could be used to refresh the memory of the captain.

2

The document made or verified must have been made contemporaneously with the events to which it relates. Example

1 In R v DA Silva (1990), it was stated by the court that whether the document is or is not made contemporaneously is largely a question of fact and degree. The test is whether the facts were still fresh in the witness’s memory when the document was written. Much will depend on the nature of the evidence, eg a purported verbatim note will have had to be written close to the event. 2 In R v Graham (1973), a lapse of 27 days between the event and the making of a statement to the police was held not to be contemporaneous.

However, as a result of R v DA Silva (above) and R v South Ribble Magistrates ex p Cochrane (1996), the previously rigid rules on memory-refreshing have been loosened; and it now appears that the judge has a strong discretion to permit a witness to refresh his memory in the witness box, even from a non-contemporaneous document, where fairness and justice require it. Admissibility, production and cross-examination on the document

20.4.4

The document from which a witness refreshes their memory is not itself evidence. The evidence is that given orally by the witness. However, the document must be produced for inspection by the court and the other side, who can then cross-examine the witness on the document. The other side may even cross-examine on parts of the document which were not used by the witness. Those parts then become extra evidence. Previous consistent statements

Sometimes a party will wish to show, either through the witness themselves or through some other witness, that the

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present witness on some earlier occasion made a statement consistent with their present evidence. As a general rule this is not allowed as it contravenes the rule against self-serving statements (or the rule against narrative). A previous consistent statement is inadmissible as evidence of the facts contained in it. Note

The rule is different and not to be confused with the common law rule against hearsay where the contents of an out of court statement may be ruled inadmissible. Exceptions Complaints in sexual cases An exception exists in cases of

rape, indecent assault and similar offences. The fact that a person made a complaint, shortly after the occurrence, of the matters charged against the accused together with particulars of the complaint is admissible as evidence-in-chief for the prosecution as • Evidence of the credibility of the complainant’s testimony, and • Apart from that, where consent is in issue, to negative consent. Example

In R v Lillyman (1896), there was a charge of attempted rape and indecent assault on a girl. The girl made a complaint to her schoolmistress, who was allowed to give detailed evidence of what the girl had said. The court, however, did emphasise that it is the duty of the judge to impress upon the jury that they are not entitled to treat the complainant‘s statement as evidence of the facts complained of, but only as evidence of credibility, which is technically a different matter.

The complaint must be voluntary and not in response to leading questions. The witness to the complaint must give oral evidence, otherwise there is no evidence with which the complainant may be consistent. Rebuttal of a suggestion of recent fabrication If it is suggested to a witness in cross-examination that they have just ‘made something up’, evidence of a previous statement consistent with their version of events given under oath may be admissible to show consistency. It is put to the witness by their advocate in re-examination: R v Oyesiku (1972). The court must consider three matters before determining whether the exception should apply:

Course of Trial, Examinations, Opinion, Documentary and Real Evidence

• That the account given by the witness in their testimony is attacked on the ground of recent invention or reconstruction or that such an attack has been laid • That the contents of the statement are in fact the same as their evidence • That having regard to the time and circumstances in which it was made, it (the statement) rationally tends to answer the attack. Statements by an accused in first response to police questioning These may be wholly or partially self-serving,

and in practice are given in evidence by the prosecution in two circumstances: • Exculpatory statements (innocent statements by the accused) – these may be admitted to show consistency (assuming of course that the accused gives evidence); • Mixed statements (part admission, part explanation by the accused) – difficulty arises here as to the manner in which the jury should be directed. In R v Sharp (1988), it was suggested that the statement should be viewed as a whole in deciding where the truth lies and that the jury should be directed to consider the whole statement but give less weight to the self-exculpatory part. See also Western v DPP (1997). Previous identification of the accused If a witness identifies the accused in court as being the person they saw in the incident in question, they are permitted to say that they identified the accused on an earlier occasion, for example at an identification parade. Evidence that a witness previously identified the accused from a photograph is also admissible provided that the photograph does not come from police files or if it does, cannot be identified as such. Thus, evidence of identification from a photograph which forms part of a police album of photographs should be excluded – it would indicate that the accused has a police record. Statements forming part of the res gestae statements which form part of the event in question may be admitted on the basis that they are inextricably bound up with the event itself. Example

In R v Rowkes (1856), F was charged with the murder of X by shooting him through a window. A and B were sitting in the room with X when a face appeared at the window and the fatal shot was fired. Both A and B were allowed to depose that immediately before the shot was fired, A shouted ‘There’s F’.

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Note

These rules on previous consistent statements are further explained and detailed in Chapter 28.

20.5

Cross-examination As a general rule all witnesses may be cross-examined by the other side. Failure to do so amounts to acceptance of evidence given by that witness-in-chief and prevents the advocate from basing their case on a contradictory account. The judge has a duty to restrain advocates from unnecessary, irrelevant, oppressive or vexatious cross-examination and the cross-examiner is under a duty to exercise a proper discretion not to prolong the case. Further, unreasonable interruption by the judge may be a ground for appeal. Note

A person charged with a sexual, violence or cruelty offence specified in s 32 of the Criminal Justice Act 1988 cannot crossexamine in person the alleged victim or an alleged witness, if the victim or witness is a child.

20.5.1

Objective and form of questioning

The object of cross-examination is to qualify, weaken or destroy your opponent’s case and to elicit facts favourable to your own case. The cross-examining party must put to their opponent’s witnesses every part of their own case about which those witnesses can speak. If this is not done, they will be treated as having accepted the version of their opponent’s witnesses and in their own evidence and their closing speech will not be allowed to attack that version. Conversely, for example, where the prosecution intends to put certain matters to the defendant in cross-examination, the prosecution must first give evidence of those matters in their own evidence-in-chief. To achieve the objective the cross-examiner • May ask leading questions • Should not put questions in a manner which invites argument rather than elicits answers to matters of fact • Should not in the course of cross-examination state matters of fact or opinion or say what someone else has said or is expected to say • May ask questions to test the witness’s memory or consistency on the facts

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• May ask questions which are designed to probe, insinuate, or confront • May ask questions as to the witness’s credibility (unless, generally, the witness is the defendant). Note

Witnesses’ answers to questions on their credit must usually be accepted as ‘final’. See 20.5.2 and Chapter 27 for exceptions.

Collateral issues

A cross-examiner should not attempt to rebut evidence given in answer to a question on a matter collateral to the main issue, eg a question on the witness’s credit. In other words, they may not contradict replies concerning collateral matters, which are to be treated as final: Attorney General v Hitchcock (1847). Note

If the witness’s answer is on a matter on which the crossexamining party would be allowed to introduce evidence-inchief because of its relevance, the matter is not collateral.

Some of the clearest examples of the distinction between relevant and collateral matters occur in rape and indecent assault cases. If the defence is that the complainant consented, she may be asked in cross-examination • About her previous connection with the accused (main issue), and • Her previous connection with other men (collateral issue). If she denies questions asked on the former, her answer may be rebutted; answers on the latter may not be rebutted. Section 2 of the Sexual Offences (Amendment) Act 1976

This section prohibits, in prosecutions for a rape offence, questions or evidence on the sexual experience of a complainant with third parties other than the defendant unless the judge is of the opinion that the prohibition is unfair to the defendant. If sexual experiences with others are actually relevant to the issues, leave should almost always be granted: R v Viola (1982). See also R v Cheeseman (1992). Examples where answers to collateral matters are not final but can be rebutted Previous inconsistent statements Section 4 of the Criminal

Procedure Act 1865 states that if a witness denies making a previous statement, whether orally or in writing, proof

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may be given that they did so. The statement must, however, be relevant to the proceedings and inconsistent with the witness’s present testimony. Section 5 of the Criminal Procedure Act 1865 allows cross-examination about a previous inconsistent written statement by the witness and allows the cross-examiner to hand the document to the witness and to draw their attention to the parts to be used for the purposes of contradiction. Previous convictions Under s 6 of the Criminal Procedure Act 1865 a witness may be questioned as to whether they have been convicted of any offence and upon being so questioned, if they either deny or do not admit the previous conviction or refuse to answer it shall be lawful for the cross-examining party to prove such convictions. Note

This does not apply to a defendant protected by s 1(f) of the Criminal Evidence Act 1898 (see 27.3.7). Bias The fact that a witness is biased against one of the

parties is relevant to their credit. It was held in R v Mendy (1976), that evidence may be called to contradict a witness’s denial of bias or partiality towards one of the parties and to show that their evidence is tainted with prejudice. Evidence concerning reliability as a witness Medical evidence

is admissible to show that a witness suffers from a disability which would affect their reliability. Example

In Toohey v Metropolitan Police Commissioner (1965), the defendant was convicted with others of an assault with intent to rob. The defence was that the alleged victim of the assault had been drinking and that while the defendants were trying to help the victim home, he became hysterical and accused them of the offence charged. The House of Lords permitted the evidence of a doctor that the alleged victim was prone to hysteria which affected the credibility of the alleged victim as a witness. Reputation for untruthfulness A party may call a witness (A)

to say that another witness (B) called for the other side is not to be believed. The impeaching witness (A) is not allowed in their examination-in-chief to give reasons for this opinion, although they may be cross-examined as to their reasons. (All of the above on answers to collateral issues is detailed and explained in Chapter 27, 27.4.3.)

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20.6

After cross-examination, the witness is then re-examined by their own advocate. The purpose of re-examination is to try to repair any damage done to the witness’s story and creditability in cross-examination. Re-examination follows the same rules as examinationin-chief; leading questions must not be asked. It must also be confined to matters which arose in cross-examination, no new matters may be introduced without the leave of the judge.

Closing speeches

20.7

After the defence evidence has been called, the parties make their closing speeches (to the jury if it is a jury trial), summarising and emphasising their submissions and evidence; the prosecution makes the first speech, the defence makes the second.

Opinion evidence Meaning and admissibility

20.8 20.8.1

Generally, a witness should only give evidence of facts personally perceived by them. A witness cannot give their opinion, ie the inferences to be drawn from facts. Example

1 W can say ‘I saw X put her hand in the machine.’ W cannot say ‘The defect in the machine was caused by X putting her hand into the machine’ (unless W is an expert on the machine, see below). 2 X’s mother cannot give evidence of X’s injuries suffered in an incident, unless the mother is a medical expert.

Cases where opinion evidence is admissible

There are, however, two cases where opinion evidence is admissible: • An expert can give their opinion on any matter of expertise • Any witness can give their opinion when the opinion is only really a way of stating facts that have been perceived. This is because it is often difficult to separate fact from inference (see below).

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20.8.3

Expert evidence

It is permissible, and in fact an important part of many cases, for an expert to give an opinion on a matter of expertise. Example

A doctor can and should give evidence on the plaintiff’s injuries.

• •

• •

•

•

•

The following points are important: The matter must be one of expertise, and not one within ordinary human experience The witness must be an expert in the matter. There may sometimes be a dispute over whether the witness is an expert. The witness need not, however, have formal qualifications. Their expertise may be based on experience and their own private study The expert should stick to their own area of expertise It is desirable to use as well qualified an expert as possible. Examination-in-chief of the expert begins by going through their qualifications, background and experience so as to impress the judge or jury and the ‘expert’ may lose credibility if their qualifications, experience or knowledge are shown to be weak, usually by cross-examination. The expert need not have personally perceived the primary facts on which their opinion is based, they can base their opinion on hypothetical facts, eg where a complex technical issue is being discussed, on published and unpublished research, books and articles. Strictly, the expert still cannot state their opinion on the ultimate issue that the court has to decide, for example, ‘Is the defendant guilty?’ In Crown Court cases, each side must disclose their expert evidence to the other before trial. This is to give the other side time to prepare a cross-examination on what will be difficult specialist matters. Note

In R v Doheny and Adams (1997), the Court of Appeal gave important guidance on the procedure to be followed where experts give DNA evidence.

20.8.4

Matters within ordinary human experience

An expert cannot give their opinion on matters which the judge rules to be within the realm of ordinary human expe-

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rience. The theory is that the finder of fact can form their own opinion on the matter – that is what they are there for. Example

1 In R v Masih (1926), the accused was charged with rape and had very low intelligence. The judge refused to admit psychiatric evidence on whether the accused knew the victim was not consenting. This was a matter within the jury’s experience and it could decide for itself. 2 In R v Turner (1975), the defendant was charged with murder, having battered his wife to death with a hammer. His defence was provocation, on the ground that she had told him that she was pregnant by a man she had slept with in prison for money. The judge refused to allow psychiatric evidence on the effect this would have had on the defendant’s mind. The jury could decide this from their own ordinary experience of life. 3

For a further example, see R v Hurst (1995).

It is submitted that these are strange decisions (although not the only decisions in this area). Surely the above matters are not within ordinary experience; the jury arguably should have the benefit of expert psychiatric evidence, even if the final decision is up to the jury. The problem in this area is deciding when a matter is or is not within ordinary human experience. Disclosure

20.8.5

In the Crown Court only, a party who proposes to rely on expert evidence at trial must, as soon as practicable after committal, disclose their expert report to the other side: Crown Court (Advance Notice of Expert Evidence) Rules 1987. If such advance disclosure is not made, the expert evidence is only admissible with the court’s leave. (See further 25.7.) Further, an expert’s report in criminal cases can be put in evidence without the expert giving oral evidence, if the court gives leave, depending on certain criteria in s 30 of the Criminal Justice Act 1988 (see 25.7). Non-expert opinion

The second case where a witness can give their opinion is where it is not really possible to separate fact from opinion. The witness is really only giving their opinion as a way of conveying facts perceived. This rule applies to any witness, not just to expert witnesses.

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Example

1 W can say ‘The car was going fast.’ Although this is strictly an opinion, it is really only stating an ordinary human perception of the facts. If, however, the witness (not having a measuring device) was to say ‘The car was going at 75mph’, this would be going into the realm of inadmissible opinion evidence as it is not a matter of ordinary human perception to give an exact speed. 2 A non-expert witness can give evidence that they thought a person was drunk. This again is a matter of ordinary perception: R v Davies (1962).

Whether a statement is one of pure opinion or a statement conveying facts perceived is a matter of degree and common sense. 20.8.7

Ultimate issues

Another rule on opinion evidence is that while a witness can give their opinion as an expert or as a way of conveying facts, the witness cannot be asked their opinion on the ultimate issue that the court has to decide. The theory is that it is for the court to decide this ultimate issue. Example

Strictly, you cannot ask a witness ‘Do you think D was reckless?’ or ‘Do you think D was suffering from diminished responsibility?’

However, in practice, such questions are often asked without objection. However, the Court of Appeal has recently stressed (in a civil case) that it is for the finder of fact, and not for the experts, to draw inferences of fact on the ultimate issue: Liddell v Middleton (1995).

20.9

Documentary evidence

20.9.1

Admissibility

Documents are not necessarily admissible in court. Generally, evidence should be given orally. However, documents are admissible if • They are ‘direct’, ‘original’ or ‘real’ evidence, eg a contract which is in issue – it seems such documents are generally accepted in evidence, subject to disputes over their authenticity • They are put forward as ‘real’ evidence of their condition as a physical object, eg if the physical appearance or condition of the document is in issue

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• Their admissibility is accepted by the other side, eg both sides agree to put the litigation correspondence before the court • The documents are put forward as statements, under exceptions to the hearsay rule. This is the most tricky aspect of the admissibility of documents. Most documents can be argued not to be original, real evidence, but statements as to the truth of some matter. As such, it would be hearsay to adduce the document as evidence of the truth of its contents (see Chapter 24 generally). Example

Is an airline ticket, containing the name of a passenger, admissible in itself as a piece of real evidence that the named person travelled on the plane; or is the ticket a statement by a human that that person travelled, so that it would be hearsay to put the ticket in evidence without the human who issued or ordered the ticket giving oral evidence? See R v Rice (1963).

If a document is a statement by the maker of the document as to the truth of some matter, it is hearsay, and the document is only admissible if an exception to the rule against hearsay applies. Many such documents are admissible on their own, as an exception to the hearsay rule, under ss 23–30 of the Criminal Justice Act 1988. Meaning of documents

20.9.2

The word ‘documents’ does not just mean ordinary written documents. The word is given an extended meaning in different areas of the law, eg under the above acts allowing documentary hearsay evidence. In those acts, and in some other areas, ‘documents’ includes maps, plans, graphs, drawings and audio and visual technology such as films, tapes, discs and photographs. Items such as these will often be admissible as ‘real’ evidence of a physical thing itself (see 20.10). Further, computer records are admissible on their own under s 24 of the CJA 1988 and s 69 of the PACE 1984. Original or copy?

The fundamental common law rule was always that the original of the document must be produced in evidence, not a copy. However, a copy is now admissible in all criminal cases where a statement contained in a document is admissible in evidence: s 27 of the CJA 1988. (Section 71 of the PACE 1984 also allows a microfilm copy to be used.)

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20.9.4

Authenticity of documents

There may be a dispute over whether the document is genuine. Conversely, a side may formally admit authenticity under s 10 of the Criminal Justice Act 1967. Where authenticity is not admitted, there are various ways of proving it (detailed in the textbooks on evidence). Further, certain presumptions exist, eg a document more than 20 years old and from ‘proper custody’ is presumed to have been duly executed. Further, the authenticity of public documents need not be proved.

20.10

Real evidence

20.10.1

Meaning

In addition to oral and documentary evidence, facts may be proved by real evidence. Real evidence is an original material thing itself which is produced to the court as an exhibit, usually with accompanying oral evidence to explain it and its link with a relevant issue. The following are good examples of real evidence: • Physical objects such as a knife or goods • Fingerprints • A person’s physical appearance, such as a scar • Handwriting, or a voice played on tape, where identity is in issue Note

If the voice is played not to identify the speaker but as evidence of the truth of the words spoken, then hearsay problems may arise.

• The demeanour, ie the face and attitude, of a witness while giving evidence is taken into account by the finder of fact as real evidence relevant to the credibility of the witness • Video recordings or films of an event, eg the video of the crime taken by a security camera: R v Dodson; R v Williams (1984) • Tape recordings, eg most commonly, police interviews: R v Maqsud Ali (1966) • Calculations or records made, or tickets issued, by mechanical devices, without human input into the specific piece of work done by the machine: The Statue of Liberty (1968) and R v Wood (1982)

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Note

1 In the Statue of Liberty case, film recorded by radar was held admissible as real evidence. The judge also thought that photographs, barometer records and cards from clocking-inand-out-machines would be admissible. 2 In Wood, a computer printout of a computer’s own analysis of material was held admissible as real evidence.

• A photograph, sketch and photofit of the alleged offender: R v Cook (1987). Note

‘Real evidence’ is sometimes referred to as ‘original’ or ‘direct’ evidence.

Hearsay or real evidence?

It is sometimes objected that technological evidence such as films, videos, tapes, records produced by machines, are hearsay. It is argued that they cannot be produced on their own; they are out of court statements in effect, not oral evidence given in court by a human who perceived the event. Despite this argument, such evidence is generally allowed for the following reasons. First, despite the hearsay argument, the courts, in the cases cited above, have generally accepted that films, videos, tape recordings, machines, are real evidence in a class of their own. Nevertheless, a person with personal knowledge of the film, video, tape or machine should give oral evidence to explain the circumstances in which the record was made, to link it with the relevant issue and to state that the device was working properly. Second, even if the technological evidence is hearsay, it may be admissible under an exception to the rule against hearsay. For example • A tape recording of an admission by a defendant is admissible as an exception to the hearsay rule – even if the recording was made without the defendant’s knowledge, eg in a bugged police cell or a house, according to recent case law, see R v Khan (1995) • The film, video or tape may be admissible as a record within ss 23 or 24 of the Criminal Justice Act 1988 • A computer record may be admissible under s 24, of the Criminal Justice Act 1988 and s 69 of the PACE 1984, and R v Bailey (1993).

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However, in R v Governor of Brixton Prison ex p Levin (1997), the House of Lords held that computer print-outs recording unauthorised payment transactions were not hearsay. They do not assert the transactions took place. They record the transactions themselves. They are no different from a photocopy of a forged cheque. 20.10.3

Tape recordings of police interviews

PACE 1984 requires police interviews with suspects to be tape recorded, according to strict procedures set out in the codes of practice under PACE 1984. Regardless of the theoretical hearsay problems, it is accepted by courts that recordings can be played to the court as real evidence. In any event, in most cases the tapes are not actually played. Instead, edited written transcripts of the relevant parts of the interview are given to the magistrate/jury, and read out (counsel and the police witness taking the parts of interviewer and suspect). Use of a transcript has been accepted by the courts as a matter of administrative convenience, even though the transcript is not original evidence. The defence can require that the tape(s) actually be played, where they consider this appropriate. For example, they may require the tape to be played in the voir dire on whether a confession was obtained by oppression or is unreliable. In such cases, it may be important actually to hear the atmosphere and tone of the interview. Whether the tape or a transcript is used • A police officer should give oral evidence to verify that the interview took place and its circumstances • Any inadmissible parts of the interview, eg references to previous convictions, should be edited out. 20.10.4

Views

As another category of real evidence, a judge and/or jury may go and see for themselves a site, locality or machine which is in issue, where it is relevant to do so. For example, the judge may go to inspect the scene of the crime to see its physical layout. (Alternatively, in court, they may watch a video or look at plans, maps, photographs or sketches.)

Self-assessment questions 1

(a) How will the solicitor and barrister on each side decide what witnesses to call and in what order?

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2 3

4 5 6

7 8 9 10 11 12 13 14 15 16 17

18 19 20

(b) Will they know what witnesses the other side is going to call, and what those witnesses will say? What are leading questions and when can they be asked? In giving oral evidence, in what circumstances can a witness refer to the previous written statement they made in preparation for the trial and also produce it to the court as evidence? Does a victim of a criminal offence have to give evidence for the prosecution? What is the purpose of cross-examination? Can you cross-examine a witness as to their general credibility as a person, quite separately from the facts of the case? What is meant by the phrase ‘answers to collateral issues are final’? In what circumstances are answers to credit questions not final? Distinguish between ss 4, 5 and 6 of the Criminal Procedure Act 1865. What is the purpose of re-examination? What is the difference between factual and opinion evidence? When can a person give opinion evidence? When can an ‘expert’ not give opinion evidence? What are the rules on pre-trial disclosure of expert evidence? Can an expert report be produced at trial without calling the expert? Why is it that, generally, oral, and not just documentary, evidence of a fact must be given? In what circumstances can documents be put forward as evidence without the need for oral evidence of that fact? Do you have to produce the original document or is a copy sufficient? How will the prosecution prove the committing of robbery caught on a security camera? How will the prosecution prove the defendant’s taped confession to the police?

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Chapter 21

Legal communications privilege

Meaning

21.1

Communications between clients, witnesses and their legal advisers do not have to be disclosed to the other side in evidence. In other words, they are ‘privileged’. Relationships giving rise to privilege Client and barrister/solicitor

Oral or written communications between a client and their solicitor or barrister made in connection with the giving of legal advice by the solicitor or barrister are privileged. In other words, such communications are confidential and do not have to be disclosed to the other side in the proceedings or disclosed in court. Example

A letter from you to your client giving legal advice does not have to be disclosed to the other side or disclosed in court. Note

This lawyer-client privilege applies to any legal advice communication between them, not just to advice given in the context of present or anticipated litigation. Barrister or solicitor/third party; client/third party

Communications between • The client’s solicitor/barrister and third parties, or • The client and third parties are privileged if the communication was made for the dominant purpose of preparing for pending or contemplated litigation. Communications which are privileged and which do not have to be disclosed to the other side or disclosed in court therefore include • Correspondence between the solicitor (or client) and a witness or other third party in preparation for the case

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• • • •

Counsel’s written advice on the case Instructions from solicitor to counsel A statement made by a witness A report prepared by a third party, eg an expert witness, in preparation for the case. Note

1 As to legal professional privilege in criminal cases, see R v Derby Magistrates’ Court (1995). 2 Although witness statements and expert reports prepared for the case are technically privileged, this privilege is overridden by the rules on pre-trial disclosure. The prosecution must disclose to the defendant the statements of those witnesses they intend to call at trial. The defendant generally has no such duty, except in the case of expert reports in Crown Court cases although they must disclose the nature of their defence before trial. See 16.2.8; in fact, in criminal cases, the prosecution has a duty to disclose certain unused non-sensitive material: see Criminal Procedure and Investigations Act 1996 Parts I and II. Purpose

The point of the above rules is to allow parties to prepare their cases in secret, without fear that their preparations, discussions and advice will be seen by the other party. Note

Further, certain privileged material is protected from disclosure under ss 9 and 10 of the PACE 1984. For example, in R v R (1995) a sample of blood provided by D for his own solicitor and his own expert’s opinion on the sample was privileged from disclosure under s 10(1)(c).

21.2

Exceptions In the situations set out below, legal communications privilege cannot be claimed: • Pre-existing documents • Facts discovered in the course of the relationship • Waiver • Communications to facilitate crime or fraud • Information tending to establish innocence.

21.2.1

Pre-existing documents

Documents already in existence before the litigation developed are not privileged.

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Example

Assume that the case turns partly on an internal memorandum of the defendant company. The fact that the company, once the dispute arises, sends the memorandum to its solicitor, does not make the memorandum privileged from disclosure.

Facts discovered in the course of the relationship

21.2.2

The privilege does not attach to facts discovered/observed in the course of the relationship between solicitor and client, as opposed to communications made between them. Example

In Re Cathcart (1870), the solicitor of a bankrupt was obliged to disclose the address of the bankrupt’s father because that was a fact observed by the solicitor during his work for the bankrupt. Had the father’s address been communicated by the father to the solicitor in confidence for the purpose of obtaining legal advice, it would have been privileged information.

Waiver

21.2.3

The client may waive the privilege, by disclosing the document or communication to the other party. In particular, the client may waive privilege by revealing that he remained silent at a police interview on his solicitor’s advice. See the case law on right to silence at 22.6.1 and 22.6.3. The authorities conflict on whether a solicitor has implied authority to waive the privilege on behalf of the client: compare the statements in Causton v Mann Egerton (Johnsons) Ltd (1974), Frank Truman Export Ltd v Metropolitan Police Commissioner (1977) and Great Atlantic Insurance Co v Home Insurance Co (1981). However, counsel may waive the privilege by disclosing privileged information in court, even if this is against the client’s wishes: Great Atlantic Insurance Co (above). Communications to facilitate crime or fraud

Where a client seeks the advice of a solicitor with the motive of committing a crime or fraud, eg seeking advice on how to draw up a document for a fraudulent purpose, the communication is not privileged, even if the solicitor is ignorant of the fraudulent or criminal purpose: R v Cox and Railton (1884). (If the rule were otherwise, a person

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could hide their crime/fraud behind the legal communications privilege.) Where a client is on legal aid, such conduct would also have the effect that the solicitor would have to cease acting once the fraudulent purpose was discovered unless the client agreed to disclose it to the relevant authority and in certain cases concerning drugs, terrorism and child abuse, the solicitor’s duty of confidentiality would be overridden: see PCG 5.04 and PCG Chapter 16 generally. Further, a person cannot conceal items, eg the proceeds of drugs trafficking, or illegal drugs, by delivering them into their solicitor’s possession and then claiming legal communications privilege: s 10 of the Police and Criminal Evidence Act 1984, as interpreted by R v Central Criminal Court, ex p Francis & Francis (1989). 21.2.5

Information tending to establish innocence

Where a solicitor has information/documents which tend to establish the innocence of an accused, the solicitor cannot refuse to disclose it by claiming privilege. Example

In R v Barton (1973), the defendant was charged with fraudulent conversion, theft and false accounting alleged to have been committed during his employment with a solicitor’s firm. The firm was obliged to disclose solicitor-client documents to the defence which tended to show his innocence, despite the fact the documents were technically privileged.

21.3

Accidental disclosure There are some cases where one party accidentally discloses privileged documents to the other side. This may happen where that party sends privileged solicitor-client communications to the other party by mistake due to pressure of work or disorganisation. Alternatively, there are cases where one party discovers the other party’s privileged communications by accident, for example, picking them up from the courtroom floor. Finally, one party may obtain the other party’s privileged documents by a trick or other impropriety. Can the party whose documents have been disclosed by accident prevent the other party from using that information as evidence at trial? If the information is used as evidence, can the judge/jury take account of such evidence?

Legal Communications Privilege

The following case law principles apply: see Goddard v Nationwide Building Society (1987). • A party who accidentally receives privileged documents/information from the other party can use the documents or information in evidence. Once used in evidence, the jury can take it into account. • However in a private prosecution, if the receiving party has not yet actually used the information in court, the other party can, in the proceedings or in separate proceedings, claim an injunction preventing them from using the material. In other words, it depends whether the party with the privilege can obtain a court order before a fait accompli is established. On the other hand, in a public prosecution, ie most criminal cases, use of the accidentally disclosed material cannot be prevented, even before it is used: Butler v Board of Trade (1971). • If a party obtains the other side’s privileged material by a trick or other impropriety, the court may disallow reference to the evidence even if it is too late to go through the process of obtaining a prior injunction: ITC Film Distributors v Video Exchange Ltd (1982). (It is not clear whether this principle applies to public prosecutions.) However, the PCG, para 16.07, requires a solicitor to cease reading accidentally disclosed documents and to return them to the other side – see judicial comment on this in Ablitt v Mills & Reeves (1995). The professional conduct rules therefore seem to conflict with some of the case law.

Self-assessment questions Do the following have to be disclosed to the opposing party in litigation? 1 A letter from solicitor to client advising the client on the documents which should be prepared for the case. 2 The client’s statement to their solicitor at the first interview with their solicitor. 3 The solicitor’s letter instructing an expert to prepare a report, and the expert’s consequent report.

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4 5

The barrister’s own notes of their meeting with solicitor and client. Privileged documents accidentally disclosed to you by the other side.

Chapter 22

Admissions

Meaning

22.1

An admission is a ‘statement, express or implied, oral or written, which is adverse to a party’s case’ (Cross on Evidence, 7th edn p 580). For example, in a criminal case: ‘Yes, I did it.’ Note

1 The admission may be as to any aspect of the case, not necessarily an admission of all the charges/claims. 2 In criminal cases, an admission is known as a confession: see Chapter 23.

An admission can be made formally or informally.

Formal admissions By a formal procedure, a party can admit a fact; the fact is then • Taken to be true for the purpose of the proceedings • Cannot be challenged by either side, and • Does not need to be proved by evidence. A party will usually make a formal admission of an insignificant fact in order to save time and expense and to allow the parties to concentrate on the important issues. Under s 10

Under s 10, the formal admission • May be made before or at the proceedings; • If not made in court, must be in writing • If made in writing, must be signed by its maker • If made on behalf of a defendant who is an individual, must be made by their counsel or solicitor • May be withdrawn, with leave (permission) of the court.

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22.3

Informal admissions An informal admission is one not made formally as part of the proceedings but one alleged to have been heard by the other side. It is given in evidence by the other side rather than being formally adopted by the court as conclusive of the fact. The side who is alleged to have made the admission can challenge • The admissibility of the admission, or • The weight to be attached to it. For example, they may claim it was obtained oppressively and is therefore an inadmissible confession; or in any case, they may claim they never made the admission. The admission may have been made in any circumstances and may have been made by words, conduct or even silence. The other side can then call the witness who heard (or otherwise perceived) the admission being made, as evidence of the truth of the facts stated in the admission. Example

1 In R v Simmons (1834), a witness was permitted to give evidence of an admission they overheard the defendant making to his wife while leaving the magistrate’s room after committal. 2 In R v Bailey (1993), tape recordings of admissions made to each other by two accused sharing a secretly bugged police cell were admissible.

22.4

Confessions The prosecution can give evidence of a relevant confession made by a defendant: s 76(1) of the PACE 1984; Thus, the giving of confession/admission evidence is an exception to the rule prohibiting hearsay evidence. However, the defendant can challenge the admissibility of confession evidence on the grounds that it was obtained oppressively or unfairly or where it is likely to be unreliable or too prejudicial (see Chapter 23).

22.5

Admission by conduct and silence Conduct may amount to an admission, eg most obviously, a nod of the head. Are accusations made against the defendant, in the presence of the defendant, admissible in evidence? Is the response or reaction (or lack of response) of the defendant admissible?

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Example

In R v Norton (1910), the defendant was charged with carnally knowing a girl under 13. Evidence was given that the girl said to him ‘You have done it, Stephen Norton’, and that according to one witness he had replied (lifting his arms) ‘If I have done it, I hope the Lord will strike me dead.’ According to another witness, he had replied, ‘If you say so, I might as well put my clothes on and go home.’

The result of R v Norton and the later case of R v Christie (1914), is that it is a rule of practice that accusations made in the presence of the defendant are only admissible if there is evidence that the defendant, by words or conduct, accepted that the accusations were wholly or partly true. The procedure and principles in jury trials are • In the absence of the jury, the judge, hearing evidence and submissions, must decide whether there is evidence fit to be submitted to the jury that the defendant accepted the truth of all or part of the accusations. If there is not, the accusations should not be given in evidence. • Even if the defendant denied the accusation, the judge may decide from the circumstances of the denial that there is evidence that the defendant in fact accepted the truth of the accusations, eg the defendant’s demeanour in denying it or the fact that the denial is inconsistent with other statements by the defendant. • The evidence of the accusations and response is then put before the jury for the jury to decide whether the defendant’s response or reaction did in fact amount to an acceptance of all or part of the accusations. This must now, however, all be read subject to the provisions in the Criminal Justice and Public Order Act 1994 (see below).

The extent of the right to silence on being questioned On being questioned

A defendant cannot be compelled to answer police questions, the defendant literally has a right to silence. However, ss 34, 36 and 37 of the Criminal Justice and Public Order Act 1994 provide, in various ways, that the magistrates or jury may draw adverse inferences from

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the defendant’s silence. In other words, their silence may be used against them. Specifically • Section 34 provides that adverse inferences can be drawn against the defendant from their failure to mention during questioning a fact which they later rely on at trial. However, an adverse inference can only be drawn if the defendant could reasonably have been expected to mention the fact during questioning. • Section 36 provides that adverse inferences may be drawn against the defendant from their failure during questioning to account for any objects, substances or marks on or near them. • Section 37 provides that adverse inferences may be drawn against the defendant from their failure during questioning to account for their presence at a particular place. Note

Adverse inferences may only be drawn if the accused was cautioned before being questioned.

22.6.1

When will inferences be drawn?

It is suggested that it would only be reasonable to expect the accused to mention their defence during questioning and to draw adverse inferences from their failure to do so when the case and evidence is • disclosed to the accused clearly and comprehensively during questioning, and is • prima facie strong and compelling, and calls for an explanation, which the accused should have if they are innocent, and the accused • is not in bad mental or physical condition, confused, distressed, vulnerable or inarticulate. Conversely, it is suggested that adverse inferences should not be drawn where • any of the above do not apply, or • the accused has an ulterior motive for remaining silent, such as fear of reprisal, or a wish to protect others or to keep a secret (such as a secret affair), or • the accused has remained silent on legal advice, based on good reasons for that advice.

Admissions

Case law

In R v Condron (1997), the Court of Appeal gave the following guidance on the drawing of inferences under s 35: • In summing up, the judge should give a direction to the jury on whether to draw adverse inferences similar to the direction laid down in R v Cowan for s 35 cases (failure to give evidence at trial): see Chapter 19, 19.4.1. Thus the judge should tell the jury that ❍ the burden of proof remains on the prosecution ❍ the defendant is entitled to remain silent ❍ an inference from failure to answer questions cannot, on its own, prove guilt ❍ the jury must be satisfied the prosecution have established a case to answer before drawing any inferences from silence ❍ if the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference • If the accused gives as a reason for not answering questions that he has been advised by his solicitor not to do so, that is unlikely to be regarded as a sufficient reason for not mentioning matters relevant to the defence. The defendant will have to go further and state the basis or reason for the advice. The defendant and/or solicitor can then be cross-examined on the nature of the advice given and on why the solicitor advised silence. Thus, the defendant will probably have waived solicitorclient communications privilege. The judge should warn counsel or the defendant that privilege may be waived if the defendant gives evidence of the advice received from his solicitor. In Condron, the defendants refused to answer questions because their solicitor advised them not to do so, as the solicitor considered them unfit to answer due to heroin addiction. However, the judge directed the jury that adverse inferences could still be drawn from the defen1

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dants’ silence, and the Court of Appeal did not find the convictions unsafe. 2 In R v Argent (1997), the defendant remained silent at interview, based on his solicitor’s advice. The judge directed the jury that they could draw an inference from his silence. The Court of Appeal saw no grounds for criticising the judge’s direction. They gave the following guidance: • The jury as the tribunal of fact, not the judge, should decide whether to draw an inference from silence. Only rarely should the judge direct the jury that they should, or should not, drawn an inference • In deciding whether the defendant could reasonably have been expected to mention a fact on being questioned, the jury should take account of all the circumstances at the time of questioning, such as time of day, the defendant’s age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice. Further, reference should be made not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused, with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. The jury may conclude that it was reasonable for the defendant to have held his peace for a host of reasons, such as being tired, ill, frightened, drunk, drugged, unable to understand, suspicious, afraid his answer would not be fairly recorded, worried at committing himself without legal advice or acting on legal advice. It is for the jury to decide whether it was reasonable for the defendant to remain silent • In this case, the evidence put to the defendant on questioning was strong and not very complex. Therefore, despite the police not having made complete disclosure of the evidence, the defendant could have been expected to respond if they had an answer • Despite the solicitor in the case having followed Law Society guidance in advising silence, the jury is not concerned with the correctness of the solicitor’s advice nor with

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whether it complies with Law Society guidelines, but with whether it was reasonable in all the circumstances for the defendant to remain silent. In R v Roble (1997), the Court of Appeal again upheld a judge’s direction that the jury could draw an inference from the defendant’s silence even though the silence was on the solicitor’s advice. The court reiterated that the defendant could not prevent an inference being drawn merely by asserting that his silence was on legal advice. He had to go further and give the reasons for that advice, in which case legal communications privilege was waived.

What inferences will be drawn?

22.6.3

Even if an adverse inference can be drawn, that does not mean that the inference drawn will be that the defendant is guilty of the offence charged. In fact, s 38(3) cannot be convicted solely on an inference drawn from their silence. There must be other supporting evidence against the defendant. Thus, the inference may be something less than guilt. The inference may simply be that there is further likelihood that the defendant did the act alleged (perhaps being only one element of the charge) or has no innocent explanation for an act, or mark or for their presence at a particular place. Advice to the accused

Given that adverse inferences may be drawn from an accused’s silence, should you advise your client to remain silent in the police station? In what circumstances should you do so and when should you advise your client to answer a question or provide an explanation rather than to remain silent? It is generally thought that you should advise silence when • The case and the evidence against your client has not been clearly and completely disclosed by the police (this will be a common ground for silence) • Your client is confused, distressed, vulnerable, in poor physical or mental condition or inarticulate • You have not had a proper opportunity to advise your client and they have not had a proper oppor-

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tunity to collect their thoughts and prepare their explanation • The case against your client is weak • Your client has an ulterior motive for remaining silent, such as fear of reprisals, or a desire to protect others or to keep a secret. Conversely, it may be appropriate to advise your client to answer questions or provide an explanation when the case has been fully disclosed, is prima facie compelling and calls for an innocent explanation, and you are satisfied that your client has such an explanation. An alternative tactic is to advise silence under questioning and then for the adviser to mention factors which will be relied upon in defence at trial. It is all a matter of balancing the consequences of silence against the consequences of your client speaking out. However, it is clear from the above case law that the mere fact that the accused remained silent on legal advice will not be enough in itself to prevent adverse inferences being drawn; but, if the silence is supported by an explanation on the interview tape by the legal adviser as to why they advised silence and the reasons given are sound, that may persuade the court that no adverse inferences should be drawn. You may also be called to give evidence in court on the nature of and reasons for your advice. Thus, it is important that your advice and reasoning is clear at the time it is given and that it appears so clearly on tape. 22.6.5

Police caution

Before s 34 can apply, the accused must be cautioned in the following terms: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence. (PACE Code of Practice C, para 10.14.)

Paragraph 10.5B also sets out the caution a police officer must give before ss 36 and 37 can apply, ie the accused must be informed of the consequences of their failure to account for themselves (see s 36(4) and s 37(3)). Note

Under Code C, para 11.2.A, at the beginning of an interview in a police station, the officer must put to the suspect any significant silence by the suspect before their arrival at

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the police station and must ask the suspect whether they confirm or deny the earlier silence or wish to add anything.

Procedure at trial

The prosecution will give evidence at trial of the defendant’s silence, usually by referring to the interview tape or transcript. If the defendant then gives evidence and mentions facts he did not mention in interview, he can then be examined and cross-examined on why he did not mention them. If his explanation is that he was advised by his solicitor not to answer, his solicitor may be called to explain the reasons for and nature of the advice (privilege thus having been waived). The advocates will then, at the conclusion of all the evidence, argue, in the absence of the jury, as to whether any inferences should be drawn and, if so, what inferences. It will be at this stage that the defence advocate will argue that the judge should direct the jury that no adverse inferences should be drawn because, for example, the police case had not been fully disclosed at the time of questioning. The above procedure was laid down in R v Condron (above). Having decided the issue, the judge will, in summing up, direct the jury on whether they may draw an adverse inference (not whether they should) and, if so, what inference they may draw. It will be for the jury to decide whether they do in fact draw any inference. An incorrect direction by the judge may be a ground for a successful appeal by the defendant. Note

1 Section 34 applies to questioning not only by the police but also by others who have the duty of investigating offences, eg store detectives and customs officers. Sections 36 and 37 apply expressly to questions by customs officers as well as by the police. 2 Nothing in ss 34 – 37 prevents the court excluding evidence in its common law discretion: s 38(6). 3

For useful articles on ss 34 – 3 7 , see • Legal Action Group Journal, April 1995, pp 12–14, and July 1995, pp 10 –13 • Solicitors’ Journal, 17 February 1995, p 148 • Criminal Law Review, 1995, pp 4, 132, 483, 587– 624 • Solicitors’ Journal, 23 May 1997, p 500 • Solicitors’ Journal, 7 March 1997, p 202.

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Further, see advice given by the Law Society’s Criminal Law Committee in its Criminal Practitioners’ Newsletter. 4 Sections 34–39 may be challenged in the European Court of Human Rights on the basis that they contravene Article 6 of the European Convention on Human Rights: see Legal Action Group Journal, April 1995, p 14. However, in John Murray v UK (1994), the European Commission on Human Rights concluded that similar provisions in Northern Ireland did not violate Article 6.

Self-assessment questions 1

What is the difference between an admission and a confession? 2 What is the difference between a formal and an informal admission? 3 How is a formal admission obtained? 4 (a) What statutory sections allow evidence to be given of an admission by the other side? (b) Why is it that statutory provision was needed to allow such evidence? (c) How would such evidence be given? 5 When will the prosecution not be allowed to give evidence of a defendant’s confession? 6 In what circumstances can a party’s silence be taken as an admission of an assertion made against them? 7 In what circumstances should you advise your client to remain silent? 8 How should the judge direct the jury on the defendant’s silence in a criminal case? 9 How do ss 36 and 37 differ from s 35 of the Criminal Justice and Public Order Act 1994? 10 Would it be too simplistic to state that the new Act equates silence with guilt? Explain your reasoning.

Chapter 23

Confessions and illegally obtained evidence

Meaning

23.1

A confession is the name given to an admission made by a defendant in criminal proceedings. By s 82 of the Police and Criminal Evidence Act (PACE) 1984 (the Act which deals with the admissibility of confessions) a confession is defined as: any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise. Note

1 ‘Otherwise’ presumably refers to an act such as nodding your head. 2 All references in this chapter are to PACE 1984 unless stated otherwise.

Admissibility

23.2

A confession made by an accused may be given in evidence against them: s 76(1). This is despite the fact that such evidence is technically hearsay. However, if the defendant represents to the court, or the court considers, that the confession was or may have been obtained • By oppression of the person who made it, or • In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made as a consequence then the confession is inadmissible unless the prosecution proves beyond reasonable doubt that the confession was not obtained in such ways: s 76(2). The defendant does not have to prove that it was obtained in that way. Meaning of ‘oppression’

PACE 1984 gives an inclusive, but not a complete, definition of oppression. Section 76(8) provides that oppression:

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... includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).

Thus, where the defendant only made the confession because they were being beaten up, that would obviously be oppression, and the confession would be inadmissible. However, case law has given ‘oppression’ a wider meaning. In R v Fulling (1987), the Court of Appeal defined ‘oppression’ as: ... the exercise of authority or power in a burdensome, harsh or wrongful manner; the unjust or cruel treatment of subjects, inferiors, etc or the imposition of unreasonable or unjust burdens.

The Court of Appeal thought it likely that oppression would involve some impropriety on the part of the interrogator. ‘Oppression’ can include a failure by the police to follow correct detention and arrest procedures under PACE, eg detaining and questioning the defendant for an excessive period without food or sleep. Example

In R v Davison (1988), the defendant made a confession after the police had failed to follow correct detention and arrest procedures under PACE. The judge therefore ruled that the confession had been obtained by oppression and so was inadmissible.

Whether police conduct amounts to ‘oppression’ will be a question of fact in the particular case. Example

R v Paris (1993) is a good recent example of ‘oppression’ with judicial comment on it. In Paris a conviction based on a confession was quashed because the confession was obtained by lengthy, bullying questioning which amounted to ‘oppression’. The Court of Appeal criticised the defendant’s solicitor, who sat through most of the interview in silence. The court stated that solicitors representing a client at interview should follow the Guidelines for Solicitors on Advising a Suspect in the Police Station, published by the Law Society. The court stated that solicitors should discharge their function ‘responsibly and courageously’. For example, solicitors should intervene to prevent oppressive, threatening or insulting questions, or questions which are unclear or multiple questions, or which are not questions but assertions or comments by the police officer.

Confessions and Illegally Obtained Evidence

‘Unreliability’ ground

Under this ground, a confession will be inadmissible if it was made as a result of anything said or done which was likely to render the confession unreliable. It is not a question of whether the confession itself was actually untrue. Presumably the statute is concerned with the former issue rather than the latter so as to deter questionable interviewing techniques. This ground is wider than the ‘oppression’ ground and may not involve impropriety by the interrogator. Examples of the ‘unreliability’ ground are • Where there is aggressive and hostile questioning by the police, falling short of ‘oppression’: R v L (1994) • Where the confession was obtained by inducements by the police, eg – ‘We’ll drop the more serious charge’ – ‘We’ll keep you here for hours if you don’t confess’ – ‘We’ll let you go’ – ‘We’ll let you see your family’ • Where the confession was obtained after breaches of the PACE codes of practice by the police, which were likely to render any confession unreliable Example

In R v Chung (1991), the defendant was not given access to a solicitor; an interview was not recorded in accordance with correct procedures; and a note of the interview was not shown to the defendant or his solicitor. As a result of these breaches, the defendant’s confession was ruled inadmissible.

• Where the defendant has a low IQ, or a low mental age or other fragile mental condition, any confession made by them may be inadmissible. This may be the case not only where the police have taken advantage of the defendant’s mental condition (as in R v Delaney (1988)) but also where they have not Example

In R v Everett (1988), the defendant, aged 42, had a mental age of eight. The Court of Appeal held that this itself rendered the confession likely to be unreliable, despite the police not having deliberately taken advantage of it.

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The confession may be inadmissible on this ground even where the police have acted in good faith Example

In R v Blake (1989), the police arranged for an adult to be present at the interview in accordance with the codes of practice. However, the adult was the child defendant’s estranged father of whom the child was nervous. This rendered the child’s confession inadmissible.

• If the unreliability is solely due to the defendant’s own wrongful act, this does not make the confession inadmissible (see R v Goldenberg (1988), where the defendant was a heroin addict). However, if the police positively take advantage of the situation (say, an addiction), by promising the defendant that they will get away quickly if they confess, for example, then that may make the confession inadmissible.

23.3

Confessions by mentally handicapped There are special provisions as to confessions by mentally handicapped defendants.

23.3.1

Trial on indictment

Section 77 provides that at a trial on indictment where • The case against the accused depends wholly or substantially on a confession by them, and • The court is satisfied that they are mentally handicapped and the confession was not made in the presence of an independent person, eg a solicitor the court shall warn the jury of the special need for caution before convicting the accused in reliance on the confession and shall explain that the need arises because of the above two factors. Note

A person is mentally handicapped within s 77 if they are in a state of arrested or incomplete development of mind, including significant impairment of intelligence and social functioning.

23.3.2

Relationship with s 76

A s 77 warning will only be needed where a confession by a mentally handicapped person has not already been ruled inadmissible under s 76.

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Example

In R v Moss (1991), the accused was mentally handicapped and there were breaches of interview procedures by the police. Accordingly, the Court of Appeal quashed the conviction on the ground that the accused’s confession should have been excluded under the s 76 ‘unreliability’ ground, it was insufficient that the judge gave the jury the s 77 warning of the need for caution.

Case law

23.3.3

In some cases, the case law goes further than s 77. The Court of Appeal, in R v McKenzie (1993), ruled that • Where the prosecution case depends wholly on confessions • The defendant suffers from a significant degree of mental handicap, and • The confessions are unconvincing to a point where a jury could not properly convict, eg because they lack incriminating detail, are inconsistent with other evidence or are inherently improbable the judge should withdraw the case from the jury. Note

This only applies to a case where the confession was not originally ruled inadmissible.

Inadmissibility under other grounds

23.4

Quite apart from being inadmissible under ss 76 or 77, a confession will also be excluded from the evidence • If, having regard to all the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings the court ought not to admit it: s 78(1), or • At common law, if the probative value of the confession, ie what it proves, is outweighed by the prejudice to the defendant in putting the confession in evidence. Exclusion for unfairness

Even if the confession does not specifically fall within s 76(2)(a) or (b), ie there was no oppression and nothing said or done likely to render the confession unreliable, the confession may still be excluded under s 78 on the

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ground of unfairness. This may be the case where the police did not follow the correct procedures laid down by PACE 1984 and the codes of practice when they obtained the confession. Example

In R v Sparkes (1991), in interviewing the defendant a police officer breached the codes of practice by not cautioning him or making a contemporaneous record of the interview. Accordingly, the Court of Appeal held that, even though the confession obtained in the interview could not have been excluded on the s 76 ‘unreliability’ ground, it should have been excluded on the s 78 ‘unfairness’ ground.

The judge has a discretion whether or not to exclude evidence under s 78, and decisions differ from case to case, depending on the facts. Note

The admissibility of a confession is generally challenged under s 76 and s 78.

23.4.2

Exclusion at common law

Even if the confession cannot be excluded under ss 76–78 (because it does not quite fall within their terms), the judge still has a discretion at common law to exclude the confession from the trial where its prejudicial effect on the defendant outweighs its probative value: R v Sang (1980). For example, where the confession was obtained by methods falling short of s 76 ‘oppression’ and not satisfying the ordinary meaning of ‘unreliable’, and/or the confession does not have such an adverse effect on the fairness of the trial that it must be excluded, there might be room for the judge to hold, in his common law discretion, that the probative value of the evidence in question was of such marginal significance as compared to the prejudice that would result to the defendant, that it ought to be excluded under this expressly preserved common law principle. Note

It is rare for this common law discretion to be used now that ss 76 –78 exist.

23.5

Procedure for challenging confession 1

Pre-trial. Before the trial commences, the defendant’s representatives will indicate to the prose-

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2

cution that they wish to challenge the admissibility of the prosecution’s confession evidence. Beginning of the trial. In the Crown Court, at the beginning of the trial, before the prosecution’s opening speech (in which they might want to mention the confession) or before calling the police witness who is going to give evidence of the confession, the prosecution will indicate to the judge that the defendant wishes to make a certain application. Note

The matter is mentioned in this vague manner so that the jury do not hear about the confession evidence at this stage.

Voir dire. The jury are then sent out of the courtroom (obviously, they should not be present while the parties argue about whether the confession evidence can be put before the jury) and, in their absence, there will be a ‘trial within a trial’ (known as a voir dire) at which the prosecution will have to prove that s 76(2)(a) and (b) do not apply. For example, police officers will be examined and cross-examined on whether they forced the defendant to confess by using oppression. Any s 78 challenge will also be considered. 4 Prosecution’s task. If the prosecution fails to prove there has been no oppression or unreliability, or the evidence is excluded under s 78 or at common law, the confession evidence is excluded from the trial. 5 Weight of the confession if it is not excluded. If the confession evidence is not excluded, then it is put before the jury. However, even if it is put before the jury, the defendant may still challenge the weight (credibility) of the confession evidence, ie the defendant is entitled to claim that the jury should not believe the confession evidence because of the way that it was obtained. Thus, the same examination and cross-examination of police officers and the defendant may be gone through twice – once in the absence of the jury, when the court is considering admissibility, and a second time in front of the jury, when the court is considering the weight of the evidence.

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Example

The police may have breached a code of practice in obtaining a confession, eg they failed to take a contemporaneous record of the interview. This may not render the confession inadmissible under ss 76 or 78, but it may affect the weight to be attached to the confession when it is put before the jury. Note

1 In the magistrates’ court, the problem is that the magistrate is also the finder of fact – there is no jury. The magistrate hears the voir dire, challenging the admissibility of the confession. If it is then excluded, the finder of fact has nevertheless heard about it but technically must exclude it from their mind. 2 In R v Cox (1991), the defendant actually admitted at the voir dire that the confession was true. Despite this, the Court of Appeal held that the confession should have been excluded because at the time it was made it was likely to be unreliable – technically that was the issue, not whether it was true. (The unreliability arose because the defendant was mentally handicapped and an appropriate adult was not present to look after his interests as required by the PACE codes of practice.)

23.6

Facts discovered as a result of a confession Even if a confession is excluded under s 7, that will not prevent the prosecution from giving evidence of facts discovered as a result of the confession: s 76(4)(a). Example

In the inadmissible confession the defendant says ‘the money is buried in my house’. As a result, the money is found in the defendant’s house. The prosecution can give evidence of this finding (subject to inadmissibility under s 78, for example, where the search was unlawful).

On the other hand, the prosecution cannot give evidence that they discovered the facts as a result of an excluded confession: s 76(5). Example

In a confession inadmissible under s 76(2) the accused says, ‘The money is buried under the old hollow oak tree in Sherwood Forest’.

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The prosecution can give evidence that they found the money under the old hollow oak tree in Sherwood Forest, but cannot link the finding to the defendant by giving evidence that the defendant told them they would find the money there. The confession is still inadmissible.

Admissibility of excluded confession

23.7

Even if a confession is excluded under s 76(2), this will not prevent the confession from being put in evidence just to show that the accused speaks, writes or expresses themselves in a particular way: s 76(4)(b). Example

Assume that the person responsible for the crime is known to make a particular spelling error, or to write or speak in a particular identifiable manner. If the defendant makes the same error or shows the same identifying sign in a written or oral confession, the part of the confession which displays that sign can be put in evidence as being relevant to the identity of the defendant as the person who committed the crime.

This is the case even though the confession is excluded under s 76. The confession is then not being put forward to prove that its contents are true, it is being put forward as real evidence to identify the defendant.

Illegally or unfairly obtained evidence Evidence obtained in breach of PACE procedures

PACE 1984 sets out police powers and procedures in relation to • Stop and search • Entry, search and seizure • Arrest • Detention, questioning and treatment of suspects. Further, codes of police practice, made pursuant to s 66 (and updated in April 1995), set out detailed procedures that the police must follow in relation to • Powers of stop and search (Code A) • Search and seizure of property (Code B) • Detention, treatment and questioning (Code C) • Identification of persons (Code D) • Tape recording of interviews (Code E).

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However, what if evidence is obtained by the police in a situation where they have not followed the proper PACE procedure? Is such evidence admissible? For example, can the prosecution give evidence of stolen property being found by the police on D’s premises when the police search was not authorised by PACE or not carried out according to the code of practice procedure for searches? Can the prosecution give evidence of admissions made by the accused in an interview, where the interview was not carried out according to PACE and the codes of practice procedure for the detention? For example, where the accused was not allowed a solicitor, or where no caution was given or no contemporaneous record of the interview was made. Can the prosecution give identification evidence where there was an identity parade which did not comply with the codes of practice procedure for parades? For example, where the parade did not consist of at least eight persons resembling the accused. 23.8.2

Section 78 of the PACE 1984

The answer is that, if evidence is obtained by action which is in breach of PACE procedures, the evidence is not automatically excluded from the trial, but the judge has a discretion under s 78 of the PACE 1984 to exclude the evidence if the breach of procedure makes it unfair to the defendant to put the evidence in at trial. Section 78 provides: In any proceedings, a court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Whether the judge will exclude the evidence under s 78 really depends on the particular case, and the individual judge’s discretion. Will it be unfair to allow the evidence? There are very many reported cases, which can be found summarised in yearly and monthly editions of Current Law. In some, the breach of procedure resulted in exclusion of the evidence; in others it did not. (Most reported cases are Court of Appeal cases, where the trial judge allowed the evidence and the Court of Appeal quashed the conviction because the evidence should have been excluded under s 78.)

Confessions and Illegally Obtained Evidence

Example

1 In R v Hunt (1992), the Court of Appeal held that the defendant’s answers to police questions should have been excluded because (a) the defendant was not cautioned; and (b) the police did not make a contemporaneous note of the answers. Thus, it was unfair to admit the evidence. 2 This can be compared with R v Park (1993), where the failure to make a record of the defendant’s answers to police questions was not, in the view of the Court of Appeal, a significant breach of the code of practice on interviewing and had not caused substantial prejudice to the accused. Therefore, the court held that the trial judge had been right not to exclude the answers from the evidence under s 78. Note

1 Case law shows that a judge is more likely to exclude the evidence if the breach of procedure is significant and substantial, and particularly if the breach is a major one such as failing to • Allow access to a solicitor • Caution, or • Make a proper record of the interview and to show it to the accused. 2 Do not forget that a confession obtained in breach of procedures may be inadmissible under s 76 as well as s 78. 3 In some cases, the police argue that they did not have to follow PACE interviewing procedures in questioning a person because the questions were not an ‘interview’ but were preliminary inquiries made on first challenging the person or were questions put while taking that person to the police station. There is much case law on this Whether the questions amount to an interview depends on the nature, length and place of questioning. It will be an ‘interview’ if the questions were asked with the aim of obtaining admissions on which proceedings may be brought: R v Cox (1993). Contrast R v Menard (1995), where information volunteered by the accused was held not to have been given in an ‘interview’ and therefore that the ‘interview’ code of practice did not apply, and nothing said by the accused in that meeting could be produced in evidence against the accused at trial. 4 The judge also has a discretion at common law, as well as under s 78, to exclude evidence which has been unlaw-

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fully obtained. However, this does not add anything as the criteria of unfairness applies both at common law and under s 78: R v Christou (1992). 5 Even if the evidence is not excluded under s 78, the fact that it was obtained in breach of procedure may affect the weight to be attached to it.

23.8.3

Evidence obtained by a trick

What is the position if the police obtain the evidence by going ‘undercover’, posing as criminals and leaving bait for the suspect? It is often argued by the defence that the evidence should then be inadmissible under s 78 or at common law because it has been obtained ‘unfairly’. However, case law shows that the courts are reluctant to exclude such evidence. Example

1 In R v Christou (1992), the police, in an undercover operation, set up premises purporting to be a shady jewellery shop willing to buy stolen property. Hidden cameras and sound recording equipment recorded all that went on. Consequently, sellers of stolen goods to the shop were caught and convicted of handling stolen goods. The Court of Appeal held that the judge was right not to exclude the evidence at common law or under s 78 just because it had been obtained by this undercover trick. The undercover operation was not unfair because it did not cause the appellants to do something they would not otherwise have done. It merely provided an opportunity to catch them. 2 In R v Edwards (1991), the defendant was convicted of conspiracy to supply a controlled drug. The evidence was obtained by an undercover officer posing as a buyer. It was held that the officer was not an agent provocateur who had incited the crime as the defendant would have been supplying drugs anyway. Thus, no question of s 78 unfairness arose. 3 In Williams v DPP (1993), the police left an unattended van in the road with an openly valuable load hoping that someone would come along and try to steal it. They observed the van. The idea was to try and clear up motor vehicle crime in the area. Persons who fell for the bait were convicted. It was held that the police had not incited these people to commit the crime; the police had not acted as agents provocateurs

Confessions and Illegally Obtained Evidence

Therefore, the evidence had not been unfairly obtained under s 8 or at common law. 4 In R v Smurthwaite (1994), the defendants were convicted of soliciting murder as a result of evidence by undercover police officers The officers had posed as contract killers offering to carry out murders for the defendants Once the officers had taped the defendants’ requests for the killings to take place, the officers revealed their true identities and arrested the defendants The Court of Appeal held that the evidence would not automatically be excluded because it had been obtained by entrapment or a trick. It all depended on whether the way in which the evidence was obtained would have an adverse effect on the fairness of the proceedings In this case, the court held that it would not because the police did not induce the defendant to commit an offence they would otherwise not have committed. The defendants were soliciting murder of their own free will. They had not been induced to do so by the people they thought were contract killers

The main point in these examples was said to be that the police had not acted as an agent provocateur – ‘a person who entices another to commit an express breach of the law which (that person) would not otherwise have committed and then proceeds to inform against (that person) in respect of such an offence’: R v Edwards (1991). So, in these cases, it was not unfair to admit the evidence. But what if the police do act as an agent provocateur, and incite a person to commit a crime they would not otherwise have committed? At common law, the evidence will not be excluded: R v Sang (1979). Can it alternatively be excluded under s 78? The authorities conflict on this: see R v Harwood (1989), R v Gill and Ranuana (1989). See also the ‘Wimbledon Common’ case of R v Stagg (unreported), in which the defendant was acquitted after his admission was obtained in bizarre circumstances by an undercover police officer, and was consequently held inadmissible. An important recent House of Lords case is R v Khan (1996). In this case, the police obtained evidence against the defendant by installing a covert listening device on a property. The House of Lords held that the evidence was not inadmissible under s 78 despite the trespass, possible breach of privacy and breach of Article 8 of the European Convention on Human Rights.

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Again, in R v Roberts (1997), the Court of Appeal held that evidence of admissions obtained by secret bugging of the defendant’s cell was not inadmissible under s 78. Note

As to whether the police can put forward evidence obtained by phone tapping, see Interception of Communications Act 1985, as interpreted by R v Effick (1992) and R v Preston (1993). The details of this difficult matter are beyond the scope of this companion.

Self-assessment questions 1 2

Define a confession. On what grounds can a confession be excluded from the trial? 3 What procedure must be gone through for a confession to be excluded from the trial? 4 Who has the burden of proof on the grounds for excluding a confession from the trial? 5 Is any breach of police procedures enough to render a confession inadmissible? 6 What alternative grounds could a defence solicitor use to challenge a confession obtained where PACE procedures were not followed? 7 In deciding whether to exclude a confession, to what extent is the court concerned with whether the confession was true? 8 For what reasons might you intervene in a police interview with your client suspect? 9 To what extent is a confession by a mentally handicapped defendant admissible? 10 When will evidence be ruled inadmissible on the ground that it was obtained by the police whilst they were not following PACE procedures or whilst they were acting undercover?

Chapter 24

The rule against hearsay evidence

Meaning and admissibility

24.1

In simple terms, hearsay is saying what someone else told you to be true and it is a fundamental rule of evidence that a person or party cannot give hearsay evidence, ie hearsay evidence is inadmissible. In general, a witness can only give evidence of matters directly perceived by them, with one or more of their own senses. There are, however, many exceptions to this rule (see 24.3). A formal statement of the rule is found in R v Sharp (1988): ... an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted.

Examples

1 2

3

4

If X, in the witness box says that Y told X that ‘Z did it’, this is hearsay evidence from X. If X, at trial, produces Y’s written statement saying that ‘Z did it’, this again is hearsay evidence from X. If X produces at trial a receipt signed by Y as evidence of delivery of money from Z to Y, this is hearsay evidence from X. In effect, X is putting in evidence a statement by Y that the money was delivered: Y is the one with direct personal knowledge. Local authority computer print-outs, showing that people had not paid their poll tax, were (until Parliament changed the law) declared inadmissible hearsay. They were statements by people not in court that the money was owed: the actual compilers of the print-outs should have attended court to give evidence of the non-payment from their personal knowledge.

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Note

Of course, the compilers could not really have personal knowledge of every non-payer. In theory, they could ‘refresh their knowledge’ in the witness box by referring to the relevant documents. In practice, as you will see below, most business records are allowed to be put in evidence, even though technically hearsay.

5

In R v Kearley (1992), the police raided K’s flat. While they were there, they took 10 phone calls from people asking for drugs from K. Seven people also came to the flat, asking for drugs from K. The police gave evidence at K’s trial of these people’s requests for drugs as evidence of K’s possession of and intent to supply drugs. The House of Lords held that such evidence by the police was inadmissible hearsay. In effect, the police were merely giving evidence of implied statements by others that the defendant was a dealer. K’s conviction was quashed as a result.

24.2

Cases where a statement made by another is not hearsay

24.2.1

Statement put forward to prove it was made

It is not always hearsay for a person to give evidence of what someone else said. Evidence of someone else’s statement is only hearsay if it is put forward to prove that the contents of the statement are true. Example

In the first example under 24.1.1, X is putting forward Y’s statement to show that its contents are true, ie to show that ‘Z did it’.

However, evidence of someone else’s statement is not hearsay if the statement is not put forward to show that its contents are true, but to show that it was made. Examples

1

In Subramaniam v Public Prosecutor (1956), S was convicted of being in possession of ammunition. His defence was duress: he claimed that he had been forced into the act by threats from terrorists, that they had said ‘If you don’t do this, we’ll kill you.’ The trial judge had ruled that S could not

The Rule Against Hearsay Evidence

2

3

give evidence of the terrorists’ threats, as that would be hearsay. He would be saying what someone else had said. The Privy Council quashed the conviction, on the ground that such evidence was not hearsay. Although S would be giving evidence of what someone else said, he would not be putting forward the statements to show the threats were true (that they would kill him), just that they were made and the effect of the statements on his mind. The latter was the issue, not whether the assertions in the statement were true. It all depends on what the issue is. In Attorney General v Good (1825), G was charged with possessing goods with guilty knowledge. The prosecution gave evidence that, when customs officers arrived at his house, G’s wife denied he was there. In fact, he was there. It was held not to be hearsay for the prosecution to give evidence of her denial. They were not putting forward the statement to show that it was true (quite the opposite, in fact!) but to show it was made, from which guilty knowledge could be inferred. In Ratten v R (1972), the appellant was charged with murdering his wife with a shotgun. His defence was that the gun had gone off accidentally while he was cleaning it. However, the prosecution called evidence from a telephone operator who stated that she had received a call from the defendant’s wife shortly before the shooting. The wife, sobbing and hysterical had said ‘Get me the police, please ...’ and gave her address, before hanging up. The Privy Council held that such evidence was not hearsay. The statement was not put forward to show the truth of its contents, but to show the wife’s state of fear (thereby rebutting the defence of accident). Note

Arguably there was an element of implied assertion of facts by the wife, as there was in R v Kearley above. It is sometimes difficult to draw the line. However, even if the evidence in Ratten was hearsay, it was admissible under an exception to the hearsay rule known as the ‘res gestae’ (see Chapter 25).

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Summary

In all of the above cases, there was nothing wrong with a witness giving evidence of what someone else said; per Lord Wilberforce in Ratten v R (1972): The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called, is no objection to its admissibility. Words spoken are facts [perceived by the witness] just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on ‘testimonially’, ie as establishing some fact narrated by the words.

Thus, the question to be asked is why is evidence of this statement being given. • If it is to show that the assertions in the statement are true, that is hearsay. • If it is only to show that the statement was made, that is not hearsay. If the fact the statement was made is relevant to the case, the evidence is admissible. 24.2.2

Mechanical devices

It may be thought that statements/print-outs/readings/figures given by a mechanical device, such as a ticket machine, calculator, speedometer, video or tape recorder, breath analysing device, are hearsay. They are strictly statements produced by another. However, the approach of the common law is that results produced by mechanical and electrical devices without human intervention are admissible as real evidence, they are not hearsay. Example

In Castle v Cross (1985), the Divisional Court confirmed that the printout produced by a breath-test machine was admissible as real evidence, it was not hearsay.

The law will presume that mechanical instruments were in proper working order at the material time. The other side may challenge this presumption, in which case the party relying on the device will have to call a human operator to give evidence that the machine was in proper working order. Further, the machine may require human input to produce its results, eg a computer storing payment records. In such a case, it might be hearsay to produce the

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records without calling the person who fed the information into the computer. However, in R v Governor of Brixton Prison ex p Levin (1997), the House of Lords held that computer print-outs recording unauthorised payment transactions were not hearsay. See 20.10.2. (In any event, computer records are in fact generally admissible even if they are hearsay – see Chapter 26.) Note

Sections 11–17 of the Road Traffic Offenders Act 1988 generally allow radar measurements, breath-test print-outs, and signed statements by constables and analysts, to be admitted in evidence in road traffic cases.

Situations where hearsay is admissible Although the basic rule is that hearsay evidence is inadmissible, there are very many exceptions to the rule. For example, hearsay evidence is admissible in the following cases: • Witness statements, documentary statements, business documents and experts’ reports are often admissible in criminal cases under ss 23 – 30 of the Criminal Justice Act 1988, subject to several conditions • A person can give evidence of the defendant’s confession, subject to ss 76 and 78 of the PACE 1984 • Dying declarations by persons now deceased • Statements which are part of the ‘res gestae’, ie statements made by a person in the heat of the moment, while being caught up in the event • Statements in public documents, eg birth, death, marriage certificates • Computer records, subject to conditions, in criminal cases under s 69 of the PACE 1984. All of the above exceptions will be covered in context in other chapters.

Self-assessment questions 1 2

What is ‘the rule against hearsay’? Why, as a basic rule, can X not give evidence of what Y saw?

24.3

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3

Apart from a witness giving oral evidence of what another witness saw, what is the other main situation where hearsay would arise in the giving of evidence? 4 Would it be hearsay for Ms X to produce a theatre ticket to prove she attended the theatre on a particular date? 5 Why were poll tax computer print-outs held to be hearsay? 6 X is charged with murdering her husband. Her defence is provocation. Would it be hearsay for X to give evidence (in support of her defence of provocation) that her husband said shortly before the murder, ‘I’m going to kill you’ and ‘I’m having an affair with your best friend’? 7 D is charged with an offence of conspiracy together with X. D’s defence is that he has never met X. Would it be hearsay for the prosecution to give evidence that an undercover police officer was sitting with D in a cafe frequented by D and X, when the waiter came up to D and pointed to X, saying ‘Your friend’s over there’ and that D said nothing in reply? 8 What are the two main questions you should ask when considering the admissibility of evidence which may be hearsay? 9 List the main exceptions to the rule against hearsay. 10 Why are print-outs and readings from machines generally admissible?

Chapter 25

Hearsay admissible under the Criminal Justice Act 1988

The effect of the provisions outlined Sections 23–28 allow certain documentary hearsay evidence to be given in criminal proceedings provided that certain conditions are satisfied, specifically, they allow • A first-hand statement in a document, provided that ❍ the maker of the statement is unavailable to attend the trial, or ❍ is scared to give evidence. However, the statement will still not be allowed in evidence if the court considers that it would not be in the interests of justice to allow the statement • A document created or received in the course of a trade, business, profession or other occupation. Again, the statement will still not be allowed in evidence if the court considers that it would not be in the interests of justice to allow the statement. Note that if the document was prepared in a criminal investigation or for the purpose of criminal proceedings, it is only admissible (unless it is an expert report) if ❍ the original maker of the statement in the document is unavailable, or ❍ scared to give evidence, or ❍ cannot be expected to remember the facts. Note

If evidence falls within the Act, it is admissible without any notice procedure.

25.1

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25.2

First-hand documentary statements

25.2.1

Conditions for admissibility

These are made admissible by s 23, which provides that a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by the person would be admissible if the maker of the statement is • Dead, or • By reason of their bodily or mental condition unfit to attend as a witness, or • Is outside the UK and it is not reasonably practicable to secure their attendance (see R v Castillo (1996) for discussion of this. It may depend on the importance of the evidence, the prejudice to the defence if the witness does not attend and the expense and inconvenience of securing the witness’ attendance), or • Cannot be found, after reasonable steps have been taken to find them (see R v James (1996), for a case example) • Is not giving oral evidence through fear or because they are being kept out of the way, and they made the original statement to a police officer or some other person charged with the duty of investigating offences or charging offenders, eg (presumably) a store detective. Note

Section 23 only allows first-hand hearsay. The documentary statement must be by a person who directly perceived the facts of which evidence is being given. Further, the contents of the statement must not be inadmissible under another rule of evidence, eg the statement must not contain inadmissible opinion evidence. This is all the result of the words ‘... of which direct oral evidence by the person would be admissible ...’ in s 23.

However, if a documentary statement thereby falls within s 23, it is still not admissible if the court considers that, in the interests of justice, the statement should not be put in evidence: s 25(1). 25.2.2

The interests of justice

In deciding whether it is in the interests of justice that the statement should not be put in evidence the court must, according to s 25(2), consider

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• The nature and source of the document and whether the document is likely to be authentic • The extent to which the statement appears to supply evidence which would otherwise not be readily available • The relevance of the evidence • Any risk that its admission or exclusion will be unfair to the accused, particularly having regard to whether the accused will be likely to be able to controvert the written statement. Furthermore, if the documentary statement was prepared for the purpose of a criminal investigation or for criminal proceedings, eg it is a witness statement taken by the police or a solicitor, the statement is only admissible (unless it is an expert report) if the court considers that it is in the interests of justice to admit the evidence: s 26. In other words, where the s 23 statement was not one prepared for criminal proceedings or an investigation, the presumption is that the document is admissible unless the court excludes it in the interests of justice; whereas if the s 23 document is a witness statement, for example, it works the other way around; the presumption is then that the statement is not admissible unless the court admits it in the interests of justice. In deciding whether or not it is in the interests of justice to admit such a statement, the court must, according to s 26, consider • The contents of the statement • Any risk that its admission or exclusion will be unfair to the accused, particularly having regard to whether the accused will be likely to be able to controvert the written statement • Any other relevant circumstances.

Examples of the application of ss 23–26 Example 1

X witnesses a murder. X writes down what happened, not as part of the criminal investigation or proceedings, but for their own purposes. (This, of course, is an unlikely situation in reality.) X then dies. The result of ss 23 and 25 is that the side relying on X’s written statement can put it in evidence, unless the court considers that it is not in the interests of justice to

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admit the statement, according to the criteria in s 25(2). For example, under s 25 the court will ask • Is the document authentic • Could X’s evidence be given orally by some other witness, or was X the only witness • How important is X’s evidence • Will it be unfair to the accused to admit X’s written statement (where X is a prosecution witness) or to exclude the statement (where X is a defence witness) given that X cannot be cross-examined to test the truth or accuracy of the statement? 25.3.2

Example 2

As in Example 1 (X again died) except that this time X’s statement was made to the police in preparation for the proceedings. (This is the more usual example where s 23 will apply.) The result of ss 23 and 26 is that the prosecution can only put X’s statement in evidence if the court considers that it is in the interests of justice to admit the statement according to the criteria in s 26. For example, under s 26, the court will ask • How important is X’s evidence • What is the inherent quality of X’s evidence • Are there other witnesses to the murder who could give oral evidence • Will it be unfair to the accused to admit X’s written statement given that X cannot be cross-examined to test the truth or accuracy of the statement? 25.3.3

Example 3

In R v Cole (1990), the defendant was convicted of assault. The judge had allowed the prosecution to put in evidence the important written statement (made to the police) of a deceased witness. On appeal, the defendant argued that the written statement should not have been allowed under s 26: it was unfair to the defendant because he could not cross-examine the witness, instead he had been forced to give evidence himself and call witnesses in order to controvert the deceased’s evidence when he would not otherwise have done so. The Court of Appeal dismissed the appeal, holding that the judge had fairly exercised his discretion under s 26 to allow the statement. It did not matter that the defendant was forced to call witnesses and give evidence himself when he would not have otherwise done so. The

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point of the statute in this case was to strike a fair balance between allowing the prosecution case to be properly presented, and the interests of the defendant in not being put at a disadvantage by the death of a prosecution witness. The evidence was helpful and, so long as the judge warned the jury that it was not as weighty as oral evidence, it should be allowed. See also R v Moore (1992), on a similar point. Example 4

25.3.4

In R v Ashford Magistrates’ Court ex p Hilden (1993), the defendant was charged with causing grievous bodily harm to, and false imprisonment of, his girlfriend. The girlfriend began to give evidence for the prosecution at the committal proceedings. However, it became clear that she was scared to give evidence against her boyfriend. Her answers to questions were completely unhelpful, eg ‘I can’t remember what happened, it was a long time ago’. The magistrate therefore allowed the prosecution to put in evidence her previous written statement to the police under s 23(3)(b), as she was not giving oral evidence through fear, and it was in the interests of justice to admit her statement under s 26. For further examples, see R v McGillwray (1993), R v Patel (1993), R v French and Gowhar (1993), R v Dragic (1996).

Admissibility of business documents under s 24

25.4

Documents prepared in the course of a business, profession or occupation are admissible: s 24. Terms of s 24

Section 24 provides that a statement in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence would be admissible if the • Document was created or received in the course of a trade, business, profession or other occupation, or by a person holding an office, and • Information in the document was supplied by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with.

25.4.1

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Note

1 Section 24 applies even where the information was supplied by the person with personal knowledge through a chain of people, providing each person in the chain acted in the course of a trade, business, profession or other occupation or as an office holder. 2 The statement in the document must not be inadmissible on the ground of any other rule of evidence, eg it must not be inadmissible opinion evidence. This is what is meant by ‘... evidence of any fact of which direct oral evidence would be admissible ...’ in s 24. 3 Once a business document falls within s 24, the general rule is that it is admissible without the need to show that the witness with personal knowledge is unavailable or scared, as is necessary under s 23.

Where the business document was prepared for criminal proceedings or for a criminal investigation, then (unless the document is an expert report) it is not admissible unless the witness with personal knowledge • Is dead, or • By reason of bodily or mental condition is unfit to attend the trial, or • Is outside the UK and it is not reasonably practicable to secure their attendance, or • Cannot be found, despite reasonable steps having been taken to find them, or • Is not giving oral evidence through fear or because they are being kept out of the way, where the statement was made to a police officer or some other person charged with the duty of investigating offences, or • Cannot be expected to remember the matters dealt with in the document, eg because it was part of a routine transaction. Furthermore, ss 25 and 26 (which have been explained in relation to s 23) also apply to s 24. In other words • The document will not be admissible if that would not be in the interests of justice: s 25. • If the document was in fact prepared for criminal proceedings or a criminal investigation, it will not be admissible unless the court considers that the document should be admissible in the interests of justice: s 26.

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Note

As to whether it is in the interests of justice to admit the document, see the criteria discussed in 25.2.2.

Examples of s 24

25.4.2

1

It may be relevant to produce a receipt or delivery note in a burglary or fraud case to prove the existence of a certain item in a shop or to prove delivery. 2 Technically, a business document could include a statement made to the police, or some document prepared for the police as part of their investigations or case preparations (other than an expert report – see 25.7). Such a document is only admissible if • The witness with personal knowledge is unavailable for trial for one of the statutory reasons, or cannot reasonably remember the facts (see 25.4.1) • It is in the interests of justice under s 26 (see 25.2.2).

Notes to ss 24 – 26

25.5

• ‘Statement’ includes ‘any representation of fact, whether made in words or otherwise’. • ‘Document’ includes any disc, tape, soundtrack, film, or other recording device. • Where a document is admissible under ss 23 or 24, a copy can be used; the original need not be used: s 27. Presumably, someone will have to give oral or written evidence to verify what the document is or that the statement was made; it is probably not enough for the advocate simply to produce the document to the court. • Despite the Act, the court retains its power to exclude any document under s 78 of the PACE 1984, or to exclude the document at common law where its prejudicial effect will outweigh its probative value: s 28(1)(b).

Credibility of hearsay statements The mere fact that the hearsay statement is put in evidence does not mean that the court accepts it as true; the court must still assess its truth. Clearly, the problem with allowing a statement to be put in evidence under ss 23 or 24 is that the other side

25.6

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does not have an opportunity to cross-examine the maker of the statement. Therefore, Schedule 2 of the Act provides that the other party can call evidence to: • Cast doubt on the credibility on the maker of the statement, and • Show that the maker of the statement has previously made another statement which is inconsistent with the statement which is being put in evidence, and • The court must have regard to all the circumstances in estimating the weight to be attached to a statement.

25.7

Expert reports

25.7.1

Admissibility

Sections 23–28 discussed above do not apply to expert reports. An expert report means a written report by a person dealing wholly or mainly with matters on which (they) are (or would if living be) qualified to give expert evidence: s 30(5). For example, the case may turn on expert evidence by a psychiatrist as to the defendant’s state of mind, or expert evidence by a doctor or pathologist as to the victim’s injuries. As a special exception to the hearsay rule, an expert report can be admitted in evidence without the expert who made the report attending to give oral evidence, provided that the court gives leave for this to happen: s 30. In deciding whether to give leave for the report to be admissible without oral evidence, the court must consider • The contents of the report • The reasons why it is proposed that the expert will not give oral evidence • The risk that the admission or exclusion of the report will be unfair to the accused, particularly having regard to whether it will be possible to challenge the report if the expert does not give oral evidence • Any other relevant circumstances. For example, if the report is particularly incriminating of the accused, and there is no good reason for not calling the expert, the court will probably refuse leave to just put

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the report in without calling the expert; the court will probably consider that the accused should have an opportunity to cross-examine the expert. Advance disclosure

In a Crown Court case, whether or not the expert will give oral evidence, the expert report should be disclosed to the other side as soon as practicable after committal: Crown Court (Advance Notice of Expert Evidence) Rules 1987 (SI 1987/716). If such advance disclosure is not made, the expert evidence is only admissible if the court gives leave. Note

1 In practice, the prosecution will already have disclosed the report before committal. 2 A party need not disclose their expert evidence in advance if this might lead to the intimidation of any witness, or otherwise to interference with the course of justice, but the other side should be given written notice that the disclosure is not being given and the ground for non-disclosure. 3

The other party is entitled to request • A copy of the record of any observation, test, calculation or other procedure on which the expert opinion is based • The document or substance on which such thing or procedure was carried out.

Notes 2 and 3 are part of the 1987 rules.

Self-assessment questions 1 2 3 4 5 6 7

What statements are admissible under s 23 and subject to what conditions? What statements are admissible under s 24 and subject to what conditions? How does the Act define a ‘statement’? How does the Act define a ‘document’? What are the differences between the ‘interests of justice’ criteria under s 25 and s 26? Must the original of a document be produced under the Act, or is a copy sufficient? Can X give evidence of the following statements under the Act?

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(a) Witness A’s oral statement to X, who is another passer-by. A goes back to Australia. (b) A’s written statement taken by X, a police officer. A goes back to Australia. (c) A’s written statement taken by the defence solicitor, X. 8 D is charged with theft from A’s company. Can the prosecution produce the company’s stock records showing a shortfall in stock? 9 Where an absent witness’s statement is put in evidence, what does the Act say about how the witness’s credibility may be challenged? 10 In what circumstances can an expert’s report be produced at trial without calling the expert to give oral evidence?

Chapter 26

Other exceptions to the hearsay rule

Computer records Admissibility

A computer record may be hearsay if it is stating information fed in by a human. However, the record will be admissible in criminal cases if it is a business document within the terms of s 24 of the Criminal Justice Act 1988 and subject to ss 25 and 26 of that Act. Example

In R v Shepherd (1993), the appellant was charged with the theft of goods from a shop. The till rolls for the day (produced by computer from information keyed in by the cashier) were held admissible under s 24 as evidence showing no record of payment by the appellant.

A computer record will not be hearsay if it is making its own calculation or analysis of information. In such a case, it will be admissible as real or original evidence. Alternatively, it may not be put in as evidence at all; an expert giving oral evidence may merely be said to be using the computer record to refresh their memory. Example

1 In R v Spiby (1990), automatic computer print-outs recording the date, time and length of phone calls from A to B were admissible to link A with B. The print-outs were real evidence and not hearsay since no human input was involved in recording the fact of these calls. 2 In R v Governor of Brixton Prison ex p Levin (1997), computer print-outs recording payment transactions were held to be original records and not hearsay. 3 In Sophocleous v Ringer (1987), the defendant was charged with driving with excess alcohol in their blood and an analyst was called to give evidence of the defendant’s alcohol level. The analyst refreshed her memory at trial from her own computer-produced print-out analysing the defendant’s blood specimen.

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It was held that such oral evidence was admissible. The computer print-out itself was not technically put in evidence (and therefore s 69 of the PACE 1984 did not need to be satisfied: see 26.1.2).

26.1.2

Section 69 of the Police and Criminal Evidence Act 1984

Whether or not a computer record is hearsay, if it is to be put in evidence it will not be admissible unless it is shown that • There are no reasonable grounds for believing that the statement is inaccurate because of improper use of the computer, and • At all material times the computer was operating properly, or if it was not, that that did not affect the production or accuracy of the document: s 69(1). In other words, the party relying on the computer evidence must produce evidence that the computer was working and was being used properly. They may do this by either • Calling oral evidence from a person familiar with the computer’s operation who can speak to its reliability, or • Producing a certificate showing the reliability of the computer within s 69(1), signed by a person occupying a responsible position in relation to its operation (although the court can require them to give oral evidence). Note

1 The person need not be a computer expert: R v Shepherd (1993), where the store detective could give evidence of the reliability of the till rolls. 2 The court will not presume the computer was operating properly: R v Shepherd (1993) and see Connolly v Lancashire County Council (1994).

26.1.3

Weight of computer evidence

In considering the weight to be attached to a computer record under s 69, ie how true it is, the court must have regard to all the circumstances and in particular to whether • The information which the computer record reproduces or is derived from was supplied to the

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computer at the same time that the facts dealt with in the information occurred or existed • Any person involved in the supply to, or operation of, the computer had any incentive to conceal or misrepresent the facts: Schedule 3, Part 2, para II of the PACE 1984. Note

A document produced by a word processor is probably not produced by a computer within s 69: R v Blackburn (1992); R v Wade (1992).

Statements that are part of the res gestae Introduction

26.2 26.2.1

An important common law exception to the hearsay rule in criminal cases (only) is that a person may give evidence of someone else’s statement where that statement forms part of the res gestae. This is a Latin term meaning that the statement is ‘part of the thing itself’. In outline, the rule means that A can give evidence of what B said where B’s statement is not really a detached narrative of the event, but is • really part of the event itself, or • a spontaneous reaction to the event, where B is reacting so instinctively to the event that their description of the event cannot have been made up. In a sense, in these cases A is not really giving secondhand evidence of what B perceived; A is giving firsthand evidence of what A perceived, where that is relevant. Cross on Evidence divides the res gestae exception into four categories: • Spontaneous statements relating to an event in issue made by participants or observers • Statements accompanying and explaining relevant acts • Statements concerning the maker’s contemporaneous state of mind or emotion • Statements of contemporaneous physical sensation. Spontaneous statements

A can give evidence of what B said where B’s statement was an instinctive, spontaneous reaction to the event so

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that the possibility of concoction or distortion by B can be disregarded. Example

1 In R v Andrews (1987) (the leading case), two men entered X’s flat and attacked him with knives. Shortly afterwards, X, very badly wounded and almost unconscious, told police officers that the defendant and another had been the attackers. He then became unconscious and two months later died as a result of his injuries. The House of Lords held that the police officers could give evidence of X’s identification of the defendant because, even though that was hearsay, it was part of the res gestae. X was in such a bad state, and it was so soon after the stabbing, that the statement was spontaneous and X was not in a state to fabricate the evidence. For a further similar example, see Mills v The Queen (1995). 2 In Ratten v R (1972), the appellant was charged with murdering his wife by shooting her with a shot gun. He claimed the gun went off accidentally. To rebut this defence, the prosecution called evidence from a telephone operator that, at the time of the shooting, a woman phoned from the defendant’s address, sobbing hysterically: ‘Get me the police, please ...’ On the assumption those words were asserting facts, the Privy Council held that the operator could give evidence of the woman’s statement as part of the res gestae. The statement was made in such conditions of pressure or involvement in the event that it could not have been concocted.

In these cases, A can give evidence of B’s statement because it is difficult to claim that B’s statement is untrue meaning that B should be at trial to be cross-examined. Alternatively, it could be said that A is giving first-hand evidence of B’s instinctive actions, A is not giving second-hand evidence of B’s detached narrative of an event. However, for the statement of another to be admitted under the res gestae exception, the following conditions must apply – R v Andrews (1987): • The judge must be satisfied that the event was so unusual, startling or dramatic as to dominate the thoughts of the witness, so that the witness’s statement was an instinctive reaction to the event

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(made without reasoned reflection) and could not have been concocted • The statement need not have been exactly contemporaneous with the event, but must have been made so closely to it that the event was still dominating the mind of the speaker • The judge must be satisfied that there was no possibility that the statement was activated by malice and so was concocted – in R v Andrews (1987), for example, the defence contended that the victim (who knew the defendant from a previous incident) bore a grudge against the defendant and therefore concocted the identification • The judge must be satisfied that there were no special circumstances in the case giving rise to the possibility that the witness was mistaken, eg where the witness was drunk, had defective eyesight, or where the identification was made in difficult conditions. Note

Once the statement is admitted in evidence it is still for the jury/magistrate to decide what weight to attach to the statement.

Statements accompanying and explaining relevant acts

A may give evidence of a statement relating to an act performed by B where B made the statement while performing the act. The purpose for which the statement may then be put in evidence is not entirely clear. Some authorities suggest the statement is only admissible to prove why B performed the act, or B’s intentions in performing the act, while others suggest the statement is admissible to prove the truth of any facts asserted in the statement. Example

In Rawson v High (1824), a debtor’s stated intention in going abroad was admissible to prove that he went abroad with the intention of avoiding his creditors.

The point of this exception is that the statement is not the speaker’s (B’s) detached narrative of the event. B’s words are just as much an act as a physical act by B; hence, A can give direct evidence of B’s words.

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However, this can be taken quite far, as in McCay. Example

In R v McKay (1990), a licensee of a public house attended an identification parade to try to identify a person involved in a fight in the pub. From behind a screen, the licensee identified the defendant, saying, ‘It is number eight’. At the trial, the licensee could not recall the number of the person he had identified. The police inspector who had attended the parade was allowed to give evidence that the licensee had said ‘It is number 8.’ On appeal, the defence contended that this was hearsay. The Court of Appeal held that the inspector’s evidence was admissible under the res gestae exception: the licensee’s words, ‘It is number eight’, accompanied his intellectual act of identifying the defendant. Note

It is submitted that this is stretching the exception. If the above case is correct, much hearsay could be allowed by saying that a statement by an absent witness is admissible as accompanying the absent witness’s act of perceiving the event. The parameters of this exception are therefore unclear.

26.2.4

Statements concerning the maker’s contemporaneous state of mind or emotion

A can give evidence of a statement made by B as to B’s contemporaneous state of mind or emotion in order to prove such state of mind or emotion, where that is relevant. However, the statement is not admissible to prove any fact other than the speaker’s state of mind or emotion. Example

1 In Thomas v Connell (1838), a bankrupt’s statement that he knew he was insolvent was admissible to prove his knowledge of his insolvency, but not to prove the insolvency itself. 2 In R v Vincent, Frost and Edwards (1840), the defendants were charged with conspiracy to excite terror at meetings. It was held that a police superintendent could give evidence that people at the meeting said they were alarmed by the defendants’ speeches at the meetings. Presumably, this was permissible because the superintendent was giving evidence of a person’s contemporaneous state of mind or emotion.

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Note

Again, in these cases, the theory is that the statement is part of the event, perceived by the witness giving the evidence, and also that a person’s own statement is the best evidence possible of their state of mind. However, it is submitted that it is difficult to see why a person’s assertion (not coming under the ‘spontaneous’ exception above) as to their own state of mind should be admissible without calling them as a witness.

Statements of contemporaneous physical sensation

26.2.5

If B says to A that he is experiencing physical sensation, eg pain in his head, A can give evidence of B’s statement to prove that B is experiencing the sensation. Note

Again, it is difficult to see why B’s statement is admissible without B giving evidence as a witness.

Statements by deceased persons A further common law exception to the hearsay rule is that statements by deceased persons are admissible in the following situations: 1 A statement by the deceased person which is against their pecuniary or proprietary interest, eg an acknowledgment by them that they owe a debt, or that someone else owns a piece of land: see R v Rodgers (1995) 2 A statement by the deceased which was made in the course of their duty to record an event, eg a clerk’s entry recording delivery of goods. Note

Section 24 of the Criminal Justice Act 1988 may now apply (see 25.4).

3

At a trial for murder or manslaughter, the declaration of the victim as to how their death was caused is admissible as long as the victim was under a settled hopeless expectation of death when they made the statement, eg X gasps ‘Y did it’ as X lies dying. This was confirmed and discussed in Mills v The Queen (1995).

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4

A statement by the deceased as to family pedigree (such as the existence of a blood relationship), the existence of a marriage, or as to the existence of public or general rights (such as a public right of way). Statements under 1 and 3 are admissible because of the inherent likelihood of their truth. Statements under 4 are admissible because it is difficult to find other good evidence on such points. Note

These exceptions do not often arise and you should consult standard textbooks for the details of them.

26.4

Other exceptions Hearsay is also allowed in the following cases: 1 A party can give evidence of an admission made by another party or their agent; the prosecution can give evidence of a confession by the defendant, subject to ss 76, 77 and 78 of the PACE 1984 (see Chapters 22 and 23). 2 A party may serve on the other party a formal written statement by a witness signed by the witness with a declaration of its truth. If the other party does not serve notice of objection within seven days, the statement is admissible in evidence without calling its maker: s 9 of the Criminal Justice Act 1967. This procedure is usually used for a statement which the other side is unlikely to dispute. 3 Under s 68 and Schedule 2 of the Criminal Procedure and Investigations Act 1996, the court appears to have a wide discretion to allow witness statements and depositions from the committal proceedings to be read without calling the witness. However, the scope of these provisions is unclear: see NLJ 30 May 1997, p 792, and 6 June 1997, p 860. 4 Public documents are admissible to prove the truth of the facts stated in them, eg birth, death and marriage certificates; parish registers; various public parliamentary, state, Crown and university documents and records. There are many examples.

Other Exceptions to the Hearsay Rule

4

In most cases, a copy of the public document is admissible. The original need not be produced. Also, public reference works, eg standard histories, scientific works, maps and dictionaries, are admissible to prove public commonly acknowledged facts in both criminal and civil cases. A copy of an entry in a banker’s book (including microfilm, and computer records) is admissible to prove a banking transaction: s 3 of the Bankers’ Books Evidence Act 1879.

Self-assessment questions 1

What are the two different technical grounds on which computer evidence can be admissible on its own? 2 In criminal cases, what must further be shown under s 69 of the PACE 1984 in order for computer evidence to be admissible? 3 When is a statement part of the res gestae? 4 What are the four categories of statements allowed under the res gestae rule? 5 Why are res gestae statements admissible? 6 What conditions must be satisfied for a statement to be admissible under the ‘spontaneous statement’ category? 7 Explain the other three categories. 8 What types of statements by deceased persons are admissible? 9 Why do you suppose the victim’s statement in R v Andrews was not admissible under the ‘dying declarations’ exception? 10 In addition to the Criminal Justice Act 1988, computer records and the res gestae rule, what are the other exceptions to the hearsay rule?

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Chapter 27

Evidence of character and convictions

Introduction

27.1

To what extent can a party raise the issue of the good or bad character, or the previous criminal convictions or acquittals, of a party or witness? If they can raise the issue, does the matter go to the credibility of the party or witness, or does the matter go to an issue in the case? Put another way, can a party give evidence of their own good character (or their witness’s good character) to show they are to be believed or to show that they must be innocent? Can a party give evidence of, or crossexamine as to, the bad character/convictions of the other party or the other party’s witness? If so, does this only attack credibility of the other party or witness at the trial, or can it show the other party must be guilty? There are many intricate rules on this, with which this chapter deals.

The character of the victim General principles

In general, evidence as to the character of the victim is not admissible, because it is not relevant. However, such evidence may be admissible in the following cases: 1 Where the victim gives evidence as a witness. Here the rules on challenging the credibility of witnesses apply (see 27.4.3) 2 Where the character of the victim may be relevant to an issue in the case. Example

In Toohey v Metropolitan Police Commissioner (1965), the defendant was convicted of assaulting X with intent to rob him. The prosecution case was largely based on the evidence of police officers that they found X in a hysterical state. The House of Lords quashed the conviction because the defence should have been allowed to call medical evidence that X was prone to hysteria, which might have led

27.2 27.2.1

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the jury to doubt whether an assault on him actually took place. In other words, evidence as to the victim’s character was admissible as being relevant to the issue of whether an assault took place.

3

Rape offences – on charges of rape and related crimes, evidence or cross-examination on the complainant’s previous sexual experience may be admissible as being relevant to the issue of consent. This is a controversial area: it is not really an issue of the character of the complainant but one of whether they consented. You should be aware of s 2 of the Sexual Offences (Amendment) Act 1976. In outline, this provides that, at a trial for a rape offence (defined by s 7), the defence cannot, without the judge’s leave, adduce evidence or ask questions in cross-examination about the sexual experience of the complainant with anyone other than the defendant. The judge shall only give leave if it would be unfair to the defendant to refuse to allow the evidence or questions. Note

There is much case law on when such evidence or questions should be allowed. Generally, the evidence or questions must go to the issue of consent and not to the credit of the complainant. See, for example, R v Viola (1982); R v Bogie (1992).

27.3

The character of the defendant

27.3.1

The defendant’s good character

A defendant in criminal proceedings can give evidence of their own good character by • Giving evidence themselves as to their character, or • Calling witnesses as to their character, or • Cross-examining prosecution witnesses as to their character. However, what type of evidence can the defendant give as to their character? Technically, the defendant cannot give evidence of specific acts of good character, eg ‘I help old people every Tuesday’. Nor can the defendant give their

Evidence of Character and Convictions

own opinion that they consider themselves to be of good character. The defendant can only produce evidence of their • General reputation for good character, or • Absence of criminal convictions. Nevertheless, in practice, courts allow evidence of specific acts of good character. Further, this need not relate specifically to the issue in the proceedings, eg evidence of past honesty is admissible on an assault charge. When the defendant does produce evidence of their good character, the judge, in summing-up, should direct the jury that the good character evidence • Is relevant in considering the defendant’s credibility, either as a witness at trial or in considering the defendant’s pre-trial statements and answers to questions, and • Can be taken into account in deciding whether the defendant is the kind of person likely to have committed the offence: R v Vye (1993). Further, it used to be argued that where co-defendants were tried together, and one was of good character and one of bad character, the jury should not be directed to take into account the first defendant’s good character because that might create an unfair contrast with the other defendant’s bad character. However, the Court of Appeal in R v Vye (1993) also held that the judge can direct the jury to take account of the defendant’s good character, even when the defendant is being tried with a defendant of bad character. Vye was upheld by the House of Lords in R v Aziz (1995). However, the House of Lords also held that they had a residual discretion to dispense with a good character direction where it would make no sense to give one; and that the judge can qualify the good character direction by mentioning other proved or possible criminal conduct of the defendant which emerged during the trial. Note

The problem with the defendant giving evidence of their good character is that the prosecution can then produce evidence of the defendant’s bad character in reply (see 27.3.3). The defendant has to decide whether their good character evidence will outweigh the prosecution’s bad character evidence.

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27.3.2

The defendant’s bad character General rule

The general rule is that the prosecution cannot produce evidence of the defendant’s bad character and past convictions. This is a fundamental principle. The theory is that the prosecution must prove that the defendant committed this offence; they cannot obtain a guilty verdict by showing that the defendant has been of bad character or committed offences in the past, so that they are likely to have done it this time. A conviction is likely to be quashed where the defendant’s past bad character of convictions have been revealed in any way to the court. Note

Of course, once the defendant is found guilty, their previous convictions are revealed to the court when the court is considering the appropriate sentence. Exceptions

However, the prosecution can reveal the defendant’s previous bad character or convictions to the court in four situations: • As a response where the defendant has given evidence of their good character • Under the ‘similar fact’ rule, where the previous bad character or convictions are relevant to the present charge (see 27.3.4) • Under a statutory exception in handling stolen goods cases • Under s 1 of the Criminal Evidence Act 1898, a defendant who gives evidence can be cross-examined by the prosecution or co-defendant on their previous convictions, charges or bad character where the defendant has cast imputations on the character of the prosecution or prosecution witnesses, or has given evidence against a co-defendant. Further, a co-defendant can produce evidence of the bad character of the defendant where that is relevant to the issues in the case, ie where each codefendant blames the other. These exceptions are explained in the sections below. 27.3.3

Rebuttal of the defendant’s good character

Where the defendant produces evidence of their good character, the prosecution may rebut that evidence by

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calling evidence of the defendant’s bad character or by cross-examining the defendant or defence witnesses so as to establish the defendant’s bad character. Strictly, under this rule, the prosecution can only adduce evidence of the defendant’s general bad reputation (R v Rowton (1865)) or past convictions. However, evidence of specific bad acts by the defendant may be allowed. Note

The past bad reputation or convictions need not be of similar type to the present charge.

The ‘similar fact’ rule Meaning

As previously stated, the prosecution are not allowed to adduce evidence of previous crimes or acts by the defendant merely in order to show that the defendant has ‘done this kind of thing before’, ie they are the type of person likely to have committed the offence and therefore must have done it this time. This is said to be ‘evidence of propensity to commit a crime’, and is inadmissible. However, it may be that the evidence is not just put forward to show that the defendant ‘has done this before’ and therefore is the type of person likely to have done it this time; it may be that the evidence is put forward as strong proof that the defendant committed the offence on this specific occasion. In such a case, the evidence of previous crimes or acts is admissible. It is difficult to know when evidence of previous crimes or acts falls within the latter admissible category. The test was laid down by the House of Lords in R v P (1991), where it was held that evidence that the defendant has committed a crime or act on another occasion is admissible where it so strongly supports the allegation that the defendant committed the crime on this occasion that it is just to admit the evidence even though it is prejudicial in tending to show that the accused was guilty of another crime. The House of Lords also put this another way: does the probative force of the previous crime/act, ie what it proves in relation to the offence charged, outweigh its prejudicial effect? This is a question of degree. The following examples explain the rule more clearly. Examples

1 In R v P (1991) itself, the defendant was charged with rape of and incest with his two daughters. There were sep-

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arate counts of rape and incest with daughter A, and rape and incest with daughter B. Both daughters gave similar evidence of acts committed by their father over a long period. The House of Lords held that the evidence of each daughter as to what happened to her, was admissible on the charges as against the other daughter. Thus, when considering whether, for example, the father had raped daughter A, it was permissible for the prosecution to give evidence that the father had raped daughter B in similar circumstances. Both allegations were mutually supportive, and strongly probative, of the other. This was despite the fact that, technically on each count, the prosecution was adducing evidence of another offence committed by the father. Note

For the above reasons, the House of Lords therefore rejected an application by the father for the counts against the daughters to be tried separately, ie one trial in respect of daughter A and a separate trial in respect of daughter B. See also, on severance of similar charges, R v Christou (1996). See further on mutually corroborative similar fact evidence: R v H (1995), in which the House of Lords held that the judge should rule on the admissibility of similar fact evidence on the assumption that the similar facts alleged are true, that the jury must be directed to be satisfied that the similar fact evidence is not tainted by collusion between the witnesses, and that if there is clearly collusion the judge must direct the jury not to rely on the similar fact evidence.

2

3

In Makin v AG for New South Wales (1894), a couple were tried for the murder of a baby they had adopted. Shortly after the adoption, the baby’s body was found in the garden of the house where the couple had been living. (By this time, they had moved.) The prosecution were allowed to adduce evidence of 13 other bodies of babies found on different premises previously occupied by the couple in order to rebut their defence that this baby’s death was accidental. In R v Mather (1991), the defendant was charged with theft from his employer (and false accounting). He was the manager of the employer’s store, and it was alleged he was stealing by tampering with the till and fabricating his ‘end of day’

Evidence of Character and Convictions

report. The prosecution related to four specific instances but the prosecution were allowed to adduce evidence of 79 other instances of the defendant’s theft from the store, as evidence of a system of theft operated by the defendant; this went to prove that he must have committed the specific thefts with which he was charged. 4 In R v Laidman and Agnew (1992), three defendants pleaded guilty to a count of conspiracy to rob (count 4). Two of them were also convicted of another conspiracy to rob (count 1) after pleading not guilty to that. At the count 1 trial, the jury were told about the pleas of guilty to count 4; and the prosecution were allowed to adduce evidence of what happened in the count 4 robbery, on the ground that the facts of the count 4 robbery were so similar to those of the count 1 robbery that those who had pleaded guilty to the count 4 robbery must also have committed the count 1 robbery. The similar factors were said to be that in both robberies • The driver was black and the other three were white males • Stolen cars were used, having been stolen by the same methods • Bottles containing 8% ammonia were found in the stolen cars • Red viscose fibres were found. 5 Contrast R v McGranaghan (1992), where the accused was convicted of aggravated burglary, rape and indecent assaults on three women. All three women picked him out at an identification parade. The judge allowed the prosecution to adduce evidence of the offences against one woman as evidence on the counts against the other women, on the similar fact rule. The judge directed the jury that the offences against the women were all committed in a strikingly similar way and therefore the offence against each woman could be used to support the identification by the other women in relation to their incidents. The Court of Appeal quashed the convictions because the similar fact evidence only showed that the same man committed all the offences, not that the defendant was that man. Independent

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identification evidence supporting the identification of the defendant was needed: the mere fact that the offences were very similar did not provide this. Note

Laidman and Agnew was different from McGranaghan. In Laidman and Agnew the defendants had admitted (by pleading guilty) committing the count 4 robbery; the fact that the count 1 robbery was so similar was therefore evidence that the defendants must have also committed the count 1 robbery. In contrast, in McGranaghan, despite the offences being similar, there was no good evidence that the defendant had committed any of the offences; so the fact that they were all similar was not evidence that the defendant had committed any of them. (As to why the identification parade evidence was not good enough on its own, see 28.2 – weak identification evidence must be supported by other evidence: R v Turnbull (1977).

6

7

8

Also contrast with examples 1–2, R v Tricoglus; (1976), in which the accused was charged with raping A, after picking her up in his car. The prosecution called evidence from two other women that, a couple of days before A was raped, they had been offered a lift (which they refused) by a man similar to the description of the accused. The Court of Appeal held that such evidence should not have been admissible. It merely showed that the accused had a propensity towards approaching women for sexual purposes; it did not have any probative value in showing that the accused committed the specific offence alleged. It was merely prejudicial. For a recent case where strong similar fact evidence was admissible, see the infamous case of R v West (1996). In R v B (RA) (1997), the Court of Appeal held that magazines found in the appellant’s possession should not have been admitted as evidence of propensity on a charge of indecent assault. They were not probative of anything. Note

1 In examples 1–4, the similar facts evidence was admissible because, for different reasons, it was probative of the fact that D must have committed the offence alleged. It was not adduced just to show that D was the type of person

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likely to have committed the offence. However, the line is difficult to draw. 2 In all cases, you must consider the purpose for which the similar fact evidence is being adduced, and the issues in the case. The similar fact evidence may not prove anything, given the issues in the case, eg as in Tricoglus. The purpose of the evidence is important; it may be put forward, for example, to show that D did perform the actus reus, or to identify D as the person who did it, or to rebut a defence that the act happened accidentally or without mens rea on the part of D. 3 R v P (1991) overruled a long line of previous authority which had held that, for evidence of previous acts to be admissible, there must be a striking similarity between the previous acts and the offence in question. (That explains why this subject is labelled ‘similar fact’ evidence.) R v P replaced that test with the perhaps more moderate, discretionary test of whether the previous act is strongly probative of the fact that D must have committed the offence at issue. However, the House of Lords did say that ‘striking similarity’ is a factor to be taken into account in deciding the probative value of the previous act, particularly where the identity of the criminal is in issue.

Handling stolen goods

Section 27(3) of the Theft Act 1968 provides that on a charge of handling stolen goods, the following evidence shall be admissible for the purpose of proving that the accused knew or believed the goods to be stolen goods: • Evidence that the accused has handled stolen goods (according to the Act’s definition) from any theft which took place within the 12 months before the offence charged took place • Evidence that the accused has, within the five years before the offence charged, been convicted of theft or handling stolen goods (provided that the accused is given seven days’ written notice of the prosecution’s intention to adduce the previous conviction). Note

This provision is intended to help the prosecution to prove the required knowledge; without the provision this is a very difficult task.

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27.3.6

Criminal Evidence Act 1898 Terms and meaning

The third, and most important, exception to the principle that the prosecution cannot mention the previous bad character or convictions of the defendant is that if the defendant gives evidence (which they do not always do), the prosecution can cross-examine the defendant on their previous bad character or convictions, if any, if the conditions in s 1(f) of the Criminal Evidence Act 1898 apply. Section 1(f) provides that: A person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless (i)

the proof that he has committed or been convicted of such other offence is admissible evidence to show that he is guilty of the offence wherewith he is then charged, or

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution, or (iii) he has given evidence against any other person charged in the same proceedings.

In outline, this section means that a defendant who gives evidence can be cross-examined as to their previous bad character or convictions where either • The similar fact rule explained in the previous section applies – f(i), or • They have put into evidence their own good character, or have questioned the good character of the prosecutor or prosecution witnesses – f(ii), or • They have given evidence against a co-defendant – f(iii). Questions permitted by s 1(f)

If any of the three cases in f(i), (ii) or (iii) apply, the prosecution can ask the defendant questions which tend to show that the defendant

Evidence of Character and Convictions

• • • •

Has committed another offence, or Has been convicted of another offence, or Has been charged with another offence, or Is of bad character. Questions as to convictions In s 1(f) circumstances, a defendant can be asked a question showing that they have previous convictions, eg ‘Is it not true that you were convicted of ... on ...?’. If the similar fact rule applies, so that the questions are asked under f(i), the question may go into the details of the previous conviction, because those details will be relevant to the question of whether the defendant committed the offence now charged. However, questions allowed under f(ii) and f(iii) can probably only elicit the fact that the defendant has had previous convictions; they probably cannot go into the details of the facts of those previous convictions: R v France and France (1979) (although the correctness of that case is in doubt). This is because it would probably be too prejudicial to go into the actual facts of the previous convictions. Questions as to previous charges Even if f(i), (ii) or (iii) applies, that does not mean that the prosecution can ask the defendant about any previous charge on which the defendant was acquitted. This can only be done where the fact that they were previously charged is relevant to the issue of whether they committed this offence, or impairs the defendant’s credibility. Usually, a previous charge resulting in an acquittal is not relevant to an issue and does not challenge the defendant’s credibility, in which case the defendant cannot be asked about it – see Maxwell v DPP (1935). However, there have been some cases where, on peculiar facts, a previous charge resulting in an acquittal was relevant. In any event, questions as to relevant previous acquittals can only be put where f(ii) and (iii) apply but not under f(i). Application of s 1(f) Section 1(f)(i) Under s 1(f)(i), a defendant can be cross-

examined as to offences they have previously committed or been convicted of, where the similar fact rule applies. However, the wording of the subsection does not allow questions as to the defendant’s general bad character or previous acquittals (even where relevant).

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Section 1(f)(ii) This is the most important subsection in

practice. It means that • When a defendant (or their advocate) asks questions of the prosecution witnesses as to D’s own good character, eg ‘Is it not true that D has always lived a blameless life?’, ‘Is it not true that D has always helped people in her local community?’, or • When a defendant (or their advocate) gives evidence of D’s own good character, eg in the witness box, D or a witness called by D, states that D has always lived a blameless life, or • If the nature or conduct of the defence involves imputations on the character of the prosecutor, or the prosecution witnesses, eg the defence is that the police witnesses are well-known for a long line of fabricated confessions and are completely dishonest or, say, D states in evidence that a certain prosecution witness is a well-known, nasty liar the prosecution can respond by cross-examining the defendant (if D gives evidence) as to D’s previous convictions and bad character (and, in theory, previous relevant acquittals). The point, of (f)(ii) is ‘tit for tat’. If D is claiming to be of good character or is ‘throwing mud’ at prosecution witnesses, then the court is entitled to hear about the bad character of the person throwing the mud. However, under f(ii), the prosecution’s cross-examination of the defendant as to the defendant’s previous convictions or bad character only goes to challenge the defendant’s credibility as a witness: the previous convictions or bad character cannot be taken as direct evidence of guilt, ie that D committed the offence charged. The judge must direct the jury that the questions only go to credibility and if no such direction is given and D is convicted, the conviction will be quashed on appeal. Nevertheless, it may be unrealistic to expect the jury to distinguish between credibility and guilt (see below). Problems with s 1(f)(ii)

1

Good character of the defendant. D does not raise their good character simply by asserting their innocence or denying the offence, otherwise in every trial they could be cross-examined under the first part of f(ii).

Evidence of Character and Convictions

2

3

Further, f(ii) does not apply when a defence witness voluntarily says something about D’s good character when they have not been asked to do so by D: R v Redd (1923). Imputations on the character of the prosecution witnesses. Is D casting aspersions on the character of the prosecution witnesses just by denying the charge, or by saying they are lying, or by claiming the police witnesses have fabricated the evidence? In one sense, the prosecution witnesses are being called liars; in another, the defendant’s claim is merely a necessary part of their defence; is D to be cross-examined on their previous convictions or bad character merely by raising in their defence that the prosecution witnesses are lying? The law seems to be as follows: • It is a question of fact for the judge in every case as to whether D is merely denying the charge, albeit emphatically, or actually casting imputations on the character of the prosecution witnesses – the line is a thin one: see R v Stanton (1994) • An allegation of police fabrication of evidence over a significant period is likely to be an imputation on the character of police witnesses, so that the accused can then be crossexamined on previous convictions and bad character under f(ii) • Even if f(ii) strictly applies, the judge has a discretion whether to allow cross-examination of D on previous convictions and character. The judge may disallow cross-examination where D is really making impulsive denials of the charge rather than positive accusations about the character of the prosecution witnesses. (See the leading case of R v Britzman; R v Hall (1983).) Nature and effect of previous convictions that can be raised. As you saw above, the point of f(ii) is that if D raises their good character or attacks the character of the prosecution, the prosecution can respond by attacking the character of D, so that the jury then has a complete picture of the credibility of both parties who are ‘throwing mud’. But what if the previous convictions of D are similar to the offence charged, so that the jury is likely to

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consider D guilty of the present offence, and not just doubt D’s credibility as a witness? Can the previous convictions still be raised under f(ii)? Consider the following example. Example

In R v Powell (1986), the defendant was charged with knowingly living on the earnings of prostitution. D raised his own good character by giving evidence of his alleged decent, hard-working life. D also claimed that the prosecution witnesses were lying. The judge therefore allowed the prosecution to cross-examine D on his previous convictions of allowing premises to be used for prostitution. The judge gave the usual direction to the jury that the evidence of the previous convictions went solely to D’s credibility as a witness, and could not be taken as evidence that D committed this offence.

The Court of Appeal refused to quash the conviction, making the following points: • It is a matter for the judge’s discretion as to whether to allow cross-examination on previous convictions under f(ii). Will the raising of the convictions be too prejudicial to D, going beyond challenging D’s credibility as intended by f(ii)? • The fact that the previous convictions are similar to the present offence and/or do not involve dishonesty does not necessarily mean that the judge should not allow them to be raised. It is a matter of discretion. • Of course, the judge should direct the jury that the cross-examination only goes to credibility and not directly to the issue of guilt; the judge may refuse some parts of the cross-examination, eg on the details of the previous convictions, which tend to go beyond the issue of credibility and tend to suggest D’s guilt. See further Court of Appeal guidance on all this in R v McLeod (1994), where it was stated that extensive crossexamination on the previous offences was undesirable and that the prosecution should not emphasise similarities with previous offences. See also R v Carter (1996): s 1(f) could include cross-examination on bad character not involving a criminal record, but the judge would stop extensive cross-examination on issues of marginal relevance to the actual charge.

Evidence of Character and Convictions

Note

In practice, a jury will have great difficulty in understanding and observing the distinction between credibility and guilt. Once the previous convictions are raised, are they not going to see them as making it more likely that D is guilty of this offence? Section 1(f)(iii)

Under s 1(f)(iii), a defendant can be cross-examined on their previous convictions and bad character by counsel for a co-defendant (and, in fact, by the prosecution) where the defendant has given evidence against their codefendant – the court is entitled to know the character of the person slinging the mud. The following main principles apply under f(iii). • Section 1(f)(iii) applies when D, in examinationin-chief or in cross-examination, gives evidence which supports the prosecution case against the co-defendant in a material respect or which undermines the defence of the co-defendant: Murdoch v Taylor (1965). Example

D blames their co-D; or D’s defence implies that if D did not do it, the co-D must have done it; or D weakens the defence of the co-D by denying or contradicting the co-D’s story.

• In contrast to f(ii), the court has no discretion under f(iii) to refuse cross-examination by the codefendant once the words of the subsection apply: Murdoch v Taylor (1965). However, the court does have discretion to prevent cross-examination by the prosecution under f(iii). Note

Conversely, a defendant may, at the court’s discretion, cross-examine their co-defendant under f(ii), although this will be exceptional.

• As with f(ii), cross-examination under f(iii) only goes to challenge the credibility of the defendant as a witness; it does not go directly to their guilt. (Again, the same problems in making this distinction apply.) Tactics and procedure under 1(f) Tactics Section 1(f)(ii) and (iii) place the defendant in a

difficult position. If they attack the prosecution witnesses

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or the co-defendant’s case, their previous convictions or bad character will be revealed to the court if they give evidence. The defendant will have to weigh the importance of attacking the prosecution witnesses or co-defendant against the prejudice they will suffer by having previous convictions or bad character revealed. The defendant may get around the problem by • Arguing strongly at trial that s 1(f)(ii) or (iii) does not apply or that the judge should exercise discretion to refuse cross-examination, or • Not going into the witness box to give evidence; even if the defence case challenges the prosecution witnesses or co-D, or raises D’s good character, D’s previous convictions and character can only be raised in cross-examining D, and D is not obliged to give evidence, or • Revealing their own previous convictions in examination-in-chief, thus disarming the prosecution (or co-D) and displaying some honesty before attacking the prosecution or co-D. Note

1 By virtue of s 35 of the Criminal Justice and Public Order Act 1994, adverse inferences may be drawn from the defendant’s failure to give evidence. It is an open question whether the defendant can successfully argue that the reason they did not give evidence was to avoid their previous convictions being revealed and that therefore adverse inferences of guilt should not be drawn on account of the defendant’s failure to give evidence in that situation. In R v Cowan (1995), the Court of Appeal stated that not wanting previous convictions revealed would not be a good reason for silence, otherwise a defendant with convictions would be in a more privileged position than one without a criminal record. 2 Where s 1(f)(i), (ii) or (iii) apply, so that D loses the right not to have their previous convictions or character revealed, this is referred to in practice as D ‘losing his or her shield’. Procedure Before asking the defendant questions as to

previous convictions and character under s 1(f), counsel for the prosecution or co-defendant should ask the judge for leave to do so. In other words, in the absence of the jury (in a jury trial), the judge will decide whether the matter falls within the section or whether to exercise discretion in favour of allowing the questions.

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If, on the other hand, such questions are put without first seeking the leave of the court, counsel for the defendant should object. Alternatively, the judge should stop the questioning without waiting for the defendant to object. The judge should direct the jury to disregard the questions they have heard. In practice, however, the jury may find it difficult to do this.

Character and convictions of witnesses

27.4

To what extent can a party call evidence to bolster or challenge the character of their own or the other side’s witnesses (as opposed to the character of the parties)? Showing the good character of your own witnesses

27.4.1

It is not usual for evidence to be given of a witness’ good character, either by that witness or another one. The theory is that it is for the other side to question their character. However, the prosecution has a duty to disclose the previous convictions of any of its witnesses to the defence and to the court: see Practice Direction [1966] 1 WLR 1184. Challenging your own witness Unfavourable witnesses

Obviously, you will not usually want to challenge the character of a witness called by your own side; but what if your own witness does not give the evidence you want them to give in court, or they contradict what they have previously stated, or they cannot remember the facts or are confused? In other words, your own witness gives evidence that is in some way unfavourable to your own side. This is a common problem. It is often known as your witness ‘failing to come up to proof’, ie they have not, in court, matched up to their previous written statement (the written statement being known as a ‘proof of evidence’). In such circumstances, you are not permitted to start attacking your own witness as if you are cross-examining them. You cannot, in questioning them in chief, challenge their story, credit or character, or put to them their previous statement. All that you are allowed to do is call further witnesses (if there are any), who will (hopefully) give the evidence that you want and repair some of the damage caused by your unfavourable witness.

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Note

Alternatively, where there is a danger that the witness will not be able to remember the facts, they could be asked to refresh their memory, before or during examination-inchief from their previous written statement: see 20.4.2. Hostile witnesses

On the other hand, it may be that your own witness for some reason is deliberately unwilling to tell the truth on your behalf. For example, the prosecution in a careless driving case may call as a witness a passenger friend of the defendant. A further example is R v Thompson (1976), where the defendant was charged with incest with his daughter, and the prosecution called the daughter as a witness. In such a case, you can ask the judge for leave to treat the witness as a ‘hostile witness’. The judge will decide whether they are hostile by looking at their demeanour, conduct in court and the terms and circumstances of any previous statement. If they are declared to be a hostile witness, you can • Cross-examine them, as if they were a witness for the other party, on the accuracy of their evidence as to the facts. Leading questions can be asked. However, you can only cross-examine them on their general character, previous convictions and general credibility in the context of the facts of the case • If the court gives leave, prove that the witness has made a previous oral or written statement which is inconsistent with what they are saying in court; but you must first put the previous statement to the witness and ask whether they made such a statement. The previous statement can then be proved: if oral, by calling a witness who heard the statement being made; if written, by producing the written statement to the court. Note

These principles on hostile witnesses are set out in s 3 of the Criminal Procedure Act 1865. For further guidance on hostile witness procedure, see R v Maw (1994).

In criminal cases, a previous inconsistent statement technically only casts doubt on the credibility of the witness; it is not evidence of the truth of the facts in the statement.

Evidence of Character and Convictions

Challenging the other side’s witnesses Cross-examination

You may cross-examine a witness for the other side as to their general credit, character and convictions in order to undermine their credibility. Example

You may ask the witness •

‘Is it not true that you are a well-known liar?’

•

‘Is it not true that you lied on (a particular occasion)?’

•

‘It’s true, isn’t it, that you were convicted of ... ?’

Note

Such questioning should not be oppressive and vexatious, with no real relevance to the credibility of the witness. Finality of answers

However, it is a general rule that a witness’s answer to a credit question is final. This means, not that their answer is accepted as true, but that the examining side cannot then call evidence to contradict the answer. Example

If the witness denies that they lied on a previous occasion, the other side cannot call a witness to show that the first witness did lie on the previous occasion; otherwise, the trial would be unduly prolonged on such side issues. Exceptions In the following five situations, however, an

answer to a credit question is not final and evidence may be called to contradict the witness’s answer. 1 Where the witness is biased. Example

The prosecution cross-examines a defence witness (W) to the effect that W is in fact the defendant’s lover and therefore biased towards the defendant and not to be believed. If W denies being D’s lover, the prosecution can call witnesses to show that W is D’s lover.

2

Where the witness has made a previous inconsistent statement. If W has made a previous oral or written statement which is inconsistent with what W is now saying in court, the other side can produce evidence of that previous statement if W denies having made it.

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Section 4 of the Criminal Procedure Act 1865 allows a previous oral statement to be put to a witness. The previous statement must be put to W and W must be asked whether they made the statement. If W denies making it, the other side can call a witness to give evidence that W made the previous statement. Section 5 of the Criminal Procedure Act 1865 allows a previous written statement to be put to W. Again, the questioner must put to W the part of the written statement which is inconsistent with what W is now saying. If W denies making the previous statement it can be produced to the court. In fairness to W, the judge may require that the whole of the previous statement, consistent and inconsistent parts, be put in evidence. This is a matter for the judge’s discretion: R v Longden (1994). Note

1 The previous written statement by W that the other side is likely to have is the statement of W disclosed by the other side before the trial. However, the prosecution does not see the defence’s witness statements before trial (but the defence see the prosecution’s statements). 2 Sections 4 and 5 were explained by the House of Lords in R v Derby Magistrates’ Court (1995).

In criminal cases, a previous inconsistent statement is not technically evidence of the truth of the matters in the statement; it merely casts doubt on the credibility of W’s evidence at court. Example

W, at court, says ‘The car was black’. The other side produces a previous statement by W that ‘The car was white’. This latter statement cannot be used as evidence that the car was white; it merely challenges W’s overall credibility. The judge should direct the jury that there are two inconsistent statements: the evidence at trial should be regarded as unreliable, while the earlier statement should be ignored. However, W may give a credible explanation for the inconsistency or may accept that the earlier statement is true.

3

Where the witness has a previous conviction or convictions. If W denies that they have a previous criminal conviction, s 6 of the Criminal Procedure Act

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4

395

1865 allows the other side to produce evidence (usually in the form of the certificate of conviction) of the previous conviction. Where the witness is not to be believed on oath. The other side is entitled to call a witness (A) to give evidence that the other party’s witness (B) is not to be believed on oath. A may base their opinion on B’s general reputation for lying or on A’s personal knowledge of B as a liar. However, A cannot, in examination-in-chief, refer to the particular incidents on which A bases the opinion, but A can be cross-examined by the other side on such incidents. This is generally thought to be a strange rule. Note

All of point 4 was confirmed in R v Richardson; R v Longman (1968).

5

Where the witness has some physical or mental condition which affects the reliability of their evidence. The other side is entitled to call an expert medical witness to give evidence that the other side’s witness has some physical or mental condition which affects the reliability of their evidence: Toohey v Metropolitan Police Commissioner (1965). Note

Conversely, however, a party cannot call expert evidence in support of the likely reliability of their witness: R v Robinson (1993).

Spent convictions By virtue of the Rehabilitation of Offenders Act 1974, certain convictions are considered ‘spent’ after a certain number of years, ie the offender is considered to be rehabilitated and the offence cannot be so easily referred to after that amount of time. A Practice Direction [1975] 1 WLR 1065 provides that the court and counsel should never refer to a spent conviction when such reference can be reasonably avoided and that no-one should refer in open court to a spent conviction without the judge’s authority, which authority should not be given unless it is in the interests of justice.

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Note

1 See the 1974 Act for details on when different convictions are ‘spent’. 2 There is also a separate statutory rule that in criminal proceedings against a person aged 21 or more, no evidence may be adduced of any offence of which they were found guilty while under the age of 14: s 16(2) of the Children and Young Persons Act 1963.

Self-assessment questions 1

In what situations can the defence cross-examine the victim of a criminal offence as to the victim’s character? 2 Can a defendant give evidence of their own good character? 3 What sort of ‘good character’ evidence can a defendant give? 4 For what purposes can the jury use good character evidence? 5 When can the prosecution show that the defendant is of bad character or has previous convictions? 6 In what circumstances can the prosecution produce evidence of the defendant’s previous convictions under the ‘similar fact’ rule? 7 In what circumstances can a defendant be crossexamined as to their convictions or bad character under s 1(f) of the Criminal Evidence Act 1898? 8 What types of questions are allowed and for what purposes under (a) s 1(f)(i) (b) s 1(f)(ii) (c) s 1(f)(iii). 9 What difficulty does the court sometimes have in deciding whether D has ‘lost their shield’ under s 1(f)(ii)? 10 Why might the judge have to exercise discretion in relation to s 1(f)(ii)? 11 In what circumstances does a defendant ‘give evidence against’ their co-defendant under s 1(f)(iii)? 12 Does a judge have discretion to prevent crossexamination under s 1(f)(iii)?

Evidence of Character and Convictions

13 What is an ‘unfavourable’ witness? 14 What is a hostile witness? 15 Can their evidence of a hostile witness be challenged by the party who called them and, if so, how? 16 Can you cross-examine a witness for the other side as to their bad character and previous convictions? 17 What is meant by the phrase ‘an answer to credit questions is final’? 18 In what circumstances are the answers to credit questions not final? 19 For what purposes can a witness’s previous inconsistent statement be used? 20 Distinguish between the rules in (a) s 3 of the Criminal Procedure Act 1865 (b) s 4 of the Criminal Procedure Act 1865 (c) s 5 of the Criminal Procedure Act 1865 (d) s 6 of the Criminal Procedure Act 1865.

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Corroboration, evidence of identity and self-serving evidence

Corroboration Meaning

28.1 28.1.1

To what extent must evidence be corroborated (supported) by other evidence? Can the defendant be convicted on the basis of one piece of evidence, eg the evidence of one witness, or the defendant’s own confession? The answer is that, in general, evidence does not need to be supported by other evidence. It can stand on its own, and the finder of fact can decide how much weight to attach to it. However, in the following situations, corroboration is relevant • Where the defendant remains silent in response to police questioning at trial • Where statute so provides • Where a confession is made by a mentally handicapped person, and • Where the judge considers that the evidence of a witness is unreliable, the judge may warn the jury of the need for caution in assessing that evidence. Silence by the defendant

28.1.2

A defendant cannot be convicted solely on the basis that they remained silent in response to police questioning or at trial. There must be other evidence against them: s 38(3) Criminal Justice and Public Order Act 1994. Statutory cases

A person cannot be convicted of certain statutory offences solely on the evidence of one witness. That witness’s evidence must be supported by other evidence – it must be corroborated. If it is not, the judge must direct an acquittal. Any conviction based solely on the evidence of one witness will be quashed on appeal.

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However, these statutory cases are few, eg s 89(2) of the Road Traffic Regulation Act 1984, and many of these cases (under the Sexual Offences Act 1956) were abolished by s 33 of the Criminal Justice and Public Order Act 1994. These cases will not be discussed further. 28.1.4

Mentally handicapped defendants

Where the only prosecution evidence is an uncorroborated confession by the defendant, ie unsupported by other independent evidence, which lacks incriminating detail or is inherently improbable, and the defendant suffers from a significant degree of mental handicap, the judge must withdraw the case from the jury: R v McKenzie (1993). Note

Apart from this situation, a confession does not need corroboration, although some argue that a confession should require corroboration.

28.1.5

Caution warnings

Until recently, it was a long-standing rule that a judge had to warn the jury of the danger of convicting on the uncorroborated evidence of a witness where that witness was an accomplice to the crime or the victim of a sexual offence. If the judge did not give that warning, the conviction would be quashed. However, this requirement for a ‘corroboration warning’ was abolished by s 32 of the Criminal Justice and Public Order Act 1994. Based on the guidelines given by the Court of Appeal in R v Makanjuola (1995), the law now seems to be that where the judge considers a witness’s evidence to be unreliable, the judge has a discretion to warn the jury of the need for caution in assessing the witness’s evidence. Whether the judge should give any warning and, if so, the strength and terms of the warning, depends on the content and manner of the witness’s evidence, the circumstances of the case and issues raised. In an extreme case, where the witness is shown to have lied, made false complaints, or bear a grudge, a strong warning might be appropriate and the judge might suggest that the jury should look for supporting material before acting on the witness’s evidence. Whether the judge should give a warning, and in what terms, should be discussed with counsel in the jury’s absence before final speeches.

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The judge does not have to use any set form of wording in his summing-up. Note

The Court of Appeal will not interfere with the judge’s discretion on caution warnings except where the discretion has been exercised unreasonably.

Examples of supporting evidence

The evidence of a witness could be corroborated by • The evidence of another factual witness (even if the witness is a child) • Expert evidence • A confession by the defendant • Real evidence • Identification evidence by another witness, (although that itself may need a warning to the jury of the need for caution or supporting evidence before accepting it: see below) • The defendant’s refusal without good cause, to allow the police to take an intimate body sample: s 62(10) • The fact that the defendant has told lies, in or out of court, provided that ❍ the lie is deliberate ❍ it relates to a material issue ❍ the motive for the lie is the realisation of guilt and fear of the truth, rather than any other reason ❍ the statement is clearly shown to be a lie by evidence other than that of the witness who is to be corroborated: R v Lucas (1981). The judge in such cases must give the jury a ‘Lucas’ direction: see 28.1.7. Note

1 All of the above evidence must be relevant, credible and admissible in itself, independent from the witness to be corroborated and must implicate the accused in a material particular. 2 Where the defendant is tried in respect of several sex offences alleged to have been committed at various times, and the evidence in relation to each one is admissible in relation to the others under the ‘similar fact’ rule, then the different victims can mutually corroborate each other: DPP

28.1.6

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v Kilbourne (1973). (This is provided that the judge is satisfied that there is no collusion between them.) 3

The following principles may also apply: • The evidence of one accomplice cannot corroborate the evidence of another accomplice to the same crime: R v Baskerville (1916). The theory is that they will have put their heads together to palm the blame off onto the defendant. • Strictly, the evidence of a victim (V) of a sexual offence cannot be corroborated by the evidence of a witness (W) that W saw V in a distressed condition after the attack. This is because ❍

W’s evidence does not implicate the defendant; it may show that V was in a distressed condition, but not that it was D who carried out any offence (in any event, the jury will have to decide how much weight to attach to the evidence of the distressed condition in considering whether there was an attack at all)

❍

W’s evidence may be considered by the judge not to be independent of V’s oral evidence, because it relates to V’s own distressed condition, the equivalent of a previous self-serving statement by V. (This is the legal position as it stands, not the view of the writer.)

However, if V was spotted by W in circumstances of immediacy and spontaneity after the alleged offence and W knows that V has just been with D, and V does not know that he or she is being observed by W, then the case law allows W’s evidence to corroborate that of V: R v Redpath (1962). This point on victims of a sexual offence should be read in conjunction with the section on ‘Previous consistent statements’ (see 28.3). However, it is not clear whether these rules still stand after R v Makanjuola (1995).

28.1.7

Lies and false alibis as supporting evidence

As stated above, where the defendant is proved to have lied or given a false alibi and the prosecution rely on this as evidence of guilt or supporting evidence, the judge must give the jury a ‘Lucas’ direction, from the case of R v Lucas: see 28.1.6. The judge must warn the jury that the mere fact that the defendant has lied is not in itself evidence of guilt since defendants may lie for innocent

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403

reasons; and that only if the jury is sure that the defendant did not lie for an innocent reason can a lie support the prosecution case. The requirements and need for a Lucas direction were discussed in detail in R v Burge and Pegg (1996) and R v Harron (1996).

Identification evidence The Turnbull guidelines

A common form of prosecution evidence is where a witness to the offence identifies the defendant as the person who committed the offence. However, identification evidence is considered to be inherently suspect; research shows that people can feel sure that D was the person they saw committing the crime, when in fact it was not D. Thus, in R v Turnbull (1977), the Court of Appeal laid down the following strict guidelines which the judge must follow in dealing with, and directing the jury on, identification evidence. Where identification evidence is crucial

Whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. The judge should also instruct the jury as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Circumstances of the identification

The judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. • How long did the witness have the accused under observation? At what distance? In what light? • Was the observation impeded in any way, eg by passing traffic or a crowd of people? • Had the witness ever seen the accused before? How often? If only occasionally, had the witness any special reason for remembering the accused?

28.2 28.2.1

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• How much time elapsed between the original observation and the subsequent identification to the police? • Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by the witness and the accused’s actual appearance? Note

In any case, whether it is being dealt with summarily or on indictment, if the prosecution have reason to believe that there is such a material discrepancy they should supply the accused with particulars of the description the police were first given. In all cases, if the accused asks to be given particulars of such descriptions, the prosecution should supply them.

Finally, the judge should remind the jury of any specific weaknesses which appeared in the identification evidence. Recognition may be more reliable than identification of a stranger but, even when the witness is purporting to recognise someone whom they know, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. Good identification evidence

When the quality of the evidence is good, eg when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a work mate or the like, the jury can safely be left to assess its value even though there is no other evidence to support it; provided always, however, that an adequate warning has been given by the judge about the special need for caution. Poor identification evidence

If, in the judgment of the trial judge, the quality of the identifying evidence is poor, eg when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. Example

W sees the accused snatch a woman’s handbag. W gets only a fleeting glance of the thief’s face as the thief runs off but W does see the thief entering a nearby house. Later W picks out the accused on an identity parade. If there was no

Corroboration, Evidence of Identity and Self-serving Evidence

more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury. But this would not be so if there was evidence that the house into which the accused was alleged by W to have run belonged to the accused’s father. Evidence in support of the identification

The trial judge should identify to the jury the evidence which the judge considers capable of supporting the evidence of identification. If there is any evidence or circumstance which the jury might think was supporting when it did not have this quality, the judge should say so. A jury, for example, might think that support for identification evidence could be found in the fact that the accused did not give evidence before them. An accused’s absence from the witness box cannot provide evidence of anything and the judge should tell the jury so. But the judge would be entitled to tell the jury that when assessing the quality of the identification evidence it could take into consideration the fact that it had not been contradicted by any evidence coming from the accused personally. Identification and alibis

Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that it has rejected an alibi. False alibis may be put forward for many reasons. An accused, for example, who has only their own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that their own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive it and there is no other explanation for the fabricated alibi being put forward, that the fabrication can provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where they were at the material time does not by itself prove that the accused was where the identifying witness says the accused was. Note

A failure to follow these guidelines is likely to result in a conviction being quashed and will do so if, in the judgment of the Court of Appeal on all the evidence, the verdict is either unsatisfactory or unsafe. Thus, in R v Pattinson and Exley (1996), the convictions were quashed because the

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judge had not given the jury the full force of the Turnbull guidelines in her direction on the identification evidence. In contrast, in the case of Shand v R (1996) the judge failed to give the Turnbull warning, but the Privy Council did not quash the conviction because the identification evidence was exceptionally good and the jury would inevitably have reached the same verdict even if the warning had been given.

28.2.2

Identity parades and photographs

Usually, the witness will have previously picked out the defendant in an identity parade, or from a video, or from police photographs of previous suspects or criminals. It is best for the prosecution that the actual evidence of identification should come from the witness in the witness box. The witness should give evidence that they have previously identified the accused as the person who committed the offence. The evidence of the previous identification by parade or photographs is admissible to show that the witness is consistent and has not just made up the identification at trial. This is, therefore, an exception to the rule that previous consistent statements by a witness are not admissible (see also 28.3). In addition, a police officer will give evidence of W’s identification of D at the parade or on looking at photographs, even though this is strictly hearsay from the officer. The officer’s evidence is allowed under the res gestae exception to the hearsay rule: R v McCay (1990), see Chapter 26. However, evidence of the identification at the parade or by picking out photographs may be inadmissible for other reasons: • The PACE Codes of Practice (Code of Practice D) set out strict procedures for the conduct of an identity parade, a video identification, or the showing of photographs to a witness. For example ❍ a parade must consist of at least eight persons (in addition to the suspect) resembling, as far as possible, the suspect in age, height, appearance and position in life ❍ In a photo identification, the witness must be shown at least 12 photographs at a time. Essentially, if an aspect of the procedure is not followed, the judge/magistrate may exclude

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the evidence of the parade, video or photo identification from the trial under s 78 of the PACE 1984; it depends on whether the breach of the procedure has caused unfairness to the accused: see, for example, R v Hickin (1996). • In any event, evidence of W’s identification of D from police photos will not be admissible if it is presented in such a way as to alert the jury to the fact that they are police photos, because this will imply, or make the jury suspect, that the defendant has previous convictions or is of bad character. Note

Alternatively, in the magistrates’ court, justices have discretion to allow an in-court dock identification by the witness: Barnes v DPP (1997).

Previous consistent statements

28.3

This should be read in conjunction with the section on examination-in-chief in Chapter 20, 20.5.4. General rule

28.3.1

Generally, evidence cannot be adduced that a witness has previously said what they are now saying in court in order to show consistency and therefore that what the witness is saying in court must be true. Example

Dave is charged with murder. He claims the gun went off accidentally. A few days after the incident, Dave told his father that the gun went off by accident. At the trial, Dave cannot, in support of his claim, show that he previously made that claim.

There are two separate technical reasons for this rule: • The fact that someone has previously told the same story is not evidence of their credibility at trial. They could have made it up all along • An out of court previous statement is hearsay and so cannot, as a general rule, be evidence of the truth of the facts in the statement. There are, however, exceptions to this, explained below. Exceptions

There are various cases where a previous consistent statement can be put in evidence. In some of these cases, it is only admissible to support the credibility of the

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witness’s evidence at trial; in other cases, the previous statement is actually admissible as evidence in itself of its truth (though, of course, the distinction is hard to follow in reality). To rebut a suggestion of recent fabrication

The other side may claim in cross-examination of a witness that the witness has recently or at trial made up their story. To rebut this, the witness can give evidence, usually in re-examination, that they have said the same thing before, eg at the time of the incident. Technically, in criminal cases, the previous statement is then only admissible to support the witness’s credibility by rebutting the suggestion of recent fabrication. Part of the res gestae

Under the res gestae rule, a witness’s previous statement is admissible if the statement was made as part of the event itself, not as a detached narrative of a prior event (see Chapter 26). Example

W, as an independent witness, could give evidence that, as the gun went off, D screamed in great shock, ‘Oh, I didn’t mean to do that’, in support of D’s explanation at trial that the shooting was an accident. The statement is part of the event itself and not a detached explanation of it by D.

However, for this rule to apply, the judge must be satisfied that the statement was made so clearly in circumstances of spontaneity or involvement that the possibility of concoction can be disregarded: R v Andrews (1987). Under the res gestae rule, the statement is admissible as evidence of the truth of the statement as well as supporting W’s credibility as a witness. Self-serving statements on first being accused

It is the practice for the prosecution to put in evidence D’s reaction and statements to the police on first being accused and arrested and in early interviews. Of course, if D makes admissions at those stages, the admissions are admissible (subject to ss 76 and 78 of PACE 1984). On the other hand, any self-serving parts of D’s reaction or statements, ie favourable to D, are also admissible. They are not, however, evidence of the truth of the statements; they are only evidence of consistency, supporting D’s credibility as a witness, if D gives evidence.

Corroboration, Evidence of Identity and Self-serving Evidence

If there is a mixed statement by D, containing both admissions and parts favourable to D, eg ‘I did have the gun in my hand and it went off, but it was an accident’, the whole statement, admissions and favourable parts, is admissible as evidence of its truth (even where D does not give evidence): R v Sharp (1988), discussed and upheld in R v Aziz (1995). Nevertheless, the judge should point out to the jury that the incriminatory parts are likely to be true, whereas the excuses do not have the same weight: per Lord Lane CJ in R v Duncan (1981). The guidelines in R v Sharp and R v Duncan were applied in Western v DPP (1997), where the court also stated that if the defendant fails to give evidence in support of his exculpatory statement to the police, and there is no other evidence to support his account, an adverse inference might be drawn against the defendant under s 35 of the Criminal Justice and Public Order Act 1994. Note

Why should the excuses not have the same weight? Complaints by the victim of a sex offence

Evidence that the victim of an alleged sexual offence complained of the offence shortly after it occurred is admissible • To support the credibility of the victim’s evidence at trial, as showing consistency, and/or • As evidence negativing consent to the act, where consent is in issue. The complaint is not, however, evidence in itself of its truth. Of course, a jury will find it difficult to understand and apply this distinction. Example

A young girl rushes to her mother in a distressed state, complaining that she has been sexually assaulted. The mother can give evidence of the complaint (and its details) by the girl, to support the credibility of the girl’s evidence at trial. Note

The complaint must have been made as soon as reasonably practical after the alleged act, and must be voluntary; it must not have been induced by suggestive questions.

409

410

Criminal Litigation

Other cases

Evidence of • A witness’s previous identification of D, and • D’s previous innocent explanation of their possession of stolen goods is admissible to support the credibility of the witness or D (respectively) at trial.

Self-assessment questions 1

(a) In what circumstances should the judge warn the jury of the need for caution is assessing evidence? (b) What should be the form of the judge’s warning? 2 What will be the effect, if any, of (a) the judge failing to give any warning (b) the jury ignoring a warning and convicting on unsupported evidence? 3 What is the main warning that the judge should give the jury in respect of identification evidence? 4 When should the judge direct an acquittal as a result of identification evidence? 5 Summarise the main headings of a judge’s direction to a jury in respect of identification evidence. 6 What will be the result of a judge not following the Turnbull guidelines? 7 In what different ways may evidence of identification of D by a witness be given or produced? 8 What is meant by ‘the rule against previous consistent statements’? 9 In what circumstances can a witness’s previous consistent statement be put in evidence, and for what purpose, in each different case? 10 List and compare the four different technical grounds on which a witness’s written statement can be produced at the stage of their evidence-inchief.

Chapter 29

Public interest immunity and private privilege

Public interest immunity Meaning

29.1 29.1.1

Evidence does not have to be disclosed to the other side, and is not admissible, if it is in the possession of the government or some other public body and disclosure would not be in the public interest. In such cases, the court balances the public interest in non-disclosure, eg on the grounds of national security, the proper workings of government, the proper functioning of the public service, against the public interest in the administration of justice; disclosure will be allowed if the importance of the document as evidence in the case outweighs the public interest in its non-disclosure. See generally R v Ward (1993) and R v Chief Constable of the West Midlands Police ex p Wiley (1994). Government documents

The best example of public immunity is government papers, particularly high-level papers. These are likely to be inadmissible and immune from disclosure in court proceedings. The practice is for the relevant cabinet minister to sign a certificate stating that it would not be in the public interest for the papers to be disclosed. The certificate is not conclusive, however. The court has the ultimate decision on whether the public interest lies in disclosure or not. The judge may inspect the papers for this purpose: Conway v Rimmer (1968). However, the judge should only inspect the papers where there is evidence they will assist a litigant in an issue in the case: Air Canada v Secretary of State for Trade (1983). Usually, the court finds in favour of the government and refuses disclosure. See also Burmah Oil Ltd v Bank of England (1980) and Balfour v Foreign and Commonwealth Office (1994). The government has recently amended the

29.1.2

412

Criminal Litigation

criteria for a claim for public interest immunity: see Archbold News, 10 February 1997, and the Scott Report K 6.18. 29.1.3

Police documents

The court usually refuses disclosure of internal police documents. However, the House of Lords has held that there is no blanket class immunity attached to internal police documents: R v Chief Constable of West Midlands Police ex p Wiley (1994). Whether police documents should be disclosed all depends on the balancing act explained above. Example

In Gill and Goodwin v Chief Constable of Lancashire (1992), two police officers claimed damages for negligence against their Chief Constable after they were injured in a riot control training exercise. Before trial, they sought disclosure by the Chief Constable of the public order manual containing the police techniques for dealing with riots. The Court of Appeal held that it was not in the public interest for the manual to be disclosed because police techniques for dealing with riots should be kept secret.

29.1.4

Other public bodies

Public interest immunity has been applied to documents or information held by other public bodies, eg local authorities, the NSPCC, the Audit Commission (Bookbinder v Tebbit (No 2) (1992)) and the Gaming Board (R v Lewes Justices ex p Home Secretary (1973)). In the latter two cases, the Commission and Board did not have to disclose documents in their possession which were relevant to libel proceedings between others. The list of public bodies to which immunity can be applied is not closed, but the courts are careful to limit the boundaries of the immunity. It does not usually apply to non-public bodies. 29.1.5

Informants

It is a particular rule that a party will not be ordered, and a witness cannot be asked, to reveal the identity of a police informer: Marks v Beyfus (1890), where the plaintiff in an action for malicious prosecution was not allowed to ask the DPP, during the trial, to name the police informants. The theory is that it is in the public interest not to disclose the identity of police informers so that such persons

Public Interest Immunity and Private Privilege

413

can inform without feeling in danger of reprisal. The only exception is where the disclosure of the informant’s identity is necessary in order to help prove the defendant’s innocence: Marks v Beyfus (1890). A similar principle was applied to the NSPCC (National Society for the Prevention of Cruelty to Children) in D v NSPCC (1978) (considered in the West Midlands case) where the NSPCC investigated a mother after being informed that the mother had ill-treated her child. The Society found no evidence of ill-treatment. The mother sued the NSPCC for negligence. On a disclosure issue during the proceedings, the House of Lords held that it was not in the public interest for the Society to disclose documents revealing the identity of the informant because doing so would deter future informants, upon whom the NSPCC heavily relied. Procedure

29.1.6

In criminal proceedings, the procedure by which the prosecution should claim immunity from disclosure is explained in R v Davis (1993), R v Ward (1993), R v Keane (1994), R Horseferry Road Magistrates’ Court ex p Bennett (No 2) (1994), and R v Chief Constable of the West Midlands (see above). Also see ss 14 and 15 of the Criminal Procedure and Investigations Act 1996 on the court’s duty to keep public interest immunity laws under review. Section 16 also provides for third parties, eg the government, to be heard in the argument on public interest immunity. Finally, Part II of the 1996 Act is important in empowering the Home Secretary to prepare a code of practice on unused material. The code requires police officers to prepare a schedule of sensitive material. Waiver

29.1.7

Public interest immunity cannot be waived by the party who has possession of the documents (or by the makers of the statements, where the documents contain statements): Makanjuola v Commissioner of Police (1992).

Private privilege Categories

In certain situations, persons can claim that material or information in their possession is privileged from disclosure, ie it does not have to be disclosed and cannot be used against them in court. There are two categories of private privilege relevant to criminal cases:

29.2 29.2.1

414

Criminal Litigation

• Legal communications privilege (see Chapter 21) • The privilege against self-incrimination. 29.2.2

Privilege against self-incrimination

A witness can refuse to answer questions or produce material if to do so would expose them or their spouse to a criminal charge or to a penalty. Note

1 Of course, a defendant in a criminal case, having opted to give evidence in the witness box, cannot refuse to answer questions on the ground that the answer would incriminate them as to the offence charged: s 1(e) of the Criminal Evidence Act 1898. Adverse inferences may be drawn from the defendant’s failure to answer questions without good cause: s 35 of the Criminal Justice and Public Order Act 1994. 2 A witness cannot refuse to answer questions on the ground that the answer would incriminate someone else (other than their spouse): R v Minihane (1921).

Self-assessment questions 1

2 3 4 5

What is the test for whether documents in the possession of public bodies do or do not have to be disclosed in a court case? Is a Cabinet Minister’s certificate of ‘public interest immunity’ conclusive? What are the rules in relation to disclosing the identity of informers? What are the two categories of private privilege relevant to criminal proceedings? What is the rule against self-incrimination? Does it mean that a defendant can refuse to answer questions in relation to the offence charged?

Index Absconding, Absolute discharge, Abstracting electricity, Actual bodily harm, Admissions, adverse inferences, cautions, conduct, confessions, formal, hearsay, informal, procedure, right to silence, Adverse inferences, Advocates, See also Counsel Affirmations, Age children and young persons, custodial sentences, Agents provocateurs, Aggravated vehicle taking, Aiding and abetting, Alibis, Appeals, bail, case stated, certified, convictions,

108, 109, 126 220 81 82–83 44, 271, 325–34, 344 326–34 332–33 326–34 326 325–26 372 326 333–34 326–34 267, 293–96, 325–34 17 289

230, 249–50, 254, 258 226, 230 347 58–59, 72 253–54 164, 202–03, 402–03, 405 237–48 113, 120–22 237, 244 238, 242, 247 237–38, 240, 242, 245 4, 237–42, 246

Court of Appeal, Criminal Cases Review Commission, 241, 247–48 Crown Court, 4, 245–46 deceased persons, 241 Divisional Court, 237, 246–47 European Court of Justice, 247 evidence, 240–41, 273 grounds, 239, 245 House of Lords, 4–5, 242–43 judicial review, 237, 243–44, 246 leave, 242 magistrates’ courts, 4, 246–47 miscarriages of justice, 247–48 mistakes, 240

pleas, procedural irregularity, procedure and powers, recognisances, retrials, sentencing, time limits, writ of venire de novo, Arraignment, Arrest absconding, arrestable offences, bail, cautions, decision to, information, informing someone of, interrogation, non-arrestable offences, PACE, reasons, right to silence, summary trials, warrants, Assault, battery, common, definition, either way offences, grievous bodily harm, indictable offences, mitigation, mode of trial, occasioning actual bodily harm, police officers, provocation, sentencing, summary offences, wounding, Attendance centre orders, Bail, absconding, appeals, arrest, certificates, children and young persons, committals, conditional,

245 245 239–41, 245–46 246 240 214, 238 14, 239, 241 241–42 194–95 126 124, 132 124 127 137 171 136 137, 140 125–26 123–27 126 127 171, 178 123–25 81–88 82 82 82, 83, 85 83, 86 86 83 87–88 154 82–83 84–85 87–88 82, 84, 85, 86–87 81–82, 84, 85 86–88 224 47, 107–22 108, 126 113, 120–22 124 115–16 112 164 109, 116–18, 121

416

Criminal Litigation

curfews, custody, indictable offences, non-imprisonable offences, police, procedure, reasons, records, refusal, renewal, residence, right to, security, sentencing, summons, sureties, time limits, witnesses, Barristers See Counsel Battery, Bigamy, Bills of indictment, Binding over, Breach of trust, Briefs, Bugging, Burden of proof, Burglary, Care and skill, Careless driving, Case stated, Cautions, Character, bad character, charges, co-defendants, convictions, Criminal Evidence Act 1898, cross-examination, defendant, good, handling stolen goods, jury directions, police fabrication, rape, rebuttal, similar fact evidence, victim, witnesses, Charges

118 107, 114, 119–20 186 116 108, 109, 112–13, 118 114–16 115 115 114 118–20 118 109–12 118 108 121 117, 164 107–08, 119 118

82 286 164–65 231–32 79–80 18–19 348 204, 281–84 88–90 29–30 55–56, 71–72 4, 237, 244 2, 127, 138, 332–33 268, 375–95 378 385 377 378, 385, 387–90 384–91 386 376–91 378–79 383 377 387 376 378–79 379–83 375–76 216, 308, 387, 392, 391–95

character, detention, interrogation, mode of trial, Children and young persons, age, aiding and abetting, committals, compensation orders, Crown Court, custodial sentences, definition, either way offences, fines, former juveniles, homicide, indictable offences, jointly charged with adults, life imprisonment, magistrates’ courts, PACE, parents or guardians, pleas, pre-sentence reports, press, recognisances, secure training orders, sentencing, summary trials, suspended sentences, videos, witnesses, young offenders’ institutions, Youth Court, Chinese Wall, Classification of offences, Client care, Codes of practice Crown Prosecution Service, discrimination, PACE, professional conduct, Combination orders, Committals, abolition, advising the client, alibis, bail, bypassing,

385 133–34, 140 138, 140 154, 156–57 249–65 230, 249–50, 254, 258 253–54 165, 254 260 254–55, 257, 261 230, 256, 260, 262 249–50 254 262 258 256, 258 254, 255–58 253, 254–55 230, 262 253–54, 255–57, 262 144 252, 259 255 258 252 259 260–61 254, 257, 258–62 254 262 290–91, 299–300 165, 290–91, 299–300 262 250–52, 254, 259, 261–62 49 7–8 15–16, 22

49 25 123–45 49 223–24 159–67 159 162–63 164 164 3

Index

children and young persons,

165, 254–55, 257, 261 counsel, 167 Crown Court, 159–60, 165, 166–67 directions, 166–67 evidence, 7–8, 160–61, 162, 166, 167 examining justices, 159 fraud, 165 indictable offences, 7 aid, 164 magistrates’ courts, 2–3 modified, 159 no case to answer, 163 notices of transfer, 165 paper, 159–60 pleas, 166–67 preparation, 166–67 procedure, 159–63 reporting restrictions, 161–62, 163 voluntary bills of indictment, 164–65 witnesses, 163, 165 Community sentencing, 214, 219, 220–24 attendance centre offered, 224 combination orders, 223–24 community service orders, 223 consent, 221 curfews, 224 objectives, 221 pre-sentence reports, 221 probation orders, 221–23 revocation, 222–23 tagging, 224 theft, 79–80 Compensation orders, 232–33 Complaints, 11, 16, 23 Computer records, 315–16, 352–53, 365–67 Conditional discharge, 220 Conferences, 20–21 Confessions, 268, 326, 335–43 admissibility, 335–40 challenging, 340–42 children and young persons, 338 definition, 335 exclusion, 339–40, 343 facts discovered as a result of, 342–43 hearsay, 353, 372 indictable offences, 338 mental disability, 337, 338–39

oppression, unfairness, unreliability, Confidentiality Chinese wall, professional conduct, retainers, Conflicts of interest Chinese wall, clients between, legal aid, retainers, Convictions,

417

335–36 339–40 337–38 49 43 27, 30–31 49 27–28 100 27–28, 47–49 237–38, 240, 242, 245, 378, 385, 387–96 271, 399–403

Corroboration, Costs liens, 33 orders, 233 retainers, 33 summary trials, 182 wasted, 182 Counsel attending, 41–42 briefs, 18–19 committals, 167 conferences, 20–21 fees, 18 indictable offences, 187–88 instructing, 16–17, 18–19 opinions, 19 professional conduct, 41–42 solicitor’s view of case, 19–20 Court of Appeal, 4, 237–42, 246 Courts, 2–9 deceiving the, 37–38 disobeying the, 39–40 misleading the, 37–38 Criminal Cases Review Commission, 241, 247–48 Criminal Injuries Compensation Board, 234–35 Criminal practices, 21–22 Crown courts, 4–5 appeals, 4, 245–46 committals, 159–60, 165, 166–67 jurisdiction, 4 Crown Prosecution Service code of practice, 49 decisions to prosecute, 2, 7 professional conduct, 49 relations with, 21 summary trials, 175 Curfews, 118, 224 Custodial sentences, 214, 219, 226–31 age, 226, 228

418

Criminal Litigation

children and young persons, concurrent, consecutive, driving offences, early release, fines, length, life imprisonment, mandatory, minimum, mitigation, pre-sentence reports, supervision orders, suspended sentences, Custody See also Detention bail, detention, officers, records, time limits, Dangerous driving, Death by dangerous driving, Deception, Defendants absence, character, co-defendants, innocence, joinder, self-serving statements, summary trials, Demurrer, Deportation, Detention See also Custody arrestable offences, attending a client, charges, conditions, custody officers, custody records, duty solicitors, free legal advice, information, informing someone of arrest, interrogation, legal aid, PACE, reasons, reviews, time limits,

230, 256, 260, 262 226–27 226–27 79 230–31 226 227–28 230 227–28 227–28 227 226, 227 229–30 228–30

107, 114, 119 129–30 129–30, 132–34 134–35 13 54, 59, 68–69, 71, 72 59, 68–69, 72 80, 81 177–79 376–91 173, 192, 377 322 191–92 408–09 173 196 234

132 130–32 133–34, 140 139 129–30, 132–35 134–35 135–36 135–36 133–34 136 139 136 129–37 135 140 129, 139–40

warrants of, 140 Diaries, 13–14 Directions character, 377 corroboration, 400–01 indictable offences, 185–86, 204–05 juries, 201, 205–06, 377 summary trials, 166–67 unanimity, 206 Disabled persons See also Mental disability indictable offences, 196 legal aid, 102 witnesses, 395 Discharges, 220 Discrimination code of practice, 25 retainers, 25 Disqualification, 63, 66–69 Divisional courts, 4, 237, 246–47 Drink driving, 60–62 Driving offences, 53–74 aggravated vehicle taking, 58–59, 72 careless driving, 55–56, 71–72 custodial sentencing, 70 dangerous driving, 54–55, 59, 71 death by dangerous driving, 59, 66–67, 72 disqualification, 63, 66–69, 73 drink driving, 60–62, 66–67, 72–73 driving whilst disqualified, 63, 73 drugs, 60–62, 72–73 either way offences, 59 endorsement, 65–66, 69 evidence, 62 failure to report an accident, 64–65, 73–74 failure to stop, 64–65, 73–74 fines, 70, 73, 226 indictable offences, 58, 59 insurance, 63–64, 73 intoxication, 60–62, 72–73 legal aid, 99 mitigation, 70–71, 73, 74 penalty points, 68–69 postal peals, 178–79 reasonable consideration, without, 56 rights of audience, 53 sentencing, 55, 56, 58, 59, 60–61, 63–74 speeding, 62–63 summary trials, 54–55, 56,

Index

58, 60–65 taking a conveyance without authority, theft, traffic signals, Drugs, Duress, Duty solicitors, Dying declarations, Either way offences, assault, burglary, children and young persons, driving offences, fines, legal aid, mode of trial, summary trials, theft, Employees breach of trust, theft, Endorsement, Ethics, European Court of Human Rights, Evidence, See also Alibis, Character, Hearsay, Witnesses admissibility,

admissions, adverse inferences, agent provocateurs, appeals, bias, bugging, burden of proof, caution, children and young persons, circumstantial, closing speeches, collateral facts, committals, compellability, competence, computer records, confessions,

56–59, 72, 77, 78 56–59, 72, 77, 78 63 60–62 26 97, 135–36 353 8 83, 86 88 254 59 225 98–99 147, 150–51, 154–55 169 77, 80 79–80 79–80 65–66, 69 34, 36 5, 247 265–317

267–68, 269–70, 276, 303, 309, 312–13, 315 271, 315, 344 267 347 240–41, 273 308 348 204, 281–84 271 299–300 278 309 275, 307–08 7–8, 160–61, 162, 166, 167 267 266–67 315–16 268, 335–43

convictions, copies, corroboration, course of trial, court orders, cross-examination, disclosure, discretion, documentary, examination-in-chief, excluded, experts, fabrication, facts in issue, identification, illegally or unfairly obtained, indictable offences, interrogation, judges, judicial, judicial notice, juries, leading questions, lies, Notice of Further Evidence, open court, opinions, oral, PACE, photographs, presumptions, pre-trial disclosure, previous statements,

419

268 313 271 300 267 303, 306–08 49–50, 173–77, 311 268–69 266, 277–78, 303, 312–14 300–09 278–79 309–11, 362–63 304–05, 387 275 141–44, 305, 344, 403–07 343–48 186, 200, 202–03, 205–07 316 279 276–78 272, 280 279 301–02 402–03

187 299 269, 309–12 265–66 343–48 315 272, 285–86 272–73 303–04, 307–08, 407–10 privilege, 269 professional conduct, 49–50 proof of facts, 265–66 prosecution, 49–50 rape, 307 real, 266, 278, 314–16 re-examination, 309 relevance, 275–76 self-incrimination, 269 self-supporting statements, 169 sex offences, 409 similar fact rule, 379–83 site visits, 316 standard of proof, 204, 284–85 summary trials, 173–77, 180, 181 supporting, 401–02

420

Criminal Litigation

tape-recordings, tricks, ultimate issues, videos, weight, Examining justices, Experts,

315, 316 346–47 312 299–300 270–71, 276 7 309–10, 311, 362–63

Failing to report an accident, Failing to stop, Fees counsel, legal aid, standard, summary trials, File management, Fines, children and young persons, custodial sentences, driving offences, either way offences, indictable offences, maximum, summary offences, time limits, Fingerprints, Forfeiture orders, Franchising, Fraud, Government documents, Green Form Scheme, Grievous bodily harm, Handling stolen goods, Hearsay, admissibility,

admissions, advance disclosure, business documents, computer records, confessions, emotion or sensation, credibility, Criminal Justice Act 1988, deceased persons, declarations, definition, dying declarations, exceptions, experts, first-hand documentary statements,

64–65 64–65 18 105 105, 170 170–71 12, 15 225–26 262 226 70, 73, 226 225 225 225 225 225–26 144 234 94 165, 321–22 411–12 94–95 86 80–81, 287, 383 268, 277, 349–415 349–50, 353, 359–60, 362–63, 365–67 372 363 359–60 352–53, 365–67 353, 372 370 361–62 355–63 317–72 372 349–50 353 372 382–63 356–57

interests of justice, mechanical devices, PACE, privilege, procedure, public documents, real evidence, res gestae, spontaneous statements, statements accompanying and explaining relevant acts, waiver, Homicide children, death by dangerous driving, House of Lords, Human rights, Identification alibis, circumstances, confrontation, evidence, fingerprints, good, group, indictable offences, juries, PACE, parades, photographs, poor, procedures, supporting evidence, Turnbull guidelines, videos, Imprisonment See Custodial sentences Indictable offences, alibis, alternative counts, amendments, arraignment, assault, bail, burden of proof, children and young persons, closing speeches, committals, co-defendants, counsel, demurrer, directions,

356–57, 361 352–53 366 413 413 353 315–16 367–71 367–68

369–70 413 256, 258 59, 68–69, 72 4–5, 242–43 5

405 403–04 143 141–44, 305 144 404 142 205 205, 404, 405 141–44, 406 141–42, 406–07 143–44 404–05 141–44 405 403–07 143

4, 6, 7–8, 185–210 202–03 192, 208–09 193–94 194–95 83 186 204 154, 255–58 203 7 192 187–88 196 185–86,

Index

disabled persons, driving offences, duplicity, evidence, fines, identification, joinder, juries, jurisdiction, legal aid, matters of fact, matters of law, mode of trial,

204–05, 206 196 58, 59 192–93 186, 200, 202–03, 205–07 225 205 189–90, 191–92 197–200, 201, 205, 206–10 196 98, 186 204 204 147–49, 153, 155–56 201

no case to answer, notice of further evidence, 187 pleas, 185–86, 195–97 preparation, 185–88 pre-trial proceedings, 186–87 procedure, 200–03 quashing the indictment, 194 robbery, 91 separate trial of counts, 190–94 standard of proof, 204 summing up, 204–06 time limits, 185, 186, 187–88 verdicts, 206–10 witnesses, 205 Informants, 412–13 Information advance, 173–177 arrest, 171 co-defendants, 173 duplicity, 172 laying an, 171–72 multiple offences, 172 nature, 172–73 summary trials, 171–77 Insanity, 283 Interviews See Interrogation Interrogation arrest, 137, 140 cautions, 138 charges, 138, 139–40 detention, 139–40 legal advice, 138 PACE, 137–41 recording, 138–39 tape-recording, 138–39, 316 time limits, 139–40 witnesses, 40–41 Intoxication, 60–62

Joinder, Judges communicating privately with, evidence, juries, professional conduct, Judicial review, Juries caution warnings, challenging, character, directions, discharge of, eligibility, evidence, foreman, identification, indictable offences, judges, right to silence, summing up, swearing in, verdicts, vetting, Juveniles See Children and young persons Legal aid assistance by way of representation, committals, conflicts of interest, criminal, detention, disabled persons, driving offences, duty solicitors, either way offences, fees, financial eligibility, franchising, Green Form Scheme, indictable offences, interests of justice test, legal advice and assistance, private clients, privilege, professional conduct, refusal, remuneration,

421

189–90, 191–92

41 279 199 41 237, 243–44, 246 400–01 198–99 377 201, 204–06, 400–01, 377 199–200, 209–10 197–98 279 208 205, 404, 405 197–200, 201, 205, 206–10 199 330–31 204–06 198–99 206–10 199

95–97 164 100 98–104 136 102 99 97 98–99 105 94, 96, 98–100, 103, 105 94 94–95 98, 186 100–03 94 105 322 93–94 103–104 94–95, 97

422

Criminal Litigation

retainers, sentencing, summary offences, third parties, witness, Legal professional privilege See Privilege Legal services ombudsman, Liens, Life imprisonment, Limitation periods See Time limits

24, 32 101 99, 170–71 102 102

Magistrates’ courts, appeals, children and young persons,

2–4 4, 246–47

committals, decisions to prosecute, examining justices, jurisdiction, mode of trial proceedings, sentencing, summary trials, Making off without payment, Malicious prosecution, Marriage, McKenzie friends, Media, Mental disability confessions, corroboration, evidence, insanity, PACE, retainers, witnesses, Miscarriages of justice, Mitigation assault, burglary, road traffic offences, sentencing, Mode of trial proceedings, advising client, assault, charges, classification of offences, criminal damage, either way offences, election,

guidelines, indictable offences,

theft,

152, 153–54 147, 148, 149, 153, 155–56 147–57 152, 153 151–52 150, 151–52 147, 148–50, 153–56 150–51

National security, No case to answer, Notices to transfer,

411 163, 180–81, 201 4, 165

magistrates, pleas, procedure, sentencing, summary offences,

11 33 230, 262

253–54, 255–57, 262 2–3 2–3 7, 159 3–4 8, 147–57 215 3 81 412 286–87 170 42–43, 162–62, 163, 252 338–39 400 291–92 283 144 24 395 241, 247–48 87, 88 90 70, 73, 74 70, 73, 74, 215–16, 227 8, 147–57 156 154 154, 156–57 147–51 154–55 147, 148, 150–51, 154–55 151–57

Oaths, Obstruction, Office for Supervision of Solicitors, Ombudsman, Opinions, Oppression, PACE, arrest, computer records, detention, evidence, hearsay, identification, interrogation, helping police with their enquiries, powers of entry, search, stop and search, volunteers, vulnerable suspects, Penalty points, Perjury, Photographs, Pleas ambiguous, appeals, change of, children and young persons, committals, demurrer, equivocal, guilty, indictable offences, jurisdiction, to the, lesser offences, mode of trial, not guilty,

289 84, 85 12 11 269, 309–10 335–36 123–45 123–27 366 129–37 343–48 366 141–44, 406–07 137–40 144 128–29 128–29 128 144 144 68–69 46 143–44, 315, 406–07 195–96 245 197 255 166–67 196 44, 45–46 195 185–86, 195–97 196 195 152, 153 196–97

Index

postal, professional conduct, refusal to plead, sentencing, summary trials, unfitness to plead,

178–79 44, 45–46 196 211, 215–16 178–79, 180–81 196

prosecution, public perception, retainers, witnesses, Provocation, Public bodies, Public interest immunity,

49–50 34–36 24–33, 45 40–41 87–88 412 411–13

84–85 108, 109, 112–13, 118 412 387

Queen’s Bench Division,

4

Police See PACE assault, bail, documents, fabrication of evidence, helping police with their enquiries, obstruction, public interest immunity, Police and Criminal Evidence Act See PACE Powers of entry, Practice management, Pre-sentence reports, Press, Presumptions, Privilege, Probation orders, Professional conduct rules, admissions, bail, breach, Chinese walls, communication with the judge, complaints, confidentiality, conflicts of interest, counsel, Crown Prosecution Service, defence, disobeying the court, ethics, evidence, improper allegations, inconsistent instructions, Law Society, legal aid, misleading or deceiving the court, perjury, pleas, press, privilege,

423

307, 376 246, 259 94–95, 97, 105 161–62, 163 233

49 43–45 39–40 34, 36 49–50 40 45 24, 38–39, 50 93–94

Rape, Recognisances, Remuneration, Reporting restrictions, Restitution orders, Retainers abuse of client relationship, care and skill, competence to act, confidentiality, conflicts of interest, costs, discrimination, duress, duties, freedom to accept instructions, informing client, legal aid, liens, malicious clients, mental disability, professional conduct, refusal of, termination, third parties, undue influence, witnesses, Retrials, Rights of audience, Right to silence admissions, adverse inferences, arrest, corroboration, witnesses, Road traffic offences See Driving offences Robbery,

37–39 46–47 44, 45–46 42–43 43

Searches, Secure training orders, Self-incrimination, Sentencing, absence of defendant,

128–29 260–61 269, 414 211–35 179

144 84, 85 412

128–29 16–17 213–15, 221, 226, 227, 258 42–43, 161–62, 163, 252 272, 285–86 43, 269, 319–24, 413–15 221–23 23–51 44 47 11–12 49 41 23 43 47–49 41–42

31 29–30 25–26 27, 30–31 27–28 33 35 26 29–30 24–25 31–32 32 33 29 24 24–33, 45 27 32–33 26–27 26 28 240 17, 53 326–34 293–96 127 399 293–96

90–91

424

Criminal Litigation

absconding, absolute discharges, antecedents, appeals, assault, attendance centre orders, biding over, burglary, character witnesses, children and young persons, community, compensation orders, conditional discharges, costs orders, Criminal Injuries Compensation Board, curfews, custodial, deferring, deportation, determining, discharges, discounts, driving offences,

early release, fines, forfeiture orders, homicide, legal aid, life imprisonment, magistrates’ courts, mitigation, mode of trial, pleas, pre-sentence reports, procedure before, reports, robbery, restitution orders, secure training orders, standardisation, summary trials, suspended sentences, taking other offences into consideration, theft, young offenders’ institutions,

108 220 212–13 214, 238 81–82, 84, 85 224 231–32 88 216 230, 254, 257, 258–62 79, 214, 219, 220–24 232–33, 260 220 233

234–3 224 70, 214, 219, 226–31, 260 217–18 234 218–19 220 75–76, 215–16 55, 56, 58, 59, 60–61, 65–74, 87–88, 226 230–31 70, 73, 225–26, 262 234 258 101 230, 262 215 70, 73, 74, 87–88, 215–16 150, 151–53 211, 215–16 213–15, 258 211–17 213–15 91 233 260–61 70 179 228–30, 262 216–17 75, 77–81 262

Youth Court, Service of process, Sex offences, Shoplifting, Site visits, Solicitors See also Professional conduct rules advocates, criminal litigation practice, duty, Office for Supervision of Solicitors, rights of audience, Speeding, Standard of proof, Stay of proceedings, Stop and search, Summary trials, absence of parties, adjournment, arrest, assault, burden of proof, burglary, co-defendants, costs, Crown Prosecution Service, driving offences, either way offences, evidence, fees, fines, information, legal aid, legal representation, McKenzie friends, mistakes, mode of trial, no case to answer, not guilty hearings, pleas, postal pleas, sentencing, service of process, site visits, submissions, summons, theft, verdict, warrants, wasted costs,

254, 259, 261–62 177–79 307, 376, 409 78 176, 316

17 12 97, 135–36 11 17 62–63 204, 284–85 5 128 3, 6, 8, 169–83 177–79 177 171, 178 81–82, 84, 85 283 88, 89 173 182 173 54–55, 56, 58, 60–65 169 173–77, 180, 181 170–71 225 171–77 99, 170–71 170 170 182 147, 148–50, 153–56 180–81 180–81 178–179, 180–81 178–79 179 177–79 176 181 177–79 77 181–82 178 182

Index

witnesses, Submissions, Summons bail, service of process, summary trials, witnesses, Sureties, Supervision orders, Suspended sentences, Taking a conveyance, Tape-recordings, Theft, abstracting electricity, breach of trust, cars, deception, definition, dishonesty, either way offences, employees, handling stolen goods, making off without payment, mitigation, mode of trial, sentencing, shoplifting, summary offences, Third parties legal aid, retainers, Time limits appeals, bail, custody, detention, fines, indictable offences, interrogation, Time recording, Traffic signals, Trials on indictment See Indictable offences Undue influence, Verdicts, Videos, Voluntary bills of indictment, Volunteers, Vulnerable suspects,

176–77 181 121 177–79 177 176 117, 164 229–30 228–30, 262 56–59, 72, 78 138–39, 314, 315, 316 75–81 81 79–80 56–59, 72, 77, 78 80, 81 76–77 77 77, 80 79 80–81 81 75 150–51 75, 77–81 78 77 102–03 26–27 14, 239, 241 107–08, 119 13 129, 139–40 225–26 185, 186, 187–88 139–40 12, 13 63

26 181–82, 206–10 143, 290–91, 299–300, 314 164–65 144 144

Warrants arrest, bail, detention, search, summary trials, Wasted costs, Witnesses, affirmations, absent, adverse inferences, bail, challenging, character, children and young persons, committals, compellability, competence, convictions, credibility, disabled persons, failure to testify, hostile, indictable offences, interviewing, mental disability, oaths, payments to, procedure, professional conduct, refreshing the memory of, retainers, right to silence, self-supporting statements, sentencing, solicitors, as, spouses, statements, summary trials, summons, videos, Wounding, Writs of venire de novo, Young persons See Children and young persons Youth courts,

425

123 124 140 129 178 182 289–98 289 176–77 293–96 118 391–95 216, 308, 387, 391–95 165, 290–91, 299–300 163, 165 290–93 290–93 391–95 392–93 395 293–98 392 205 40–41 291–92, 395 289 40–41 287–98 40–41 302–03 28 293–96 269 216 28 293 301 176–77 176 290–91 86–88 241–42

4, 250–52, 254, 259, 260–61

426

Criminal Litigation