References to Criminal Law Week are abbreviated to CLW with the year, issue and paragraph number given. If a date is given this is the date of the judgment.

Access to a solicitor

No one can doubt that PACE 1984 made a substantial contribution to the rights of those under arrest at a police station. We all know that it revolutionised police procedure and almost at a stroke abolished many of the old dubious police practices such as “verballing”. One weakness of PACE that was never addressed however is that there remains no obligation on the police to provide a solicitor unless the person in custody specifically asks for one. Many people in custody, for a variety of reasons perhaps including simply being unaware of just how much trouble they are in, do not ask for a solicitor and continue to be interviewed without one.

The decision in Cadder v. HM Advocate [2010] UKSC 43, The Times, 26th October 2010, (CLW 10/39/3) (28/10/2010) judgment is therefore to be welcomed even if the actual decision relates only to Scottish law.In that case the defendant had been asked if he wanted a solicitor but had declined and at no time thereafter did he make such a request. In interview he made admissions which were then relied on to obtain a conviction. The Supreme Court ruled that it was bound to follow the decision of the ECtHR in Salduz v. Turkey 49 EHRR 19 (CLW 09/33/28) where it was held that “as a rule, a detainee was to have access to a lawyer from the time of his first interrogation unless there were compelling reasons in the particular circumstances of the case which made the presence of a lawyer impracticable.” It would however appear that in the light of this judgment any decision in future in England & Wales to delay access to a solicitor under section 58 will be very difficult to justify. Since PACE is now almost a quarter of a century old and predates the Human Rights Act 1998 and the rights guaranteed by Article 6 (3) of the ECHR it would be entirely appropriate if the law were to be brought up to date and the default position was to be that a solicitor would have to be present when the suspect is interviewed at least for all save summary only offences.

Defence statements

In R.v. Rochford EWCA Crim 1928 (CLW 10/35/2) (28/07/2010) judgment the judge was so upset at what he considered to be the defects in the defence statement that at first he considered holding defence counsel in contempt if the statement was not amended but after calming down overnight he agreed that this was a bit over the top and set his sights instead on the defendant who in due course was held to be in contempt and got 28 days for his pains. Hence the appeal was against that finding. In the course of the judgment by the Vice-President Hughes LJ, he pointed out that the sanctions for failures in respect of defence statements are clearly set out in section 11 of the Criminal Procedure & Investigations Act 1996, namely comment by the prosecution and/or judge and a possible adverse inference if the jury feel so inclined. The sanctions do not include holding anyone in contempt of court much less punishing such a contempt by imprisonment. The court also made it clear that legal professional privilege and the defendant’s privilege against self-incrimination have survived section 6A of the CPIA. As Hughes LJ said, “What the defendant is required to disclose by section 6A is what is going to happen at the trial. He is not required to disclose his confidential discussions with his advocate...nor is he obliged to incriminate himself if he does not want to.” That last comment will be important in a case where the defendant’s instructions may involve an admission to some criminality which would make him guilty of some offence but where for example he anticipates that he may be able successfully to challenge the admissibility of the only evidence against him. The court was of the opinion that a lawyer cannot advise a defendant not to file a defence statement. He or she is obliged to advise that one should be served and what the sanctions for non-compliance will be.

All of which leaves unexplored the question of what is sufficient to satisfy the requirements of the Act especially in respect of the latest addition to s.6A which is the requirement in s. 6A (1) (ca) namely “particulars of the matters of fact on which he intends to rely for the purposes of his defence.” What should be clearly understood is that there is no requirement to serve a detailed list of such matters much less to serve (as I have seen done) what appeared to be a slightly redacted version of the client’s proof, which would certainly be a breach of privilege unless done on the specific instructions of the client for some very definite purpose. It is suggested that it would be quiet enough to say for example in respect of an allegation of unlawful wounding or GBH with intent that the defendant will say that he was attacked first by the complainant and hit him with the bottle in order to prevent a further attack on himself.” As with defence statements generally there is likely to be an element of repetition as the questions posed in s.6A seem to invite duplication but so long as the general outline of the matters to be relied on are set out that ought to be sufficient.

Of course the reality is that most prosecutors and judges seem fairly indifferent to the contents of defence statements but we have to be prepared for the occasional judge or prosecutor who wants to make a song and dance about such matters. From a defence point of view it should be remembered that the whole purpose of a defence statement is to try to obtain disclosure of unused material in the possession of the prosecution. If it is thought that there is likely to be such material and that it may assist the defence then it may well be a good idea to give a much fuller statement than might otherwise be advised, including if necessary an amended statement as a prelude to an application under section 8 for specific disclosure. In those cases however where it is unlikely that there will be anything of interest in the unused the best advice is to keep it short.

Bad character

If the prosecution want to adduce evidence of bad character in the form of the facts behind a penalty notice then direct evidence will have to be called. A prosecutor cannot simply rely on the fact that a penalty notice was issued and accepted since that does not amount to an admission of guilt or proof that a crime has been committed – see R.v. Hamer [2010] EWCA Crim 2053 (CLW 10/35/1) (17/08/2010) judgment .

Deportation of offenders

In R (M.X.L. and others) v. Sect of State for the Home Dept [2010] EWHC 2397 (Admin) (CLW 10/37/4) (30/09/2010) judgment Blake J gave guidance on the circumstances in which it would be appropriate to detain those liable to deportation after the expiry of their sentences.

Asylum seekers and false identity documents

In R.v.AM; R.v.MV; R.v. RM; R.v. MN [2010] EWCA Crim 2400 judgment the Court of Appeal allowed a number of appeals by asylum seekers who had been prosecuted under s. 25 of the Identity Cards Act 2006 but who had not had advice about a possible defence under s.31 of the Act. It is particularly important that those in such vulnerable circumstances as asylum seekers get proper advice before entering a guilty plea to an offence under s.25. (GCN’s Ian Macdonald QC appeared for three of the appellants).

Human Trafficking

The duty under article 26 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 to consider the possibility of not imposing penalties on the victims of human trafficking for their involvement in unlawful activities to the extent that they were compelled to become so involved was considered by the CA in R.v. L.M.,M.B. and D.G. [2010] EWCA Crim 2327 9CLW 10/39/5) (21/10/2010) judgment and should have resulted in a decision either not to prosecute the case further or a stay of proceedings once it became apparent that the defendants had themselves been the victims of trafficking.

Sexual history evidence

Questions about previous complaints of sexual assault which are said to be false are not questions about sexual behaviour (R.v.R.T; R.v.M.H. [2002] 1 W.L.R. 632) and do not therefore fall foul of s.41 of the Youth Justice & Criminal Evidence Act 1999. In R.v. M [2009] EWCA Crim 618 (CLW 10/34/4) (17/03/2009) judgment the CA pointed out however that there must be some material from which it could properly be concluded that a previous complaint was false before the defence could ask questions about the matter. What constitutes a proper evidential basis is less than a strong factual foundation for concluding that the previous complaint was false but it would be a matter for the judge to decide on which side of the line a particular case falls and the relevant question is whether the material is capable of leading to a conclusion that the previous complaint was false.

Implementing suspended sentences – credit for time on remand.

Since the effect of s.240 (7) of the CJA 2003 is to prohibit a court which imposes a suspended sentence from adjusting the length of the sentence on account of time spent on remand, a judge who later decides to activate the suspended sentence is not entitled to assume that the original judge had already taken the time on remand into account and thus to decide not to give a direction under s. 240 (3) that the times served on remand should count. R.v. Mari [2010] EWCA Crim 1143 (CLW 10/39/11) (07/05/2010). However if it is clear that the length of the sentence was in fact so adjusted then it would not be wrong to give such a direction under s. 240 (3). R.v. Hall [2010] EWCA Crim 1919 (CLW 10/39/12).

Footwear impressions

Where an expert gives evidence about footwear impressions he cannot give evidence of the likelihood ratio (the measure of how likely it is to obtain a piece of evidence given a proposition compared to how likely it is to obtain the same piece of evidence given an alternative proposition) based on mathematical formula because the statistical basis for so doing is not sufficiently reliable to enable this to be done. In R. v. T [2010] EWCA Crim 2439 (CLW 10/39/6) (26/10/2010) judgment the CA said that this attempt to assess the degree of probability that a particular piece of footwear made a particular mark gave rise to “a verisimilitude of mathematical probability” (whatever that is!) despite the fact that the statistical data on which it was based was uncertain and incomplete. In an appropriate case an expert in footwear examination could use his experience to express a more definitive opinion where the conclusion is that the mark “could have been made” by the footwear in question but not by relying on a likelihood ratio or other mathematical formula. If the expert does express a view of this type he should make it clear that it is based on experience and is purely subjective. The word “scientific” should not be used as it is likely to give an impression of a degree of precision and objectivity that is not present given the current state of this area of expertise. Where a mark could have been made by a particular piece of footwear the expert’s report must explain the factors that enable the expert to express a more definite opinion including any data relied on.

Hearsay

The case of R. v. C. [2010] EWCA Crim 2402 (CLW 10/38/2) (29/01/2010)is a useful reminder that the hearsay provisions are not designed to be used for the mere convenience of the prosecution and their witnesses. In particular s. 114 (1) (d) (“interests of justice”) is meant to be used only cautiously (R. v. Z [2009] 1 Cr. App. R. 500) because otherwise other important conditions in the Act such as s.116, will be circumvented. Where therefore the witness was available and able to give evidence, the court was wrong to admit her evidence under s.114 (1) (d) due to objections by her adoptive mother to her giving evidence.

Joint enterprise murder

The Supreme Court has given the prosecution leave to appeal in the case of R.v. Gnango (see Issue 26 – 1st September 2010 ) concerning the nature of the joint enterprise involved when two persons involve themselves in a shoot out with fatal consequences for an innocent passer-by. For the CA judgment see [2010] 2 Cr. App. R. 345; [2010] EWCA Crim 1691; (CLW 10/33/9) (26/07/2010) more .

The partial defence of Provocation

As trailed in Issue 25 ( 26th May 2010 ), from 4th October the law on provocation has been substantially amended by ss. 54 and 55 of the Coroners and Justice Act 2009 The most significant change is that sexual infidelity will no longer be a ground for excusing a loss of self control (which no longer needs to be sudden – s. 54 (2)) which results in the killing of another. The new law is set out in Archbold 2011 para. 19-51 and Blackstone’s 2011 at paras. B1.35 to 1.39

Mark George Q.C.
November 2010