The decision in R (Firth) v Epping Magistrates’ Court [2011] EWHC 388 (Admin) will, in a number of cases, make it difficult for solicitors to assist the court in case management following a ‘not guilty’ plea.

Ms Firth was arrested for common assault and entered such a plea.

Case management forms were completed in which it was indicated that the issue was one of self-defence.

The Crown reviewed the matter and decided that the circumstances required a charge of assault occasioning actual bodily harm.

On that matter, the magistrates declined jurisdiction and committal proceedings commenced.

The defence applied to discharge the defendant on the basis that there was no evidence from a complainant involving Ms Firth in an assault.

In response, the Crown sought to rely on the reply given on the case management form.

The court held that it could infer from the answer that there must have been physical contact involving Ms Firth and therefore there was a case to answer.

That decision was upheld on review.

The case management form was allowed as admissible hearsay evidence.

The court relied on two of the common law exceptions to the hearsay rule preserved by section 118 of the Criminal Justice Act 2003.

It held that the case management form was part of the public record and that the statement on the form was that of an authorised agent, namely the solicitor, and could therefore be treated as a statement of the defendant herself.

The court gave no consideration to the effect that its decision would have on solicitors representing defendants.

Solicitors should advise clients that they are not required to strengthen the prosecution’s case (the privilege against self-incrimination) and, relying on legal professional privilege, they do not have to disclose any of the discussions with their lawyer or the advice given to them.

In appropriate cases, on the case management form the answer to a request to identify the matters in issue should be that the Crown is put to proof, and that further detail is governed by legal professional privilege.

It must be the client who makes this decision.

The Firth case will now proceed to trial.

At that trial, it may be argued that admissions made to assist court ­management should not be admitted as evidence because it would be unfair in the proceedings to do so (section 78 of the Police and Criminal Evidence Act 1984).

Since it is a discretionary remedy, section 78 cannot be used at committal proceedings.

However, until there is a clear ruling to that effect, solicitors will wish to advise their clients to exercise caution in the way they assist the court in case ­management.

Under the Criminal Procedure Rules, the courts are normally required to take a plea at the first hearing.

For solicitors, this presents difficulties in advice as the quality of disclosure is often very poor at that stage.

Helpful guidance has been published by the Law Society which makes clear that solicitors will, if necessary, indicate to the court that they are not able fully to advise at that hearing, and that if pressed a ‘not guilty’ plea will be entered.

While solicitors must advise clients about the sanctions available to the court in terms of loss of discount for a guilty plea and of costs, neither of these issues should override the need for a clear case to be established before a client is advised to plead guilty.

Stop and search

On 18 March this year, significant amendments were made to the Terrorism Act 2000. Sections 44-47 are repealed as incompatible with the European Convention on Human Rights and replaced by a new section 47A and schedule 6B.

These provide that a person may now be stopped if an officer reasonably suspects that an act of terrorism will take place and a senior officer considers that it is necessary (rather than expedient) to prevent such an act, and that the area and length of the power are also necessary.

The powers are now limited to 14 rather than 28 days.

On 7 March, amendments were made to PACE codes A, B, and D.

Code A was amended to reflect the changes to the Terrorism Act now brought into effect and allows for a reduced level of recording of stop-and-search encounters.

Amendments to PACE Code B recognise the importance of the judgment in Khan v Metropolitan Police Commissioner [2008] EWCA Civ 723 on police powers to enter and search premises under section 18 of the Police and Criminal Evidence Act 1984.

These powers can only be used if premises are indeed occupied or controlled by the person under arrest.

Significant changes are made to identification Code D.

Specific account is taken of the decisions of the courts in R v Chaney [2009] EWCA Crim 21 and R v Smith [2008] EWCA Crim 1342.

These relate to the procedures for obtaining evidence of recognition from witnesses, particularly police officers, and viewing images such as CCTV.

There are now detailed provisions contained in the code as to the procedures to be followed and those who cross-examine officers who have identified a defendant in this way will wish to be conversant with its specific provisions.

The code now contains details for the use of mobile fingerprint technology, and of enhanced powers to take DNA and fingerprints.

This is because the code is concerned not only with identification of suspects but also with the keeping of accurate and reliable criminal records.

On 7 March, sections 1-7 of the Crime and Security Act 2010 came into force, reducing the amount of information that must be kept following a stop and search, and requiring records to be kept only for three months.

In addition, there is now power to take samples from those convicted of ‘qualifying offences’ (listed in section 7) committed outside England and Wales with a power of arrest if they do not voluntarily ­surrender at a police station when required to do so.

Using prepared statements

In Gonzales v Folkestone Magistrates’ Court [2010] EWHC 3428, the court upheld the right of the defence to require the Crown to prove, as part of its case, any prepared statement of evidential value which was made by a suspect during the investigation.

Such a statement must be more than a mere denial of the offence and must effectively amount to a mixed statement containing both admission and denial (R v Pearce [1979] 69 Cr App R 365 and R v Sharp [1988] 1WLR 7).

This enables the defence to raise issues such as self-defence and duress during the hearing of the prosecution’s case and, if not then disproved, to make a submission of no case to answer; and also to rely on the prepared statement as a prior consistent statement under section 120 of the Criminal Justice Act 2003.

The right for the defence to require evidence obtained by the Crown and served upon the defence to be called rather than tendered is based on the decision in R v Russell Jones [1995] 1Cr App R 538.

Volunteers

The need for the police seriously to consider whether an arrest is necessary when a volunteer surrenders by agreement at a police station is emphasised by the decision in Richardson v Chief Constable West Midlands [2011] EWHC 773 (QB).

While the case is fact-specific, it emphasises the need for solicitors to make out the case on surrender why an arrest is not necessary and to show the weaknesses in the reasoning being used by many police service areas.

Few arrests in fact ensure a more prompt and effective investigation than if the volunteer is interviewed in that capacity as the custody procedures are thereby avoided.

There is no justification for an arrest because a client may make no comment in an interview as inferences from silence remain available.

Many police officers argue that an arrest is necessary because a volunteer may choose to leave part way through an interview.

Solicitors may therefore choose to emphasise, when making representations, that such is not the intention of their client.

The best reasons for an arrest are to impose bail conditions, but this is unlikely to apply in the case of someone allowed to surrender; or to give special warnings under the provisions of sections 36 and 37 of the Criminal Justice and Public Order Act 1994, which are only available if an arrest has been made.

However, if the client intends to answer questions in interview that should be made clear as this ground too would then be unavailable.

Anthony Edwards is senior partner at TV Edwards