The Supreme Court in R v Horncastle [2009] UKSC14 has upheld the decision of the Court of Appeal that, in appropriate circumstances, the Crown may rely wholly or mainly on hearsay evidence to establish its case. The Court of Appeal had, however, emphasised the need to check the reliability of the hearsay evidence in such situations.

It held that the evidence must be demonstrably reliable and its reliability must be properly assessed and tested, and while the provisions for unavailable witnesses in section 116 of the Criminal Justice Act 2003 allow for the use of hearsay evidence where a witness is in fear and that fear is to be broadly construed, it is unlikely that fear based on inappropriate assurances by the police will result in the evidence being admitted.

In R v T (D) [2009] EWCA Crim 1213 the court confirmed that hearsay should not be lightly admitted and could not be allowed in the absence of formal evidence to establish the statutory grounds. In R v Sadiq & Hussain [2009] EWCA Crim 712 the court considered the interests of justice test in section 114(1)(d) of the Criminal Justice Act 2003. It confirmed that the interests of justice included not only the public interest in crimes being tried but the interests of the accused. It would not normally be in the interests of justice for a witness’s hearsay evidence to be admitted where he simply refuses, without good reason, to testify when he is available and capable of giving evidence. The particular case had exceptional circumstances.

Bad characterThe courts have given considerable attention to ‘gateway’ (d) for the admission of evidence of bad character under section 101 of the Criminal Justice Act 2003. This allows for the admission of bad character if it is relevant to an important matter in issue between the defendant and the prosecution. That term is further defined by section 103 of the act as including: (a) the question whether the defendant had a propensity to commit offences of the kind with which he is charged (except where having such offences makes it no more likely that he is guilty of the offence) and (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant’s case is untruthful in any respect.

The courts have had to point out that this is not an exclusive list and the use of the word propensity to describe gateway (d) can be misleading. The gateway is also available where the evidence is relevant to a matter in issue and strengthens other evidence in the case so that looking at the evidence overall the evidence appears stronger and more compelling. It may remove the possibility of co-incidence and evidence relating to a number of allegations as a whole may cast light on the evidence relating to an individual offence (R v McAllister [2008] EWCA Crim 1544).

Bad character may be established even if the conduct was not of the same character or in the same category (R v Johnson [2009] EWCA Crim 649). Thus, where a defendant argued the alleged sexual touching was accidental, a conviction 11 years old could be admitted as relevant to an important matter in issue namely whether it was indeed an accident (R v Woodhouse [2009] EWCA Crim 498).

Such evidence may for instance also go to credibility when that is the matter in issue (R v Hearne [2009] EWCA Crim 103).

However, the courts must be careful to avoid unnecessary satellite trials (R v McAllister above). This was confirmed in R v O’Dowd [2009] EWCA Crim 905 where the court warned against a trial losing focus by arguments in satellite litigation especially when there was no conviction in relation to the earlier incidents, those incidents are old, and the facts disputed.

Only the Crown may admit evidence of bad character under gateways (f) (false impression) and g (imputation). The fact that the material was in a prosecution statement did not make the gateways available to the defence (R v Assani [2008] EWCA Crim 2563). Defendants had to rely on gateway (e) where there is an important matter in issue between them.

ContinuityBefore the defence can succeed in a submission of no case to answer because of a lack of continuity, an evidential basis for that submission must now be laid, which should include cross examination on the particular issue being put to a suitable prosecution witness.

This will in many cases allow the Crown to cure the defect. In the absence of such questioning the magistrates were right to draw the inference that there was continuity (JL v DPP [2008] EWHC 238 (Admin)).

TerrorismThe House of Lords has clarified the provisions of sections 57 and 58 of the Terrorism Act 2000 in relation to the possession of articles and of records of information and documents likely to be useful to a terrorist. Section 57 is the much wider offence of possession of an article in circumstances which give rise to a reasonable suspicion that the possession is for a purpose connected with the commission, preparation or instigation of an act of terrorism. It is a defence that the possession was not for a purpose connected with terrorism.

Section 58 creates a crime of collecting or making a record of information of a kind likely to be useful to a person committing or preparing an act of terrorism or possessing such a document or record.

The House held that the information must, by its nature, be designed to provide practical assistance in terrorism. Innocuous material could not be subject to the act because of the intentions of the defendant.

However, if the information was caught it was irrelevant that it had other purposes. The defendant need only be aware of the nature of the material. It is a defence for a person charged to prove that he had a reasonable excuse for his action or possession. The House held that this had an objective meaning and neither a desire to annoy prison officers, nor the defendant’s mental health, could meet that requirement.

In the case of both sections the House held that the defences gave rise to an evidential burden only on the defence (R v G; R v J (Terrorism Information) [2009] UKHL 13).

ViolenceThe liability of those who join gangs for the conduct of others continues to be examined by the courts.

A person is guilty of manslaughter if he knows that another person has a knife and either intends him to use it to cause some injury, or realises that he may do so, and the other person actually kills intending to do so or cause serious injury.

The act is not fundamentally different to that intended when a knife is used to stab rather than to slash (R v Yemoh [2009] EWCA Crim 930). A person who foresaw the act of using a gun or knife that caused a death but did not realise that the principal might act with the intent to kill or cause serious harm was also guilty of manslaughter. (R v Parsons [2009] EWCA Crim 64).

Dangerous drivingTo take account of the driving skills of an individual driver is inconsistent with the objective test of a careful and competent driver. Thus the driving of police officers cannot be tested to a different standard. The court may, however, consider issues going to the driver’s condition, such as drunkenness or susceptibility to hypoglycaemic attack and relevant to the driver’s knowledge of the unroadworthiness of a vehicle, or of the weather or road conditions (R v Bannister [2009] EWCA Crim 1571 effectively overruling the decisions in Milton v CPS [2007] EWHC 532 (Admin)).

Professional conductDefendants often fail to appear for their trials and in modern circumstances the court is likely to proceed to hear the case in their absence. However, in Nadour v Chester Magistrates Court [2009] EWHC 1505 (Admin), the court held that it was wrong to have refused a defence application for adjournment merely because the time for trial is very tight and it is in everyone’s interest to proceed to trial expeditiously. The court must give proper consideration to all relevant circumstances, including the case history, available dates and the extent to which the other parties would be prejudiced. If the case does proceed, solicitors have to make a professional decision as to whether they can continue to represent their clients at the trial, or if they should withdraw. The decision to continue or withdraw is for the solicitor alone, and not the court (R v Ulcay [2007] EWCA Crim 2379). The Law Society has since issued practice guidance on this issue. A solicitor may withdraw from acting for a client where there are compelling reasons for doing so. The existence of those compelling reasons is for the solicitor alone. Most significantly, in this context a solicitor must not mislead the court and would be in great difficulties should issues arise during trial on which he or she does not have signed instructions.

Defence case statementsIn R v Essa [2009] EWCA Crim 43, the court made it clear that it is professionally improper for a solicitor at the Crown court stage to advise a client not to file a defence case statement. It was a statutory requirement to do so. Solicitors will, however, retain the right to advise clients of the decisions available to them, namely whether or not to file a statement and the advantages and disadvantages of each course. It is then for the client to make a decision which course to follow.

Criminal procedure rules The overriding objective of the criminal procedure rules has been much used by the prosecution to enable them to proceed in cases that were not fully or properly prepared. Thus, in R (Taylor) v Southampton Magistrates Court [2009] EWCA 3006 (Admin), the court held that it was proper for the Crown to be granted an adjournment to prove service of a section 172 notice, even when the defence had warned the Crown that this step should be taken to prevent the defence making a submission of no case to answer. The court held that it might have taken a different view had the issue been expressly pleaded in a defence statement. In Writtle v DPP [2009] EWHC 236 (Admin), the court declined to admit an expert report only served after the hearing had begun and had been adjourned part-heard. There had been no compliance with the relevant procedure rules and the issue had not previously been raised with the Crown. The court emphasised the importance of issues being identified before the hearing. However, the new situations being created by the overriding objective were emphasised against the Crown in CPS v Hammerton [2009] EWHC 921 (Admin). The court held that the magistrates had been correct to refuse a very late amendment to a charge so as to reduce it from an either-way offence to a summary-only offence. There is no question, as a matter of law, that the Crown is entitled to take such a step but, applying the overriding objective, the court held that the Crown, which had ample time to make the amendment, should not be allowed to do so at a very late stage. Where a lesser charge is to be substituted it must be proper and appropriate to the facts of the case. The application should be made promptly and not left until the last minute, and an eye should also be kept on considerations of the good administration of justice and the wider picture, such as the position of a co-defendant.

Courts must have regard to the nature of binding rulings under section 8A of the Magistrates Courts Act 1980. A court should not of its own volition vary its earlier order in the absence of new circumstances (R(CPS) v Gloucester JJ and Loveridge [2008] EWHC 1488 (Admin)). This is becoming particularly relevant as trials are over-listed under the streamlining procedures.

BailIn R v (Fergus) v Southampton Crown Court [2008] EWHC 3273 (Admin), the court accepted that judicial review is available in relation to a decision of a Crown court judge dealing with bail, where no other avenue of appeal exists. On the facts of the case the court held that to refuse bail on the entry of a not guilty plea at a plea and case management hearing, because of the defendant’s record, when he had been on conditional bail for four months without breach, was an irrational decision.

The strict rules of evidence do not apply in bail proceedings under section 7 of the Bail Act 1976. The court may rely on written hearsay provided if it is properly evaluated. The civil standard applies (R (Thomas) v Greenwich Magistrates Court [2009] EWHC 1180 (Admin)).

Assisting or encouraging crimeThe provisions of part 2 of the Serious Crime Act 2007 were brought into force on 1 October 2008. For offences committed on or after that date the provisions abolished the common law offence of incitement. They replaced it with three new offences which are so wide in their definition that they pose major issues for defence lawyers advising suspects, particularly at the investigation stage.

There must be a strong presumption that suspects in such cases should say very little, if anything, to the police as the provisions are so wide that they may unwittingly admit one of the offences. The new offences are: An act is criminalised as long as it is capable of encouraging or assisting whether or not an offence takes place. If the principal offence does take place D may also be guilty as a joint party.

  • D (the assister or encourager) does an act that is capable of encouraging or assisting an offence, intending to encourage or to assist another, P (the would-be principal), to commit that offence (section 44);
  • D does an act that is capable of encouraging or assisting an offence, believing that the offence by P will be committed, and D believes that his act will encourage or assist its commission (section 45); and
  • D does an act that is capable of encouraging or assisting the commission of one or more of a number of offences, and he believes: (i) that one or more of those offences will be committed (without having any belief as to which particular crime); and (ii) that his act will encourage or assist the commission of one or more of them (section 46).

Under sections 45 and 46 the only mens rea involved is that of a belief. In Hall [1985] Crim LR 377, the Court of Appeal said ‘belief, of course, is something short of knowledge. It may be said to be the state of mind of a person who says to himself: "I cannot say I know for certain that [the circumstance exists] but there can be no other reasonable conclusion in the light of all the circumstances, in the light of all that I have heard and seen".’

In Moys [1984] 79 Cr Ap R72, the court suggested simply that the question whether D knew or believed that the prescribed circumstance existed is a subjective one, and that suspicion, even coupled with the fact that D shut his eyes to the circumstances, is not enough.

DefencesBy section 50 of the 2007 act it is a defence for D to prove that he acted reasonably. D cannot be guilty of these offences if he is a victim (section 51). D cannot encourage or assist an impossible offence.

ProcedureSections 44 and 45 are triable in the same way as the principal offence, and section 46 is indictable only, in every case.

SentencingThe sentence available is that for the principal offence with complex rules under section 46, when it is usually the sentence for most serious charge.

Anthony Edwards, TV Edwards