Effective running of the courts - custody time limits


The law on custody time limits in major cases is left in disarray by two decisions from earlier this year, the first being R (Haque) v Central Criminal Court (2003) 10 Archbold News 1; R (Gibson) v Winchester CC (2004) The Times, 9 March. In those cases, the Divisional Court made it clear that there is now no need for the Crown to show that it has acted with all due expedition and diligence, if it can show that there was otherwise a good and sufficient cause for an extension of the custody time limit.



The court was required to look at the root or principal cause of the difficulty and, in major cases, the lack of a suitable judge or courtroom could amount to a good and sufficient cause. Once a time limit had been extended it could be extended again within that prolonged time limit.


However, the lack of a courtroom to hear a straightforward and routine case was not a good and sufficient cause in R v Bannister & Guildford Crown Court (Divisional Court, 29 January 2004).



Adjournments and amendments



The senior judiciary is making clear that it will not allow prosecution cases to collapse on technicalities when the defence has been fully appraised of the true situation and there is no prejudice. Rather they will, in appropriate cases, allow amendments to an indictment or the re-opening of a case so that critical evidence can be received.



However, in R v Gleeson (2003) The Times, 30 October, it was stated that there was a professional duty on lawyers to identify procedural errors at an early stage. This needs to be understood in context. Solicitors have a duty of confidence to clients, and may not disclose matters without their authority. In practice, the solicitor will wish to point out to the client the readiness with which applications to amend by the Crown will be allowed if a purely procedural point is taken without giving notice at an earlier stage.



Similarly, in Hughes v DPP 167 JPN 896, the Crown was allowed to call additional evidence after closing its case. This followed a technical submission that it had failed to prove a fact that had actually been admitted by the defence in discussions with the Crown, but that the prosecutor had forgotten to introduce.



However, solicitors will need to be careful not to apply these rules beyond their true remit. Criminal justice is adversarial and if there is a gap in the prosecution's evidence, without which the Crown could not succeed, the matter should be brought to the attention of the client. But it is extremely unlikely that a client would authorise a solicitor to point out such an error to the prosecution. In that type of case, a submission of no case should be made at the close of the Crown's case. Courts frequently deny the Crown adjournments in such situations to put matters right.



In R v Jisl (2004) The Times, 19 April, the Court of Appeal emphasised that case management, including the imposition of the time limits, was an essential part of the judge's role and cases had to be prepared and conducted in accordance with their directions.



Professional privilege



In R (Howe) v South Durham MC (2004) The Times, 26 February, the issue arose as to whether the Crown could witness-summon solicitors to give evidence for the Crown to identify a person for whom they had previously acted when the client was disqualified from driving. While the court indicated that this is a step that should rarely be taken, there was no issue of professional privilege involved. The solicitor was not being asked to disclose either instructions or advice but merely to confirm an identification of a client the solicitor represented in an open court. The fact that a client would have to chose a different solicitor for the hearing at which he was alleged to have driven disqualified was not a sufficient denial of a fair trial in those particular circumstances to prevent the evidence being called.


Appeal court: onus put on defence to identify use of interpreter
One aspect of the judgment needs to be treated with care. It correctly points out that an attendance note does not itself have privilege. This is accurate if it is merely a reference to the fact that a client met with a solicitor at a particular time on a particular day. However, if the attendance note confirms instructions received or advice given, that part of the note would indeed be privileged.



Interpreters



In R v Kaddu (2004) The Times, 18 February, the Court of Appeal placed the responsibility on defence solicitors to identify those appeals where the defendant had had the benefit of an interpreter in the Crown Court. A note should be attached to the appeal papers sent to the Crown Court to emphasise that fact.


By Anthony Edwards, TV Edwards, London