By Anthony Edwards, TV Edwards, London


Simple, speedy, summary justice: privilege

In R (Kelly) v Warley Magistrates Court [2007] EWHC 1836 (Admin), the Divisional Court reached a critical decision in relation to the handling of case management hearings at all levels of court.



It is clear that the Criminal Procedure Rules 2005 made under the Courts Act 2003 override legal confidentiality. Therefore, solicitors are obliged to advise a court whether they have given advice to the client on the issue of discount for a guilty plea, and on the likelihood of a trial proceeding in their absence if they should not appear. For the same reason, solicitors are bound to advise the court when they are without instructions from a particular client, if this would interfere with the effective hearing of the case.



However, the position is different when issues of privilege arise. In Warley, the issue was whether a defence solicitor was bound to disclose the names and addresses of defence witnesses. The deputy district judge had required these in accordance with the case management powers of the Criminal Procedure Rules, notwithstanding that the specific statutory powers in the Criminal Justice Act 2003 have not been brought into force. He took the view that these details were essential for the Crown to know whether any bad character application was required in relation to those witnesses under section 100 of the Criminal Justice Act 2003. The Divisional Court was unwilling to read into the rules or the legislation supporting them an implied waiver of legal privilege. It held that if there were to be such a waiver it must be expressly set out in the legislation.



While Warley restricted itself to the issue of the naming of witnesses, it has a wider application to anything covered by legal professional privilege and to litigation privilege generally for unrepresented defendants. Thus, even at a case management hearing a solicitor may not, without the consent of his client disclose: information provided so that the solicitor may advise; or the advice that had been given. Similarly, a solicitor may not disclose, without such consent, information made available in contemplation or in support of litigation. Most significantly, this means that a solicitor may not, without a client's authority, advise a court what are the main issues in a case.



However, when advising a client in privileged circumstances about such identification, solicitors must advise them that technical or purely procedural defences are seldom allowed to succeed. The line of cases confirming this begins with R v. Gleeson [2003] EWCA Crim 3357 and was confirmed in R (DPP) v Chorley Justices [2006] EWHC 1795 (Admin). The force of this view was confirmed in R v Ashton & Others [2006] Crim LR 1004; the court was bound to ask itself if Parliament intended that the issue should invalidate the proceedings. If that was not Parliament's intention, the only relevant consideration for the court was whether the defence would be prejudiced. This might apply if they had presented a case in a particular way. The position was perhaps best summed up in Khatibi v DPP [2004] 168 JP 361 when the court confirmed that, while it was proper for a defence advocate to put the prosecution to proof of each point and keep silent as to shortcomings until advantage can be taken of them, they could not complain if the court chose to allow the Crown, in the interests of justice, to re-open its case.



The principles are:

- The discretion to allow re-opening is not limited to matters arising on the spur of the moment or mere technicalities; it is a general discretion;

- The general rule is that the Crown must finish its case once and for all. Discretion should only be used rarely;

- The discretion being exercised required fairness to the defendant and checking if any prejudice has been caused;

- Criminal procedure, although adversarial, is not a game; in the overall interest of justice a prosecution must not fail through inefficiency, carelessness or oversight;

- Prejudice may arise if the defendant shaped or adjusted his defence to make a particular case (see Tuck v Vehicle Inspectorate [2004] EWHC 728 (Admin).



The most extreme example of this approach to prosecution shortcomings appears in Malcolm v DPP [2007] Crim LR 894 where the Crown was allowed time to obtain new evidence even though the Bench had retired and was about to announce its decision. However, solicitors will wish to use their local knowledge about whether courts are willing to allow prosecution adjournments over failures to prepare essential ingredients of their case. In many circumstances, it may be better to advise the client to identify the issues early so that the Crown has an opportunity to deal with them. Crown applications for adjournment on their failure then to do so are less likely to be granted.



The giving of advice on the identification of the matters in issue is not made easier by decisions such as R v Adams (2007), The Times 14 December, where the Crown could not, in the absence of hearsay evidence, prove a basic ingredient of the crime. The court held that, as the issue had effectively been admitted at the directions hearing, it was in the interest of justice (section 114 (1)(d) of the Criminal Justice Act 2003) to admit the necessary hearsay evidence.



For general advice, see guidance on the Criminal Procedure Rules at www.lawsociety.org.uk.



The position will be further affected from 7 April by amendments to the Criminal Procedure Rules. However, the requirement in part 3.10 to identify witnesses does not remove a client's privilege. Part 3.5 (6) provides for a court to make a costs order, but a solicitor is not liable in costs for complying with their professional duties - only for carrying them out negligently or unreasonably. The rule also allows the court to 'impose such other sanctions as may be appropriate.' However, the note to the rules makes clear that there must be an independent statutory basis for doing so. Whether a witness or an issue in the case should be identified remains a matter for the client, on advice, to determine.



Case summaries

In CJSSS courts, there are some concerns about the way in which the prosecution case is summarised. These summaries are not always accurate and are not correctly identifying defences or significant mitigating factors. While a district judge or legal adviser has the opportunity to read all the evidence in a case, defence solicitors will wish to ensure that they do have a detailed understanding of the main issues, rather than an understanding of the summary prepared by the Crown. Solicitors should also be diligent to ensure that the disclosure made is proportionate to the needs of the case.



The obligation under the Criminal Procedure and Investigation Act 1996 to carry out a full investigation is not removed by the provisions for speedy justice, and in appropriate cases solicitors should be prepared to argue for adjournments so that the proper work may be done. The Crown is given significant numbers of bail enlargements to prepare its case during the investigation stage and defence solicitors should only proceed on the first occasion when justice can be done to their clients; for many clients the removal of the anxiety of the criminal case at the first opportunity is a welcome step. If a not-guilty plea is entered, solicitors should check the papers served for hearsay and character notices, as time for the service of counter notices will begin to run immediately.