A (final) roundup

Police questioning

In R v Shepherd [2019] EWCA Crim 1062 it was stated that: ‘Although, in an attempt to escape compliance with the codes, the police cannot ignore the possibility that a criminal offence (even one punishable with a financial penalty at the behest only of a different authority) has been committed, it is equally important that police officers should not be subject to a potential trap if, by careful searching of byelaws, an esoteric offence of which they cannot be expected to be aware can be found.’ 

Thus, provided the police act in good faith, PACE Code C, with its important protections for those who have in reality become suspects, does not apply to questioning unless it is obvious that there is an offence under investigation. In this case answers were therefore admissible at a trial for gross negligence manslaughter even though a technical offence is indicated, here under Port of London Byelaws 1978. The importance of the case, however, is to distinguish the very common situations in which ‘interviews’ for common offences are being undertaken on body–worn video. The audio material in such situations should be excluded under section 78 of the Police and Criminal Evidence Act 1984.

Witness summons

In R v Dania [2019] EWCA Crim 796, the Court of Appeal emphasised the importance of the earlier decision in R v Russell Jones [1995] 1 Cr App R 538, in which the court set out seven important principles as to whether or not the prosecution were obliged to call or tender particular witnesses. These principles need constantly to be borne in mind at summary trials. The starting point for the principles is that the prosecution should generally have at court all those witnesses who (in modern terms) had been part of the served prosecution evidence. If the prosecution witness can give direct evidence as to important facts, and the prosecution believe the witness to be truthful (even if perhaps mistaken or even if perhaps untruthful in a particular respect), then the prosecution should call, or at least tender, the witness unless there is some good reason not to do so, which is not inconsistent with the prosecution’s duty to act fairly in the interests of justice. But the prosecution are under no duty to call or tender a witness whose evidence they have decided is not capable of belief, for the simple reason that his evidence cannot assist the jury. The prosecution are entitled to keep their evidence under review and to change their assessment of whether a witness is capable of belief. 

The court went on to consider the interests of justice test in section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965, and the judgment will be relevant also to an application under section 97 of the Magistrates’ Courts Act 1980. The court gave the judge a far wider discretion than has previously been the case.

When deciding whether a witness is likely to be able to give material evidence, issues may arise where a witness can at best only give evidence about a peripheral matter in terms that merely echo other evidence already given or that can be the subject of admissions. Similarly, issues may arise if there is evidence that provides a clear basis for the judge to assess the witness as incapable of being believed. The judge is entitled to consider objective evidence that bears upon the reliability of the witness: for example, incontrovertible photographic evidence that flatly contradicts an important part of the witness’s probable evidence. The assessment of the interests of justice will be a fact-specific judgment, based upon an evaluation of all relevant circumstances. For example, it may be proper for a judge to take into account that a witness is in very poor health and would risk further injury to health if required to make the journey to court. The summons might be refused if the witness could offer very little evidence of any real value or assistance to the jury, but is highly likely, for reasons of personal animosity, to give evidence in a way that improperly and inadmissibly prejudices the case of a co-defendant.

Defendants who are unfit to plead

In R v Roberts [2019] EWCA Crim 1270 the Court of Appeal made clear that, once a person has been found unfit to plead by a judge at the Crown court, a legal aid  representation order is no longer of any effect and, in relation to a trial of the issue under section 4A of the Criminal Procedure (Insanity) Act 1964, legal representatives should seek an appointment under section 19(3)(d) of the Prosecution of Offences Act 1985 (payable under Regulation 4 Costs in Criminal Cases (General) Regulations 1986). This will have the effect that their further work is remunerated at private client rates from central funds.

Because a person is unfit the court also held that they are not competent to lodge an appeal against any finding by a jury and this must be handled by the lawyers appointed. The defendant is also not competent to waive privilege.

Offensive weapons

A court has a wide discretion to decide whether a reasonable excuse is made out. In  Garry v CPS [2019] EWHC 636 (Admin) the court held an innocent purpose for having a weapon, offensive per se, in a public place does not equate to a reasonable excuse; rather the court is entitled to consider the issues of necessity or immediate temporal connection between possession and the purpose for which it is carried. 

The defendant was found in possession of a butterfly knife (offensive per se) and he said that his defence was  he carried the knife habitually and used it for his work, discounting alternative tools as being ineffective. A tribunal of fact must review the balance of evidence, which would include considering the type of weapon and where it was found. It was not in a toolbox or overalls’ pocket, but in the glovebox of his personal vehicle. It was found on a Saturday afternoon, when there was no evidence that he had been working. If it rejected temporal proximity, the court must then consider whether the defendant might have forgotten to move the weapon out of the public place. 

Confiscation

Section 22 (for the Crown) and section 23 (for the defence) of the Proceeds of Crime Act 2002 contain provisions for the variation of confiscation orders where there is a variation in the circumstances of the defendant. 

Any resulting order must be one the court believes to be just. This phrase was interpreted very widely indeed in R v S [2019] EWCA Crim 569.

It held that the court may have regard to delay and assistance given over a period of time to the police. Similar considerations will also apply to section 23 and clients should be advised of the possibility of such applications. If legally aided, the original order remains in force for any application to vary.

A personal note

This update will be my last. I am retiring after 45 years of practice in criminal law. I wrote my first update for the Gazette in January 1991 and there have since been 150 editions. They have not sought to deal with the academic or esoteric. Rather they have been directed to the high street legal aid lawyer working daily in the criminal courts and in police stations. I hope they have been helpful. 

Anthony Edwards is a solicitor at TV Edwards