Non-disclosure by the prosecution of relevant material continues to cause miscarriages of justice.
In R v Fergus [1993] The Times, 30 June, the court emphasised that it was imperative that in identification cases the defence should be alive to the need to have disclosed photographs and crime reports.
If necessary, the trial court should be asked for an appropriate order.
No public interest immunity attached to such photographs and crime reports.In R v Clinton [1993] Crim LR 582, the court emphasised the need for solicitors to check the accuracy of the summary of any taped interview - which in that case contained important omissions and distortions.
The conviction was quashed because of the failure by defence counsel to call the defendant.IntoxicationThe law on involuntary intoxication has now been clarified.
In R v Kingston [1993] Crim LR 781, the appellant was charged, with another, with indecent assault on a boy.
The defence was that he had been drugged by his co-defendant who had arranged to blackmail him.
Had he not been drugged he would not have acted as he was shown to have done and in a way of which he had no recollection.The Lord Chief Justice indicated that if the sole reason why the action was taken was, or might have been, that the inhibition which the law imposed had been removed by the clandestine act of a thi rd party, the purposes of the criminal law were not served by holding that a person performing the act was guilty of an offence.
The involuntary intoxication negated the mental element of the assaultThis contrasts with the law on voluntary intoxication.
In R v Bowden [1993] Crim LR 380, the court repeated that in other circumstances a drunken intent was nevertheless an intent.
However, the onus of proof remained on the prosecution to satisfy the court that, at the material time, the defendant did have the requisite intent.
A capability to form the intent was not enough.
The defendant must actually have formed the intent required by the statute (R v Cole [1993] Crim LR 300).Violence and public orderThe mental element necessary to prove an assault is an intention to apply unlawful force to a victim.
A defendant is to be judged according to his or her mistaken view of the facts, whether that mistake was, on an objective view, reasonable or not.
Thus the reasonableness of a person's actions in self defence has to be judged according to their own view of the circumstances (R v Williams (Gladstone) [1987] 3 All ER 411).Applying this rule in R v Scarlett [1993] The Times, 18 May, the court indicated that an accused is entitled to be acquitted of manslaughter if he or she was justified in using force against the victim, even though he or she mistakenly believes that the circumstances called for a degree of force objectively regarded as unnecessary.The same principle was applied in Blackburn v Bowering [1993] The Times, 4 November.
A person charged with assaulting a constable - or in this case an officer of the court - in the execution of his or her duty need not be proved to know that the victim was a constable, or acting in the execution of his or her duty, in order to be convicted.
However, he or she should be acquitted if he or she honestly but mistakenly believed that the victim was not a constable or that he or she was acting in reasonable self-defence.In R v Chand-Fook [1993] The Times, 19 November, it was confirmed that an assault causing actual bodily harm does not include an assault causing mere emotional harm such as fear, distress or panic.
This has to be distinguished from a situation where psychiatric damage is caused.
Evidence of some identifiable clinical condition will be sufficient to meet the definition and should normally be proved by expert evidence.
Mere emotional harm alone will not suffice.A person cannot be guilty of an offence of violent disorder contrary to s.2 of the Public Order Act 1986 if what they had done was either in self-defence, or reasonable defence of a friend, or an attempt to stop a breach of the peace.
In none of those situations would unlawful violence be involved (R v Rothwell & Barton [1993] Crim LR 626).
Unlawfulness was also required for offences under ss.
3 and 4.
In particular, reasonable self-defence had to be disproved by the prosecution in relation to the offence of threatening behaviour under s.4 (R v Afzal [1993] Crim LR 791).Under s.5 of the Public Order Act 1986 it is a defence for the defendant to prove that his or her conduct was reasonable.
In Kwasi Poku v DPP [1993] Crim LR 705, it was held that the appellant was entitled to protest when police officers removed his ice-cream van without explaining the limited circumstances in which they were entitled to do this and that the property would be returned.Legal aidThe Legal Aid in Criminal and Care Proceedings (General) (Amendment) (No.
2) Regulations 1993 are now in force.
Their purpose is to ensure that there is proper documentation to support statements as to means without causing unnecessary delay to the hearing of criminal proceedings.
If it is not reasonable at the time to produce documentation, then legal aid should be granted forthwith but can be withdrawn if the documents are not produced when they can be obtained.
Difficulties in obtaining the relevant documentation are already adding significantly to the legal aid budget by the use of the green form for those who are eligible for that form of assistance.Solicitors should ensure that the courts do use the new regulations to grant legal aid without suitable documentation, in appropriate cases.
The decision to act must be made at the time and without the benefit of hindsight.
Thus if a person is brought into court in custody overnight, the fact that they are then released on conditional bail does not justify a court in refusing to make an order under these regulations.At the time the person was before the court and the solicitor attended it was not practical to obtain the relevant evidence.
The order can then be withdrawn if the evidence is not forthcoming within a limited period, but the solicitor will then know whether or not to attend court.Solicitors should ensure, however, that they complete the new legal aid financial statements fully and, in particular, complete the final box on the form to explain why any documentary evidence is not available.
The amended regulations require that there be documentary evidence unless there is a reasonable explanation why, at the time of submission of the statement of means, the defendant is unable to provide it.By the new reg 56, solicitors and counsel are under a new duty to report an abuse of legal aid, where the legal representative knows that the assisted person has intentionally failed to comply with any of the provisions of regulations made under the legal aid Acts or, in furnishing such information, has knowingly made a false statement or representation.
The difficulty for legal advisers will be to know what any client intentionally has failed to do.
If matters came to the notice of the legal representative, they would at least have to put it to their client before being able to form that knowledge.Financial eligibility has to be distinguished from the interest of justice test under s.22 of the Legal Aid Act 1988.
In R v Liverpool City Magistrates, ex p.
McGee [1993] Crim LR 609, two matters of importance were confirmed.S.22(2)(d) of the Act refers to the expert cross examination of a witness and not the examination of an expert witness.
It referred to the questioning, not to the nature of the witness.
Furthermore, although a community service order was not properly to be regarded as of a sentence depriving the accused of his or her liberty within s.22(2)(a), the list of relevant factors in s.22(2) was not exhaustive, and in an appropriate case the possibility of a community service order might be a factor to be considered.R v Liverpool City Magistrates Court, ex p.
Shacklady and Pender [1993] 2 All ER 929, dealt with the issue of the revocation of a legal aid order for non-payment of contributions.
It confirmed that a defendant in such a situation could not make a fresh application to the clerk to the justices but must reapply to the trial court under reg 10 of the general regulations.
However, in R v Liverpool Magistrates Court, ex p.
Pender [1993] The Times, 22 July, it was confirmed that a remand hearing in a magistrates' court was included in the definition of the trial court.
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