Case Law of Interest
A reminder, yet again that a guideline sentence has no effect unless or until that guideline is in force
– both the Commission of Offence date and Conviction date are irrelevant if they pre-date the
guideline – R v Boakye and Others Court of Appeal (apologies for the absence of a citation).
Regina and Alan Newell [2012] EWCA Crim 650 is a most important case in which the issue in the
appeal against conviction was whether the judge was right to admit as evidence a previous
inconsistent statement that the appellants previous counsel had written on a plea and case
management form at the plea and case management hearing. The appeal was allowed and the
conviction quashed. This was a case concerning possession of cocaine with intent to supply. The
suspect had no commented the interview and at the PCMH no defence case statement had been
served but counsel had put on the PCMH form “no possession”. By the time of the trial the defence
were in possession of a proof of evidence from which a defence statement had been drafted albeit
not signed, a new defence statement was then served on the first day of the trial itself in which the
defendant accepted possession. Being in possession of this, counsel added a second count of
simple possession to the indictment to which the appellant pleaded guilty. In relation to the trial
itself (which, of course, concerned possession with intent to supply) counsel in cross-examination
handed the PCMH form to the defendant and the judge and received the judge’s permission to
cross-examine the defendant upon the form as being a statement inconsistent with his defence
given at trial. Counsel for the defence had been given no notice of the intention to use the PCMH
form in this way. The judge made it clear that he would give a S.34 Direction in relation to both
interviews (remember they had been no comment), an adverse inference direction in the failure to
deliver the defence statement until the morning of the trial and also that he would also give a Lucas
Direction in relation to the entry on the PCMH form. Counsel for the defence made it clear that he
could say nothing in view of the fact that the judge had ruled against him in the cross-examination
point on the PCMH form by prosecution for the Crown. The Court of Appeal had two simple issues
in front of them: firstly, was the statement admissible? Their view was that the form was, in
principle, as a matter of law, admissible at the trial under S.118 of the Criminal Justice Act 2003. The
second issue was whether or not, it being admissible, the judge should never the less have exercised
his discretion under S.78 of PACE to decline to admit the evidence and the Court held that on these
facts the judge should have ruled it inadmissible. There was much discussion of the decision of Firth
v Epping Forest Magistrates’ Court. The court saying this at Paragraph 35
“In the Magistrates’ Court where there is no PCMH and no provisions equivalent to S.11 of the CPIA
unless a defence statement is given voluntarily, the position is a little different. The trial preparation
form (which has replaced the case progression form) should be completed at the first hearing. It
provides for the making of admissions or the acknowledgement that matters are an issue. Where
admissions are made they will be admissible at the trial. Where statements are made on the form
which are not made under the section relating to admissions, such statements should be made
without risk that they would be used at trial as statements of the defendant admissible as evidence
against the defendant, provided the advocate follows the letter and the spirit of the Criminal
Procedure Rules.”
And at Paragraph 36
“Applying what we have set out, therefore, the position should be, provided that the cases are
conducted within the letter and spirit of the Criminal Procedure Rules, information or a statement
written on a PCMH form should in the exercise of the Court’s discretion under S.78 not be admitted
in evidence as a statement that can be used against the defendant. The information is provided to
assist the Court. Experience has shown that, unless the position is clear, the proper administration
of justice is hampered. There may be of course cases where it would be right not to exercise the
discretion but to admit such statements. Those circumstances are fact specific, but an example is a
case where there was no defence statement, despite the judge asking for one to be provided, and an
ambush attempted inconsistent with what was stated on the PCMH form. In such a case it would
not be appropriate to exercise the discretion to refuse to admit what was stated on the form, if an
adjournment to enable the Crown to deal with the issue could be avoided. However, we think,
provided the parties adhere to the letter and the spirit of the Criminal Procedure Rules and follow
the practices we have outlined, such cases should be very, very, rare”.
Having just read the last two paragraphs you will appreciate that this has radically altered the
position to that which we thought was the case following the decision of Firth v Epping Forest
Magistrates’ Court (and a good thing to I can hear many of you saying!).
Whilst on the subject of defence statements the case of R v Haynes [2011] EWCA Crim 3281 is worth
a read. The appeal in this case was on the issue of how the judge should direct the jury in relation to
a defence statement, unsigned but said by the prosecution to be inconsistent with the defendant’s
evidence at trial. The Court making it clear the judge should have discussed the point with the
advocates and made it clear what decision he had reached as to whether or not adverse inferences
should be drawn and then to make some comment to the jury on the point. In the case itself the
judge had actually said nothing.