The Court of Appeal may have condoned the use of information provided by the defendant’s solicitor on a case progression form as evidence, but advocates should still be cautious, says Benjamin Newton
The High Court’s decision in R (Firth) v Epping Magistrates Court  EWHC 388 (Admin) condoned the justices’ decision to use information provided by the appellant’s solicitor on a case progression form as evidence with which to commit to the Crown Court. That this might become the thin end of the wedge became clear in the Court of Appeal’s recent judgment in R v Newell  EWCA Crim 650.
In short, prosecution counsel (somewhat ironically) ambushed the defendant by seeking to cross-examine him on a statement made by his advocate on the PCMH form, which was potentially inconsistent with his account at trial. The judge was not swayed by the defence protestations, and subsequently gave the jury a Lucas direction in relation to the purported lie.
Thankfully, the Court of Appeal held that while assertions made on the defendant’s instructions in a PCMH form are admissible evidence, where a defence has been conducted in the spirit of the Criminal Procedure Rules, a judge ought to exclude the evidence pursuant to section 78 PACE.
Writing on 17 May 2011 (Solicitors Journal, 155/19), David Rhodes argued that the decision in Firth meant that defence advocates should decline to make any factual admissions (specifically on magistrates’ court case management forms) until the prosecution had complied with its duties of disclosure.
The court in Newell noted that “it appears that since the decision in Firth, one of the consequences has been that defence lawyers have become much more cautious in providing information on the form… Experience has shown that, unless the position is clear, the administration of justice is hampered.”
Still at risk
Addressing this problem, the court therefore held that “where statements are made on the form which are not made under the section relating to admission, such statements should be made without the risk that they would be used at trial as statements of the defendant admissible in evidence against the defendant, provided the advocate follows the letter and the spirit of the Criminal Procedure Rules”.
All well and good when viewing a case with hindsight, but an advocate appearing at a first appearance cannot be certain that the rest of the proceedings will be conducted in the spirit of the Criminal Procedure Rules. Newell was principally concerned with PCMH forms, but even then is a good example of these dangers because the defendant had been subject to a transfer of legal aid between PCMH and trial, and it is not clear from the judgment whether his lawyers had ever seen the PCMH form until it was produced in front of the jury. Similarly his advocate at PCMH could not have known that there would be a change of representation and a defence statement would not be served until the day of trial.
Given that the Court of Appeal has stopped short of giving us a blanket assurance, advocates at magistrates’ and Crown Courts will therefore still want to be cautious about what we scribble when we can’t foresee how a case might develop.