Update: crime

Plea discussions

There is an Attorney General's guideline for 'plea discussions in cases of serious or complex fraud'. This is designed to lead to plea discussions is cases that qualify, and came into force in May 2009. The source documentation needs to be studied for an understanding of qualifying cases, but essentially it provides for discussions between prosecution and defence that are designed to lead to resolution of serious and complicated fraud cases. A controversial point is the process whereby the parties could '“ or thought they could '“ agree the appropriate sentence, and incorporate this in their agreed written submissions for the judge.

For solicitors and counsel potentially involved in such delicate negotiations, two recent cases need to be studied: R v Innospec Ltd [2010] EW Misc 7 (EWCC) and R v Dougall [2010] EWCA Crim 1048. The Court of Appeal approved Thomas LJ's approach to sentencing in Innospec and the Lord Chief Justice said ''¦although the prosecution should be involved in the process by which the sentencing court is fully informed (about the defendant)'¦ this process does not involve an agreement about the level of sentence. Agreements'¦ between prosecution and defence about the sentence to be imposed on a defendant are not countenanced.'

The Lord Chief Justice also had some comments to make about any suggestion that white collar criminals are 'somehow more respectable' than other criminals: 'Once convicted, they join the ranks of common criminals.'

Video link evidence

Relevant parts of sections 51, 52, 54 and 56 of the Criminal Justice Act 2003 came into force on 26 April this year. In certain circumstances witnesses (other than the defendant) may give evidence via a live video link from a place other than the court building in relation to all offences in all courts.

It is also worth noting that under section 34 of the 2003 Act (amending the defence case statement provisions in the CPIA) '“ in force from 1 May 2010 (why do they wait seven years?) '“ a defendant must notify the prosecution of details of all defence witnesses. There is a code of practice giving guidance to the police, stating 'if practicable' an audio or visual recording of the interview should occur.

Facebook evidence

The Court of Appeal has recently considered the admissibility of evidence from the social networking site in Delaney [2010] EWCA Crim 105. The judge allowed the defence to adduce bad character evidence of the complainant's character from his Facebook site. The Court of Appeal upheld this approach.

However, future cases may not be as straightforward; there can easily be problems with continuity and the integrity of attributable remarks '“ readers may have examples of 'friends' inserting comments on their sites. It is suggested that caution should be exercised and all hearsay issues fully explored before the admission of such evidence.

Not guilty by reason of insanity

The above 'special verdict' is only applicable to insane automatism.

Is it time for a change in the law? A defendant who is fit to be tried but has a genuine psychiatric defence to an offence (such that he is within the M'Naghten Rules) still has to be tried by a jury.

There are three possible verdicts '“ guilty, not guilty or 'not guilty by reason of insanity'. In the event of this special verdict, the court still has sentencing powers '“ a hospital order, supervision order or absolute discharge. The defendant (unlike on a fitness to plead trial) will not face any later trial of the offence.

It is suggested that the more appropriate course would be either (a) for a jury simply to determine if the defendant 'did the act' '“ in other words to put such a case on the same legal footing as if a defendant is unfit to plead; or (b) for the judge alone to be allowed to enter the special verdict if the evidence is agreed. The legal basis for the special verdict stems from the Trial of Lunatics Act 1883 (as amended by section 1 of the Criminal Procedure (Insanity) Act 1964). The titles of the Acts reflect less enlightened times, and perhaps consideration should now be given to amending the above verdict to a less pejorative one, such as 'not guilty by reason of a disease of the mind at the relevant time'.

A review of recent decisions from the Divisional Court throws up a number of interesting points that may have useful practical application in day-to-day practice.

Communal areas as 'dwelling' under the harassment provisions in POA 1986

This question was answered with a resounding 'no' by Elias LJ in Le Vine v DPP [2010] EWHC 1128 (Admin). Mr Le Vine lives in a self-contained flat but shares the lounge, toilet and laundry facilities with his neighbours in the block. During a confrontation with one of his neighbours in the laundry room, he shouted and swore at her and was subsequently convicted of using words and

behaviour intended to cause another person harassment, alarm or distress (pursuant to section 4A of the Public Order Act 1986). He appealed on the basis of the exception in section 4A(2) of the Act which provides that no offence is committed when a person is 'inside a dwelling and the other person is also inside that or another dwelling'.

Elias LJ said that it was relevant that the laundry room was used for 'domestic purposes', and that access to the laundry room was limited to residents of the flats, but concluded that the 'crucial question' was whether the room was 'occupied as part of [a] home'. This, Elias LJ decided, was 'a communal room shared by those who live in a number of homes within [one] building'.

Forgetfulness as a 'good reason' for having a bladed article

So the court found in Chahal v DPP [2010] EWHC 439 (Admin). Mr Chahal was casually employed in a role that involved him using a knife. After a day at work using a knife, he placed it in his jacket pocket and forgot about it. Days later he was wearing the jacket while out with friends when he was stopped by the police. He was subsequently convicted of having a bladed article in a public place. He appealed on the basis of section 139(4) of the Criminal Justice Act 1988, which provides a defence if the defendant proves he had a 'good reason' for having the bladed article, and section 139(5)(a), which provides a specific defence if the defendant has the knife for use at work. The court decided that while forgetfulness alone could not amount to a 'good reason' (R v Jolie [2003] EWCA Crim 1543) it could provide a defence when coupled with one of the legitimate reasons in section 139(5).

When is a hypothetical bystander too hypothetical?

In Leeson v DPP [2010] EWHC 994 (Admin) the court considered a conviction for affray following an incident between a cohabiting couple with a 'turbulent' relationship. In the upstairs bathroom of their otherwise empty and locked house, Ms Leeson had, when drunk, taken a kitchen knife in hand and threatened to kill her partner. He did not feel threatened and did not believe she would use violence against him, but called the police for support. Ms Leeson was subsequently convicted on the basis that there was a chance, albeit slight, that her children could arrive home while she was holding the knife.

Therefore, within the meaning of section 3 of the Public Order Act 1985, she had threatened unlawful violence against another and her conduct was such as would have caused a person of reasonable firmness present at the scene to fear for his personal safety. Section 3(4) of the Act provides that: 'No person of reasonable firmness need actually be, or be likely to be, present at the scene.'

The Divisional Court acknowledged that a conviction based on the hypothesis of a person of reasonable firmness being present at the scene was sound, but that hypothesis must be considered in the context of the facts in the case. Ms Leeson's threats had taken place within a matter of seconds in an upstairs room of an unoccupied house with no expectation of a third party coming home, let alone into the bathroom. The offence of affray was aimed at the protection of a bystander from fear of unlawful violence. Though a remote possibility of a bystander arriving could give rise to affray, there was no such possibility in the instant case.

Re-interpreting 'a change of circumstances'

It is a well established common law rule that a change of circumstances had to be shown before it was appropriate for a lower court to revisit an earlier ruling made at a pre-trial hearing. In Jones v CPS [2010] EWHC 916 (Admin), the CPS applied to a magistrates' court for an adjournment of a trial the day before it was due to start.

The only evidence linking Mr Jones to the offence in question was DNA evidence. The application arose when a CPS representative before the court on unrelated matters was handed a one-page fax saying that the DNA evidence was not yet available. There was no explanation of why the evidence was not available, or when it would be ready, and the magistrates refused the application. The next day, the barrister instructed to conduct the trial, with access to the full case file, applied to a different bench of magistrates for the trial to be adjourned, explaining why the CPS was not ready to proceed. The magistrates granted the adjournment and Mr Jones appealed.The Divisional Court held that, while the common law rule was still good law, the interests of justice was now a relevant consideration in applying the rule.

The Courts Act 2003 had inserted sections 8A and 8B into the Magistrates' Court Act 1980 to the effect that magistrates can make binding pre-trial rulings and vary or discharge those rulings if 'it appears to the court that it is in the interests of justice to do so'.

In this case, an adjournment was in the interests of justice and, in any event, 'a change of circumstances' encompassed not only a change of objective circumstances, but also the situation where, although the objective circumstances had not changed, they were brought to the attention of the court for the first time.

Cranston J was keen to make clear, however: 'None of what I have said is to give encouragement to poor initial applications which have to be supplemented later by applications to remedy the defect'¦ courts must not tolerate inefficiencies on the part of the Crown Prosecution Service or anyone else.'