Update: crime

Twitter guidance

Journalists were allowed to 'tweet' bail proceedings in Swedish Judicial Authority v Assange. There is currently a consultation process with a view to a protocol, but in the meantime there is interim guidance from the Lord Chief Justice about the use of 'live text-based communications' in open court to report proceedings. There is no statutory prohibition on the use of such communications, but an application for such use must be made to the judge so that he or she can be satisfied that such use will not 'interfere with the proper administration of justice'.

Clearly, if messages are being sent during evidence in trials to witnesses it can affect the integrity of the proceedings. The guidance can be viewed at 2010 All ER (D) 228 Dec.

The use of, for example, mobile telephones to text social arrangements and the like from court cannot interfere with justice. Practitioners are reminded of the apparent discourtesy and distraction that such activity causes, and of course the possibility that other court users '“ including clients '“ may perceive it as a lack of concentration and interest in the proceedings.

Admissibility

'A criminal trial is not a game under which a guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent.

'Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.' So said Auld LJ in the case of R v John Vincent Gleeson [2004] 1 Cr App R 29.

Since Gleeson and the introduction of the Criminal Procedure Rules in 2005, it has been incumbent upon defendants to disclose their defence. In many magistrates' courts this is recorded in a case progression form. Such was the position in R (on the application of Firth) v Epping Magistrates Court [2011] EWHC 388.

Firth, the defendant, pleaded not guilty to assault at her first appearance before the magistrates and a trial date was set.

The defendant was legally represented by counsel who completed a case progression form. Under the section headed 'Trial issues' the information recorded was: 'Assault on def by complainant. Only contact made was in self-defence.'

At a subsequent full committal hearing it was argued by the defence that the Crown's papers did not disclose any identification of the defendant and accordingly committal should be refused. The Crown sought to adduce the contents of the case progression form as evidence of the defendant's involvement in the alleged assault. The magistrates decided that the contents of the form were so admissible and the case was committed to the Crown Court. The defendant judicially reviewed that decision.

Toulson LJ, sitting in the Administrative Division of the High Court, considered the previous authorities of R v Hutchinson [1985] 82 Cr App R 51 and R v Dietrich and Aldridge [1997] 1 Cr App R 361. These cases concerned the admissibility of the contents of PCMH forms in the Crown Court. In both cases it was decided that it is generally undesirable and inappropriate to admit the contents of the forms in evidence.

However, Toulson LJ distinguished those cases by making reference to part 3 (dealing with case management) of the Criminal Procedure Rules. The court found that the case progression form was a court document and, insofar as it contained 'an admission made by an agent of the defendant', was admissible under section 118(6) of the Criminal Justice Act 2003.

Defence solicitors are therefore urged to be wary of what admissions, if any, are recorded in case progression forms as they are likely to be admitted in evidence at committal and thereafter at trial. Particular care is required since it is our understanding that in many magistrates' courts the forms are routinely completed by either the court legal adviser or, more worryingly, a representative for the Crown.

As an aside, Toulson LJ added: 'At the committal stage, where evidence is of possible but doubtful admissibility, it is good practice for the magistrates to admit it and leave the final decision to a higher court, as the magistrates correctly did in the present case.' Important admissibility points may well be sacrificed in the name of effective case progression.

Prohibited drugs

In Smith [2011] EWCA (no transcript available), the point was taken that prohibited drugs '“ heroin '“ did not amount to 'property' within the Theft Act 1968; thus theft of them could not be an appropriation because the owner had no right to possess items where possession is prohibited by law. In confiscation cases the 'retail' value of drugs is excluded as a realisable asset.

The Court of Appeal had little trouble in rejecting the appellant's submission. The law is quite settled that the sole question is whether the owner had 'possession or control' of the property, and there was no ground for qualifying these words in any way. Even if the 'victim' didn't own the drugs, he had a proprietary right or interest in them.

Confiscation orders

Many defendants (and advisers) receive an unpleasant surprise when they realise that interest runs at eight per cent on outstanding confiscation orders. These orders are enforced as fines, so far as default terms of imprisonment are concerned, and the starting point for enforcement (except the appointment of a receiver) is usually the magistrates' court '“ unless the order was made under the Drug Trafficking Offences Act 1986 serving the default term does not expunge the debt.

But, unlike fines, the magistrates have no power to remit interest. In Hansford v HMRC [2008] EWHC 67 Admin, the court rejected the proposition that there was discretion to remit interest. You may have a client who has done all in their power to make regular instalment payments only to find that the interest outstanding still equals the original order. What remedy do you have? If there has been delay in enforcement and/or the prosecution can't show that the defendant knew of the interest provisions (and this is all a matter of degree and proof) then is it fair that the balance should be enforced if other family members might be affected?

Mr Justice Jack, in Hansford, left open the question whether it might be incompatible with a defendant's human rights pursuant to the convention. Practitioners ought to be aware of (a) the interest charges, and (b) the potential to consider such arguments and applications to dismiss or stay enforcement proceedings.

Crown Court fees

Responsibility for payment has now been handed over to the Legal Services Commission. No longer will the 'page count' be sufficient. The form that requires completion is complex and requires a mass of detail (even co-defendants' middle names).

The documents to be sent with the claim include a copy of the original representation order, the front sheet(s) from the committal bundle and NAEs served by the prosecuting authority, a copy of the indictment, the order in respect of judicial apportionment (for each defendant) where applicable, invoices/receipts for accommodation and travel expenses (excluding mileage) required for all individual disbursements of £20 or more, hardship supporting evidence (e.g. bank statements/bank letter) and details of any and all fee advancements made previously.

Colleagues have heard, anecdotally, that payments are bound to be delayed by teething troubles and that there is already (as at 16 March) a backlog developing. Furthermore, any error or omission on the form will lead to its return. The only way to conquer this type of bureaucracy, short of waiving fees, is to ensure that the forms are submitted in pristine order.