Crime Brief

Contracting

A draft unified criminal contract has been issued for consultation. Subject to that consultation (although it is hard to think of one thing the Legal Services Commission (LSC) has not proceeded with in the recent past), the intention is to offer this contract to suppliers in July of this year. This will afford a further opportunity to new suppliers to enter the market, ironically since there is no longer any volume crime to be delivered, a lean “one man band” operating from a bedroom with a laptop seems to be the optimum business model in a legally aided environment.

Forms that are needed to claim the new litigator graduated fees (LF1 and LF2) are now available from the LSC website (see www.legalservices.gov.uk). In addition a number of criminal defence service forms are being updated and will be mandatory from 1 April 2008, so ensure you keep an eye out for changes to the forms master-pack, or check the LSC website.

The LSC has updated its guidance in relation to claims for litigator fees and readers are encouraged to read up on the new rules in order to ensure claims are made at the maximum fee level, there are various subtle scenarios that can greatly affect (positively) the claim being made.

Similarly, a further update has been made to the guidance on police station fixed fees. Of particular note is the table at the back of that document, which some of you may recognise from my course notes! Once again, the scope for multiple fees is little understood and it is important that firms understand when more than one fixed fee claim can be made.

Case Management

The second part of the case management framework has been published by the Office for Criminal Justice Reform. The framework now covers crown court proceedings and provides a template for the management of cases by prosecution, defence and court. By following the framework practitioners can be assured of case management that is compliant with duties imposed by the criminal procedure rules (see http://ccmf.cjsonline.gov.uk).

The Criminal Procedure (Amendment No 3) Rules 2007 (SI 2007/3662) bring into force a large number of changes to the existing rules. Of note are those in relation to r 3 and more particularly 3.5(5) which, from 1 April 2008, will allow a court, if a party fails to comply with a rule or direction, to:

“a) fix, postpone, bring forward, extend, cancel or adjourn a hearing;

(b) exercise its powers to make a costs order; and

(c) impose such other sanction as may be appropriate”.

It should be remembered that it is the duty of all parties to report default on the part of others to the court. In addition it would appear that courts have finally caught up with the fact that inter partes costs orders do not require findings of blame to the standard required by the wasted costs jurisdiction. An example (perhaps premature given that the new rules do approach can be found in Director of Public Prosecutions v Bury Magistrates’ Court [2007] EWHC 3256 (Admin).

In this case a decision by a court to award costs to a defendant was quashed and the case remitted back to the court for reconsideration. However, it was plain from the judgment that there had been some non-compliance with the criminal procedure rules by the defence. The court ruled that non compliance with the rules did not disentitle the defendant to costs recovery but:

“There is force in [the submission] that [the defence solicitor] had no regard for his duties under the Criminal Procedure Rules but preferred to proceed opportunistically on behalf of his client. If the district judge were to come to that conclusion, it would be surprising if he were to consider it just to make the Crown Prosecution Service pay a substantial sum. He may think that justice would be done by fixing a modest sum, perhaps no more than necessary to remind the Crown Prosecution Service of the importance of complying with directions and duties.”

The House of Lords grappled in the case of R v Clarke and another [2008] UKHL 8, [2008] All ER (D) 69 (Feb) with the thorny issue of perceived “technical points” and the effect on the trial process. The question for their lordships was whether or not “...the absence of a signed indictment at the outset of and during most of the trial had the legal effect of invalidating the proceedings? And, if so, whether such invalidity was cured by the late signature of the proper officer?” Given earlier authorities such as R v Ashton [2006] EWCA Crim 794, [2006] All ER (D) 62 (Apr) most commentators expected the court to dismiss such technical niceties and uphold the convictions. In the end it did not, preferring to say that “[the earlier authorities] are valuable and salutary, but the effect of the sea change which they wrought has been exaggerated and they do not warrant a wholesale jettisoning of all rules affecting procedure irrespective of their legal effect.” James Richardson, editor of Archbold, writing in Criminal Law Week observed “This unanimous decision should achieve landmark status for the blow it strikes at the case management culture, inspired by the ‘overriding objective’ of the Criminal Procedure Rules 2005...that has threatened to engulf criminal practice in this jurisdiction.”

R v Black Court of Appeal, 6 February 2008

The court was faced with an appellant who had been convicted by a majority of the jury, after only 1 hour and 40 minutes had elapsed. The court quashed the conviction as the Juries Act 1974, s 17 clearly requires that at least two hours of deliberation must elapse before a majority verdict can be delivered. Perhaps the most surprising aspect of this case is the fact that two advocates and one judge failed to spot this most elementary rule of criminal procedure, and the taxpayer met the bill for putting it right.

Re Trinity Mirror Plc and others (A and B (Minors, acting by the Official Solicitor to the Supreme Court) Intervening) [2008] EWCA Crim 50, [2008] All ER (D) 12 (Feb)

The court considered its powers to make orders restricting reporting in order to protect children of defendants facing criminal proceedings (in this case child pornography charges). The importance of the issues is highlighted by the fact that the court was constituted of five judges including the president of the Queen’s Bench Division, and Sir Mark Potter, president of the Family Division. In a detailed and sensitive judgment, the court, quashing the orders restricting reporting, observed:

“It is sad, but true, that the criminal activities of a parent can bring misery, shame, and disadvantage to their innocent children. Innocent parents suffer from the criminal activities of their sons and daughters. Husbands and wives and partners all suffer in the same way. All this represents the further consequences of crime, adding to the list of its victims. Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence...If the court were to uphold this ruling so as to protect the rights of the defendant’s children under Article 8, it would be countenancing a substantial erosion of the principle of open justice, to the overwhelming disadvantage of public confidence in the criminal justice system, the free reporting of criminal trials and the proper identification of those convicted and sentenced in them. Such an order cannot begin to be contemplated unless the circumstances are indeed properly to be described as exceptional.”

Road Traffic

Longstaff v Director of Public Prosecutions [2008] All ER (D) 276 (Jan)

Longstaff was arrested on suspicion of driving with excess alcohol. Having failed to give a breath sample on the purported grounds of a medical excuse, the police called a doctor in order that a specimen of blood could be taken. When the doctor arrived the medical excuse question was revisited and it was the view of the doctor that such an excuse did not exist. No sample was taken and the appellant was charged with failing to provide a specimen. On appeal it was argued that the original decision could not be revisited and a blood sample ought to have been taken.

HELD There was no doubt that the original decision to accept a medical excuse could be revisited. There had been no unfairness to the appellant and the conviction would stand.

Piggott v Director of Public Prosecutions [2008] All ER (D) 114 (Feb)

Piggott was asked to provide a sample of breath for analysis having been arrested on suspicion of driving with excess alcohol. No specimen was provided and he was subsequently charged with failing to provide a specimen. At trial Piggott argued that there was a medical excuse for failing to provide the specimen. The justices rejected that defence on the grounds that the medical excuse had not been raised at the time the specimen was requested. The

The court held that the failure to raise the issue at the time the sample was taken was a relevant factor to consider when considering whether or not a defendant had such a medical excuse, but that failure in itself was not fatal to the defence the defendant had placed before the court.

Director of Public Prosecutions v King [2008] All ER (D) 170 (Feb)

HELD A “Mantis City Electric Scooter” was a motor vehicle and the defendant should not have been acquitted of driving a motor vehicle while disqualified.

Other Cases

S v DPP [2008] All ER (D) 119 (Feb)

The appellant took a photograph of a person and posted it on a website together with defamatory information. The victim did not see the website, and the photograph only came to his knowledge when, some time after the original posting had been removed from the internet, he was shown a copy which had been retained by the police. S was convicted under the Public Order Act 1986, s 4A(1)(b).

It was argued that there was no evidence of intent upon which the district judge could have found a case to answer. This argument was not permitted by the court as it had not been raised in the case stated prepared by the district judge and no application had been made by the appellant to amend that document.

In any event the court felt that an inference could readily be drawn that the requisite intent was there. The act of posting the material took place some five months before the victim was shown the photograph (the stage that the harassment, alarm or distress took place) but the fact that the material was no longer in the public domain at that point did not afford S a defence. Nor did the actions of the police amount to an intervening act which broke causation.

COMMENT On 15 February 2008 the court certified a point of law for consideration by the House of Lords, but as is customary, refused leave.

“Everyone appreciates the risk that innocent children may suffer prejudice and damage when a parent is convicted of a serious offence”

R v L Court of Appeal, 4 February 2008

Following a guilty plea to offences and an adjournment for the purpose of sentence, the court purported to make an interim Sexual Offences Prevention Order. L later breached that order, pleaded guilty and was sentenced.

On appeal it was argued that since the court had no jurisdiction to make the order the conviction was unsafe. The crown argued that the order was valid until such time as it was set aside.

HELD The order was invalid and accordingly the conviction for breach was unsafe. It could not be said that the order had been made under s 104 of the Sexual Offences Act 2003 since an order under that section, at that time, would not be necessary since bail conditions could be imposed to achieve the same outcome.

COMMENT This case may be of assistance to persons facing criminal proceedings and an application for any other interim order, notably an anti-social behaviour order.