Albion Chambers, Broad Street, Bristol BS1 1DR

Telephone 0117 927 2144 Fax 0117 926 2569 DX 7822 Bristol [email protected] www.albionchambers.co.uk

Number 14 July 2011

Albion Chambers crime team newsletter

response than one made on the day. A tug of war It is the provision of defence statements that has brought the tension between the Bar and the judiciary into the sharpest focus. Of course, no court wants an ineffective PCMH; that is a waste of t has become increasingly clear any consequent alteration or amendment everyone’s time, not least the defence that there is a tension between has to be administered fairly. The injustice advocate who does not get paid for such the judiciary and the Bar, when to a defendant of a trial being unexpectedly attendances. Yet the insistence that an the judge sets a timetable lengthened and his evidence or that of effective PCMH cannot be held without under the Criminal Procedure his witnesses being curtailed as a result is a defence statement is equally counter- Rules 2010 (CPR). obvious. productive to the need to save time and The rules have highlighted Equally, in a sex or domestic violence money. the need for judges to take case where a wealth of social services and If the system works smoothly, the control of the entire trial other records had not been disclosed at Crown would serve the papers in such process. The amendments the time of the PCMH when the estimate time as to allow the defence advocate which came into force in October 2010 was given, the defendant’s case would to be identified and briefed, the papers Iextended that duty, not only to the setting be severely prejudiced if his advocate to be read, the issues to be identified, of a timetable but also to limiting the were prevented from cross-examining a conference held and if necessary, the duration of any stage of proceedings. That the complainant on each of the relevant defence statement to be served. Built into obviously includes the possibility of setting matters because to do so would materially that process is obviously the need for a a limit to the amount of time allocated extend the original time estimate. The risk proof of evidence and the comments on for the cross examination of witnesses, of prejudice applies equally to the Crown the evidence to be taken from the client. closing speeches and legal argument. as it does to the defence. In such a case, That timetable is also based upon The need for courts to be run more the defence advocate, having been given the assumption that the client attends efficiently became all too apparent the opportunity to cross-examine in respect when asked to do so (or an appointment following the exposure of the country’s of the relevant records, it would be unfair, is available at prison within the time parlous economic state and the if (simply because of the time it took to do available) and provides full instructions. associated need to save money. In that so) the judge put a guillotine on the Crown’s But as anyone dealing with the context time is very obviously money. cross-examination of the defendant. The Criminal Law knows, that set out above However, that imperative must not be better course would be to advise the court, is the exception rather than the rule. slavishly followed at the expense of justice. in advance of the trial, that the original Of course, if it is simply an issue that As much as the setting of a timetable is estimate has been superseded by the the papers are served late, the defence good practice as well as a good discipline disclosure of new material or service of solicitor should contact the court and seek for all advocates to learn, it should always additional evidence and to provide a more to have the date for the PCMH moved be done with the practicalities of the trial accurate one. back administratively. But if the solicitor process in mind. That means that as a That course, notifying the court in requests that the defence statement is “live event” a trial is by necessity a very advance of any difficulty, is one that has drafted by counsel both the court and the moveable feast which in Rumsfeld terms been advocated by many Crown Court solicitor has to accept that a signed proof means it contains unknown unknowns. judges. Thus, if a psychiatric report needs of evidence and ideally comments on the Almost every case will throw up to be obtained prior to the PCMH, the court evidence have to be provided to counsel unforeseen issues such as late disclosure, is much more likely to be sympathetic to before that can be done. It is insufficient additional evidence or unexpected matters a request for an adjournment or additional for the court to suggest putting the matter raised in the witness box, difficulties with a time if they have been notified of that fact back to the afternoon in order for counsel member of the jury or even simply the fact before the date of the hearing. Equally, to draft the statement. that other matters listed before the trial if the Crown is late serving the papers If counsel has the material to enable mean that it has a late start. which means that any timetable set for the him or her to draft the defence statement All of those matters and more will affect service of defence statements and witness then he or she will be able to identify the any timetable that has been set and so as requirements becomes impossible to meet, issues to the court and set them out in the Lord Chief Justice has stressed, any notification of that fact at the earliest stage the relevant box on the PCMH form. The timetable has to be flexible. Additionally, is more likely to be met with a favourable witness requirements will be known as will the need for any defence expert to guidance and in contrast to the tenor that rumour has it is a very real likelihood). be instructed or witnesses to be called of the judges that counsel ought not to The CPS who rely upon the goodwill of on behalf of the defendant. All of that can accept any instructions to draft or settle counsel may find that the wrong box has be dealt with at the PCMH together with a Defence Statement unless they have been ticked on a form and that a custody a direction that the defence statement been given the opportunity and adequate time limit is missed or that a trial has to be drafted and served within a specified time to gain proper familiarity with the be aborted because they are not there to time. The consequence of the alternative case and to comply with the fundamental speak to a witness. Worse still the task of scenario (and that contemplated by many requirements set out above. As the Bar a caseworker is undertaken by a police judges) namely that of counsel taking Council makes plain there is no halfway officer who finds himself drawn into talking instructions from a defendant at court house; if instructions are accepted, then to the witness about the evidence. The and then hurriedly drafting a Defence the professional obligations on counsel are CPS lawyer who under pressure of time Statement is obvious. It would only take considerable. delegates the duty of disclosure to the the defendant to be cross-examined Everyone within the Criminal Justice police officer who does not appreciate about the content of a defence statement System is working to the extent of their the issues in the case may cause late or drafted by the counsel representing him limit; counsel are drafting more and fuller worse, non-disclosure of vital evidence at trial to potentially cause a jury to be documents both for the defence and the which again will undoubtedly result in discharged. The Bar Counsel Guidance Crownand the pressures upon the Bar, the the jury being discharged and a Wasted reviewed in January 2011 makes plain CPS and defence solicitors in time and Costs Order being imposed upon the the steps that any barrister has to comply staff resources are increasing all the time. CPS. with before drafting a defence statement. No-one is being properly paid for all they All of those matters are a question (see Archbold 12-99). These include are expected to do. of balance; the need to save money at obtaining all prosecution statements and All of the current cost-saving measures one end and the requirement for justice documentary exhibits, getting instructions designed to save money are fraught with at the other. That being the case it is from the lay client, from a properly signed difficulty and the potential for disaster. The essential that those entrusted to represent proof and preferably a conference, getting barrister who hurriedly drafts a document defendants in a system under pressure statements from other material witnesses, without proper instruction risks at best, in that way have an even higher duty to ensuring that the client realises the the threat of a Wasted Costs Order; or ensure that the system is administered importance of the Defence Statement and worse still, a professional complaint, or fairly. It is hoped that judges who have the potential adverse consequences of proceedings before the Bar Standards so often stood up for that right will not an inaccurate or inadequate statement, Board.. The solicitor who doesn’t send change now. getting proper informed approval for the anyone to court risks the LSC cutting that draft from the client. It is clear from that element from the litigation fee( something Sarah Regan

had been the male who had cashed the five shilling order. In an attempt to resolve the The Chambers, the Bank matter seven cadets were paraded in front of Miss Tucker but she was unable to identify any one of them as the male responsible for and the missing Postal Order the transaction. Despite that she was certain that it was the same male who had cashed the five shilling order and bought the order brief research into for Royal Naval cadets from the age of 14 for fifteen and sixpence. the history of Albion to 16. Commander Cotton during his Chambers reveals On the morning of 7th February 1908 questioning of Archer-Shee asked him to that the building was one of the cadets by the name of Terence write out in his own hand the name that had built in 1843 with H Back received a postal order for five been endorsed on the postal order; Terence the first barrister shillings. Having placed it in his locker that H Back. A handwriting expert subsequently taking up residence morning when he went to retrieve it at 3:45 concluded that the same hand was the following year. that afternoon Back found the postal order responsible for both. As a result Mr Archer- Over the course of the following three years missing. George Archer-Shee had the Shee senior was told that his son was to be theA Bank of England built its Greek revival misfortune to share the bed next to Back expelled from Osborne which elicited the style premises at 13/14, Broad Street, and so suspicion quickly fell onto him. That response “nothing will make me believe the immediately adjoining Albion Chambers. suspicion mainly came from the fact that boy guilty of this charge, which shall be sifted Following its completion in 1847 the having been questioned by Commander by independent experts.” manager or agent lived in the building Cotton, Miss Tucker the local post mistress As good as his word Martin Archer-Shee together with his wife and any family. stated that at about 3:00 on that afternoon a instructed a firm of lawyers to prove his son’s One of the agents was a man called Martin cadet had asked her to cash a postal order innocence and together with George’s elder Archer-Shee and on the 6th of May 1895 for five shillings. The order was endorsed half-brother, also named Martin and an MP his son George Archer-Shee was born in the Terence H Back and the cadet had then one of whose colleagues was Sir Edward Bank. Thirteen years later in 1908 George bought another postal order for fifteen and Carson KC, MP managed to engage the became a cadet at the Royal Naval College, sixpence. services of the most successful silk of his Osborne. The College, set in the grounds of That afternoon George Archer-Shee had day. Queen Victoria’s favourite home on the Isle indeed bought a postal order for fifteen and Edward Carson’s many celebrated of Wight provided the first two years training sixpence but he consistently denied that he cases included his prosecuting Oscar Wilde but he also had a son who had been to who said that Archer-Shee had not to his Osborne. However, before he accepted the knowledge ever seen the postal order and Editor’s note brief Carson subjected George to cross- a Chief Petty Officer who confirmed that examination in order to test the veracity of there had been other thefts both before and This edition of the Newsletter has, his story. Having satisfied himself of George’s after Archer-Shee’s expulsion. All of that albeit unconsciously, had the theme of innocence Carson agreed to take the case. resulted in a surprise development on the belief; Carson’s belief in the innocence However, the legal difficulties that had fourth morning of the trial when Sir Rufus of George Archer-Shee and the belief to be overcome in order to lay the facts Isaacs addressed the court stating “As to of those tasked with the business of before a judge and jury were considerable. the issues of fact, the court and the jury will prosecuting or defending in justice. As a cadet, at that time, it was impossible not be further troubled...” That statement And in each case it means putting your for Archer-Shee to bring a civil action and vindicated Archer-Shee and as Sir Rufus case and your duty to your client, where thereby sue the Crown. However, he was Isaacs finished, members of the all male jury necessary, over and above the concerns also excluded from courts martial and so clambered from their box to congratulate of expediency or cost. Carson was forced to bring a Petition of Mr Martin Archer-Shee and Sir Edward That may feel a hard and thankless task Right against the Crown. The Court of Carson soon after followed by members of when it appears as if our very ability Appeal duly sent the case for trial yet it was the Bar and the general public. to even do the most basic job is being a further two years before the case came That very public vindication was challenged at every level. Those of us before Mr Justice Phillimore and a special followed by a debate in the House of who prosecute are required to apply to jury on 26th July 1910. Commons which agreed to pay a sum of be included on the new CPS Panels. The Crown was represented by the £7,120 to Mr Martin Archer-Shee by way Defence fees, in addition to prosecution Solicitor-General, Sir Rufus Isaacs KC, MP, of costs and compensation. However, the fees are being cut and we know not what who opened the case on the basis of a case does not appear in The Law Reports, we face next year; BVT, One Case One single question “was the boy who bought having been decided on a question of fact Fee or carry on as before. The structures the fifteen and sixpenny order the same boy and not law. of the Sentencing Guidelines make it who cashed the stolen order? ...what you For the innocent George Archer-Shee appear pointless to attempt to achieve a have to determine is whether the boy or the fate was not so kind. He chose not to sentence outside of that tight framework. post mistress is telling the truth.” return to the naval college but to Stonyhurst Yet all of those things can be used Carson began the opening of his case where he had been educated before to our advantage. Criminal practitioners by saying “A boy 13-years-old has been Osborne. After school he travelled to the have never chosen Crime for the level labelled and ticketed for all his future life as United States where he worked for Fisk and of its remuneration or the ease of a thief and a forger. Gentleman, I protest Robinson on Wall Street. He returned home practice. Long gone are the days when against the injustice to a child, without to enlist in the British Army at the start practitioners in other fields thought communication with his parents, without of World War I, but was killed at the first of criminal lawyers as specialising in his case ever being put, or an opportunity battle of Ypres in 1914. He was aged just Crime because they were intellectually of its ever being put forward by those on 19 and it seems that he joined the South incapable of practising in any other area his behalf. That little boy from the day that Staffordshire Regiment at the suggestion of law. The ever-increasing and constantly he was first charged, up to this moment, of Edward Carson whose nephew F E changing legislation and the minefield of, whether in the ordeal of being called in Robinson had joined the same regiment for instance s. 75 of the Sexual Offences before his Commander and his Captain, or shortly before. Indeed, their names can Act 2003 or as Archbold News referred whether under the softer influences of the be seen close together on tablet 35 of to it, the tortuous considerations which persuasion of his own loving parents, has the Menin Gate in Ypres, Teddy Robinson must be undertaken in applying the overly never faltered in the statement that he is having been killed only three days before complicated jurisprudence in relation to innocent.” Archer-Shee. s. 34 (CJPOA 1994) and a Lucas direction Carson’s cross-examination of the post George Archer-Shee’s name is also have put paid to that line of thought. mistress Miss Tucker was a master class recorded on a plaque at St. Mary-on- It is that rigorous intellectual ability on the subject. First he ascertained that the the-Quay, Bristol and inscribed on the combined with the reason we all came post office books offered no assistance in war memorial in North Woodchester in into crime which will undoubtedly respect of the crucial issue, the order of the Gloucestershire which was where his see us through yet another period of cashing and issuing of the two postal orders parents lived. disquiet and insecurity. No-one wants or the person/s responsible and that for that He has also been remembered both on a criminal lawyer until they need one. the court was reliant upon Miss Tucker’s stage and film as Terence Rattigan used It is a thankless job and one that own memory. He then got her to agree that this case as the basis for his famous play does not attract glamorous headlines all of the cadets looked “pretty much” alike “The Winslow Boy”, which has also been when it comes under attack as it now and that she wouldn’t, if called away from filmed twice. undoubtedly is. By carrying on as the counter, notice if the boy she had been we always have, by acting to present serving had been replaced by another boy. Nicholas O’Brien the best case that we can, whether Finally, he took her through the customers prosecuting or defending, despite all of on that day getting her to agree that she the hurdles we face day-in, day-out we could recall the appearance of none of them, Any comments made or views expressed on the will demonstrate that whichever limb the number of customers that day and that law within any articles in this newsletter are of the profession we come from we are before his questioning she had never been the views of the writer and are not necessarily essential to ensuring that justice (that asked to recall whether anyone other than a the views of any other member of chambers and unfashionable phrase) is achieved. cadet had been into the post office that day. should not be relied upon as legal advice. Other witnesses included Cadet Back Sarah Regan

Albion Chambers CRIME TEAM NEWSLETTER Number 14 July 2011 Albion Chambers Crime Team

Michael Fitton QC Ignatius Hughes QC Adam Vaitilingam QC Call 1991 Call 1986 Call 1987 Team Clerks Bonnie Colbeck, Nick Jeanes QC 2006 Recorder QC 2009 QC 2010 Head of Chambers Recorder Recorder

Christopher Jervis Timothy Hills Nicholas O’Brien Paul Grumbar Nicholas Fridd Call 1966 Call 1968 Call 1968 Call 1974 Call 1975 Recorder

Martin Steen Robert Duval Don Tait Stephen Mooney Fiona Elder Call 1976 Call 1979 Call 1987 Call 1987 Call 1988 Deputy District Judge (Crime) Recorder Team Leader

Virginia Cornwall Simon Burns Paul Cook Alan Fuller Jonathan Stanniland Call 1990 Call 1992 Call 1992 Call 1993 Call 1993

Edward Burgess Giles Nelson Jason Taylor Kirsty Real Kannan Siva Call 1993 Call 1995 Call 1995 Call 1996 Call 1996 Recorder

Kate Brunner David Chidgey Sarah Regan Richard Shepherd James Cranfield Call 1997 Call 2000 Call 2000 Call 2001 Call 2002

Anna Midgley Monisha Khandker Simon Emslie Philip Baggley Emily Brazenall Call 2005 Call 2005 Call 2007 Call 2009 Call 2009

© 2011 Albion Chambers, Broad Street, Bristol BS1 1DR Telephone 0117 927 2144 Fax 0117 926 2569 DX 7822 Bristol Email [email protected] www.albionchambers.co.uk