Crime Newsletter

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.

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