Update | Crime: guilty pleas, the definition of 'insulting' and the ethical quandary of looking up jurors online

R v Caley [2012] EWCA Crim 2821 is essential reading for criminal practitioners; it reflects on the handling of cases by the criminal courts in recent years and provides practical guidance on the question of when might be the earliest opportunity for a defendant to provide an indication that he or she may plead guilty. 75 per cent of all Crown Court cases result in a guilty plea.

Section 144(1) of the Criminal Justice Act 2003 provides the statutory foundation and requires the sentencing judge to take into account the stage in the proceeding at which the offender indicated his intention to plead guilty, and the circumstances in which this indication was given. While the current Sentencing Council guidelines remain in force, the Court of Appeal commented on the guidelines and produced a number of useful principles.

A question has previously been raised as to whether the sentencing guidelines suggest that the earliest opportunity to indicate a guilty plea is during a police interview. The court explicitly excluded confessions made in police interview and confirmed that this is taken into account in mitigation and before the application of the discount for plea.

The court also distinguished between (i) the first reasonable opportunity for the defendant to indicate his guilt and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. Unless the defendant genuinely did not know whether he was guilty or not, the court held that there was no reason why a defendant could not admit the acts he had committed at an early stage, and thus obtain credit. While the court appeared to accept that it is perfectly proper to obtain advice on the strength of the evidence, the clear implication is that the time which elapses for such advice to be provided may result in less than full credit being afforded for a subsequent guilty plea.

The court also stated that 'indicating ?a plea of guilty' also includes the case where the defendant, notifies the Crown that he would admit a lesser charge or invites discussion as to the appropriate charge. This reinforces the need for defence lawyers to be proactive in considering appropriate alternate pleas. In practice, ?this may be problematic for a number of reasons. Without a comprehensive set of prosecution papers, it may be difficult, due to a defendant's age, mental health, and a range of other issues, to set out a statement of facts that accurately reflects the defendant's criminality.

In relation to cases where there is 'overwhelming evidence' against the defendant, the court affirmed the position stated in R v Wilson [2012] EWCA Crim 386. Wilson related to a case of serious sexual abuse that had been recorded on camera and therefore the defendant's guilty ?plea protected the victim's identity and removed the need for a jury to see recordings of the abuse. This demonstrates why there are still very good reasons why credit ought to be given to a defendant who admits guilt at an early stage in the face of overwhelming evidence.

Offensive, shocking or disturbing

On 14 January 2013, the Home Secretary announced that she would not oppose an amendment by the House of Lords to remove 'insulting' from the definition of an offence under section 5 of the Public Order Act 1986, which penalises 'threatening, abusive or insulting words or behaviour'. In 2005, Thames Valley police arrested and fined a student for this same offence, when he had cheekily asked a mounted police officer if he knew that his police horse was gay. It took almost a year before the Crown discontinued the prosecution, but the police continued to assert that the arrest was justified because the comment may have been 'offensive to people passing by'.

This development provides an ?interesting parallel to the Crown Prosecution Service's (CPS) position concerning offensive messages sent via social media. Amidst the public outrage arising from the Paul Chambers case (where Chambers had tweeted what was clearly a joke about blowing up Robin Hood airport following delays), and the subsequent overturning of his conviction by the Supreme Court, the CPS issued a set of interim guidelines on the matter, stressing that prosecutors should proceed only in cases where the comment is 'more than' just offensive, shocking or disturbing. The interim guidelines attempt to outline circumstances where prosecutions are more likely to be required, versus interactions on social media where it simply would not be in the public interest to prosecute.

The guidelines require that prosecutors carry out an initial assessment of the content of the communication and course of conduct in question. Prosecutions are likely to follow where there exists credible threats of violence to the person or damage to property, communications which specifically target an individual or individuals, and communications which may amount to breach of a court order. However, the guidance also regards grossly offensive, indecent, obscene or false statements on social media to be liable to prosecution, so long as the 'public interest' test is also satisfied. It remains to be seen whether the guidelines will provide a common sense and consistent approach to prosecutions which thus far have proved to be haphazard, at best, when it comes to dealing with offences carried out over social media.

Knowing me, knowing you

In the same way that anyone who speaks publicly adheres to the adage 'know your audience', there is a well-known saying among advocates: 'know your judge'. However, a recent news article claiming that barristers Google jury members has fired up a debate as to how well criminal advocates should know their audience '“ the jury.

Jurors are identified to the defendant at the start of a trial to provide the opportunity to challenge a juror from sitting on the jury, for example, in the event that they are known to them. It allows for a fair and impartial jury, something that is considered the cornerstone of a fair trial. However, it has been claimed that through this process of identification, advocates are finding out background information about jurors through sites such as Facebook, Twitter and LinkedIn, in order to tailor their closing speech more closely to a juror's occupation, interests or predilections.

Such practice is considered by some a step too far, and has been labelled 'unethical' by senior judges. In response, the Bar Council is seeking to introduce new guidelines directly to address this concern. Speculation has arisen over whether the guidelines are likely to include any sort of ban on this kind of behaviour. This raises two questions: firstly is this necessary, and secondly, would it be workable?

Would comparing your client to the latest X-factor dropout because you know that juror X voted for them, or a reference to juror Y's football team's uphill struggle to win promotion, really have the desired effect? And would tailoring a speech towards a small proportion of the jury not run the risk of alienating the rest?

Surely, an effective closing speech is not achieved simply through Facebook, Twitter or LinkedIn results: it concentrates on highlighting key evidence, argues away unfavourable matters, and puts firmly your client's case. To do anything other than this runs the risk of failing to address the relevant points, and worse, puts your client's case in jeopardy.

There is also the point of whether a ban would be workable in practice. How do you know if an advocate has Googled the jury, without catching them red handed, or checking their internet history.

In the US, jury selection is big ?business, with experts employed to assist ?in the profiling of jurors. A voire dire will take place before the opening of the trial with advocates asking questions of the jurors to decide who they would prefer sitting on the jury. The aim of this is to root out any personal biases or preferences of the jurors, but of course can also be used to find out information about an individual's likes and dislikes.

Online research by advocates on ?members of the jury who are trying their cases is suggested as being capable of undermining the perceived inviolability of the jury and their deliberations, and has been described as immoral. And yet, as more people log on to social media sites and make public hitherto unknown details of their personal lives, should we really be surprised if 'I wonder if he's a Tottenham fan?' turns into 'Well let's find out' with the tap of a few keys?

Access to justice

The Legal Services Board has published ?a report calling for an end to the 'cab ?rank' rule.

This rule requires barristers to take cases as they are given them, subject to certain exceptions regarding availability and fees. The report argues that there is little evidence that it is required in the modern legal climate, that they could find no evidence of it being enforced and that it was not widely understood. No clearer evidence of the necessity of an enforced, regulated and well maintained cab rank rule is that of the case of the five men and one juvenile accused of raping a woman in Delhi.

The case has received widespread news attention, not just for highlighting the plight of women in India, but also for the fact that those accused found it incredibly difficult to obtain a lawyer. It was reported by The Times of India that the Saket Bar Association decided no lawyer should represent the defendants on the basis it would be immoral to defend the case.

The Bar Council of England and ?Wales immediately condemned the decision. All accused have since found ?legal representation.