Update: crime

Non-conviction disposals

In this age of fixed penalty notices and other such non-conviction disposals, the cases of R v Hamer [2010] EWCA Crim 2053 and DPP v Alexander [2010] EWHC 2266 (Admin) are a useful reminder of the scope and effect of penalty notices for disorder (PNDs) and cautions, respectively.

In Hamer, the defendant stood trial for an offence of violence. He was a man of good character although he had recently received a PND, having been suspected by the police of having committed an offence contrary to section 5 of the Public Order Act 1986. The trial judge insisted that the PND go before the jury by way of a formal admission. The judge in summing up then gave a good character direction which he qualified by again referring to the PND as 'the lowest possible rung of the criminal justice system'. The defendant was convicted by the jury and sought to appeal the conviction.

Allowing his appeal, the Court of Appeal (Thomas LJ presiding) found that PNDs are not admissible as evidence of misconduct. They do not involve any admission of guilt, nor do they create a criminal record. Furthermore the wording of the PND expressly provides: 'A record of this notice will be kept in the interests of justice for administrative purposes. This information may be used to help decide whether or not to issue you with another disorder penalty notice in relation to any subsequent offences for which such notices may be issued.' That being the case, the Court of Appeal found that the PND was irrelevant to the question of the defendant's character. It should not have been referred to by the judge as part of his good character direction.

This case should not be confined to its facts. PNDs, insofar as they never involve an admission of guilt and are only ever issued based on a police officer's reasonable suspicion that an offence has been committed, are neither admissible nor relevant as evidence against any defendant.

Cautions, on the other hand, do involve an admission of guilt. They do not, however, involve a finding by a court of guilt or innocence so as to trigger the defence of autrefois acquit, as confirmed by the High Court in Alexander. The case involved the application of cautions to the principle of double jeopardy.

Mr Alexander was charged with an offence of careless driving. He had earlier accepted a caution for false imprisonment arising out of the same facts. In short, he had driven a woman in his car against her will for some two miles and at the end of the journey there had been a collision. The magistrates stayed the prosecution for the driving offence as an abuse of process. The CPS appealed by way of case stated to the High Court.

As a matter of principle, the High Court found that the abuse of process jurisdiction applies equally to prosecutions that follow cautions relating to the same incident as it does to prosecutions following an earlier conviction. However, on the facts, the court was not satisfied that the caution for false imprisonment arose out of the same facts as the new prosecution for careless driving. Accordingly, there would be 'no unfairness or manipulation of court procedures' so as to justify a stay for abuse of process.

Criminal practitioners should remember the scope of these cases, both of which are favourable to the defence and prevent the prosecuting authorities from seeking to revisit non-conviction disposals.

Check everything

Advocates of a certain age and experience remember agonising over the drafting of indictments. Nowadays they are drafted by the Crown Prosecution Service and often by unqualified staff. Defence advocates themselves may have had no experience of drafting counts. It is and remains the trial advocates' duty '“ either prosecution or defence '“ to check the validity of the document.

The case of Wenton [2010] EWCA Crim 2361 is a reminder to all practitioners in the Crown Courts never to ignore the basics and to always check source material.

The appellant was convicted of offences 'that could never be made out' and received six years' imprisonment. He had served over 15 months in prison before his conviction was quashed, and the victims of his alleged offending now know that the trial proceeded on defective charges. The indictment had been drafted by the prosecution and it was amended at a plea and case management hearing. No submission was made at any time about the wording of the charges.

The case was returned at the eleventh hour to prosecuting counsel. By this time the charges had been, or should have been, considered and reviewed by prosecution and defence. The court considered the point on appeal 'very simple'. The charges of criminal damage being reckless as to whether life would be endangered couldn't be made out on the facts, and, not only was there clear authority for the proposition, it is clearly set out in the relevant chapter of Archbold. The court held that 'the case proceeded on an entirely false and inaccurate premise that could have been corrected at any time but was not'. In a warning to all practitioners, the judgment of the court concludes that 'it is a matter of regret that prosecuting counsel, defence counsel and indeed the judge similarly failed to review the position appropriately'.

Defence disclosure

Important guidance has been given by the Court of Appeal in the recent authority of G [2010] EWCA Crim 1928.

The relevant facts are straightforward. The crime was dangerous driving and the defence case statement read that although the defendant accepted he 'may' have been seen on CCTV at a garage getting into the driver's seat, he denied driving at the material time. The judge queried if this in fact was an alibi defence and was informed that the defendant denied being in the van at the relevant time. The judge then suggested an amended defence case statement '“ to avoid a potential ambush defence and other 'new unsignalled' assertions. This wasn't done and the judge sentenced the defendant to 28 days' imprisonment for contempt. The Court of Appeal quashed this conviction, and made five important points about the requirements of defence case statements:

1. On the facts it wasn't possible to say that at that point in the trial there had been a breach of section 6A CPIA, in particular because the defendant might not have advanced any positive case so there would then have been no failure to mention a fact or facts.

2. In any event the sanction for non-compliance is not a punishment for contempt is explicit in the statute; i.e. a direction of law to the jury.

3. Legal professional privilege and the defendant's privilege against self-incrimination survive section 6A.

4. The obligation to file a defence case statement is a statutory one, and a lawyer cannot advise the client not to serve one.

5. The advocate's duty if no positive case is advanced but the client will not plead guilty is twofold '“ never to advise the absence of a defence case statement or to omit something from it that is required by section 6A; not to give the defendant advice on what to do. Put simply, the lawyer must explain the statutory obligation and the consequences that flow from breach of it.

The court suggested that in the case of point 5 it would be appropriate to put in a defence case statement that the defendant does not admit the offence and calls for the prosecution to prove it. If a positive case is to be advanced, this must be incorporated.

A full transcript is not yet available, and may make interesting reading, additionally so because the judge at first instance initially suggested that the defendant's counsel would be in contempt if the defence case statement wasn't amended! The judge reflected overnight on counsel's position and withdrew this observation.