10 Park Square, Leeds, LS1 2LH

DX 26412 Leeds Park Square

Tel: 0113 245 5438

Legal 500 Top Tier Set 2014

Chambers UK Leading set 2014

Yorkshire Chambers of the Year 2011

Nominated for Modern Chambers of the Year 2014

Nominated for Yorkshire Legal Awards Chambers of the Year 2014

Crime team page                                   Crime team blog

WITHER NOW FOR FORENSIC SCIENCE?

Crime_Tom_Storey  By Tom Storey

The Forensic Science Regulator has recently announced that she is to conduct a review of a series of cases involving allegations of sexual assault, in order to consider whether poor standards of forensic evidence gathering might be compromising the outcomes of such cases. This review is anticipated to take nine months, although it is not clear how many cases it is to involve, nor whether they will be limited to any geographical area(s).

In 2012, the Forensic Science Service was disbanded by the coalition government; the provision of forensic science services in the UK thereafter passed wholly into the private sector. Since then, there has been an increasing tendency to rely on cheaper techniques by the prosecuting authorities; one of the most obvious manifestations of this is the use of Streamlined Forensic Reporting. This procedure relies on a short (often one-page) report being served as part of the prosecution case (or sometimes merely disclosed), with a request being made of the defence at an early stage to either agree its contents, or to indicate what issues are disputed. It is clear that the prosecution are increasingly relying upon these documents as though they are full forensic reports, in the hope that they will be agreed by the defence and can form the subject of admissions at trial, thereby saving the expense of obtaining a full, proper, report. This appears to overlook the inconvenient fact that the National Streamlined Forensic Reporting Guidance specifically refers to them as not being “[reports] upon which the maker of the statement is necessarily qualified to give evidence.” However, it seems that it is far from unusual to find that a Streamlined Forensic Report which purports to “prove” that the Defendant’s DNA was found on a particular item from a crime scene was in fact produced by, say, the Crime Scene Investigator who seized the item in question, and who has no scientific qualifications whatsoever.

Independent forensic scientists are increasingly starting to warn that an over-reliance on cut-price techniques or services may lead (and may already have led) to miscarriages of justice. It should therefore be considered vital from a defence perspective to consider instructing a forensic expert in any case in which the prosecution purport to rely on forensic evidence, and even in some cases in which they do not. Issues that might be worth considering include the following:

    • Examination of items not selected by the prosecution for forensic examination;
    • Consideration of any negative findings, not necessarily included within Streamlined Forensic Reports;
    • Consideration of the implications arising from mixed DNA profiles, particularly given the increased sensitivity of the relatively new DNA 17 profiling technique.

Meanwhile, it remains to be seen what conclusions the Regulator comes to in nine months’ time; and, more significantly, how many miscarriages of justice occur as a result of cost-cutting or other inadequacies within the field of forensic evidence-gathering.

RULES ARE RULES!

 profile_chris_rafferty1[1] By Chris Rafferty

As you are no doubt aware the Criminal Procedure Rules face amendments to be brought into force from 05 October 2015. The previous legislation is to be replaced with consolidated rules including those relating to the duty of parties to criminal proceedings, pre-trial hearings in the Crown Court, and the circumstances in which a statement needs to be read aloud.

The changes to the rules and to the practice direction form part of the ‘Better Case Management’ initiative and implement some of the recommendations made by Sir Brian Leveson in his Review of Efficiency in Criminal Proceedings.

As you will see, the new rules are mostly concerned with efficient case management. It is not difficult to understand why – in a landscape of ever-dwindling public funds and increasing financial pressures upon the senior judiciary, reducing wasted Court time becomes a top priority.

This article will only deal with some of the more important changes; I will include a link to the rules themselves and the accompanying practice direction for further analysis.

The key changes are summarised as follows:

Co-operation

In an effort to ensure that the Court is assisted to the greatest possible degree, all parties to criminal proceedings are required to engage in meaningful co-operation to resolve outstanding issues, with or without the direction of the Court.

Rule 3.3 imposes a duty upon the parties to engage in what is referred to as ‘active assistance’ for the purposes of establishing:

  • The intended plea.
  • Agreed and disputed facts.
  • The outstanding information required by the parties and, importantly, why the parties require such information.
  • Rather vaguely and in somewhat of a catch-all provision: ‘what is to be done, by whom, and when, with or without a necessary direction.’

Plea and trial preparation hearing

Rule 3.13(1)(b) makes it compulsory for the Crown Court to conduct a plea and trial preparation hearing to take place earlier than the current PCMH. The idea (as the rule continues to imply) is that any further hearings will be rendered unnecessary in most other cases:

‘The Crown Court will conduct a further pre-trial case management hearing (and if necessary more than one such hearing) only where

  • The Court anticipates a guilty plea
  • It is necessary to conduct such a hearing in order to give directions for an effective trial, or
  • Such a hearing is required to set ground rules for the conduct of the questioning of a witness or defendant.’

 

If that sounds like there is plenty of scope for allowing a further hearing, unfortunately it is then necessary to consult the Practice Direction (see link at the end of this article). The rules incorporate the arrangements outlined in Criminal Practice Directions Amendment No 4 [2015] EWCA Crim 1253 which state at PD 3A.21 that a further hearing will only be listed where the Court so directs to further the overriding objective and in one of the following cases (the practice direction then continues to list 12 specific circumstances in which a hearing will be allowed).

Service

Emphasis is placed upon the service of document via electronic means in an effort to increase efficiency and save time. Rule 4.6 infers a presumption that electronic service is permitted where an e-mail address has been provided by an individual. The individual can choose not accept electronic service but this choice must be communicated. Where the party is legally represented, as long as an e-mail address is provided, there is no option to refuse service electronically.

The rules specifically state at 4.6(3) that where service has been effected electronically there is no requirement to then provide a hard copy of the relevant correspondence.

The classes of documentation required to be specifically served other than via electronic means are further limited in rule 4.7; only applications relating to contempt of court proceedings and section 172/112 notices (relating to the identification of a driver).

Finally, again as a catch-all provision, rule 5.1 requires parties to use electronic means to submit information to the Court, including applications, where the Court has made the appropriate arrangements to do so.

Statements

In the Magistrates’ Court the rules are now designed to allow the Defendant to obtain as much information possible at the earliest stage. Rule 8.3 requires (where the Defendant is not in custody prior to the first appearance) the prosecution case to include:

  1. a summary of the circumstances of the offence,
  2. any account given by the defendant in interview, whether contained in that summary or in another document,
  3. any written witness statement or exhibit that the prosecutor then has available and considers material to plea, or to the allocation of the case for trial, or to sentence,
  4. the defendant’s criminal record, if any, and
  5. any available statement of the effect of the offence on a victim, a victim’s family or others.

Miscellaneous

There is now an express duty to give a realistic time limit within which expert evidence can be prepared. Other amendments relate to:

  • directions to the jury (r 25.14)
  • misconduct by jurors (r 26.3)
  • retrial after acquittal (Pt 27 replacing Crim PR 2014, Pts 40, 41)
  • representations about driving disqualification or endorsement (r 29.1), and
  • European protection orders (rr 31.9, 31.10)

Useful links:

Criminal Procedure Rules 2015:

http://www.legislation.gov.uk/uksi/2015/1490/contents/made

Practice Direction:

https://www.judiciary.gov.uk/wp-content/uploads/2015/07/cpd-amendment-no.4.pdf

The Richard and Judy Defence- a recent case considered

ek By Elliot Kay

Marshall v CPS [2015] EWHC 2333 (Admin)

Background

  1. Mrs Marshall was the registered keeper of an Aston Martin Virage V12 which, at 11.08pm on the 5th March 2013, was captured travelling at 40mph along Kenway Road, SW5, London, a section of road which is subject to a speed limit of 30mph. Mr Marshall habitually drove the vehicle but was not the registered keeper of it.
  2.  For reasons unknown, Mr Marshall was served with a notice under section 172(2)(b) of the Road Traffic Act 1988 (“the Act”) requiring him to give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police.
  3. Mr Marshall responded to the police making it clear that it was either he or his wife who had been driving the car at the relevant time.
  4. Mrs Marshall was then served with a notice under section 172(2)(a) of the Act, requiring her to provide the same information. Mrs Marshall also responded to the police and explained that she could not be sure whether it was her or her husband had been driving.
  5. Following the passage of some months Mrs Marshall was charged on 16th January 2014 with an offence under section 172(3) namely, failing to give information relating to the identification of the driver of a vehicle who is alleged to be guilty of an offence.
  6. Mrs Marshall appeared at Waltham Forest Magistrates’ Court unrepresented. Rather unusually, Mr Marshall gave evidence for Mrs Marshall before she had given evidence herself.
  7. Mr Marshall told the Court that on the night in question his wife had drove their cleaner from their Slone Street flat to Earl’s Court before returning to Sloane Street. Thereafter, he drove himself and his wife to their home in Richmond. Both journeys involved travelling along Kenway Road and the relevant speed camera. Mr Marshall did not recall seeing a flash during on his journey home and told the Court of the unsuccessful inquiries he had made to ascertain who the driver was.
  8. Mrs Marshall then gave evidence although the Magistrates found her to be a reluctant and dismissive witness. She went on to give similar evidence to Mr Marshall but did not give evidence as to the steps she had taken to ascertain who had driven the vehicle.
  9. The Magistrates’ convicted Mrs Marshall on the basis that she had failed to show that she had been unable to ascertain with reasonable diligence who the driver of the vehicle was.
  10. Mrs Marshall appealed to the High Court by way of case stated.

    The Law

  11. The relevant provisions of section 172 of the Act read as follows:
    (2)Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies—(a)the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police, and

    (b)any other person shall if required as stated above give any information which it is in his power to give and may lead to identification of the driver.

    (3)Subject to the following provisions, a person who fails to comply with a requirement under subsection (2) above shall be guilty of an offence.

    (4)A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was.

    The Decision

  12.   The appeal proceeded on three grounds. Firstly, that the Magistrates had erroneously focused on the wording of section 172(4) and failed to consider that Mrs Marshall would not have been able to ascertain the identity of the driver even if she had taken reasonable steps to do so. Secondly, that the Magistrates had failed to give adequate reasons for their decision and thirdly, that the decision was Wednesbury unreasonable.
  13.  Mr Justice Kenneth Parker, with whom Lord Justice Beatson agreed, dismissed the appeal. It was held that the Magistrates were right to focus on what Mrs Marshall had done to identify who the driver was. The steps taken by her husband were not relevant and could not assist her. In any event, the Magistrates had accepted Mr Marshalls account of the steps he had taken but had not commented on the sufficiency or adequacy of those steps.
  14.  The second and third grounds of appeal were given short shrift. In relation to the second ground the Court noted that the Magistrates were not obliged to give reasons in the form of a detailed judgment and they were entitled to amplify their reasons from their unique position as assessors of the witnesses before them. Finally, the decision was not Wednesdbury unreasonable. Lay magistrates use their experience of life in determining questions of fact before them. It had not been unreasonable for them to conclude that Mrs Marshall could have taken steps to successfully identify the driver notwithstanding the unfruitful attempts of her husband.

Can a jury try an indictment containing a single summary only offence?

By Maxine Best

After an either way offence is removed from an indictment, so that the only matters left are summary only, what should the Crown Court do?

The Court of Appeal in R v (Leroy) Lewis [2013] EWCA Crim 2596 concluded that once a common assault charge has been properly sent to the Crown Court under s.40 of the Criminal Justice Act 1988, it should be tried before a Judge and jury notwithstanding the withdrawal or dismissal of the either-way offence that enabled it to be sent.

Read more

Beyond reasonable doubt

Crime_Ed_BindlossBy Edward Bindloss

The Daily Telegraph carried a piece by Dan Hodges last week written in the wake of the Shrien Dewani acquittal.  It can be read here. He asks the question: why are legal systems weighted in favour of those standing trial? He was struck by the judge’s phrase in her ruling  ‘beyond reasonable doubt and writes that it is time to ditch the principle. The reason he gives is that if the standard of proof in criminal trials was lowered to ‘on the balance of probabilities’ more guilty people would be convicted and that is a good thing for society.

Read more

Bad character and propensity

joanna_hastie_crime By Joanna Hastie

Propensity in 1992 to stab can be admissible bad character evidence at a trial in 2014.

  The Court of Appeal has ruled that bad character evidence which predated the current offence by 22 years was admissible and highly relevant:  R v Cox [2014] EWCA Crim 804.

Read more

# tweetwithcaution

crime_catherine_duffy By Catherine Duffy

Social media offences are becoming more widespread and are likely to continue increasing. It is therefore important to be aware of offences that can arise from the use of social media platforms.

Read more

Revenge Porn – a prosecutors guide.

Crime_Ed_Bindloss By Edward Bindloss

The CPS, on 6th October 2014, issued new legal guidance regarding the prosecution of communications sent via social media involving the malicious use of sexually explicit photographs and videos (‘revenge porn’).

The rapid expansion of social media and the more widespread use of smart phones is having a significant effect upon criminal behaviour; Parliament cannot keep up. Explicit images sent as revenge porn involving ex-partners often contain names, links to media profiles and addresses. The concentration by prosecutors will now be on the humiliation element and hurt suffered as much as the content of the image itself, say the new guidelines. It sets out which laws can be used by prosecutors to bring these cases to court.

Read more

Whack Whack Oops – DLT declares his trial a waste of time and money but has the law on notification requirements missed a shot?

Crime_Geraldine_Kelly By Geraldine Kelly

Convicted after a trial of one offence in 1995 of indecent assault of a female over the age of 18, contrary to section 14(1) of the Sexual Offences Act 1956, Dave Lee Travis was sentenced on 26th September 2014 to 3 months’ imprisonment, suspended for 2 years.  The sentencing judge identified that the Sexual Offences Definitive Guidelines (April 2014) were applicable and that the category of his offending was 3(b) – the lowest category for Sexual Assault (contrary to section 3 of the Sexual Offences 2003 as it is now).  He was not required to sign the Sexual Offences Register and be subject to the notification requirements.

Read more