The Cut-Throat Defence; a good idea or not?
A cut-throat defence is where one defendant gives evidence that is damaging to a co-defendant’s case. Sometimes that goes as far as directly accusing the other person of the crime, while typically seeking to exonerate themselves.
Such evidence may be given directly by a defendant (or defendants) as a positive aspect of their case. Alternatively, it may be elicited by prosecution questioning. Either way, it can make for an uncomfortable moment during the case when one defendant is pitted against another. This is particularly so if issues of bad character arise because of it.
The conventional view is that cut-throat defences rarely end well, although in reality, that is a generalisation too far. The outcome will always depend on a multitude of factors.
One trial or two?
Where a cut-throat defence is anticipated or encountered, thought will be given to the issue of severance – or separate trials. These applications are not always successful in practice, as explained in Varley [1982] 2 All ER 519:
‘The other ground put forward was that the judge wrongly exercised his discretion by refusing to order separate trials. We recognise that there may well be occasions where there has been a successful application to cross-examine a co-defendant on his convictions and the trial judge, in his duty to ensure a fair trial, may properly exercise a discretion to order separate trials. We have in mind the situation whether the effect of such cross-examination is such as to create such undue prejudice that a fair trial is impossible. But that is not this case. The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other’s throats in the course of their respective defences. If separate trials had been ordered, one or other or both might have succeeded in preventing a just result.’
While a separate trial may not seem a likely outcome, some lawyers mistake the case law to such an extent that they rule out the argument completely; we feel that to be an inadequate approach and ensure that scrutiny is applied in all instances (see cases such as R v O’Boyle (1991) 92 Cr App R 202).
Factors to consider
Relevant arguments will centre around:
- Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against the other accused to be jointly tried with him, and
- If the evidence against those other accused contains material highly prejudicial to the applicant though not admissible against him, and
- Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material.
At the opposite end of the spectrum, it may be the case that you have to run a cut-throat defence. Consideration will have to be given to the consequences, both positive and negative, of doing so.
How we can assist
Criminal litigation is increasingly complex. You must instruct a legal team able to work through all the issues that might arise. You will also need them to provide a strategy for dealing with them. The emphasis is always on proactive rather than merely reactive trial strategies.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Attorney-General’s Reference and a Prosecution Appeal
The prosecution, via the Attorney General, has the right to ask the Court of Appeal to consider whether sentences for certain offences are unduly lenient. This is known as an Attorney-General’s Reference.
How does the scheme work?
Anyone can ask the Attorney General to consider whether a sentence is unduly lenient. If the Attorney agrees an appeal will be lodged within 28 days of that sentence and the court will consider the matter.
This scheme is essential protection against sentences that are too lenient.
Can it be used for any offence?
There is a list of offences that the Attorney-General’s Reference scheme applies to. It is a relatively extensive list, but the government has announced that further offences are soon to be added to it.
How often are appeals lodged?
The Attorney General does not invite the court to interfere lightly. Even though around 1,000 requests for a review are made each year only a fraction are referred to the court. Typically between 100-150 sentences are increased each year.
In all cases where an appeal is heard, we fight extremely hard to prevent any increase in sentence.
What offences are to be added to the list?
The following offences will be added in the next few months:
- Abuse of position of trust: sexual activity with a child (s.16, Sexual Offences Act 2003),
- Abuse of position of trust: causing or inciting a child to engage in sexual activity (s.17, Sexual Offences Act 2003)
- Abuse of position of trust: sexual activity in the presence of a child (s.18, Sexual Offences Act 2003)
- Abuse of position of trust: causing a child to watch a sexual act (s.19, Sexual Offences Act 2003)
- Inciting a child family member to engage in sexual activity (s.26, Sexual Offences Act 2003)
- Sexual activity with a person with a mental disorder impeding choice (s.30, Sexual Offences Act 2003)
- Causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity (s.31, Sexual Offences Act 2003)
- Engaging in sexual activity in the presence of a person with a mental disorder impeding choice (s.32, Sexual Offences Act 2003)
- Causing a person, with a mental disorder impeding choice, to watch a sexual act (s.33, Sexual Offences Act 2003)
- Possession of indecent photograph of a child (Criminal Justice Act 1988, s.160)
- Taking, possessing, distributing, publishing Indecent Photographs of Children (s.1 Protection of Children Act 1978)
- Harassment: putting people in fear of violence (s.4, Protection from Harassment Act 1997)
- Stalking involving fear of violence or serious alarm or distress (Protection from Harassment Act 1997, s.4A, Protection from Harassment Act 1997)
- Controlling or Coercive Behaviour in an Intimate or Family Relationship (s.76, Serious Crime Act 2017).
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Jailed for stealing £3,000 but not for stealing £22,000? Why?
A Bad Day in Court?
Several newspapers recently pondered why ‘one woman is jailed after stealing just £3,000 but another who took £22,000 walks free.”
The story was sparked by a tale of two defendants who appeared at the same court centre, on the same day, but faced different judges.
The papers concluded that one was unlucky to have been sentenced by a Judge renowned for being tough on sentence.
Most lawyers know this scenario only too well and given that there is a large margin of appreciation when it comes to sentencing, there may be nothing that can be done about it.
There are a number of scenarios that we can consider when it comes to sentencing.
The sentences were, in fact, appropriate in both cases
It must be remembered that cases which look similar at first blush may, in fact, be greatly different. This is particularly true when a defendant’s offending history is taken into account. Judges will also look at their family and personal circumstances; whether they have expressed remorse; in case such as this whether they have made efforts to repay the money; the effect on the losers of the money; and importantly, if they pleaded guilty and if they did how early they entered that plea.
There are lots of relevant factors that must be taken into account before deciding on the most appropriate sentence to pass in any individual case.
The lenient sentence
In some cases, a great result at sentence may be short-lived. In some instances the Attorney General can consider referring the sentence to the Court of Appeal if it is thought to have been ‘unduly lenient’.
The harsh sentence
If a sentence is either wrong in principle or manifestly excessive, the defendant can apply to appeal that sentence. We will always promptly advice our clients when this scenario arises.
Disparity in sentencing
The court of appeal is not interested in what another defendant before a different court may have received. Sentences must be assessed on their merits, so another person’s good result will not translate into a reduction for a person not treated leniently.
Any disparity in sentencing is, however, a more critical consideration when several defendants are sentenced in the same case.
Slightly more complex issues arise in this scenario, and we will always carefully assess the situation and advise accordingly.
Ultimately, sentencing guidelines are not tramlines, and absolute fairness in sentencing is not always achieved; but there are nonetheless important protections to ensure that judges do not go beyond a proper exercise of discretion.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Can I get legal aid for my criminal case?
If you are arrested or are appearing in court, one of the first things you will probably ask yourself is ‘can I get legal aid?’. Fortunately, legal aid is still available for many criminal cases. Whether you are eligible will depend upon what level of assistance you need and what your financial circumstances are.
At the police station
If you are arrested or are being interviewed under caution, all advice and assistance in the police station can be funded by legal aid regardless of your income.
Other investigations
Many other agencies, such as the Department for Work and Pensions (DWP), interview people before starting court proceedings. In many cases legal aid is available, depending upon your financial circumstances.
If you are not financially eligible then you can pay privately to be represented. Contact us or call us on 020 7388 1658 and speak to one of our expert solicitors to discuss our rates.
At the Magistrates’ Court
Representation in the Magistrates’ Court is now subject to 2 tests:
- The ‘merits test’ considers the seriousness of your case and whether it is in the ‘interests of justice’ for you to be legally represented. This can include the nature of the offence, whether you have previous convictions and whether there is a risk of custody (prison); and
- The ‘means test’ considers your financial circumstances and those of your partner. You will need to provide details of your income and your outgoings. Allowances are made for any children you have, childcare fees, your rent or mortgage, council tax and so on.
If your case passes the ‘merits test’ above you will automatically qualify for legal aid if:
- You are under 18; or
- Your total adjusted income (i.e. yours + your partner’s income, less certain allowances) per year is £12,475 before tax or less; or
- You receive specific state benefits, including:
– Income Support
– Income-based Job Seeker’s Allowance (JSA)
– Universal Credit
– Guaranteed State Pension Credit
– Income-related Employment and Support Allowance (ESA
If your adjusted income is less than £22,325 each year you may also be eligible. However, a full financial test will be carried out to take into account household outgoings.
If your adjusted income is above £22,325 each year then you will not be eligible for legal aid in the Magistrates’ Court.
In the event that you are not eligible for legal aid, you may want to take advantage of our competitive private rates. Contact us or call us on 020 7388 1658 to discuss privately funding your case. We can often offer fixed fees, giving you certainty about the costs involved.
If you are successful at trial and are found not guilty, you can apply for at least some of your costs to be paid from central funds.
At the Crown Court
Representation in the Crown Court is now also subject to the ‘merits’ and ‘means’ tests.
If your case is going to be heard in the Crown Court, then you automatically pass the ‘merits’ test.
In the Crown Court if you exceed the lower financial eligibility threshold then you can still receive legal aid. However, you will be asked to pay contributions towards this funding. The amount of these contributions will depend upon your disposable income. You will be required to provide evidence of your income to the Legal Aid Agency, who will decide what level of contribution you will make. If you are found not guilty, your contributions will be refunded to you.
If you have over £37,500 adjusted income, you will not be eligible for legal aid.
Alternatively, many clients feel that when facing one of the most serious challenges of their life, they would prefer to privately fund their case in order to ensure the highest possible level of service available. Contact us or call us on 020 7388 1658 to discuss your eligibility or private funding arrangements.
Court of Appeal
If you are appealing against your conviction or sentence from the Crown Court, your legal aid will cover the initial stages of the process. It covers the preparation of the grounds and advice on appeal. If you are given permission to appeal, your legal aid will be extended to cover your advocate’s appearance at Court.
Extradition
Legal aid in extradition cases in the Magistrates Court is also subject to the ‘means’ test. If you have an extradition case, you automatically pass the ‘merits’ test. For an appeal to the High Court, there is no means or merits test. Everyone is eligible for legal aid, whatever your circumstances. You can read more about legal aid in extradition cases here.
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Delay in Sentencing – Can it work in your favour?
Waiting to know your fate is never easy. When there is a delay in sentencing it gets even harder. There have been widespread reports in the press about spare courtroom capacity, with judicial sitting days at an all-time low. These reports correspond to our own experience and means cases are taking longer to get to court. But can a delay in sentencing work in your favour?
Unfortunately, court delay is often combined with significant delays in investigating and charging defendants to court. This can mean a very long period between the commission of any crime and sentencing.
As advocates, we are increasingly concerned with the effect of delay on the people we represent. We can use several legal principles in an attempt to mitigate the sentence passed.
On occasion, this can work in our client’s favour. It can reduce the length of the overall sentence; allow a custodial sentence to be suspended where it would not otherwise be, or justify a non-custodial sentence in circumstances where custody would be the norm.
What does the law say?
In Prenga [2017] EWCA Crim 2149 the court held:
“We start by considering the nature and extent of the discretion to adjust otherwise lawful sentences where required to achieve justice. It is, in this regard, well established that a sentencing judge may reduce the sentence that would otherwise be imposed to achieve justice and to reflect exceptional factors. The paradigm illustration flows out of the requirement in ECHR art.6 that proceedings must be concluded within a reasonable time. Where proceedings are unduly delayed that delay may count as a mitigating factor in appropriate circumstances. The threshold is necessarily a high one.”
How much time has actually passed?
In Dyer v Watson; K v HM Advocate[2004] 1 A.C. 379; [2002] 3 W.L.R. 1488 Lord Bingham of Cornhill observed that in any case in which it was contended that art.6 was violated by virtue of delay the first step was to consider the period of time which had, in fact, elapsed.
Unless that period gave grounds for real concern it was almost certainly unnecessary to go further “… since the convention is directed not to departures from the ideal but to infringements of basic human rights”.
The threshold for proving a breach of the reasonable time requirement was a high one “not easily crossed”
In Mills (Kenneth Anthony) v HM Advocate (No.2) [2004] 1 A.C. 441 Lord Hope (at [54]) recognised that delay could in an appropriate case justify an adjustment to sentence. One possible rationale for this is the anxiety experienced by a defendant, resulting from the abnormal prolongation of proceedings. Another possible explanation might be that a defendant’s life has changed during the period of delay such that the person who stands to be sentenced is, in terms of character, not the person who committed the offence.
In Attorney Generals Reference No.79 of 2009 [2010] EWCA Crim 338 it was held (per Hughes LJ VP at [19]) that delay:
“… is of relevance if not to a formal assessment of Article 6 then undoubtedly to the broader question of what a just sentence is when eventually and belatedly a conviction occurs”.”
Reductions in sentence will be unusual
The judge, nonetheless, emphasised that applications for reductions in sentence would be “unusual”. The authorities relating to delay and art.6 demonstrate that unnecessary delay can amount to mitigation resulting in reduction of sentence. However, questions of delay are also instances of “… the broader question of what a just sentence is”. It follows that delay, whilst being an obvious example, is not the only reason why a sentence might be reduced in order to ensure overall justice.
In R. v Kerrigan (David Joseph) [2014] EWCA Crim 2348, the Court of Appeal was required to consider broad questions of justice in the context of custodial sentences ordered to be run consecutively to existing sentences.
Seven principles
In para [40] of the judgment the court set out seven principles which might apply where a court was imposing sentences for different offences and where they might apply concurrently or consecutively leading to potentially arbitrary results.
For present purposes the seventh principle is relevant and was put like this:
“a judge retains the discretion to do justice on the particular facts of a case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly”.
In all cases we will ensure that the impact of any delay in sentencing in your case is fully explored. This means that it can be reflected during sentencing.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, from the initial investigation through to court proceedings, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk. Let us help.
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Courts, Mental Health and a hybrid-order
Ten years for a double killing may not sound a lot, but look behind the headlines and you will find a ‘hybrid-order’.
In a truly tragic case, Samantha Ford drowned her 23-month-old twins in the bath.
Appearing at the Old Bailey for sentence, the Judge, Mr Justice Edis, handed down a 10-year sentence, causing widespread outrage. Longer sentences are routinely handed down for drug dealing and other crimes.
To understand more about this case, we need to look beyond the headlines and examine the facts more carefully.
Mrs Ford carried out the killing to avenge her husband calling time on their marriage. Ford was suffering from a significant psychiatric illness which the defence team explored in detail. The medical evidence ultimately led to a plea being accepted to manslaughter due to diminished responsibility.
A conviction for murder will attract a life-sentence but sentencing for manslaughter will typically attract lower sentences.
There is also a massive clue in the defence deployed in this case, ‘diminished responsibility’.
It is clear that in large part, this crime was due to Ford’s unbalanced mind at the time of the killing.
While the Judge did pass a 10-year custodial sentence, that is not the full picture when it comes to sentencing in this case. The complete sentence passed is referred to as a Hybrid-Order.
Hybrid-orders and the Mental Health Act
A Hybrid-Order comprises mental health treatment, followed by a custodial term to reflect some degree of liability.
Ford was sentenced to a hospital order with a limitation direction, which means that she will be detained in a secure medical facility until such time it is safe to release her from that part of the sentence.
It could be a great many years before this happens.
When Ford is released from medical care, she will then have to serve the unexpired part, if any, of the 10-year sentence (with release half-way through as for any other prisoner) and remain on licence in the usual way.
Cases such as this one illustrate the fragility of the human mind. What drives an otherwise loving mother to kill her two young children is beyond the comprehension of most people.
Samantha Ford is not a danger to the broader public; she was and is a very poorly lady who will be haunted for the rest of her life with the tragic events that unfolded. First and foremost, she requires and will receive urgent medical help.
As specialists in criminal law, we are trained to recognise medical defences and ensure that the full picture is presented to the court. You can read more about mental health and the criminal law here.
How we can assist
If you need specialist advice in relation to any criminal investigation or prosecution, please get in touch. Call John Howey on 020 7388 1658 or email jhowey@jfhlaw.co.uk and let us help. We can advise on all aspects of your case.
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GBH; Grievous bodily harm/wounding, with or without intent
In legal shorthand we often refer to section 18 or 20 GBH offences. These refer to specific offences under the Offences Against the Person Act 1861.
What is the difference between section 18 and section 20?
The most serious form of assault (short of attempted murder) is grievous bodily harm (GBH) or wounding.
When the offence is committed with the intention to cause GBH, it is an offence under section 18. The maximum sentence is life imprisonment. The same offence committed without intent (section 20) has a maximum sentence of 5 years.
For an offence to be committed unlawfully and maliciously, it means that there is no defence such as self-defence, force used for preventing crime, defence of property or another.
There are also some other technical differences between the two offences.
What is GBH?
GBH or grievous bodily harm is really serious bodily harm, so would include broken limbs for example. It can also include psychiatric injury.
What is wounding?
Wounding is where the skin is broken (either internally or externally).
Section 18, the intent offence
For the more serious offence, an intention to cause serious injury or wounding is required.
A jury needs to be satisfied that the offender intended to cause the harm, by considering all of the relevant circumstances. This will include what the offender did and what he said about it.
What about weapons?
The use of a weapon will make any offence more serious, and will often be evidence of an intent to cause GBH. Weapons include knives, bottles, throwing acid etc. Feet used to kick are also considered to be a weapon, and biting is also an aggravating feature.
Section 20, without intent
The difference between a Section 18 and a Section 20 offence is that for a Section 20 offence you did not intend to cause the injury. An example would be if you punched someone once and they fall causing a serious injury or wound.
Your lack of intent may be taken from the way in which the assault was committed or your behaviour at the time and immediately afterwards.
What sentence will I get?
For an offence with intent it is almost inevitable that a term of imprisonment will be imposed. The guidelines range from 3 years for a less serious offence through to 16 years for the more serious offences.
Examples of sentences imposed are nine years when a bottle was used to strike the face requiring thirty stitches; nine years also imposed for causing a fractured arm with a baseball bat, knocking down and driving over a police officer, kicks to the head on the floor causing extensive facial fractures.
For offences under section 20 the maximum sentence is 5 years, so a non-custodial sentence is more likely. The guidelines range from a community order to 4 years imprisonment.
How can we help?
The difference in sentencing for an offence without intent means that this issue has to be considered carefully in the context of all of the evidence.
We can advise you whether intent and other offence elements can be proven, and the prospects, if appropriate, of a plea to the lesser offence being acceptable to the prosecution and the court.
The law is complicated and the potential consequences severe. For expert advice, please contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk.
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Can I get a reduced sentence by helping the police?
You may have heard about ‘texts’ or a ‘brown envelope to the Judge’, some of the names for the old system by which someone could get a reduced sentence.
If you helped the police a ‘text’ may be handed to the sentencing judge explaining that you had assisted and a reduction in sentence may have followed. It was a murky world, clouded in some secrecy and one that few people properly understood.
Formal system
A formal statutory system has now been put in place to regulate reduction in sentence for a defendant who aids the authorities, although the ‘text’ regime is still around.
The aim of the new regime is to govern assistance provided and the benefits that might flow as a result.
The old principles (the text) remain in use as it has always been the case that anyone convicted of a crime will receive credit against sentence for assistance rendered to the police or authorities.
Requirements under the new regime
The key features of the statutory scheme are:
- The offender must admit the full extent of his own criminality before the statutory framework can begin to apply, and he must agree to participate in a formalised process which has its own immediate purposes intended to avoid some of the problems which the earlier processes could create.
- Provided the offender admits the full extent of his criminality the process is not confined to offenders who provide assistance in relation to crimes in which they participated, or were accessories, or with which they are linked.
- This is largely a new process in which a post-sentence review of the sentence passed in the Crown Court can be reviewed in a judicial process on a reference back to the court by the prosecutor. That does not prevent there being such an analysis during a Crown Court sentencing decision.
- The decision whether a reduction in sentence should follow a post-sentence agreement is vested in the judge sitting in the Crown Court. The court is able to take into account the specific post-sentence situation. That is quite different from the former practice.
- If in the end the offender fails to comply with his agreement, that does not itself constitute a crime but he is liable to be brought back to the court and deprived of the reduction of sentence which has been allowed or would have been allowed if he had complied with the agreement in full.
New versus old
Following the new regime, rather than the old text regime, may result in a greater discount in sentence. There is no guarantee, however, that providing information will result in a reduction in sentence. It would very much depend on the nature of the information, how it can be used, and whether action can be taken by the police as a result (particularly action that might result in others being prosecuted).
It is important to note that as the formal regime requires full admissions of any criminality on your part, this may result in further charges being brought against you or further offences being taken into consideration on sentence. There is a careful decision to be made here.
How will I know if it has been taken into account?
The law says that if you are given a reduction in your sentence you have to be told that you have been given a lesser sentence and you must also be told what the greater sentence would have been. You will then know exactly how much of a reduction you were given.
How we can help
The decision is not an easy one, nor is the process, because of the potential consequences, which may include having to attend court as a witness, or receiving a longer initial sentence.
It is vital, therefore, that you obtain expert advice before speaking to the police. If this is something that you wish to discuss, please contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk
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Disclosure scandal; an untold story
Over recent weeks, there have been a number of high profile rape cases involving disclosure, or more accurately non-disclosure, of information obtained by the police during their investigations. In a number of these cases, the evidence has come to light before the trial has concluded, leading to the acquittal of the defendants. In at least one case, an innocent man served a lengthy period in custody, and had already been released, before the evidence came to light and his conviction was quashed.
It may be tempting to think that these are isolated incidents, and limited to sexual offences, but they are not. Even with the current media frenzy over this issue, there are cases going on around the country where exactly the same is happening, day-in, day-out. One such example is a case that we dealt with earlier this month.
Our client has asked that we do not disclose his name, so we will call him D. We will call the girl involved C.
Background
In July 2015, D was 16. C was 15. They had been boyfriend and girlfriend for 3 weeks when C went to D’s flat one evening after school. D’s mum and dad were at home. They went to his bedroom and had sex for the first time. C left shortly afterwards and went home.
She was upset with what had happened. They spent several hours on the phone to each other that night and the following morning. She also spoke with other friends on the phone. The next morning, she confided in her foster mum that she had had sex with D and that she had not wanted it to happen. C went to school and complained that she had been raped. The police were called. During the course of the morning another pupil, a friend of C’s showed one of the teachers a message that D had apparently sent the previous evening. The teacher took a photo of it. The message, in isolation, could have been seen as an admission.
D was arrested 36 hours after the incident. His phone was seized. He was interviewed by the police and accepted having sex with C, but said that she had consented. He was bailed pending further enquiries.
Despite the young age of the parties, no progress was made for some time. In February 2016 D was interviewed again, about a handwritten note found in the rubbish bin at C’s house. This note could be described as a sexual ‘to-do’ list. C denied she had written any of it except the title, and suggested D had written it. D denied ever having seen the piece of paper, or having written it. He agreed to provide some handwriting for analysis.
D was eventually charged in May last year, 22 months after the incident took place, by which time he had turned 18, and fell to be tried as an adult.
Court proceedings
When the prosecution papers were eventually served, only C’s second interview was served, dealing with the piece of paper.
This was the first failure of disclosure; we had to chase the CPS for the main interview, containing details of the allegation of rape. We were also not provided with a proper transcript of D’s second police interview.
The communications between D and C were clearly relevant to the case. The Officer in charge of the investigation (OIC) in an unusual move provided a statement in which she stated that she had examined the mobile phones of both C and D, and provided details of an exchange of text messages that she said had passed between them on the day in question. We were also provided with an Excel spreadsheet, described as the download of C’s phone.
Even a cursory examination of this document showed that the phone number that the OIC had attributed to D was not his and that the messages in question were not sent by him or to him. Despite having both phones in her possession, the OIC had provided a statement that was wholly inaccurate and very misleading.
The schedule of unused prepared by the OIC (documents not relied upon by the Crown, but relevant to the investigation) listed just two items; the CRIS (police report) and D’s custody record. One of the two pages of the CRIS that were disclosed included a comment from an officer describing C as ‘not the compelling and honest witness that she first appeared’. A CRIS relating to a previous allegation of sexual assault made by the complainant that was not proceeded with, was also disclosed.
Disclosure requests
In the usual way, a defence statement was served, requesting a number of items which in our view were plainly disclosable, in particular.
– We asked for service of the phone downloads of the phones belonging to C and D. We were told by the CPS that the D’s phone download ‘has been requested and will be reviewed once it is available’. By this point, 27 months had passed since the offence and the CPS were still not in possession of the download. This means this important evidence had not been reviewed by the CPS when they made the decision to charge a young man with rape.
– The CPS had indicated at an early hearing that handwriting analysis was being done on the list found at C’s house. We asked for the outcome of this. We were told ‘the ‘list’ was not suitable for handwriting analysis and was therefore not completed’.
– The CPS had previously disclosed the existence of medical notes, GP notes, Counselling notes and Social Services records. In response to our request for access to these documents we were told ‘these were considered as part of initial disclosure and relevant entries were disclosed’
The case then came back to Court for a pre-trial review. Amongst the matters raised was the absence of the defendant’s mobile phone download. The OIC was at Court, and she claimed that the disc had ‘caught fire’ during the copying process; the inference was that the phone evidence was no longer available. The prosecution continued to maintain their stance that the other items were not disclosable, so we listed the case for a S8 disclosure application.
When the S8 application came to be heard, it was apparent that neither prosecuting counsel or the CPS had seen, let alone reviewed the social services file. The judge on that occasion ruled that the trial judge would need to consider the application at the outset of the trial.
The Trial
The trial was listed for January 2nd 2018. On the morning of the trial, Prosecution Counsel took the view that the material had been reviewed (albeit not by him), and there was nothing further to disclose. Fortunately, the trial judge took a different view, and made it clear that it was the prosecutor’s job to review the material and decide what did and what didn’t meet the test for disclosure. Time was allowed for Prosecution counsel to review the social services and school records of C. The school records had to be retrieved from the school because the OIC did not have them. Amongst other information revealed in the days after the trial had actually started, we learnt.
Handwriting
We had already instructed our own handwriting expert to analyse the handwritten note. There were no issues regarding the quality of the sample and she was able to conclude that it was very unlikely that D wrote the sexual ‘to do’ list.
At the trial the CRIS was finally disclosed. It revealed that C’s mum had found the paper in the bin at home, and that as far back as March 2016, the reason given for being unable to do the comparison was because the school had none of D’s work available. Enquiries were apparently being made with C’s school for her books, but C’s mum had said it was ‘clearly’ C’s writing. It was clear that the reason provided by the OIC for their being no analysis was simply untrue.
In her evidence, C continued to maintain that she had not written the document. This raised serious issues regarding her credibility.
C’s phone download
On day 2 of the trial, the OIC provided a statement saying that the download from C’s phone had been provided from the lab that did the work as an Excel spreadsheet, this lab had gone into administration and the original material was no longer available. However, when pushed by D’s barrister, she eventually disclosed that she had a disc, albeit it was “corrupted”. Prosecution and defence counsel took and reviewed the disc which had the full original phone down load for both D’s and C’s phone on it. No explanation was ever forthcoming from the OIC as to why she had lied about the availability of the phone download.
Other failures of disclosure
D’s mobile download
This wasn’t provided until 22nd December 2017. It ran to over 1600 pages. Despite C claiming that their brief relationship had been unpleasant and that she had never been to D’s house, the download revealed daily lengthy conversations taking place between the two parties, and numerous loving text messages being sent. The contents of the messages also suggested that C had been to D’s house on a number of occasions.
There was no record of the message that he had apparently sent on the evening, apologising. There was no record of anything preceding that, or afterwards, that might have put it into context. The records did however show that he had spoken to the person the message was sent to immediately beforehand, which would provide some context for it. That person had declined to provide a statement, and despite speaking to her on a number of occasions, the OIC agreed in evidence that she never thought to ask to look at the witnesses phone to see the context of the relevant and damaging message.
Social Services records
Social Services records eventually disclosed that;
Her mother could not leave her at home alone because she was stealing from her and could not be trusted
The situation at home was so bad that police had been called twice to allegations of assault, once by C and once by her mum. Her mum had asked social services to remove her.
C had told medical professionals just four months before the allegation was made that ‘I lie a lot’, that she had fallen out with her best friend, was struggling at school and stressed about exams. She also describes herself as being impulsive and having difficulty managing her emotions.
CRIS
As well as other matters referred to above, this disclosed that at the time of the offence C was having difficulty at her foster home and wanted to go back to her mum.
The verdict and some considerations
Fortunately for our client, the jury found him not guilty. However, what was not a particularly complex case had taken over 2 ½ years to be concluded during which a young man had to effectively put his life on hold. The evidential position in this case was very different at the end of the trial to the start of the trial. Had the evidence that was finally disclosed been made known to the CPS pre-charge, then there is a realistic chance that this defendant may never have been charged. Had the CPS properly reviewed the evidence at an earlier stage, they may well have chosen to discontinue the case.
There has been absolutely no publicity about this case, and D wishes it to remain that way. However, what is clear is that the cases reported in the media over recent weeks are not isolated cases, but a reflection on the current problems within the Criminal Justice System.
To discuss this, or any other criminal matter, please contact John Howey on 020 7388 1658 or jhowey@jfhlaw.co.uk for prompt specialist advice.
John Howey, Senior Solicitor
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Jury Trial; What is this? How does it work?
We talk a lot in this Country about the benefits of a jury trial, how leaving the decision in the hands of 12 people chosen at random, is the fairest way of securing justice, but how does a jury decide?
There is a lot that we do not know
Ironically, the process of how a jury reaches its decision is unknown as laws prevent us examining jury decisions and questioning them on their findings.
There are lots of academic studies, but in reality, they shed little light on the process.
What we do know however is the legal process that guides them in their decision making and despite the lack of ‘hard proof.’ most lawyers actively support trial by jury.
The internet age
The power of Google and new networking spaces such as Facebook and Twitter can present challenges to a jury trial if jurors seek information from these sources. There is a good reason why certain information is withheld from a jury (for example previous convictions), and going behind explicit instructions not to discuss evidence with anyone other than a fellow juror when the jury is assembled, or seeking information from external sources, undermines jury trial.
For this reason, jurors will be given clear warnings throughout the trial process.
We start with 12
We always start with 12; no criminal jury trial can commence with fewer jurors. Unlike in America, there is no selection process. Neither the prosecution nor the defence can object to a particular juror.
For lots of reasons, however, a trial does not always finish with 12. Jurors may become sick and be unable to return, or in rare cases, they may be removed from a jury due to some misconduct during the trial. As long as the number of jurors does not fall below 9, a verdict can be reached.
A unanimous verdict
At all times, the Judge will be seeking a unanimous verdict from the jury, that is a verdict upon which all the jurors are agreed, so either guilty or not guilty.
In the early stages of deliberation, a Judge is prevented by law from accepting a majority verdict, but the time may come when a majority decision is permissible. The timing of that will depend very much on the facts of the particular case.
When a majority verdict becomes permissible, the jury will be brought back into court and advised accordingly. However, even at that stage, they will be asked to still arrive at a unanimous verdict if that is possible. If it is not possible, then a majority verdict will be acceptable.
Deadlock
On occasion, it will become apparent to the Judge that the jury cannot reach a verdict, even a majority one. The Judge will often know this as the jury will write a note to explain the situation. The contents of that note will usually not be shared with the advocates, and this is often because ‘it contains numbers’, i.e. how many jurors are voting one way or the other. Such notes remain confidential in all trials.
When a deadlock occurs a ‘give and take’ direction will be given, calling upon all jurors to use their collective wisdom to reach a decision.
Decision reached
If the jury reaches a unanimous verdict the issue is settled, but if not, and the time is appropriate for a majority verdict, a majority may be acceptable.
Whether a majority verdict is acceptable depends on the balance of votes, which in turn depends on how many jurors remain.
The combinations are:
Where there are 12 jurors: 11 – 1 or 10 – 2
Where there are 11 jurors: 10 -1
Where there are 10 jurors: 9 – 1
(where the jury falls to 9 jurors, only a unanimous verdict is acceptable).
If the verdict is not guilty, the defendant is free to leave court (assuming that there are no other matters remaining), if guilty, the judge will go on to consider sentencing.
Back to deadlock
If despite further deliberation it becomes clear that the jury is deadlocked, the jury will be discharged, and the trial will be over.
In these circumstances, the prosecution may either proceed with a new trial or abandon the trial (for example where it is clear at that stage that the evidence is weak).
How we can assist
We realise that the trial process can be difficult for both our clients and their families. We work hard at all stages to explain what is going on and what will happen next.
It is your case and you ought not to be reduced to a mere bystander as the legal process occurs around you.
As experienced trial lawyers, we do not lose sight of the person behind the proceedings.
If you would like advice about a criminal case, please contact us on 020 7388 1658, or info@jfhcrime.co.uk.
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