2023: Updates for Criminal Solicitors
Just before the beginning of the new legal year, now is a good point for solicitors to take stock on updates from the High Court and Court of Appeal on issues relevant to practice.
R v Pascal Molliere  EWCA Crim 228
Requirements of a pre-prepared statement:
This case concerned the applicants appeal against conviction for three counts of sexual assault. He advanced two grounds of appeal, though for the purposes of this article it is only necessary to consider the first; namely, that the Judge was wrong to direct the Jury that they could draw adverse inferences pursuant to s34 of the Criminal Justice and Public Order Act 1994.
At the conclusion of the defence case, the Crown submitted it would be appropriate for a s34 direction be given on the basis the defendant had given a no-comment answer in relation to matters which arose in evidence at trial. The defence, naturally, objected, citing the fact he had given a pre-prepared statement. In their submission, perhaps alluding to the fact they could see the issue faced by their objection, the defence stated that “the full facts relied on by the applicant were contained in the prepared statement and that none of the facts now particularised by the prosecution were facts which the applicant could reasonably have been expected to mention when questioned in interview”.
The Judge did not agree. Instead, he found that whilst his statement was a very general denial, his evidence amounted to a “very detailed” account. More importantly, the Judge found that the statement had not dealt with matters raised in evidence by the defendant as part of his evidence and defence. As such, a s34 direction was given.
On appeal, counsel for the defendant focussed on the time elapsed between the event and the interview (some 10 years) to suggest it was not surprising that his account was undetailed in interviewinterview, and it would only be natural that such detail would be expanded upon after sufficient time to prepare for trial.
The court remained unpersuaded, finding the following points:
- His statement had amounted to a bare denial.
- Before he was interviewed, he was told the central details of the allegations.
- After he had been given this information he drafted his statement, which was read and then he answered no comment to all questions. “Thus, he did not engage with the detail of the allegations as they were put to him in interview.”
- His answer to those allegations at trial amounted to more than a mere amplification of the prepared statement, indeed consisting of a detailed narrative.
The question for the court was therefore to consider if he had gone outside his prepared statement, because it was only if so that the Court would then consider if the Judge could then use his discretion to give a s34 direction. Unsurprisingly, the Court found that he did.
A pre-prepared statement followed by a no comment interview is perhaps one of the most commonly used tools by criminal defence solicitors up and down the country. Whilst strictly speaking no new principles arose in this case, it is an important reminder of what they are and what they are not.
A pre-prepared statement is precisely that;that, a statement. It is a statement from the accused dealing with the allegations he faces. It must therefore cover all points that are relevant to the officer’s questions to the defence that the accused will later present at trial and, most importantly, it must do so in sufficient detail to satisfy the clear warning in the caution ““It may harm your defence if you do not mention when questioned something which you later rely on in court.”
This case is a useful reminder of the clear duty this warning place on solicitors. Clearly, one cannot be expected to draft a full defence statement in the middle of the night after a 20minute conference with a defendant who has just been brought in. However, solicitors must ensure when drafting their statement, that the details of the allegations as put to the defendant have been dealt with sufficiently. This authority suggests some form of explanation or response must be given to the allegations. A bare denial may not be enough; a reason or explanation must also be given.
Additionally, within this authority one can also conclude that the police station interview is a dynamic process or solicitors. Clearly, if you are listening to the questions of the officer and feel that the drafted statement is insufficient you must consider taking further instructions, with a view to possibly adding to the pre-prepared statement lest the defendant wishes to face adverse inferences being drawn when he finally provides an explanation only on the day of trial.
If, for whatever reason, the client does not wish to answer questions and does not wish to provide a detailed pre-prepared statement one safeguard may be to take a detailed account which can be used as evidence that the account later relied on at trial had been given on the date of the interviews. Such an approach obviously has its drawbacks such as requiring waiver of privilege and making you a potential defence witness!
R v Sevenoaks Magistrates Court  EWHC 507 (Admin)
Adjournments in the Magistrates’ Court:
This was a claim for judicial review, whereby the claimant was seeking a declaration that the decision to adjourn his trial had been unlawful.
By way of background, the claimant faced one charge of impersonating a police officer. It was alleged that he had held his hand over the complainant’s ring doorbell whilst telling him he was a member of the police. The Crown had only served and intended to use clips of the Ring Doorbell footage, rather than the whole unedited version. On the day of trial, the defence made a s78 application to exclude this, but this was refused. Due to lack of court time, the trial had to be adjourned.
On the next trial date, the complainant gave evidence and in cross-examination stated he had not edited the footage and that his computer and hard drive had been seized by the police in February 2021 and were still with them. This had not been mentioned in the schedule of unused material, whilst the defence had previously made an application for this; whilst the CPS and Police had been on notice of this request for over a year. Enquiries were made by the prosecutor who found the items were indeed in the possession of crown. No explanation was provided as to why this failure occurred.
Prosecution council was then instructed to make an application to adjourn, upon the basis they would offer no evidence if the application was refused due to this disclosure failure. This application was opposed.
The magistrates allowed the adjournment, their reasons being as follows:
“We have very carefully considered the points raised by both prosecution and defence in relation to prosecution application to adjourn this case part heard. In our deliberations we have had regard to Practice Direction 24C…. we note in particular under 24C9 when the prosecution asks for adjournment the court must consider not only the interest of the defendant in getting the matter dealt with without delay but also the public interest in ensuring that criminal charges are adjudicated upon thoroughly, with the guilty convicted as well as the innocent acquitted. With a more serious charge the public interest that there be a trial will carry greater weight. We consider it is in the interests of justice to allow an application to adjourn a trial part heard…”
Counsel for the claimant asked for written reasons but this request was refused.
Discussion of the Court
The Administrative Court then undertakes a considerable analysis of the law on adjournments in the Magistrate’s Court, including what us said by Lord Bingham of Cornhill CJ in paragraphs 30 and 31 of his judgment in R v Hereford Magistrates’ Court, ex parte Rowlands  QB 110 at pages 127-128:
“30. … It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances.
31. This court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when a defendant is denied a full opportunity to present his case. But neither defendants nor their legal advisers should be permitted to frustrate the objective of a speedy trial without substantial grounds. Applications for adjournments must be subjected to rigorous scrutiny.”
The Court found at  that “Hand in hand with the requirement for magistrates to subject applications for adjournments to rigorous scrutiny is a requirement to give cogent reasons for their decisions on such applications.”
The court then explored and set out paragraph 24C of the criminal procedure rules and the factors which the magistrates out to consider when determining whether to make an adjournment. (On this point, it is worth noting that there are new criminal procedure rules and the test for adjournment is set out in the practice directions from 5.4.3, with a list of factors to consider at 5.4.10. Whilst the factors are similar, the consideration at 5.4.10b. - “The need for expedition and that delay is generally inimical to the interests of justice – it has the potential to bring the criminal justice system into disrepute” - may well make obtaining adjournments even more difficult.)
The court then considered the reasoning behind the adjournment and determined that insufficient reasoning was given by the magistrates for their decision to allow an adjournment; given that no specific reference was made to the factors within 24C or even an acknowledgment that the starting point is for the trial to continue, whilst any application to adjourn must be vigorously scrutinised. The court therefore ruled the decision to adjourn was unlawful because it was insufficiently reasoned.
The Court went no further and refused to enter a not guilty verdict for the defendant. This was for various reasons, but of particular importance was that the adjourned trial had yet to begin, and the defendant now had time to review the full footage and instruct an expert before then.
Whilst heeding Lord Bingham’s warning and providing little in terms of a hard and fast rule as to under what circumstances a Court should decide to adjourn; what has been made clear by this judgment is that the Court must provide clear reasons for its decision. Therefore, if one is in the Magistrates’ Court and the Crown makes an application to adjourn; solicitors would do well to listen intently to said application with reference to the factors set out at CrimPD 5.4.10. If no reference is given, a seemingly easy way to respond could be referencing this decision and pointing out the lack of referral to any justification for an adjournment. The bench is unlikely to want to see their decision subject to the same level of judicial scrutiny as the Magistrates in Sevenoaks have seen…
On the other hand, if it is you who seeks the adjournment, this decision also serves as a simple reminder to not overlook the procedure rule upon which you rely. Given the clear message of the Court that there must be good reason, preferably contained within the procedure rules, to allow an adjournment; it must therefore be that using CrimPD 5.4.10 as your springboard would lead to more successful applications in the future.
R v Brooks  EWHC 1689 (SCCO)
Calculating PPE when claiming from the LAA
The issue on appeal was what method ought to be undertaken when determining the page count of prosecution evidence (“PPE”).
In this instance, the material consisted of electronic material downloaded from several mobile phones recovered from the defendant and his co-defendants. Whilst all pages were served in A4 format, the font size ranged from 1.5 – 6. To determine page count, the Legal Aid Agency (“LAA”) simply multiplied the page count by two. The defendants, on the other hand, used a fairly complicated methodology; adjusting the pdf files into an excel format and then accounting for adjusting column width and heights, changing font sizes and excluding blank pages to ensure that each page had a font size of 12.
The appellant, Faraday’s solicitors, appealed against the decision of the LAA to reduce the PPE from 7584 to 3407.
The regulations for determining page counts were common ground. These can be found at paragraph 1 of sch.2 to The Criminal Legal Aid (Remuneration) Regulations 2013 (‘the 2013 Regulations’), as amended in 2018, and were set out as follows:
“1. Interpretation … (2) For the purposes of this Schedule, the number of pages of prosecution evidence served on the court must be determined in accordance with subparagraphs (3) to (5).
(3) The number of pages of prosecution evidence includes all –
(a) witness statements.
(b) documentary and pictorial exhibits.
(c) records of interviews with the assisted person; and
(d) records of interviews with other defendants, which form part of the committal or served prosecution documents, or which are included in any notice of additional evidence.
(4) Subject to sub-paragraph (5), a document served by the prosecution in electronic form is included in the number of pages of prosecution evidence.
(5) A documentary or pictorial exhibit which –
(a) has been served by the prosecution in electronic form; and
(b) has never existed in paper form, is not included within the number of pages of prosecution evidence unless the appropriate officer decides that it would be appropriate to include it in the pages of prosecution evidence taking in account the nature of the document and any other relevant circumstances”.
In the judgement costs Judge Whalen also referred to the authoritative guidance given by Mr Justice Holroyde in Lord Chancellor v. SVS Solicitors ]2017] EWHC 1045 (QB) to assist in interpreting what material is to be considered as PPE, specifically para. 50(i) to (xi). However, given that both parties agreed the evidence was served and it formed part of the PPE, it is unclear how far this point takes us. The issue was how to determine a disputed page count.
In one respect, it is a relatively simple judgment in that Costs Judge Whalen gave his ratio in paragraph 14: “: “An appropriate font size is 11, although many institutions now require a font size of 12… in this particular case, I am satisfied that the Appellants approached the issue carefully and cautiously, utilising a notional font size of 11, while adjusting column height and width and discarding ‘blank pages’ from the count.” It would therefore appear that in determining the page count, solicitors needsolicitors need to have some method of turning the font size to 11 or 12 and discarding blank pages.
Turning to the methodology of the LAA, Costs Judge Whalen acknowledged that simply multiplying by two would have been appropriate if all the font was in 6; but it fell woefully inadequate given the range of the font sizes used in the electronic data served by the crown. By contrast, the appellants methodology clearly sought to take this into account and adjusted for it, as well as considering the issue of empty pages. Thankfully, the court made clear that complicated use of Microsoft excel was ordinarily not of any assistance in cases such as this, and so solicitors should not feel the need to engage in overly complex methods when determining word count.
Therefore, by determining PPE by reference to a font size of 11 or 12 and discarding empty pages, solicitors may be able to claim back significantly more from the LAA than they would otherwise. The difference between 3407 pages and 7584 is clearly enough to make this judgment worth considering.
Tobias Collins, Pupil Barrister