Criminal Procedure and Sentencing Updates (to September 2011)

Transcription

1 Criminal Procedure and Sentencing Updates (to September 2011) Welcome to the latest cumulative update to Criminal Procedure and Sentencing (Peter Hungerford-Welch). Web links Chapter 1: Theoretical perspectives in criminal litigation Criminal Procedure Rules 2011: Code for Crown Prosecutors (February 2010): Essential Case Management: Applying the Criminal Procedure Rules: Case Management Forms: Magistrates Courts: Preparation for Trial: Guidance Notes: Crown Court: Plea and Case Management Gearing: Guidance Notes: Chapter 2: Preliminaries CPS Annual Report and Resource Accounts CPS Annual Report : CPS Annual Report : Page 1 of 207

2 CPS Annual Report : CPS Report of the thematic review of the quality of prosecution advocacy and case presentation (July 2009): The Joint Thematic Review of the New Charging Arrangements (published in November 2008) by HM Crown Prosecution Service Inspectorate and HM Inspectorate of Constabulary: pdf Home Office Circular 16/2008: Simple Cautioning of Adult Offenders: The Director's Guidance on Adult Conditional Cautions: Guidance to Police Officers and Crown Prosecutors Issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984 has been issued (6th Edition, January 2010): Revised Code of Practice for Conditional Cautions Adults: Director's Guidance On Youth Conditional Cautions: Guidance to Police Officers, Youth Offending Teams and Crown Prosecutors Issued by the Director of Public Prosecutions under Section 37A of the Police and Criminal Evidence Act 1984 (1 st edition, January 2010): Code of Practice for Youth Conditional Cautions for 16 & 17 Year Olds (issued pursuant to s 66G of the Crime and Disorder Act 1998): Guidance from Ministry of Justice on use of fixed penalty notices for theft from shops and criminal damage ( Criminal Statistics (Ministry of Justice, October 2010): Criminal Statistics (Ministry of Justice, January 2010): Criminal Statistics (Ministry of Justice, November 2008): Judicial and Court Statistics (Ministry of Justice, June 2011): Page 2 of 207

3 Judicial and Court Statistics (Ministry of Justice, October 2010): Judicial and Court Statistics (Ministry of Justice, September 2009): Chapter 3: Bail Virtual Courts : s_v3.pdf Sentencing Council guideline on failure to surrender to bail: Chapter 4: Classification and allocation of offences 2010 Judicial and Court Statistics (Ministry of Justice, June 2011): Judicial and Court Statistics (Ministry of Justice, October 2010): Judicial and Court Statistics (Ministry of Justice, September 2009): Chapter 6: Young defendants and trial in the youth court Reporting restrictions in the criminal courts (Judicial Studies Board et al, October 2009): g_restrictions_ pdf Overarching Principles Sentencing Youths (Sentencing Guidelines Council): ouths.pdf A Youth Crime Action Plan 2008 was published by the Ministry of Justice in July 2008: Chapter 8: Disclosure under the Criminal Procedure and Investigations Act 1996 Prosecution Interview of Defence Witnesses (s 6C of the Criminal Procedure and Investigations Act 1996): Code of Practice: Page 3 of 207

4 Chapter 12: Crown Court trial the course of the trial Judicial Studies Board Criminal Benchbook March 2010): 10.pdf The Attorney General's Guidelines on Plea Discussions in Cases of Serious or Complex Fraud and Foreign Bribery (May 2009): on%20plea%20discussions%20in%20cases%20of%20serious%20or%20complex%20 Fraud.pdf A major research project into juries was carried out by Professor Cheryl Thomas: Are Juries Fair? (Ministry of Justice Research Series 1/10, February 2010): Judicial and Court Statistics (Ministry of Justice, June 2011): Judicial and Court Statistics (Ministry of Justice, October 2010): Chapter 13: Appeals to the Court of Appeal A Guide to Commencing Proceedings in the Court of Appeal (Criminal Division): Chapter 14: Public funding of criminal litigation The Procurement of Criminal Legal Aid in England and Wales by the Legal Services Commission (Audit Commission, November 2009): Chapter 15: Costs in criminal cases Practice Direction (Costs in Criminal Proceedings): Chapter 16: Sentencing procedure and principles Sentencing Council of England and Wales: Page 4 of 207

5 Sentencing Council Guidelines: Overarching Principles: Seriousness: Reduction in Sentence for a Guilty Plea: a_-revised_2007.pdf Sentencing Council Magistrates Court Guidelines: _1 2 3_4_web.pdf Sentencing Commission Working Group Report, Sentencing Guidelines in England and Wales: an evolutionary approach Published July Public Attitudes to the Principles of Sentencing (Sentencing Advisory Panel, June 2009): pdf Chapter 17 and 18: Adult offenders Sentencing Council guidelines New Sentences under the Criminal Justice Act 2003: Dangerous Offenders - Guide for Sentencers and Practitioners: ntencers_and_practitioners.pdf Chapters 20 and 21: Young offenders Overarching Principles Sentencing Youths (Sentencing Guidelines Council, November 2009: ouths.pdf Page 5 of 207

6 Criminal Procedure Rules Chapter 1: Theoretical perspectives in criminal litigation The current version of the Criminal Procedure Rules came into effect on 3 October See Chapter : Case management (pp 20-25) Roderick L Denyer, in Non-compliance with case management orders and directions [2008] Crim LR 784, refers to rule 3.5(6) and says: it is not clear what other sanctions a court can impose where no express power is given by statute--perhaps a court could bear such non-compliance in mind in the context of extending or not extending custody time limits or, in an extreme case, rely upon the failure as supporting a stay on abuse grounds. He quotes from para 229 of the Auld Review of the Criminal Courts of England and Wales, where Sir Robin Auld says: Denyer argues that: I have mentioned the lack of effective sanctions Orders of costs, wasted costs orders, the drawing of adverse inferences or depriving one or other side of the opportunity of advancing all or part of its case at trial, are not in the main apt means of encouraging and enforcing compliance with criminal pre-trial procedures. In these respects criminal courts have much less control than civil courts. The situation will only improve as the culture changes and all lawyer participants regard it as their professional duty to comply, so far as is possible, with time limits set out in Rules and with pre-trial orders. Stringent costs regimes will almost certainly not do the trick. The current version of Part 3 of the Criminal Procedure Rules reads as follows: 3.1. This Part applies to the management of each case in a magistrates court and in the Crown Court (including an appeal to the Crown Court) until the conclusion of that case (1) The court must further the overriding objective by actively managing the case. (2) Active case management includes (a) the early identification of the real issues; (b) the early identification of the needs of witnesses; (c) achieving certainty as to what must be done, by whom, and when, in particular by the early setting of a timetable for the progress of the case; (d) monitoring the progress of the case and compliance with directions; (e) ensuring that evidence, whether disputed or not, is presented in the shortest and way; (f) discouraging delay, dealing with as many aspects of the case as possible on the same occasion, and avoiding unnecessary hearings; Page 6 of 207

7 (g) encouraging the participants to co-operate in the progression of the case; and (h) making use of technology. (3) The court must actively manage the case by giving any direction appropriate to the needs of that case as early as possible Each party must (a) actively assist the court in fulfilling its duty under rule 3.2, without or if necessary with a direction; and (b) apply for a direction if needed to further the overriding objective (1) At the beginning of the case each party must, unless the court otherwise directs (a) nominate an individual responsible for progressing that case; and (b) tell other parties and the court who he is and how to contact him. (2) In fulfilling its duty under rule 3.2, the court must where appropriate (a) nominate a court officer responsible for progressing the case; and (b) make sure the parties know who he is and how to contact him. (3) In this Part a person nominated under this rule is called a case progression officer. (4) A case progression officer must (a) monitor compliance with directions; (b) make sure that the court is kept informed of events that may affect the progress of that case; (c) make sure that he can be contacted promptly about the case during ordinary business hours; (d) act promptly and reasonably in response to communications about the case; and (e) if he will be unavailable, appoint a substitute to fulfil his duties and inform the other case progression officers (1) In fulfilling its duty under rule 3.2 the court may give any direction and take any step actively to manage a case unless that direction or step would be inconsistent with legislation, including these Rules. (2) In particular, the court may (a) nominate a judge, magistrate or justices legal adviser to manage the case; (b) give a direction on its own initiative or on application by a party; (c) ask or allow a party to propose a direction; (d) for the purpose of giving directions, receive applications and representations by letter, by telephone or by any other means of electronic communication, and conduct a hearing by such means; (e) give a direction (i) at a hearing, in public or in private, or (ii) without a hearing; (f) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (g) shorten or extend (even after it has expired) a time limit fixed by a direction; (h) require that issues in the case should be determined separately, and decide in what order they will be determined; and (i) specify the consequences of failing to comply with a direction. (3) A magistrates court may give a direction that will apply in the Crown Court if the case is to continue there. (4) The Crown Court may give a direction that will apply in a magistrates court if the case is to continue there. (5) Any power to give a direction under this Part includes a power to vary or revoke that direction. (6) If a party fails to comply with a rule or a direction, the court may (a) fix, postpone, bring forward, extend, cancel or adjourn a hearing; (b) exercise its powers to make a costs order; and (c) impose such other sanction as may be appropriate. Page 7 of 207

8 3.6. (1) A party may apply to vary a direction if (a) the court gave it without a hearing; (b) the court gave it at a hearing in his absence; or (c) circumstances have changed. (2) A party who applies to vary a direction must (a) apply as soon as practicable after he becomes aware of the grounds for doing so; and (b) give as much notice to the other parties as the nature and urgency of his application permits (1) The parties may agree to vary a time limit fixed by a direction, but only if (a) the variation will not (i) affect the date of any hearing that has been fixed, or (ii) significantly affect the progress of the case in any other way; (b) the court has not prohibited variation by agreement; and (c) the court s case progression officer is promptly informed. (2) The court s case progression officer must refer the agreement to the court if he doubts the condition in paragraph (1)(a) is satisfied (1) At every hearing, if a case cannot be concluded there and then the court must give directions so that it can be concluded at the next hearing or as soon as possible after that. (2) At every hearing the court must, where relevant (a) if the defendant is absent, decide whether to proceed nonetheless; (b) take the defendant s plea (unless already done) or if no plea can be taken then find out whether the defendant is likely to plead guilty or not guilty; (c) set, follow or revise a timetable for the progress of the case, which may include a timetable for any hearing including the trial or (in the Crown Court) the appeal; (d) in giving directions, ensure continuity in relation to the court and to the parties representatives where that is appropriate and practicable; and (e) where a direction has not been complied with, find out why, identify who was responsible, and take appropriate action. (3) In order to prepare for a trial in the Crown Court, the court must conduct a plea and case management hearing unless the circumstances make that unnecessary. (4) In order to prepare for the trial, the court must take every reasonable step to encourage and to facilitate the attendance of witnesses when they are needed (1) This rule applies to a party s preparation for trial or appeal, and in this rule and rule 3.10 trial includes any hearing at which evidence will be introduced. (2) In fulfilling his duty under rule 3.3, each party must (a) comply with directions given by the court; (b) take every reasonable step to make sure his witnesses will attend when they are needed; (c) make appropriate arrangements to present any written or other material; and (d) promptly inform the court and the other parties of anything that may (i) affect the date or duration of the trial or appeal, or (ii) significantly affect the progress of the case in any other way. (3) The court may require a party to give a certificate of readiness In order to manage a trial or an appeal, the court (a) must establish, with the active assistance of the parties, what are the disputed issues; (b) must consider setting a timetable that Page 8 of 207

9 ... (c) (d) (i) takes account of those issues and of any timetable proposed by a party, and (ii) may limit the duration of any stage of the hearing; may require a party to identify (i) which witnesses that party wants to give evidence in person, (ii) the order in which that party wants those witnesses to give their evidence, (iii) whether that party requires an order compelling the attendance of a witness, (iv) what arrangements are desirable to facilitate the giving of evidence by a witness, (v) what arrangements are desirable to facilitate the participation of any other person, including the defendant, (vi) what written evidence that party intends to introduce, (vii) what other material, if any, that person intends to make available to the court in the presentation of the case, and (viii) whether that party intends to raise any point of law that could affect the conduct of the trial or appeal; and may limit (i) the examination, cross-examination or re-examination of a witness, and (ii) the duration of any stage of the hearing. Case Management in Magistrates Courts In December 2009, Leveson LJ (Senior Presiding Judge for England and Wales) issued a document entitled Essential Case Management: Applying the Criminal Procedure Rules. It contains the following key points: (A) Generally... at every hearing, including at trial, it is the personal responsibility of the Magistrates or District Judge actively to manage the case... Unnecessary hearings should be avoided by dealing with as many aspects of the case as possible at the same time... (B) The first hearing: taking the plea At every hearing (however early): Unless it has been done already, the court must take the defendant s plea... This obligation does not depend on the extent of advance information, service of evidence, disclosure of unused material, or the grant of legal aid. If the plea really cannot be taken, or if the alleged offence is indictable only, the court must find out what the plea is likely to be... [a footnote adds that Exceptions to the rule requiring the plea to be taken are rare and must be strictly justified.] (C) If the plea is guilty The court should pass sentence on the same day, if at all possible (unless committing for sentence). If information about the defendant is needed from the Probation Service, it may be that a report prepared for earlier proceedings will be sufficient or a fast delivery report (oral or written) may be prepared that day, depending on local arrangements. If a Newton hearing is needed, the court, with the active assistance of the parties, must identify the disputed issue... and if possible, determine it there and then or, if it really cannot be decided, give directions specifically relating to that disputed issue to ensure that the next hearing is the last. Page 9 of 207

10 (D) If the plea is not guilty... The relevant disputed issues must be explicitly identified and the case must be managed by the court to ensure that the live evidence at trial is confined to those issues. The parties must complete the prescribed case progression form... and the court must rigorously consider each entry on the form in order to comply with its duty actively to manage the case by making properly informed directions specific to each case. Only those witnesses who are really needed in relation to genuinely disputed, relevant issues should be required to attend. The court must take responsibility for this (and not simply leave it to the parties) in order to comply with the Overriding Objective of the Rules... The court s directions must include a timetable for the progress of the case (which can include a timetable for the trial itself)... The time estimate for the trial should be made by considering, individually, how long each live witness will take having regard to the relevant disputed issue(s). (E) The parties obligations to prepare for trial include: Getting witnesses to court... Making arrangements for the efficient presentation of written evidence/other material... Promptly warning the court and other parties of any problems... (F) At trial Before the trial begins, the court must establish, with the active assistance of the parties, what disputed issues they intend to explore... The court may require the parties to provide: A timed, batting order of live witnesses... Details of any admissions/written evidence/other material to be adduced... Warning of any point of law... A timetable for the whole case... During the trial the court must ensure that the live evidence, questions, and submissions are strictly directed to the relevant disputed issues. The new Case Management form for magistrates courts reflects many of the points made by Leveson LJ. Chapter 1.3: Abuse of Process (pp 26-40) R (Dacre) v City of Westminster Magistrates' Court [2008] EWHC 1667 (Admin); [2009] 1 WLR 2241, per Latham LJ (at paras 26 and 27): There has been no dispute before us about the jurisdiction of the Magistrates' Court to stay proceedings on the grounds that they amount to an abuse of the process of the court. There are essentially two main strands of cases where the jurisdiction has been exercised. The first is where it would be impossible to give the accused a fair trial. That is not suggested in the present application. Second, is where it would offend the court's sense of justice for the prosecution to proceed And in this context, both motive and conduct can clearly be relevant. As far as motive is concerned, proceedings tainted by mala fides or spite or some other oblique motive may fall into this category Page 10 of 207

11 However in Bow Street Metropolitan Stipendiary Magistrate ex p South Coast Shipping Company Limited [1993] QB 645 this court held that the mere presence of an indirect or improper motive in launching a prosecution did not necessarily vitiate it; and the court would be slow to halt such a prosecution in the case of mixed motives unless the conduct was truly oppressive. Drawing an analogy with the principles relating to entrapment in relation to public prosecutions (set out in R v Looseley [2001] 1 WLR 2060), his Lordship went on (at para 31): there is no reason in principle why a private prosecution should not be considered an abuse of process if the crime which is the subject of the prosecution is one that has been encouraged by the private prosecutor or when in some other way the private prosecutor has essentially created the same mischief as that about which he or she complains. In R v Momodou [2005] EWCA Crim 177; [2005] 1 WLR 3442, Judge LJ (at para 54) said: The steady development of the abuse of process jurisdiction suggests that, notwithstanding that the prosecution or prosecuting authority may be blameless, as a matter of principle, the judge is vested with jurisdiction to order that proceedings should be stayed. The activities of third parties may constitute an abuse of process making a fair trial impossible, and if so, in an extreme case, this discretion is available to be exercised. That said, it has been pointed out time and again that difficulties, even great difficulties, created for the defence are almost always capable of being addressed by the trial process itself. This is usually achieved by evidence or agreed facts which properly inform the jury of the difficulties faced by the defendant. Then, with the benefit of the judge's directions as well as counsel's submissions before its retirement, the jury is well able to appreciate the impact of these difficulties on the proper preparation and conduct of the defence, and to take them fully into account before deciding whether the evidence demonstrates that the prosecution case has been proved. Juries have a strongly developed sense of fairness. Experience shows that they lean over backwards to see that the prosecution does not benefit from and that the defendant is not prejudiced by any unfairness, whatever its source. These considerations should properly inform the exercise by the trial judge of the salutary, but rarely exercised, power to halt a prosecution as an abuse. In Warren v HM Attorney General of the Bailiwick of Jersey [2011] UKPC 10; [2011] 3 WLR 464, the Privy Council considered a case where there had been serious misconduct on the part of the police. Lord Dyson (at paras 21 and 22) said: Some of the leading authorities on the abuse of process jurisdiction in cases of prosecutorial misconduct were reviewed by the Supreme Court of the United Kingdom in R v Maxwell [2010] UKSC 48; [2011] 1 WLR That was a case about a decision by the Court of Appeal of England and Wales to order a retrial following the quashing of a conviction on the grounds of serious misconduct by the police. Although the judgments (which were given on 17 November 2010) will not be reported until the retrial has been completed later this year, they were circulated to the parties in the present case on a confidential basis. It is possible to refer to certain parts of the judgments without risking any prejudice to the retrial. Page 11 of 207

12 Sir John Dyson SCJ said: 13. It is well established that the court has the power to stay proceedings in two categories of case, namely (i) where it will be impossible to give the accused a fair trial, and (ii) where it offends the court's sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will 'offend the court's sense of justice and propriety' (per Lord Lowry in R v Horseferry Road Magistrates' Court, Ex p Bennett [1994] 1 AC 42, 74G) or will 'undermine public confidence in the criminal justice system and bring it into disrepute' (per Lord Steyn in R v Latif [1996] 1 WLR 104, 112F). The Privy Council went on to consider R v Grant [2005] EWCA Crim 1089, [2006] QB 60, holding (at para 36) that the decision of the Court of Appeal in that case was wrong. At para 37, Lord Dyson said: It may not always be easy to distinguish between (impermissibly) granting a stay "in order to express the court's disapproval of official conduct pour encourager les autres" and (permissibly) granting a stay because it offends the court's sense of justice and propriety. But it is difficult to avoid the conclusion that in Grant the proceedings were stayed in order to express the court's disapproval of the police misconduct and to discipline the police. At para 46-50, Lord Dyson discussed the factors present in Warren. The factors favouring a stay were that the misconduct was very serious (it involved misleading the Jersey Attorney General and the Chief of Police and the authorities of three foreign states) and, unlike in the case of Grant, without the product of the unlawfulness, there would have been no trial. However, there were also several factors against a stay: the offence with which the defendants were charged was very serious; the ringleader was a professional drug dealer of the first order ; unwise advice from the Crown Advocate mitigated, to some extent, the gravity of the misconduct of the police; there was no attempt to mislead the Jersey court; and there was real urgency in the case ( it was in these circumstances that the police cut corners and acted unlawfully ). Lord Kerr, at para 83, said that a number of principles had emerged from recent jurisprudence. (i) the principal purpose of the examination, in the second category of cases, of the question whether proceedings should be stayed is to determine whether this is necessary in order to protect the integrity of the criminal justice system... it should now be recognised that the best way to describe this basis for a stay is that... it should be granted where necessary to protect the integrity of the criminal justice system. (ii) A balancing of interests should be conducted in deciding whether a stay is required to fulfil this primary purpose... [W]here a stay is being considered in order to protect the integrity of the criminal justice system, "the public interest in ensuring that those that are charged with grave crimes should be tried" will always weigh in the balance - Lord Steyn in Latif at 113A-B. Lord Steyn mentioned that a possible countervailing factor was that Page 12 of 207

13 the impression should not be created that the court is giving its sanction to an approach that the end justifies any means. With the emphasis that is given in this and other cases to statements that prosecutorial or police misbehaviour will never be condoned, this may not be as significant a consideration as heretofore... (iii) The "but for" factor (i.e. where it can be shown that the defendant would not have stood trial but for executive abuse of power) is merely one of various matters that will influence the outcome of the inquiry as to whether a stay should be granted. It is not necessarily determinative of that issue. (iv) A stay should not be ordered for the purpose of punishing or disciplining prosecutorial or police misconduct. The focus should always be on whether the stay is required in order to safeguard the integrity of the criminal justice system. In Ahmed [2011] EWCA Crim 184 (a case where the accused had allegedly been subject to torture outside the UK), Hughes LJ said (at para 24) that the jurisdiction to stay for abuse of process may be exercised where, by reason of gross executive misconduct manipulating the process of the court, the defendant has been deprived of the protection of the rule of law and it would as a result be unfair to put him on trial at all. His Lordship added that the jurisdiction does not exist to discipline the police or other executive arms of the State (although of course it will incidentally do so), but rather to protect the integrity of the processes of justice. The Court of Appeal upheld the refusal of a stay on the basis that the judge had been right to hold that what is required is a connection between the alleged wrongdoing and the trial. In the instance case, no evidence which was the product of torture or other ill-treatment was adduced at the trial, and the investigation did not amount, directly or indirectly, to employing the product of torture to make a case against the accused (at para 39). Chapter 1.3.1: Abuse of process delay (pp 29-33) Bullen and Soneji v UK (Application no. 3383/06), ECtHR, para 58: The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants. In Burns v HM Advocate [2008] UKPC 63; [2009] 1 AC 720, it was held the reasonable time requirement must be interpreted and applied in a way that will tend to achieve its purpose, which is to avoid undue uncertainty on the part of a person charged, and so the matter ought to be examined from the perspective of the individual concerned (per Lady Cosgrove at para 53). Chapter 1.3.3: Abuse of process going back on a promise (pp 35-37) Page 13 of 207

14 In R v Gore [2009] EWCA Crim 1424; [2009] 1 WLR 2454, the two defendants had each received a fixed penalty notice for public disorder. The following day, the police reviewed the CCTV evidence of the incident and decided that the fixed penalty notices were inappropriate. The defendants were arrested and charged with inflicting grievous bodily harm. The Court of Appeal ruled that there had been no improper escalation of charge, nor any departure from any reasonable expectation that either defendant would not be prosecuted, if any more serious consequences of their conduct, and evidence justifying prosecution for an offence of violence came to light after the issue of the notice. In CPS v Mattu [2009] EWCA Crim 1483, it was held that, where a detailed basis of plea has been agreed upon and approved by the court, it would be an abuse of process to prosecute related matters where the case advanced by the prosecution is wholly inconsistent with that basis of plea. In the instant case, the basis of plea was comprehensive and carefully drafted, with the prosecution involved in agreeing its terms for submission to the court. The judge considered it to be a suitable basis for sentence and proceeded to sentence. The basis of plea had therefore achieved a status which precluded the prosecution from attempting to go behind it (per Pill LJ at para 19). However, his Lordship observed (at para 20) that there will be cases, where, for example, fresh evidence emerges and circumstances change, in which it may be possible for the prosecution to circumvent a basis of plea they have agreed. Chapter Abuse of Process: entrapment (pp 38-39) In R v M [2011] EWCA Crim 648, Stanley Burnton LJ, at para 15, said that there may be a difficult line to draw between legitimate police conduct and improper entrapment. In general, however, conduct that is open to a finding of such entrapment as to render a prosecution improper involves some pressure or persuasion on the defendant to commit the crime. Providing the opportunity for the commission of the crime will not of itself lead to a finding of entrapment. His lordship concluded (at para 18) that it is an inherent aspect of any undercover police operation that the undercover police officer insinuates himself into the confidence of those involved in the criminal conduct at which the operation is directed. For an officer who has so insinuated himself to offer an opportunity to a defendant to commit a criminal offence, in the absence of persuasion or pressure or the offer of a significant inducement, will not generally result in its being an abuse of the process to prosecute the person who takes that opportunity to commit an offence. Chapter 1.4 Ethics (legal representation) (pp 41ff) In R v Ulcay [2007] EWCA Crim 2379; [2008] 1 WLR 1209, the accused changed his instructions at the close of the prosecution case, and his legal representatives withdrew on the grounds of professional embarrassment. The judge refused an application from the new representatives for a two-week adjournment and the new representatives also withdrew. The accused remained unrepresented during the trial. The Court of Appeal had to decide whether his subsequent conviction was safe. Sir Igor Judge P gave Page 14 of 207

15 guidance (at para 28) on what should be done by defence counsel where the accused changes his instructions during the trial: It is for counsel to decide whether, consistent with his obligations to his client, and the court, and the rules of his profession, he is so professionally embarrassed that he cannot continue with the case. If so, again consistent with his duty to the court, but without contravening the legal privilege which underpins his professional relationship with his client, he should inform the court of his situation, providing such explanation as he can, to enable the judge to decide how to proceed. It is difficult to imagine cases in which it would be appropriate for the trial judge to direct counsel that he must continue with a case, or refuse him permission to withdraw on the grounds of professional embarrassment if, having heard counsel explain his position, counsel remains unpersuaded that he may properly continue to act, not least because counsel will almost certainly be better informed than the judge, in particular because there are likely to be considerations which he may be unable to reveal. His Lordship held (at para 36) that the judge was entitled to exercise his discretion to refuse the lengthy adjournment sought by counsel, since a lengthy adjournment would have necessitated the discharge of the jury, thereby causing prejudice to the co-accused and public inconvenience and cost (or else trying the accused separately from his coaccused, with the cost and inconvenience that would involve). His Lordship went on (at para 41) to hold that the cab-rank rule (r. 602 of the Bar Code of Conduct, which requires a barrister to accept any brief to appear before a Court in which he professes to practice and to act for any person on whose behalf he is instructed; and do so irrespective of (i) the party on whose behalf he is instructed (ii) the nature of the case and (iii) any belief or opinion which he may have formed as to the character reputation cause conduct guilt or innocence of that person) applies whenever, and however late, the barrister is instructed. The absence of what he would regard as sufficient time for the purpose of preparation does not constitute an exception. Moreover, r. 701(b)(ii), which says that a barrister should not undertake any task for which he does not have adequate time and opportunity to prepare for or perform does not constitute an exception to the cab-rank rule. It follows that newly instructed counsel should soldier on and do the best he can notwithstanding the judge s decision that the period of adjournment should be significantly shorter than the time sought by counsel (at para 42). Finally, his Lordship said that r 2.01(b) of the Law Society rules, which requires the solicitor without sufficient resources or lacking the necessary competence to cease to act, does not prevent a solicitor from acting (nor does it require him to cease to act) where an order of the court creates difficulties and makes it harder for him to discharge his professional obligations to his client (at para 44). In R v Anderson [2010] EWCA Crim 2553, Lord Judge emphasised the importance of lawyers keeping a record of instructions given by the client. His Lordship said (at para 52): Although not laid down in prescriptive form in the rules of conduct, we believe that it is the usual practice for solicitor or counsel to make a brief note of instructions on important issues as to the conduct of the defence given in conference. In any event we strongly recommend that such a note be made to record both the instructions, and the advice that has been given on the essential issues. Such a note will be to the benefit of the client, in that it will serve to ensure that he or she has been given the appropriate advice, and will also serve to protect the advocate and his instructing solicitors from criticism based on Page 15 of 207

16 assertions made after the event by a dissatisfied client. If such a note had been kept in this case, the time of the court would not have been occupied in examining and assessing the allegation of professional incompetence, particularly in the context of the strategic decisions which were made in this case. Code of Conduct for Crown Prosecutors A revised Code for Crown Prosecutors was published in February 2010: Section 2 deals with general principles and says: Fair and effective prosecution is essential to the maintenance of law and order. It is the duty of prosecutors to make sure that the right person is prosecuted for the right offence and to bring offenders to justice wherever possible. Casework decisions taken fairly, impartially and with integrity help to deliver justice for victims, witnesses, defendants and the public Prosecutors must ensure that the law is properly applied; that all relevant evidence is put before the court; and that obligations of disclosure are complied with, in accordance with the principles set out in this Code. 3. Although each case must be considered on its own facts and on its own merits, there are general principles that apply to the way in which prosecutors must approach every case. 4. Prosecutors must be fair, independent and objective. They must not let any personal views about the ethnic or national origin, gender, disability, age, religion or belief, political views, sexual orientation, or gender identity of the suspect, victim or any witness influence their decisions. Neither must prosecutors be affected by improper or undue pressure from any source. Prosecutors must always act in the interests of justice and not solely for the purpose of obtaining a conviction.... Section 3 deals with decision whether to prosecute: 2. The police and other investigators are responsible for conducting enquiries into an allegation that a crime may have been committed. Every case that prosecutors receive from the police or other investigators is reviewed. Prosecutors must ensure that they have all the information they need to make an informed decision about how best to deal with the case. This will often involve prosecutors providing guidance and advice to the police and other investigators about lines of inquiry, evidential requirements, and assistance in any pre-charge procedures throughout the investigative and prosecuting process. However, prosecutors cannot direct the police or other investigators. 3. Prosecutors should identify and, where possible, seek to rectify evidential weaknesses, but, subject to the Threshold Test (see section 5), they should swiftly stop cases which do not meet the evidential stage of the Full Code Test (see section 4) and which cannot be strengthened by further investigation, or where the public interest clearly does not require a prosecution (see section 4). Although the prosecutor primarily considers the evidence and information supplied by the police and other investigators, the suspect or those acting on his or her behalf may also submit evidence or information to the prosecutor via the police or other investigators, prior to charge, to help to inform the prosecutor's decision. 4. Prosecutors must only start or continue a prosecution when the case has passed both stages of the Full Code Test (see section 4). The exception is when the Threshold Page 16 of 207

17 Test (see section 5) may be applied where it is proposed to apply to the court to keep the suspect in custody after charge, and the evidence required to apply the Full Code Test is not yet available. 5. Prosecutors must make sure that they do not allow a prosecution to start or continue where to do so would be seen by the courts as oppressive or unfair so as to amount to an abuse of the process of the court. 6. Review is a continuing process and prosecutors must take account of any change in circumstances that occurs as the case develops. Wherever possible, they should talk to the investigator first if they are thinking about changing the charges or stopping the case. Prosecutors and investigators work closely together, but the final responsibility for the decision whether or not a case should go ahead rests with the prosecution service.... Section 4 sets out the Full Code Test. This has two separate stages, the evidential stage and then the public interest stage: 2. In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed. However, there will be cases where it is clear, prior to the collection and consideration of all the likely evidence, that the public interest does not require a prosecution. In these rare instances, prosecutors may decide that the case should not proceed further. 3. Prosecutors should only take such a decision when they are satisfied that the broad extent of the criminality has been determined and that they are able to make a fully informed assessment of the public interest. If prosecutors do not have sufficient information to take such a decision, the investigation should proceed and a decision taken later in accordance with the Full Code Test set out in this section.... The Evidential Stage 5. Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be. 6. A realistic prospect of conviction is an objective test based solely upon the prosecutor's assessment of the evidence and any information that he or she has about the defence that might be put forward by the suspect. It means that an objective, impartial and reasonable jury or bench of magistrates or judge hearing a case alone, properly directed and acting in accordance with the law, is more likely than not to convict the defendant of the charge alleged. This is a different test from the one that the criminal courts themselves must apply. A court may only convict if it is sure that the defendant is guilty. 7. When deciding whether there is sufficient evidence to prosecute, prosecutors must consider whether the evidence can be used and whether it is reliable. There will be many cases in which the evidence does not give any cause for concern. But there will also be cases in which the evidence may not be as strong as it first appears. In particular, prosecutors will need to consider the following issues. Can the evidence be used in court? 1. Is it likely that the evidence will be excluded by the court? There are legal rules that might mean that evidence which seems relevant cannot be given at a trial. For example, is it likely that the evidence will be excluded because of the way in which it was obtained? Page 17 of 207

18 2. Is the evidence hearsay? If so, is the court likely to allow it to be presented under any of the exceptions which permit such evidence to be given in court? 3. Does the evidence relate to the bad character of the suspect? If so, is the court likely to allow it to be presented? Is the evidence reliable? 4. What explanation has the suspect given? Is a court likely to find it credible in the light of the evidence as a whole? Does the evidence support an innocent explanation? 5. Is there evidence which might support or detract from the reliability of a confession? Is its reliability affected by factors such as the suspect's level of understanding? 6. Is the identification of the suspect likely to be questioned? Is the evidence of his or her identity strong enough? Have the appropriate identification procedures been carried out? If not, why not? Will any failure to hold the appropriate identification procedures lead to the evidence of identification being excluded? 7. Are there concerns over the accuracy, reliability or credibility of the evidence of any witness? 8. Is there further evidence which the police or other investigators should reasonably be asked to find which may support or undermine the account of the witness? 9. Does any witness have any motive that may affect his or her attitude to the case? 10. Does any witness have a relevant previous conviction or out-of-court disposal which may affect his or her credibility? 11. Is there any further evidence that could be obtained that would support the integrity of evidence already obtained? 8. Where it is considered that it would be helpful in assessing the reliability of a witness' evidence or in better understanding complex evidence, an appropriately trained and authorised prosecutor should conduct a pre-trial interview with the witness in accordance with the relevant Code of Practice. 9. Prosecutors should not ignore evidence because they are not sure that it can be used or is reliable. But they should look closely at it when deciding if there is a realistic prospect of conviction. The Public Interest Stage 10. In 1951, Sir Hartley Shawcross, who was then Attorney General, made the classic statement on public interest: "[i]t has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution". He added that there should be a prosecution: "wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest" (House of Commons Debates, Volume 483, 29 January 1951). This approach has been endorsed by Attorneys General ever since. 11. Accordingly, where there is sufficient evidence to justify a prosecution or to offer an out-of-court disposal, prosecutors must go on to consider whether a prosecution is required in the public interest. 12. A prosecution will usually take place unless the prosecutor is sure that there are public interest factors tending against prosecution which outweigh those tending in favour, or unless the prosecutor is satisfied that the public interest may be properly served, in the first instance, by offering the offender the opportunity to have the matter dealt with by an out-of-court disposal (see section 7). The more serious the offence or the offender's record of criminal behaviour, the more likely it is that a prosecution will be required in the public interest. Page 18 of 207