Monday 21 January 2013 by Anthony Edwards

Two major cases regarding case management were decided in 2012. In R (on the application of Drinkwater) v Solihull Magistrates' Court [2012] EWHC 765 (Admin), the court had to consider whether a trial should be adjourned or go ahead in the absence of a defendant. Following the decision in R v Jones [2002] UKHL 5, a trial may only proceed in the absence of a defendant in exceptional circumstances. This exception will cover deliberate absconding.

Difficulties over the completion of case management forms were considered in R v Newell [2012] EWCA Crim 650, which held that the answers were admissible hearsay under the common law agency rule, but that in almost all circumstances a discretion should be exercised to exclude any answer contained on the form from evidence under section 78 of the Police and Criminal Evidence Act 1984 (PACE), provided that the case has been conducted in accordance with the letter and spirit of the criminal procedure rules.

At the end of 2012 a major decision on discount for a guilty plea clarified many of the issues involved. The sentencing guideline remains the starting point. It is separate to the issue of remorse. The police interview cannot be the first reasonable opportunity. It would require a significant adjustment to general practice; may affect the caution and rules of practice on how interviews are conducted; and the charge will not have been formulated.

However, an admission in interview is very relevant as mitigation before the application of the discount. It is necessary to distinguish cases where the defendant will know of their guilt and where they need advice. The discount is not for knowing that the case can be proved. Relevant facts can be admitted, if not specific charges. An indication of plea may be sought following a sending to the Crown court. Early guilty plea schemes have this in mind. An indication at the magistrates' court or immediately on arrival at the Crown court is desirable. A plea and case management hearing is not normally the first reasonable opportunity. It will usually allow a discount of 25%. The other two opportunities can ordinarily attract the maximum one-third discount.

When the evidence is overwhelming discount should be given in accordance with the guideline and R v Wilson [2012] EWCA Crim 386. However, a case may not be as overwhelming as part only of the evidence suggests; and 20% is the minimum discount appropriate. Following an unsuccessful Newton hearing a normal reduction is not appropriate. The actual discount will depend on the circumstances and number of issues in dispute.

There is a residual discretion to deal with the facts of individual cases, such as where:

  • expert evidence is involved in a serious case if the significance of the act is in dispute but not the occurrence of the act itself (R v Peters [2005] EWCA Crim 605);
  • poor legal advice on plea is given to an inexperienced defendant, but there may have to be a waiver of privilege; or
  • there will be an avoidance of an exceptionally long or complex trial.

There is not to be a detailed investigation of the savings in individual cases.

16 January

The Sentencing Council issued the definitive guideline on burglary offences in the new style, so it applies irrespective of the previous convictions of a defendant and irrespective of their plea.

27 February

The council issued the definitive guideline on drugs. That guideline was comprehensively considered by the Court of Appeal in attorney general's reference numbers 15, 16 and 17 of R V Lewis; Wijtvliet; Vriezen [2012] EWCA Crim 1414.

1 April

The biannual amendments were made to the Criminal Procedure Rules. These changes allowed for the coming end of committal proceedings and for a court to require that the matters in issue in a case be identified in writing. Applications to dismiss cases which have been sent to the Crown court may now be made in all circumstances within 28 days from the service of the papers.

1 April

The Criminal Defence Service (Funding) Order was amended to:

  • identify which cases fell in the higher range of fees for either-way offences, and which fell in the lower range as summary-only;
  • better identify what counts towards pages of prosecution evidence in the Crown court; and
  • add to the list of standard appearances, preliminary hearings and contested allegations of failing to appear.

11 June

The Sentencing Council issued guidelines on totality and TICs (taken into considerations). This guideline was only intended to concern the existing law but emphasises that TICs require the court to pass a total sentence which reflects all the offending behaviour. The sentence imposed on the offender should in most circumstances be increased to reflect the fact that other offences have been TICs, but the fact that the offender has assisted the police, and particularly if the offences would not otherwise have been detected, demonstrates a genuine determination by the offender to wipe the slate clean.

On the same day the council issued its guideline on the allocation of either-way offences between the magistrates' and Crown courts. This made an important change to the existing law. Instead of assessing the strength of the prosecution case taken at its highest, the court is required to take account of all aspects of the case including defence representations.

18 June

Statutory powers to end committal proceedings came into force and the abolition has begun. Where in force, the Crown may refer to a defendant's previous convictions at the mode of trial stage and the defence may, before election, ask for a simplified Goodyear indication. Important changes are made to youth court procedures where plea before venue is introduced for grave crimes.

10 July

Major changes were made to PACE codes C and H. In relation to code C suspects interviewed somewhere other than at a police station, they must be told of their right to free legal advice; and new provisions apply if a suspect wishes to cancel a call for legal advice. This seems still to be largely unknown to the police service. Before an interview can be started or continued in such circumstances, an office of inspector rank or higher must speak to the suspect as to the reasons for their change of mind and make reasonable attempts to ascertain the solicitor's time of arrival, and inform the solicitor of the suspect's request.

Having been told of the outcome of these enquiries, the suspect must confirm in writing that the interview is to proceed. In relation to code H, the major change is to allow for post-charge interviewing in which inferences from silence are available. This change is brought into force by the operation of section 22 of the Counter-Terrorism Act 2008. It requires the authority of a Crown court judge in the defined circumstances set out. The maximum pre-charge detention period under section 8 of the Terrorism Act 2000 was formally reduced to 14 days.

12 July

The Domestic Violence Crime and Victims (Amendment) Act came into force amending the statute, so that it is an offence if a child or vulnerable adult dies or suffers serious injury as a result of an unlawful act of a person in the very precise circumstances defined by the statute. The same procedural restrictions will apply preventing a submission at the end of the prosecution case in such cases.

20 August

The Sentencing Council guidelines on dangerous dogs came into force.

Anthony Edwards, TV Edwards

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