Thursday 05 July 2012 by Anthony Edwards

The decision in R v Newell [2012] EWCA Crim 650 will do much to ease solicitor concerns about incriminating their clients when completing case management forms, whether in the magistrates' court or at a plea and case management hearing in the Crown court.

While the answers solicitors give on behalf of a client are admissible hearsay, the court indicated that, provided the lawyers are seeking to comply with the Criminal Procedure Rules (CPR), no answer provided by them should be admitted as evidence against the defendant. The discretion under section 78 of the Police and Criminal Evidence Act 1984 should be exercised to exclude the evidence. This decision is timely because, under a change to the CPR made on 2 April, the court may require that the matters in issue should be identified in writing.

In Drinkwater v Solihull Magistrates' Court [2012] EWHC 765 (Admin), the court confirmed the desirability of a court setting time limits for the examination and cross-examination of witnesses. Solicitors will need to be careful that they estimate sufficient time effectively to undertake their role. However, Drinkwater has a greater importance. While the courts now deprecate the granting of adjournments, a different situation prevails when it is the absence of the defendant that is causing the need for one. Referring to the House of Lords decision in R v Jones [2002] UK HL 5, the court pointed out that discretion to try a person in their absence must be exercised with very great care, and it is only in exceptional cases that it should be exercised. This will obviously include where the absence is a deliberate absconding to slow down the court process. The court was also referred to the decision in Nadour v Chester Magistrates' Court [2009] EWHC 1505 (Admin), where a defence witness, for good reason, was not able to attend the trial and an adjournment should have been allowed.

The decision in R v SVS Solicitors [2012] EWCA Crim causes great concern. There is to be no appeal. The court allowed a wasted costs order against solicitors because they had failed to respond to a hearsay notice. This was despite the fact that the Crown could easily have obtained an order for the giving of the evidence because of a lack of a response. While there was no sanction, other than the inference under section 11 of the Criminal Procedure and Investigations Act 1996 in relation to a failure to serve a defence case statement, the court indicated that, if solicitors are not otherwise able to comply with their duties under the rules, they should apply to the court for directions. The court actually suggested that solicitors should withdraw, but this is unlikely to be welcome at any Crown court.

Murder

If two potential defendants are firing guns at each other intending to kill or cause serious injury, not only is the first defendant who actually kills the victim guilty of murder, but so also is the second defendant, either because he aided and abetted the first defendant, or because he was himself a principal as a direct participant engaged with his agreement in unlawful violence specifically designed to cause and in fact causing death (R v Gnango [2011] UKSC 59). There have been two important decisions in relation to the defences to murder available by the amendments made by the Coroners and Justice Act 2009.

The defence of loss of control was considered in R v Clinton, Parker and Evans [2012] EWCA Crim 2. Under the statutory requirements:

• the defendant's acts and omissions must result from the defendant's loss of control;
• the loss of control must have a qualifying trigger; and
• a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint, in the circumstances might have reacted in the same or similar way to the defendant.

However, section 55 of the act, which defines the qualifying triggers, explicitly states that sexual infidelity must be disregarded. But the court has indicated that this will only apply when sexual infidelity is the only reason for the killing. Where other considerations apply the court must look at all aspects of the case so that all the circumstances of the defendant, including the effect of sexual infidelity, are taken into account.

In R v Dowds [2012] EWCA Crim 281, the court confirmed that, notwithstanding the new statute, voluntary acute intoxication is not capable of founding diminished responsibility. The presence of a recognised medical condition is a necessary, but not always sufficient, condition to raise that defence.

Costs

The Criminal Defence Service (Funding) (Amendment) Order 2012 has come into force for representation orders dated on or after 1 April 2012. This redefines magistrates' court cases that would fall into category 1. There are now two categories: category 1A earning the higher series of fees; and category 1B earning the lower series of fees. All fees in the magistrates' court are capable of enhancement in appropriate cases.

In the higher category 1A are either-way guilty pleas, indictable only in cases heard in the youth court, and proceedings other than committal proceedings in relation to either-way offences which are discontinued, withdrawn, no evidence offered or result in a bindover. It also appears that, although omitted from the order, either-way offences in the youth court which can only be tried summarily are to be paid within this category.

In the lower category 1B are summary only guilty pleas, and also uncontested proceedings arising out of a breach of an order of the magistrates' court, whatever the original offence. This category applies to proceedings other than committal proceedings relating to summary offences which have been discontinued or withdrawn and no evidence offered, or where there is a bindover. In addition, proceedings arising from the deferment of a sentence for whatever offences are in this lower category, as are prescribed proceedings such as anti-social behaviour order applications and proceedings relating to low-value criminal damage.

The order also seeks to clarify the law in relation to page count for the purposes of graduated fees. Witness statements and records of interview, however served, documentary or pictorial exhibits served on paper and documentary or pictorial exhibits served only electronically which previously existed in paper form count towards pages of prosecution evidence (PPE). In addition, although not included within the order, it would appear that ABEs (achieving best evidence interviews) will be dealt with in this way.

The difficulties arise over documentary or pictorial exhibits which are served only electronically and which have never existed on paper. Here, special preparation requiring good time-recording and the identification of the fee-earner concerned will be payable unless the appropriate officer decides it would be appropriate to include it in PPE, taking into account the nature of the documents and any other relevant circumstances.

Although there is no definition of this phrase, the Legal Services Commission is suggesting that it means PPE will be paid if such a document would until now have been served in paper form, notwithstanding it is now only served electronically. However, the costs judges are at liberty to give such interpretation as they consider appropriate to this phrase.

No fee is payable for the consideration of unused material or audio or video tapes. The position in relation to audio tapes was confirmed by Lord Chancellor v McLarty & Co [2011] EWHC V185 (QB), which also confirmed that enhancement cannot be claimed on special preparation but only in relation to confiscation proceedings. A series of cases before the costs judges confirm that the number of cases to
be paid graduated fees is an entirely mechanistic process. In R v Bowen [2011] Costs Law Reports 693, there had been a 'sending' for murder and a 'sending' separately for sexual assault.

A purported joinder of those two indictments was in fact in a misjoinder and the trial proceeded on a voluntary bill of indictment. In these circumstances, there had been three indictments and three fees were therefore payable. However, where advocacy fees are concerned it is important to recognise the effect of paragraph 22(2) of schedule 1 to the Criminal Defence Service (Funding) Order 2007. Whatever the number of indictments, only one fee will be payable if they are heard concurrently with mark-ups for each additional indictment. However, where a guilty plea is accepted in one case and no evidence then offered on a separate indictment, the court held in R v Fury [2011] Costs LR 919 that the cases had been heard consecutively and separate fees were therefore payable.

The meaning of a trial has been substantially reinterpreted in two key decisions of R v Wembo [2011] Costs LR 926 and Lord Chancellor v Ian Henery Solicitors (2011) EWHC 3246 (QB). In essence the court will now have regard to the substance and not the form. If, in days before the CPR, a hearing would have taken place after the empanelment of a jury then the court will indicate that a trial has begun.

On the other hand, the mere empanelment of a jury will not of itself be enough to commence the trial. The meaning of a retrial has also been redefined. In R v Forsyth SCCO 155/10 and R v Cato SCCO 9 March 2012, the judge confirmed that there could only be a retrial when a judge made an order to that effect. This only happens when a jury disagrees and cannot reach a verdict, or when there is an appeal or retrial. Stopping a case part-heard is not enough. In those circumstances the days of the aborted trial will be added to the days of the effective trial often to the advantage of the profession.

Anthony Edwards, TV Edwards