Admissibility - Defendant being charged, inter alia, with possession of cocaine with intent to supply - No defence being served by time of plea and case management hearing

R v Newell: CA (Crim Div) (Sir Anthony May (president), Mrs Justice Dobbs, Mr Justice Underhill): 30 March 2012

In 2009, the defendant's cousin, X, who was the tenant of a flat, allowed the defendant to stay. Later in the year, X effectively moved out.

In February 2010, officers of the landlords of the flat gained entry to it to enforce an eviction order against X. They found a quantity of white powder which was found to contain lignocaine, a cutting agent commonly used with cocaine. A further quantity of white power was also discovered which, upon analysis, was found to contain 26.6 grams of 66% cocaine. Also found were an empty box for digital mini scales, £400 in cash and pieces of paper showing names and amounts. The defendant was subsequently arrested.

In November 2010, prior to trial, a plea and case management hearing (PCMH) took place, at which time no defence had been served. In response to the question on the PCMH form (the form), 'if not clear from the defence statement, what are the real issues?', the advocate for the defendant wrote 'no possession' (the statement). In April 2011, the defendant's legal advisers were changed. A defence statement was served on the first day of the trial and stated, inter alia: 'I accept possession of exhibit MLR/07 [the cocaine].

However, I deny that I was in possession of the cocaine with intent to supply.' The defendant gave evidence in accordance with the defence statement. At the beginning of his cross-examination, counsel for the prosecution handed the form to the defendant and the judge, seeking to adduce what was stated therein, as it was inconsistent with the defendant's defence. Counsel for the defendant objected. The judge ruled, inter alia, that what was on the form was no different to a defence statement signed on the defendant's behalf by his solicitors in accordance with his instructions and that it was perfectly proper to cross-examine the defendant on the statement. When cross-examined on the form, the defendant accepted that the form had been completed by his original counsel and alleged that the words 'no possession' were the result of a misunderstanding by counsel. In the course of his summing up, the judge gave, inter alia, a Lucas direction in relation to the statement. The defendant was subsequently convicted, inter alia, of one count of possession of cocaine with intent to supply. The defendant appealed against conviction.

The issue was whether the judge had been correct to admit as evidence the statement on the form. The questions that fell to be determined were: (i) whether the statement was admissible evidence; and (ii) if the statement was admissible evidence, whether the judge ought to have exercised his discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude it. Consideration was given, inter alia, to section 118(1) of the Criminal Justice Act 2003. The appeal would be allowed.

(1) An advocate plainly had implied actual authority to do what was normally incidental, in the ordinary course of his profession, to the execution of the advocate's express authority. Recording a matter on a PCMH form was incidental to that which the advocate had been authorised to do - conduct the defence of a client. Even if the advocate had no implied authority, as the client had said something different to what he had recorded, the advocate would have ostensible authority to do so with regard to the court (see [22] of the judgment).

On the facts of the instant case, applying established principles, as what the court had been told at the PCMH had been said by counsel in the presence of the defendant, it had been admissible. It had not mattered that the defendant could call evidence to show that what had been said had not been said on instructions; the advocate had had ostensible authority to make the statement. The evidence was admissible even though the defendant could call evidence to show that it had been said without authority. Accordingly, the judge had been entitled to conclude that the statement made on the PCMH form had been in principle, as a matter of law, admissible at the trial before him (see [23], [24] of the judgment).

(2) Provided that the case was conducted in accordance with the letter and spirit of the Criminal Procedure Rules, a statement written on a PCMH form should, in the exercise of the court's discretion under section 78 of the act, not be admitted in evidence as a statement that could be used against the defendant. The information was provided to assist the court. There might be cases where it would be right not to exercise the discretion but to admit such statements. Those circumstances were fact-specific, but one example would be a case where there was no defence statement despite the judge having asked for one to be provided and an ambush attempted inconsistent with what was stated on the PCMH form.

In such a case it would not be appropriate to exercise the discretion to refuse to admit what was stated on the form, if an adjournment to enable the prosecution to deal with the issue could be avoided. However, provided that the parties adhered to the letter and the spirit of the Criminal Procedure Rules and followed the practices outlined, such cases ought to be very rare (see [36] of the judgment).

On the facts of the instant case, the judge ought not to have admitted the statement on the PCMH form as evidence against the defendant. That was partly for reasons connected with the good administration of justice, but primarily because of what happened at the trial. The defendant's counsel had, by the time of the trial, produced a defence statement which had made the case clear and had admitted possession. The statement on the form had been put to the defendant in the witness box without any warning to his counsel.

The prosecution was then seeking to say that the defendant's previous position as recorded on the form had been a lie and to rely on that lie as evidence of his guilt. It was therefore a case where there had been no disadvantage to the prosecution; on the contrary, the prosecution had been seeking to use the statement to the detriment of the defendant. The way in which it had been done had been unfair to the defence. The discretion under section 78 of the act ought to have been exercised so as to refuse the admission of the statement. Accordingly, the conviction was not safe (see [37], [38] of the judgment). The conviction would be quashed (see [2], [38] of the judgment).

Paul Jackson (assigned by the Registrar of Criminal Appeals) for the defendant; Robert Spencer-Bernard (instructed by the Crown Prosecution Service) for the Crown.

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