Court of Appeal
| Author | Ruth Harrison |
| Published date | 01 August 1994 |
| Date | 01 August 1994 |
| DOI | http://doi.org/10.1177/002201839405800303 |
| Subject Matter | Court of Appeal |
COURT
OF
APPEAL
LATE INTERVENTION BY TRIAL
JUDGE
RvHammett
By s 24(1) of the Road Traffic Offenders Act 1988 it is provided that
where a jury find a defendant charged with an offence of causing death by
reckless driving (now causing death by dangerous driving) not guilty, they
may find him guilty of driving without due care and attention. How late
in the trial may that alternative possibility be raised? In R v Hammett
[1993]
RTR 275, a driver was charged with the major offence and the
whole of the case as conducted by both the prosecution and defence was
devoted to the factual and other issues raised by that offence as charged
under s 1 of the Road Traffic Act
1988.
The question at issue was whether
the defendant's lorry had turned right, into the path of an oncoming car
which was then in the outside lane
of
amotorway. The final speech for
the defence not unnaturally drew the jury's attention to the difference
between reckless and careless driving and this seems to have prompted the
recorder to remark for the first time upon the possibility
of
there being a
conviction of an offence of driving without due care and attention contrary
to s 3 of the
1988
Act. He permitted counsel for the defence to address
the jury on that question and then, in his direction, put the alternative to
the jury, even though he had first mentioned the matter only after what
counsel for the prosecution and for the defence had made what they had
thought to be their final addresses. From his conviction of the alternative,
lesser offence, the defendant appealed on the ground that, although the
statute clearly permits the possibility of the alternative conviction, it was,
on this occasion, too late in the trial for the judge to have raised this
issue.
In R v Hazell
[1985]
RTR 369, where on a charge
of
reckless driving
the judge left the question of an alternative charge of careless driving to
the jury without warning
counselor
affording them any opportunity to
deal with the matter before the jury, this was held to be a material
irregularity and the conviction of the lesser offence was quashed.
It
was
necessary for the court to say no more than that if a judge is minded to
put the alternative to the jury he must at least warn counsel and give them
an opportunity to address him and the jury.
It
was stated that the
conviction had to be quashed because this 'was not done'.
It
could
therefore be argued that the facts in that case were quite different from
those in the instant case, so far as counsel were concerned. In RvChristini
[1987]
Crim LR 504, the court reiterated the principle that 'judges, if they
are to introduce an issue into the summing-up which has not been actively
canvassed in the course of the trial, should at least give ample warning of
their intention to do so to
counsel-in
the absence of the jury'. In Rv
Smith
[1987]
Crim LR 505, the judge, in a case in which both the
prosecution and the defence had proceeded on the basis that apostman
250
Court
of
Appeal
had been robbed by two men, intimated, without warning, to the jury that
they could consider the possibility that three men had been concerned
in the theft. This was held to be 'a most material irregularity', for,
although the judge's theory was possible on the evidence, counsel were
deprived
of
the opportunity of cross-examination upon the question. On
the present occasion, the question was whether the opportunity given to
counsel to address the jury sufficed to distinguish the case from its two
predecessors. In the opinion of the Court of Appeal it did not. When
addressing the jury on the question of causing death by reckless driving,
the appellant's counsel was almost bound to make some concession
towards the alternative offence. He was entitled to do this with a justified
feeling of safety, since no question of the possibility of a conviction on
that charge had been mentioned by anyone. When once his speech
containing that concession had terminated, it was too late for the judge to
raise the issue, for when eventually counsel come to address the jury for
the second 'final' speech,
'of
course his hands were tied in a way which
can only be seen as having been grossly unfair to the appellant' (per
Owen J, at p 278D-E). In the opinion of the court, this material
irregularity was not only such as to render the verdict unsafe and
unsatisfactory but was also such as to inhibit the court from considering
whether to uphold the conviction by applying the proviso.
STORE DETECTIVES AND THE PACE ACT
1984
R v Bayliss
Section 67(9) of the PACE Act 1984 applies the Codes of Practice issued
under the Act to 'persons other than police officers who are charged with
the duty
of
investigating offences', for that subsection states that such
persons 'shall in the discharge of that duty have regard to any relevant
provision of such a code'. In R v Bayliss (1993) 157 JP 1062, the net
question was whether a store detective who had given evidence at the trial
of
the appellant (who was convicted of theft) came within s 67(9) of the
Act. The detective saw the appellant secrete in his pockets certain articles
which he had taken from the store. He was brought to the office and,
after a conversation between the detective and him, the police were called
and he was arrested. At his trial, he sought to exclude part of the
detective's evidence, on the ground that the moment she became convinced
that a theft had been committed, she should have cautioned him, because
at that stage she was in the position
of
a police officer. Although the judge
asked counsel whether he was submitting that the Codes of Practice
applied to the detective, no clear answer was given and no reference was
made to s 67(9) of the Act. The judge gave no formal ruling on the
submission, which was apparently
'not
pressed with any vigour'. In
the Court of Appeal, however, it was argued that the admissions made by
the appellant while talking to the detective in the office should have been
excluded from the evidence, because, first, there had been no caution and,
secondly, they had been made in the course
of
an 'interview' within the
251
Journal
of
Criminal Law
meaning of that term in the Code of Practice. The prosecution submitted
that the term 'persons charged with the duty of investigating offences or
charging offenders' applies only to those whose duty is prescribed by
statute or, at any rate, only to those who hold an official position.
It
was
therefore submitted that, although, if a store detective subjected a suspect
to a vigorous cross-examination, the results of that interrogation might be
excluded under s 78 of the 1984 Act, s 67(9) could
not
be called in aid by
the defendant, as that subsection did not apply to a store detective, whose
duty arose solely out of her private contract of employment. The Crown
added that, in any event, if the question were whether in fact the officer
was charged with the investigation of offences, that fact would have to be
determined at the trial and here no evidence had been adduced as to the
particular duty, or the ambit of duty, of this particular detective. These
conflicting arguments gave rise to three questions: (1) are store detectives
within s 67(9) of the 1984 Act and therefore within the Codes
of
Practice?;
(2) was there evidence to indicate whether in fact the duty of this detective
brought her within the subsection?; and (3) was the conversation with the
detective an 'interview' within the Codes?
Upon the first
question-whether
store detectives are within s
67(9)-
reference was made to the view of the Home Office (as stated in the Police
Review, 22 January 1988) that a person charged with the duty set out in
the subsection is one charged by law, so that it is limited to those charged
with a public duty, such as central government officers, local authority
officials (for example, trading standards officers), post office investigating
officers and the like. The court stated that it 'saw the force' of that
argument, which would mean that all 'public' officials were bound to
follow the Codes, while other investigators would merely be 'well advised'
to do so. The court, however, concluded that
'at
the present day, the duty
of investigating officers is not restricted to officers of central government
or to other persons acting under statutory powers'. Thus, in R v Twaites
(1991) 92 Cr App R 106, the court was prepared to apply the provisions
of s 67(9) to commercial investigators 'if, but only if, and so far as the
investigators are charged with the duty of investigating offences'. In any
case in which this question arises, the judge is therefore bound to consider
what the position is under s 67(9), for it is only then that it can be said
that he is in a position to make his ruling under s 78. In Joy v Federation
against Copyright Theft
Ltd
(unreported, 14 January 1993), a commercial
investigator from the Federation accompanied a police officer to the
premises of a company. The police officer was concerned with
pornography; the commercial investigator, with breaches of copyright
(and, in fact, it was on the basis of his investigation that a private
prosecution for breach of copyright was later brought). In that case, it
was held by the Divisional Court that the evidence was not sufficiently
clear for them to pronounce upon the question whether the investigator
was within the subsection; but it is clear that the court was of opinion
that in a suitable case a court may hold that the subsection applies to a
commercial investigator. Clarke J stated that the duty referred to could be
'any type of legal duty whether imposed by statute or by the common law
or by contract'. In the instant case, the court held that 'it is possible for a
252
To continue reading
Request your trial