Felipe Valiati v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,McGowan J |
| Judgment Date | 01 November 2018 |
| Neutral Citation | [2018] EWHC 2908 (Admin) |
| Docket Number | Case No: CO/1754/2018; CO/2466/2018 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 November 2018 |
Neutral Citation Number: [2018] EWHC 2908 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Mrs Justice McGowan
Case No: CO/1754/2018; CO/2466/2018
Libby Anderson (instructed by Stewart Begum, London) for Appellant, Felipe Valiati
Owen Greenhall (instructed by T.V. Edwards LLP, London) for the Appellant, KM
Benjamin Douglas-Jones Q.C. (instructed by the Crown Prosecution Service) for the Director of Public Prosecutions in both appeals
Hearing date: 4 October 2018
Judgment Approved
These appeals by way of case stated both involve consideration of the use which the court may make of information provided by advocates acting for the defendant as part of case management in the Preparation for Effective Trial (‘PET’) form. In both cases, it is argued that critical information was taken from the PET form and treated as evidence either to fill a gap in the prosecution evidence or to support a conclusion reached.
The underlying principle for criminal litigation in the 21 st century is identified in R v Gleeson [2004] 1 Cr App R 406 by Auld LJ (who was responsible for the Review of the Criminal Courts of England and Wales, October 2001) at [36]:
“A criminal trial is not a game under which the guilty defendant should be provided with a sporting chance. It is a search for truth in accordance with the twin principles that the prosecution must prove its case and that a defendant is not obliged to inculpate himself, the object being to convict the guilty and acquit the innocent. Requiring a defendant to indicate in advance what he disputes about the prosecution case offends neither of those principles.”
Observations to like effect have been repeated over the years: see, for example, R (on the application of the DPP) v Chorley Magistrates' Court [2006] EWHC 1795 per Thomas LJ from [22] and R (on the application of Hassani) v West London Magistrates' Court [2017] EWHC 1270 per Irwin LJ at [9], [11]–[13].
General Principles
The starting point is the Criminal Procedure Rules made pursuant to s. 69 of the Courts Act 2003 and, in particular, the duty of the court, as set out in CrimPR 3.2(1), to further the overriding objective by actively managing the case which includes the early identification of the real issues: see Crim PR 3.2(2)(a). In that regard there is a corresponding duty on the parties actively to assist the court in fulfilling its duty under 3.2 which includes communication between the parties (and the court) as to what is agreed and what is likely to be disputed: see CrimPR 3.3(1), (2)(a), (b), (c)(ii) and (d). Under the heading ‘Conduct of a trial or an appeal’ and in order to manage the trial, the court “must establish, with the active assistance of the parties, what are the disputed issues”: see Crim PR 3.11(a). The PET form (prepared by the Criminal Procedure Rule Committee) contains a series of questions, a number of which are tick boxes, all designed to assist the process: so that there is no confusion, it should be completed as drafted without amendment to the questions posed.
Moving from pre-trial case management into a trial in the magistrates' court, it is first important to underline that CrimPR 24.13(2) requires that unless the court otherwise directs, it must be provided with: a copy of the record of information supplied by each party for the purposes of case management, including any revision of information previously supplied; pre-trial directions for case management, or relating to admission or giving of evidence; and, any admissions. Further, CPR 24.3(3) identifies the sequence to be adopted at the commencement of a trial in these terms:
“(3) In the following sequence –
(a) the prosecutor may summarise the prosecution case, concisely identifying the relevant law, outlining the facts and indicating the matters likely to be in dispute;
(b) to help the members of the court to understand the case and resolve any issue in it, the court may invite the defendant concisely to identify what is in issue ….”
In R (Firth) v Epping Magistrates' Court [2011] EWHC 388 (Admin), [2011] 1 WLR 1818, [2011] 1 Cr App R 32, the issue arose as to the admissibility in evidence, for the purposes of proceedings for committal for trial, of case management information supplied by her advocate. Initially charged with a summary offence, the case progression form then used in magistrates' courts identified the issues as “assault on [defendant] by complainant and “only contact made was in self-defence”. When assault occasioning actual bodily harm was substituted and a committal held, the defence challenged the adequacy of the evidence of presence at the scene. The prosecutor relied on the inference to be drawn from the issues identified in the case progression form and successfully argued that it was admissible pursuant to s. 118(6)(a) of the Criminal Justice Act 2003 (“the 2003 Act”) as an admission made by an agent of the defendant.
Before the Divisional Court, it was conceded that the information given constituted an admission of presence at the scene but it was argued that it was inadmissible on the basis that indications given for the purposes of case management should not be used as evidence against the provider of that information. Toulson LJ (as he then was) rejected (at [23]) the broad proposition that any requirement that a defendant should disclose his or her hand before trial was inherently repugnant. He went on to observe that any unfairness at the trial could be prevented by the court's power to exclude evidence under s. 78 of the Police and Criminal Evidence Act 1984 (“PACE”).
Toulson LJ also dealt with the position of a trial in the magistrates' court. He said:
“[29] … Suppose that in the present case the matter had proceeded to a summary trial in the way that the parties originally expected. Because of the way that the issues were identified in the case progression form, the prosecution would not have thought it necessary to adduce identification evidence. If then, after the prosecution had called its evidence dealing with the nature of the events, Miss Firth had submitted that there was no case to answer because there was no proof of identification, Mr Grout recognises that there would be a problem. To put it colloquially, the prosecution would have been led up the garden path. He submits that it would not be possible in those circumstances for the prosecution to introduce the case progression form. Rather the appropriate course would be for the prosecution to seek an adjournment. As a matter of practical reality, the case would then have to go off to a future date, probably before a different bench of magistrates, and the prosecution would have to set about seeing whether they could obtain further identification evidence, involving identification parades, by now a considerable time after the incident.
[30] If one asks rhetorically whether that approach is consistent with the object of the Criminal Procedure Rules 2010, i.e. whether it would further the interests of justice, do fairness and encourage expedition, the answers are obvious. I see no unfairness, in such a case, in the prosecution being able to put in evidence the case progression form.”
Concern was expressed that this decision had the effect of modifying the fundamental right of a defendant to put the prosecution to proof of its case and to might encourage claims to privilege against self-incrimination in connection with case management (see, for example, (2011) Crim LR 547). The Court of Appeal (Criminal Division) sought to deal with them in R v Newell [2012] EWCA Crim 650, [2012] 1 WLR 3142.
The case concerned the use sought to be made by the prosecution of the comment “no possession” on a case management form in connection with a trial for possession of a controlled drug with intent to supply. A later defence statement (served on the first day of the trial) admitted possession but denied any intent to supply. Prosecution counsel was permitted to adduce the form into evidence and to cross examine the defendant on the inconsistency between “no possession” and the defence case statement. Sir John Thomas P (as he then was) said (at [33]):
“Given that statutory regime in the Crown Court embedded primarily in the CPIA and the Criminal Procedure Rules, and the obligation to put “cards on the table” through the attendance of the trial advocate at the PCMH, the requirements of a PCMH form in the Crown Court should be seen primarily as a means for the provision of information to enable a judge actively to manage the case up to and throughout the trial, and the parties to know the issues that have to be addressed and the witnesses who are to come. The nature of the defence should appear from the defence statement with the statutory consequences provided for in the event of a breach of requirements. The Crown is also generally protected by the principles in the Chorley Magistrates' Court case and R v Penner, if in breach of the obligation to identify the issues an ambush is attempted by the defence.”
He explained (at [35]) that the Trial Preparation form (now the PET) provides for admissions or acknowledgment that matters are not in issue, that admissions will be admissible but that other statements should be made without the risk that they would be used at trial as statements of the defendant admissible in evidence “provided the advocate follows the letter and spirit of the Criminal Procedure Rules”. Allowing the appeal on the basis that the use of the form for cross examination should not have been allowed, he went on (at...
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