Workshop 6

Question 1

Bad character definition

Answer 1

Bad character is defined in s.98 Criminal Justice Act (CJA) 2003 thus:
‘References in this Chapter to evidence of a person’s “bad character” are to evidence of, or of a disposition towards, misconduct on his part, other than evidence which—
(a) has to do with the alleged facts of the offence with which the defendant is charged, or
(b) is evidence of misconduct in connection with the investigation or prosecution of that offence.’

Question 2

‘Misconduct’ definition

Answer 2

‘Misconduct’ is defined in s.112 CJA 2003 as ‘the commission of an offence or other reprehensible behaviour’.

Question 3

‘Reprehensible’ definition

Answer 3

‘Reprehensible’ connotes some degree of moral blameworthiness. Behaviour is not necessarily reprehensible just because it is morally lax, having an affair, for example, would not be considered in law bad character. It is well established that evidence of membership of a gang is evidence of reprehensible behaviour.

Question 4

Examples of bad character

Answer 4

• Previous convictions in the UK
• Previous convictions in a foreign court where such offences have a domestic equivalent. Blasphemy, for example, would be unlikely to be considered bad character.
• Cautions
• Acquittals, where the prosecution contends that in fact the defendant was guilty of the previous offence of which D was acquitted
• Agreed facts that amount to reprehensible behaviour
• Witness evidence of a reputation for reprehensible behaviour

Question 5

Acquittals and previous convictions

Answer 5

Where the prosecution relies on evidence of previous acquittals, it is open to it to assert that the defendant did commit the offence(s) of which D was previously convicted.
The double jeopardy rule is not transgressed so long as the prosecution does not seek to have the defendant punished for the previous offences.

Question 6

Conduct which falls outside s.98

Answer 6

Section 98 CJA 2003 specifically excludes evidence of misconduct which:
(a) Has to do with the alleged facts of the offence with which the defendant is charged; or
(b) Is committed in connection with the investigation or prosecution of that offence.
Evidence which falls within the s.98 definition does not have to satisfy any of the conditions set out in ss.100 (gateways to admissibility of non-defendant’s bad character) or 101 (gateways to admissibility of defendant’s bad character).
If a defendant tells a demonstrable lie during interview, subject to relevance, that is not a matter which would require the prosecution to make a bad character application by virtue of s.98(b).
Where it is necessary as part of the prosecution case to prove criminal conduct by the defendant or another, evidence of that conduct will fall outside s.98.
Attempts at jury tampering or witness intimidation are examples of misconduct connected with the investigation or prosecution of the offence, so evidence of those matters is not bad character evidence.
The decided cases seem to accept that evidence of the motive of the accused to commit the offence is evidence that has to do with the alleged facts of the offence.

Question 7

Bad character – when can the bad character of the defendant become admissible?

Answer 7

There are seven gateways through which evidence of the bad character of a defendant can become admissible. They are set out in s.101(1) (a–g) Criminal Justice Act (CJA) 2003.
Evidence of bad character is admissible if, but only if, it falls within one of the gateways. Once evidence is admitted through any one of the gateways, it can be used for any purpose for which it is relevant. It is useful to be able to remember all the gateways:
a) Agreement
b) Blurts it out
c) Context
d) Done it before
e) ‘E did it
f) False impression
g) Gets at the witness

Question 8

Section 101(1)(a): Agreement of the parties

Answer 8

Section 101 CJA 2003: ‘1 In criminal proceedings evidence of the defendant’s bad character is admissible if, but only if, -
(a) all parties to the proceedings agree to the evidence being admissible’
* There is no need to make an application to the court for leave to adduce evidence through this gateway.
* There are no formal requirements as to the recording of the agreement or how it is reached. A tacit agreement is enough.

Question 9

Section 101(1)(b): Evidence adduced by the defendant

Answer 9

This allows defendants to introduce evidence of their own bad character.
‘Section 101(1)(b) “the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross-examination and intended to elicit it”.’
There are a number of reasons why D may wish to do so. Reasons include:
* To come clean about an old conviction in order to receive a modified good character direction
* To show that D has never been convicted of an offence of the type with which D is now charged
* To put forward a defence, e.g. to show that D was in prison at the time of the alleged offence
* To show why police officers might have a bias against D
Leave of the court is not required to adduce evidence through this gateway.

Question 10

Section 101(1)(c): Important explanatory evidence

Answer 10

Section 101(1)(c): ‘it is important explanatory evidence’. ‘Important explanatory evidence’ is defined in s.102 CJA 2003 thus:
‘(a) For the purposes of section 101(1)(c) evidence is important explanatory evidence if—
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.’
- This gateway allows the prosecution to adduce evidence of past misconduct of the defendant where it is needed to explain the prosecution case in the current trial.
- Often the evidence will be to show the previous relationship between people involved in the trial without which it would not be possible to understand the narrative put forward by the prosecution.
- Leave of the court is required to adduce evidence through this gateway.

Question 11

Section 101(1)(d): Important matter in issue between the defendant and the prosecution

Answer 11

Section 101(1)(d): ‘it is relevant to an important matter in issue between the defendant and the prosecution’.
Section 112 says that ‘important matter’ means a matter of substantial importance in the context of the case as a whole.

Question 12

Section 101(3)

Answer 12

‘The court must not admit evidence under subsection (1)(d) or (g) if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’

Question 13

Propensity to commit offences of the kind with which D is charged

Answer 13

R v Hanson and others [2005] EWCA Crim 824 is the leading case on whether evidence of bad character does establish a propensity to commit offences of the kind with which the defendant is charged. The court formulated the following questions to be posed when an application is made to admit bad character evidence to show propensity:
* Does the defendant’s history establish a propensity to commit offences of the kind charged?
* Does that propensity make it more likely that the defendant committed the offence charged?
* Where the previous offences are of the same description or category as the offence charged, would it be unjust to rely on them (s.103(3))?
* In any event, would proceedings be unfair if the evidence were to be admitted (s.101(3))?

Question 14

Propensity

Answer 14

In the same case, the court held that the following principles apply:
* There is no minimum number of previous convictions required to establish a propensity. The fewer the number of previous convictions, the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category as the offence charged might show propensity where it shows a tendency towards unusual behaviour.
* The strength of the prosecution case should be considered. It is unlikely to be just to admit bad character evidence where there is no or little other evidence against the defendant.
While propensity is usually shown by evidence of conduct before the alleged offence, it can be demonstrated by evidence of the existence of the propensity after the offence, provided that it is likely that the propensity is ongoing. For example, propensity to be involved in a racist murder can be shown by evidence of the expression by the accused of racist beliefs after the commission of the offence. It is for the jury to decide whether the accused’s racism is a recently-acquired character trait.

Question 15

Important matters in issue

Answer 15

It is important to remember that while gateway d is often described as the “propensity gateway”, it is in fact concerned with all manner of important matters in issue between the prosecution and defence. An example of an issue other than propensity in a trial is that of identity. In such trials the prosecution may seek to adduce bad character evidence to support their case on identification.
Where the facts of previous convictions are so unusual as to constitute a “signature” of the offender’s mode of offending, the propensity itself is likely to be very powerful evidence against the defendant. In the pre-2003 case law these were termed “striking similarity” cases and based on the principle of “similar fact evidence”.

Question 16

Propensity to be untruthful

Answer 16

Also in R v Hanson the court held that a propensity to be untruthful is not the same as a propensity to be dishonest. Previous convictions are only likely to be capable of showing such a propensity where:
* There was a plea of not guilty to the previous offence and the defendant gave evidence at trial which the jury must have disbelieved; or
* The way in which the offence was committed involved being untruthful, e.g. fraud by false representation.
In practice this means that while burglary is categorised as a dishonesty offence, it does not logically follow that each and every burglar is untruthful. A person can commit a burglary and go onto admit it in interview and plead guilty, in such circumstances, it would incorrect to describe their behaviour as general untruthful.

Question 17

Cross-admissibility

Answer 17

Where a defendant faces multiple charges in the same proceedings, the bad character provisions apply as if each offence were charged in separate proceedings. Therefore a gateway is required to allow cross-admissibility of evidence of one offence as evidence of the other. The most likely gateway to fulfil this function is s.101(1)(d).
For example, where a man is accused of sexual assaults on both of his stepdaughters (A and B), evidence from A that she was assaulted is onlyevidence that the defendant committed offences against her unless it is admissible through gateway (d) to show a propensity to commit offences of the kind alleged, in which case it also becomes evidence against the defendant when the jury are considering the allegations made by B. In such a case, if a jury were sure that the defendant was guilty in respect of A and they were further sure that that conviction established a propensity to offend in a manner relevant to B’s case, the evidence can be lawfully deployed in that way.

Question 18

Functions of the judge and jury

Answer 18

The judge is to determine whether evidence is capable of establishing a propensity.
If evidence is admitted to show propensity, it is a matter for the jury whether it does actually show the propensity that is asserted.
Leave of the court is required to admit evidence through this gateway.

Question 19

Section 101(1)(e): Important matter in issue between the defendant and a co-defendant

Answer 19

Section 101(1)(e): ‘it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant’.
Section 104 CJA 2003 states:
‘1 Evidence which is relevant to the question whether the defendant has a propensity to be untruthful is admissible on that basis under section 101(1)(e) only if the nature or conduct of his defence is such as to undermine the co-defendant’s defence.
2 Only evidence—
(a) which is to be (or has been) adduced by the co-defendant, or
(b) which a witness is to be invited to give (or has given) in cross-examination by the co-defendant, is admissible under section 101(1)(e).’
Note that the fairness test in s.101(3) CJA 2003 does not apply to s.101(1)(e). Also, because by definition evidence that comes in through this gateway is not prosecution evidence, s.78 PACE Act 1984does not apply to it. Therefore it is very hard for a defendant (D1) to exclude evidence of D1’s bad character where it is a co-defendant rather than the prosecution that seeks to adduce it.
While the propensity of the co-accused to commit offences of the type charged is not itself an issue between the co-defendants, evidence of such a propensity becomes admissible where one of them asserts that they have no such propensity, in which case the other defendant can adduce evidence of a propensity.
The effect of s.104 is that evidence of the co-defendant’s propensity to be untruthful is only admissible where the nature of the defence is such as to undermine the defence of the co-defendant that seeks to adduce the evidence.
Leave of the court is required to admit evidence through this gateway.

Question 20

Section 101(1)(f): Correcting a false impression

Answer 20

Section 101(1)(f): ‘it is evidence to correct a false impression given by the defendant’.

Question 21

Section 101(1)(g): Attack on another person’s character

Answer 21

Section 101(1)(g): ‘the defendant has made an attack on another person’s character’.

Only prosecution evidence is admissible under section 101(1)(g).

Question 22

Directing the jury

Answer 22

It should be made clear to the jury that the weight to be placed on evidence of bad character that has been adduced during the trial is a matter for them.
The jury must be warned not to place too much reliance on bad character evidence. It should be stressed that bad character evidence cannot be used to bolster a weak case, or to prejudice the jury against the defendant. The jury should be directed that:
* they should not conclude that the defendant was guilty or untruthful merely because D had previous convictions; and
* a propensity is not enough to show that the defendant committed the offence alleged in this case.
The significance of bad character evidence should be assessed in the light of all the evidence in the case.
Where an allegation of conduct that did not result in a conviction is relied on as evidence of propensity and it is disputed, the jury should be directed that they should not rely on it unless they are sure that it is true.

Question 23

Section 100: Gateways for admissibility of non-defendant bad character evidence

Answer 23

Section 100 CJA 2003 states: ‘1 In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if:
(a) it is important explanatory evidence,
(b) it has substantial probative value in relation to a matter which:
(i) is a matter in issue in the proceedings, and
(ii) is of substantial importance in the context of the case as a whole, or
(c) all parties to the proceedings agree to the evidence being admissible.
2 For the purposes of subsection (1)(a) evidence is important explanatory evidence if:
(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case, and
(b) its value for understanding the case as a whole is substantial.
3 In assessing the probative value of evidence for the purposes of subsection (1)(b) the court must have regard to the following factors (and to any others it considers relevant):
(a) the nature and number of the events, or other things, to which the evidence relates;
(b) when those events or things are alleged to have happened or existed;
(c) where:
(i) the evidence is evidence of a person’s misconduct, and
(ii) it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct,
the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct;
(d) where
(i) the evidence is evidence of a person’s misconduct,
(ii) it is suggested that that person is also responsible for the misconduct charged, and
(iii) the identity of the person responsible for the misconduct charged is disputed,
the extent to which the evidence shows or tends to show that the same person was responsible each time.
4 Except where subsection (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court.’

Question 24

Section 100 - Evidence under s.100 can be adduced by any party - Important explanatory evidence

Answer 24

The definition of ‘important explanatory evidence’ (s.100(2)) is the same as the one given in s.102 in relation to defendant bad character evidence:
* without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and
* its value for understanding the case as a whole is substantial.
The same considerations apply.

Question 25

Section 100 - Evidence under s.100 can be adduced by any party - Substantial probative value in relation to a matter in issue and of substantial importance in the context of the case as a whole

Answer 25

‘Matter in issue’ can refer to either credibility or a disputed fact. Although there is no specific reference to propensity as a possible matter in issue as we have seen in s.103, propensity can be a matter in issue for the purposes of s.100. The effect of this is that a defendant can adduce evidence of another person’s propensity to commit offences of the type charged to show that that person, and not the defendant himself, committed the offence.
The inclusion of the word ‘substantial’ in the subsection indicates that in order to be admissible, the evidence must be capable of having an impact on the way in which the jury could assess the evidence of a witness or the case as a whole. Whether the misconduct of a non-defendant has substantial probative value depends on the nature, number and age of the instances of misconduct. So recent misconduct is likely to have greater probative value than misconduct long ago. Where it is alleged that the non-defendant committed the offence charged, the similarity of the past misconduct to the facts of the offence charged will be important.

Question 26

Bad character – procedure: Exclusion and safeguards - Section 78 PACE Act 1984

Answer 26

Section 78 PACE Act 1984
This section allows a judge discretion to exclude any evidence that the prosecution seeks to adduce on the ground that its admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.
It has no application where one defendant seeks to adduce evidence against another.

Question 27

Bad character – procedure: Exclusion and safeguards - Section 101(3) Criminal Justice Act 2003

Answer 27

This subsection applies to evidence of the defendant’s bad character that is to be admitted through gateways 101(1)(d) or (g).
The wording is very similar to that of s.78 PACE Act 1984, with the exception that the word ‘must’ appears in s.101(3), whereas the word ‘may’ appears in s.78.
It is hard to see in what circumstances the difference in the wording would make a practical difference, but for the defence advocate it is obviously preferable to use s.101(3) because of stricter wording.

Question 28

Bad character – procedure: Exclusion and safeguards - Sections 101(1)(d) and 103(3) CJA 2003

Answer 28

These sections allow the court to exclude evidence of the commission by the defendant of an offence of the same description or type as the offence charged if the court is satisfied that, by reason of the time that has elapsed since the earlier conviction or for any other reason, it would be unjust to admit the evidence.

Question 29

Bad character – procedure: Exclusion and safeguards - Section 107 CJA 2003

Answer 29

This section gives the court discretion to stop the case where it is satisfied at any time after the close of the case for the prosecution that bad character evidence that has been admitted is contaminated and the contamination is such that the conviction of the defendant of the offence with which D is charged would be unsafe.

Question 30

Bad character – procedure: Exclusion and safeguards - Section 110 CJA 2003

Answer 30

Section 110 requires the court to give reasons in open court for any ruling it makes on the issue of bad character.

Question 31

Proving convictions under ss.73–75 PACE Act 1984

Answer 31

Section 73: Proving convictions and acquittals
Where there is a dispute as to whether a person has in fact been convicted or acquitted of an offence in the past, whether in the UK or in another EU Member State, s.73 provides that the conviction or acquittal may be proved by the production of the certificate of conviction (signed by the proper officer of the court) from the court where the conviction or acquittal took place.
The certificate must be accompanied by evidence that the person named in it is the person whose conviction or acquittal is in issue.
Sections 74 and 75 PACE Act 1984
Using convictions as evidence that an offence was committed
Section 74 provides that where a person is proved to have been convicted of an offence by any court in the UK or other EU Member State, that person shall be taken to have committed the offence unless the contrary is proved.
The burden of proving that the offence was not committed by the person whose conviction of the offence has been proved is on that person. The burden can be discharged by showing on the balance of probabilities that the offence was not committed by that person.
Section 75 makes various documents including the information, charge sheet and/or indictment admissible as evidence of the facts on which the conviction was based.

Question 32

Procedural requirements

Answer 32

The procedural rules to be followed when a party wishes to adduce bad character evidence are found in Part 21 of the Criminal Procedure Rules.
Notices, applications and responses
Rule 21.2 requires that a party wishing to adduce bad character evidence must, in the case of:
* non-defendant bad character evidence, make an application under rule 21.3; or
* defendant bad character, give notice under rule 21.4.

Question 33

Time Limit - Rules 21.2 and 21.4: Defendant bad character

Answer 33

Rules 21.2 and 21.4: Defendant bad character
Prosecution Evidence
* Magistrates’ court- Not more than 20 business days after the defendant pleads not guilty
* Crown Court- Not more than 10 business days after the defendant pleads not guilty
Co-Defendant’s Evidence
* As soon as reasonably practicable, and in any event not more than 10 business days after the prosecutor discloses the material on which the notice is based
Response
* Not more than 10 business days after service of the notice

Question 34

Contents - Rules 21.2 and 21.4: Defendant bad character

Answer 34

Prosecution Evidence and Co-Defendant’s Evidence
* Set out the facts of the misconduct on which that party relies;
* Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
* Explain why the evidence is admissible.
Response
In the application explain, as applicable-
* Which, if any, facts of the misconduct set out in the notice that party disputes;
* What, if any, facts of the misconduct that party admits instead;
* Why the evidence is not admissible;
* Why it would be unfair to admit the evidence; and
* Any other objection to the notice.

Question 35

Time Limit - Rules 21.2 and 21.3: Non-defendant bad character

Answer 35

Magistrates’ court and Crown Court
* As soon as reasonably practicable; and
* In any event not more than 10 business days after the prosecutor discloses material on which the application is based (if the prosecutor is not the applicant)
Response
* Not more than 10 business days after service of the application

Question 36

Contents - Rules 21.2 and 21.3: Non-defendant bad character

Answer 36

Magistrates’ court and Crown Court
* Set out the facts of the misconduct on which that party relies;
* Explain how that party will prove those facts (whether by certificate of conviction, other official record, or other evidence), if another party disputes them; and
* Explain why the evidence is admissible.
Response
In the notice explain, as applicable-
* Which, if any, facts of the misconduct set out in the application that party disputes;
* What, if any, facts of the misconduct that party admits instead;
* Why the evidence is not admissible; and
* Any other objection to the application.

Question 37

The court’s powers

Answer 37

The court can determine an application with or without a hearing in public or in private. The decision must be announced at a hearing in public, but in the absence of the jury.
The court has a discretion to shorten or extend time limits or to allow an application or notice to be given in a different form. Extensions to time limits can be granted after the time limit has expired.
In practice, written notices in the form required by the rules are usually served where the prosecution proposes to adduce evidence through the s.101(1)(c) or (d) gateways. Evidence that becomes admissible through the other gateways in s.101 is likely to do so ‘on the hoof’ as a result of something said or done in the course of the trial. In those circumstances the application is likely to be made orally.

Question 38

Disclosure – prosecution

Answer 38

During a criminal investigation the police or other prosecuting authority will often speak to a number of witnesses and take statements from them. They will often look through documents, check CCTV and follow various avenues in their search for evidence. The result, depending on the nature of the case, is that a significant volume of material builds up, some of which will be relevant to proving the case and some of which will not.
It is predominantly from this investigative material that the prosecution decide which material will be:
* used- ie relied upon at trial; and
* unused- ie not relied upon at trial.

Question 39

The importance of unused material

Answer 39

Unused material can be extremely important to a defendant in a criminal trial. Often a case will be based on a number of witnesses whose evidence, if believed, is sufficient to convict the defendant of a criminal charge. In the same case there might be other witnesses who throw doubt on this.
If the prosecution, having reviewed all the material available, considers that there is a realistic prospect of conviction and that it is in the public interest to prosecute the case, it would clearly be wrong to only reveal to the defendant the material that supports its case and not the material that does not.
Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.
The defendant may choose to present that material in defence at trial.

Question 40

Full and proper disclosure

Answer 40

R v H and C [2004] UKHL 3; [2004] 2 AC 134; [2004] 2 Cr App R 10
The (then) House of Lords put it this way: ‘Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.’ [2004] 2 AC 134, at 147.
It follows that full and proper disclosure is at the heart of a fair system of criminal justice. It is a vital part of the preparation for trial and for this reason rules have developed as to both the duty to disclose unused material and the duty to retain material during a criminal investigation.

Question 41

Main disclosure provisions

Answer 41

The principal provisions relating to unused material can be found in:
* The Criminal Procedure and Investigations Act (CPIA) 1996, Part 1 (ss.1 to 21)
* The Code of Practice on Disclosure, issued under s.23 CPIA (the Disclosure Code of Practice)
* Criminal Procedure Rules (CrimPR) Part 15
* The Attorney General’s Guidelines on Disclosure – for Investigators, Prosecutors and Defence Practitioners (the A-G’s Guidelines)
* The Judicial Protocol on the Disclosure of Unused Material in Criminal Cases (the Judicial Disclosure Protocol)
The disclosure provisions in this element relate to offences in relation to which criminal investigations commenced on or after 1 April 1997.

Question 42

The four stages of disclosure

Answer 42

The general scheme of disclosure falls into four stages:
(1) the investigation stage- the duty to record and retain material during the investigation;
(2) the initial duty of disclosure on the prosecution;
(3) defence disclosure; and
(4) the continuing duty on the prosecution to keep disclosure under review.
This element will deal with points (1) and (2).
Defence disclosure and the continuing duty on the prosecution to keep disclosure under review are dealt with in separate elements.

Question 43

The investigation stage - The duty to retain and record relevant material

Answer 43

Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.
Every investigation will have:
* an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
* an investigator- namely any police officer conducting the investigation; and
* a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

Question 44

The investigation stage - The duty to retain and record relevant material

Answer 44

In routine cases all these functions may be carried out by the same person, although in complex cases the roles will be individually assigned.
* The investigator- must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be ‘fair and objective’.
* Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.
All material which may be relevant to a criminal investigation must be retained. This includes, in particular:
* crime reports
* records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender
* witness statements (and drafts if they differ from the final version)
* exhibits
* interview records
* experts’ reports and communications between the police and experts for the purposes of criminal proceedings
* records of first descriptions of suspects and any material casting doubt on the reliability of a witness.
In addition, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession.
The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.
Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.
Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.
In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material.

Question 45

Provision of unused material to prosecutor

Answer 45

The Disclosure Code of Practice sets out a procedure for the Prosecutor to be notified by the disclosure officer of every item of Unused Material.
* In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.
* In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.
In cases involving sensitive material (ie material the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.
Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.
This will include ensuring that all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure can be made in accordance with the test set out on the next page.
It is worth noting that the disclosure officer should exercise judgement and be directed by the prosecutor as to what is likely to be the most relevant and important material for disclosure.

Question 46

Prosecution duty of disclosure

Answer 46

The prosecutor’s initial duty of disclosure
The initial duty of disclosure is contained in the Criminal Procedure and Investigations Act (CPIA) 1996 s 3

The A-G’s Guidelines go on to state that it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.
As such, when considering if unused material must be disclosed, prosecutors must take into account all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case.
Material which is supportive of the prosecution case (and which the prosecution chooses not to rely upon) or which is neutral in its effect need not be disclosed as unused material because it does not satisfy the disclosure test.
What is of paramount importance is that the prosecution fulfil its duty of considering all material in light of the disclosure test and acting in accordance with it.

Question 47

Time limits for initial disclosure

Answer 47

The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.
The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:
(1) on plea;
(2) on venue for trial (for either-way offences);
(3) for the purposes of case management;
(4) for the purposes of sentencing (including committal for sentence for either-way offences).
Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:
* in the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial; and
* in the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant (s.1 CPIA).
However, even when this statutory duty has not arisen, a responsible prosecutor has to be alive to the need for advance disclosure of material which the prosecutor recognises should be disclosed at this early stage in the interests of justice and fairness, such as which might assist the defence with the early preparation of their case or at a bail hearing; this is known as the common law duty of disclosure.
The CPIA section 12 provides for statutory time limits for prosecution initial disclosure to be set by regulation but none has yet been made. The default position under CPIA section 13 is that the prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure arises.

Question 48

Summary trial

Answer 48

In practical terms, at the first hearing in the magistrates’ court, where a defendant pleads not guilty and the case is adjourned for summary trial:
* if there is any further prosecution evidence still to be served the court will give a date by which this must be done.
* if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed.
In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.

Question 49

Crown Court trial

Answer 49

If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged. At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.
Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, this does not bring to an end the prosecution’s duty in this regard because the prosecution is under a continuing duty to review disclosure throughout the criminal proceedings. Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates’ court) to provide a defence statement which sets out the accused’s defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.

Question 50

Defence statement

Answer 50

In the Crown Court, s.5 Criminal Procedure and Investigations Act (CPIA) 1996 imposes a duty on a defendant to serve a defence statement on the Crown Court and the prosecution.
A defence statement is a written statement which sets out the nature of the accused’s defence.
It should not be confused with a defendant’s proof of evidence to D’s own legal advisers which is a privileged document and, thus, not disclosable to the prosecution.
Defence disclosure should also not be confused with prosecution disclosure in that there is no duty on the defence to serve material which might be helpful to the prosecution; rather, the defence statement is all about setting out with reasonable clarity what the defence case is.

Question 51

Defence statement- contents

Answer 51

Section 6A CPIA 1996 provides that a defence statement must contain:
‘6A Contents of defence statement
(1) For the purposes of this Part a defence statement is a written statement—
(a) setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,
(b) indicating the matters of fact on which he takes issue with the prosecution,
(c) setting out, in the case of each such matter, why he takes issue with the prosecution, and
(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and
(e) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.
(2) A defence statement that discloses an alibi must give particulars of it, including:
(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;
(b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.’

Question 52

Defence statement- time limits

Answer 52

Crown Court
A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court (CrimPR r.15.4(2)) within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so).
This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.
Magistrates’ court
In the magistrates’ court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates’ court provide that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates’ court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.

Question 53

Issues of fact and law

Answer 53

The Judicial Disclosure Protocol para 17provides that:
‘Service of the defence statement is a most important stage in the disclosure process, and timely service is necessary to facilitate proper consideration of the disclosure issues well in advance of the trial date. Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law. Defence statements that merely rehearse the suggestion that the defendant is innocent do not comply with the requirements of the CPIA.’
On the next page is an example of a Defence Statement in a simple case. The defence statement sets out, in accordance with CPIA s.6A:
(1) the nature of the accused’s defence (alibi);
(2) those matters of fact on which D takes issue with the prosecution (that D attacked the complainant Stephen Holmes/correctness of the identification);
(3) why D takes issue (because D was not present);
(4) any points of law D wishes to take including authority in support (breach of Code D on Identification/s.78 PACE);
(5) particulars of alibi witness (D’s mother’s name, address and date of birth)

Question 54

Disclosure failure by the defence

Answer 54

A number of consequences may follow, where a defendant in the Crown Court:
(a) fails to serve a defence statement
(b) fails to do so within the required time limits
(c) serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)
(d) relies on a defence at trial which is different to that contained in the defence statement
(e) fails to give notice of defence witnesses.

Question 55

Defence witnesses

Answer 55

In both the Crown Court and the magistrates’ court, the defendant must disclose to the court and the prosecutor a notice indicating:
* if D intends to call any witnesses at trial (other than the defendant being a witness); and
* if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.
Alibi witnesses should be included in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses.
The Notice of Intention to Call Defence Witnesses must be given within 10 business days (magistrates’ court) and 28 days (Crown Court) of the prosecution complying or purporting to comply with initial disclosure.
The notice may be amended to add or remove witnesses.

Question 56

Consequences- defence disclosure failure

Answer 56

Under s.11 CPIA the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.
In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.
Section 6E(2) CPIA provides that a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.
Similarly, the A-G’s Guidelines state that ‘Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’ (para 33).
Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference.
However, if the choice is made to serve a defence statement in the magistrates’ court, an adverse inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of time or for putting forward a different defence at trial to that contained in the defence statement.
In the magistrates’ court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA.
If a defence statement is not served in the magistrates’ court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA.
Moreover, failure to serve a defence statement in either the magistrates’ court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.

Question 57

Duty of disclosure by the prosecution - The duty to keep disclosure under review

Answer 57

Service of the defence statement provides the prosecution with a reasonable outline of what the defence to a particular charge is and should prevent the prosecution being ambushed at trial with a surprise defence. The defence statement also allows prosecutors, in conjunction with disclosure officers and investigators, to revisit disclosure in light of any particular matters raised in the accused’s defence. It is therefore of assistance to the prosecution in informing them of what the defence is and to the defence in ensuring that disclosure is carried out in an informed way.

Question 58

Applications for specific disclosure

Answer 58

Under s.8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed.
This is commonly known as a ‘section 8 application’ or an ‘application for specific disclosure’.
In order to make an application for specific disclosure, the defendant must have served a defence statement (in the magistrates’ court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made (s.7A(5) CPIA).
Note that failure to serve a defence statement (even in the magistrates’ court where there is no statutory obligation to do so) will mean that an application for specific disclosure cannot be made.
The Judicial Disclosure Protocol para 26 provides that ‘defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected’.
As such the defence statement must set out the issues clearly as a prerequisite to applying under s.8 for specific disclosure. The procedure is governed by CrimPR r.15.5 – the defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:
(a) that the prosecutor has the material; and
(b) that it is material that should be disclosed under the CPIA.
The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application.
It is worth noting that applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.

Question 59

Disclosure failure by the prosecution

Answer 59

Disclosure by the prosecution and the defence is an important matter in any criminal trial and can form a significant part of case management in court, particularly in the Crown Court where a defence statement is mandatory.
Even though there are clear guidelines and rules regarding disclosure of unused material, proper disclosure still relies on trusting the prosecution to do its job properly.
Given the importance of disclosure in criminal cases, where it becomes apparent that the prosecution has failed in its duty to disclose relevant material the consequences can be serious:
* The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court.
* It could result in a conviction being quashed on appeal due to being unsafe.
* It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.
* It could also potentially result in the exclusion of evidence in the case due to unfairness.
Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.

Question 60

Third-party disclosure

Answer 60

The Disclosure Code of Practice and the A-G’s Guidelines impose a duty on investigators and prosecutors to pursue all reasonable lines of enquiry.
Sometimes it will become clear during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education authorities, or financial institutions.
No duty of disclosure under the CPIA rests upon such third parties but, if the material might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it.
An approach has been developed to obtain third-party disclosure where it is properly required. The A-G’s Guidelines and the Judicial Disclosure Protocol contain guidance for dealing with material held by third parties.
In cases where it is believed the third party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained in case a request for disclosure is made.
There must be some reason to believe that the third party holds relevant material, so speculative inquiries of third parties are not required.
Where material is requested from a third party but access or disclosure is refused, the prosecution can consider (in the Crown Court) seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material, or (in the magistrates’ court) under the similar provisions in s.97 of the Magistrates’ Court Act 1980.

Question 61

Public interest immunity

Answer 61

Circumstances may arise where the prosecution is under a duty to disclose material to the defence (because it satisfies the disclosure test under s.3 CPIA) but the prosecution does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.
In such circumstances the prosecution cannot simply hold this sensitive material back and keep quiet. The required course of action under the CPIA is to apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (usually abbreviated to ‘PII’) Application.
The court will consider the material and may withhold disclosure of such material to the minimum extent necessary to protect the public interest, whilst always ensuring that the defendant(s) can have a fair trial.
Sensitive material of this nature must be recorded at the investigation stage in the Sensitive Material schedule in which investigators must state:
* why the material is sensitive and to what degree
* the consequences of disclosing the material to the defence (including the involvement of third parties in bringing the material to the attention of the prosecution)
* the relevance of the material to the issues in the case
* the implications for continuing the prosecution if the material is ordered to be disclosed
* whether it is possible to make disclosure without compromising its sensitivity.

Question 62

Pre-trial matters in the Crown Court

Answer 62

There are no more hearings in the magistrates’ court for:
* indictable only matters; or
* triable either way matters where:
* the defendant is sent for trial by the magistrates’ court; or
* the defendant elects Crown Court trial.
There will be a Plea and Trial Preparation Hearing (PTPH) and there may be other hearings. The possible further applications and hearings are the focus of this element.
· PTPH (must happen in all cases)
· Further applications (possible further hearings)
· Trial

Question 63

Pre-trial matters in the Crown Court: Further applications

Answer 63

Some cases require no further hearings post PTPH. That’s either because there is nothing to determine or because the PTPH judge decided that the trial judge could deal with any outstanding matters on the day of trial, usually before the trial begins.
What follows is an examination of some of these further applications. As you read them, please bear in mind that they could be made:
* in either the magistrates’ court or Crown Court;
* at the PTPH, or another pre-trial hearing (with the exception of a change of plea); or
* on the day of trial, before the trial starts or at some convenient point during the trial.

Question 64

Applications to exclude evidence or introduce otherwise inadmissible evidence

Answer 64

The defence may wish to exclude evidence that the prosecution proposes to adduce using s.78 of the Police and Criminal Evidence (PACE) Act 1984; either party may want to introduce otherwise inadmissible evidence such as bad character or hearsay (which are covered in separate elements).
This can be dealt with at:
* the PTPH (rare as the judge would not usually have time)
* at a hearing on a day at some point between PTPH and trial (less common); or
* on the day of trial before the trial starts (most common).

Question 65

Special measures

Answer 65

Special measures are the arrangements put in place to assist witnesses in giving evidence before a court. The purpose behind them is to allow children, the vulnerable and those in fear or distress about testifying, to testify in an environment that best enables them to give their evidence. The court must consider which measures will maximise the quality of the evidence.
A screen, for example, is not a slight on the defendant or a presumption of their guilt (and a jury must be told this if one is used) but a measure to enable the witness to give their best evidence.
Special measures- types
In order to assist witnesses to give evidence in the criminal courts a number of ‘special measures’ are available. The Youth Justice and Criminal Evidence Act (YJCEA) 1999 sets out the range of special measures available. These are as follows:
* The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA)
* Live TV link (where the witness sits in a room away from the courtroom) (s.24)
* Giving evidence in private (public gallery cleared) (s.25)
* Removing wigs and gowns by barristers and judges (s.26)
* Video recording of evidence in chief (s.27)
* Pre-recording cross-examination and re-examination (s.28 – partially in force)
* Questioning of a witness through an intermediary (s.29)
* Aids to communication (s.30)
Please note that testifying through an intermediary and aids to communication are not available for witnesses who are eligible for special measures due to being in fear but the other special measures will be available for such witnesses.

Question 66

Special measures- eligibility

Answer 66

Eligibility for special measures is dealt with by s.16 to s.18 of the YJCEA. The following categories of witness are eligible for special measures:
* All witnesses aged under 18 at the time of trial (or video recording) are automatically eligible (s.16 YJCEA).
* Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible where the court considers that due to any such matter the quality of their evidence is likely to be diminished (s.16 YJCEA).
* Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this (s.17 YJCEA).
* All adult complainants of sexual offences (s.17 YJCEA).
* All adult complainants in certain offences under the Modern Slavery Act 2015 (including forced labour and human trafficking).
* All witnesses in a case involving a ‘relevant offence’, namely serious offences, including offences of homicide or involving firearms or knives (s.17 and Sch 1A YJCEA).

Question 67

Special measures- additional types

Answer 67

In addition to the special measures available to witnesses mentioned already, other measures exist or can be put in place to protect witnesses. These include:
* Witness Anonymity Orders (Coroners and Justice Act 2009 Part 3 Chapter 2)
* Automatic anonymity of complainants in sex cases (Sexual Offences (Amendment) Act 1992)
* Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences (YJCEA ss.34 to 38)
* Restricting the reporting of witnesses’ identity (YJCEA s.46)

Question 68

Vulnerable defendants

Answer 68

In certain circumstances the defence can apply for measures to assist particularly vulnerable defendants in order to facilitate their effective participation in the trial process.
An application can be made for the defendant to give their evidence via a ‘live link’.
The court must be satisfied that it would be in the interests of justice and the ‘live link’ would improve the quality of accused’s evidence because either:
* the accused is under 18 and the accused’s ability to participate effectively as a witness giving oral evidence is compromised by their ‘level of intellectual ability or social functioning’ (s.33A(4) YJCEA 1999), or
* the accused is 18 or over and the accused is unable to participate effectively as a witness giving oral evidence because the accused has a mental disorder or a ‘significant impairment of intelligence and social function’ (s.33A(5) YJCEA 1999).
The court also has the power to direct that a vulnerable defendant be assisted by an intermediary to help the defendant understand what is going on. But only those defendant’s most in need, such as those with comprehension or communication difficulties, will be entitled to one.
The role of an intermediary is to assist communication of evidence. They are independent and owe their duty to the court. An intermediary might be used to assist a disabled defendant with communication difficulties, for example.
Intermediaries can also be used to assist witnesses, such as very young witnesses or those with learning difficulties, for example. Before questioning of the witness begins, the intermediary can assist the judge and counsel to understand what types of questions are likely to confuse so that the advocates can carefully prepare their questioning. When the witness or defendant is being questioned by counsel, the intermediary will usually stand near to the witness and can help by explaining the questions and answers. In practice, advocates will usually question the witness directly and the intermediary will only step in if there is some kind of miscommunication

Question 69

Witness summons and warrants

Answer 69

In the majority of cases, the police are responsible for securing the attendance of prosecution witnesses and defence solicitors are responsible for ensuring that defence witnesses attend court when required to do so.
However some witnesses are not keen to be witnesses and try to avoid attending court. They may be giving evidence against a notorious and dangerous criminal, or a friend or relative of theirs, or they might hold information that they think should be confidential. In those cases, either the prosecution or defence can ask the court to issue a witness summons.
The summons can either be for the person to attend on the day of trial to give live evidence, or for the witness to produce a document. Both the Crown Court and magistrates’ court has the power to issue a witness summons.
The test for the party seeking the summons is that:
* the witness is likely to be able to give evidence that is likely to be material evidence (or to produce a material document); and
* it is in the interests of justice to issue a summons.
If a witness disobeys a witness summons and does not attend without a ‘just excuse’ then the courts can issue a warrant for the arrest of the witness. Failure to act as required to do so by the summons can be punishable as a contempt of court.

Question 70

Applications to change plea

Answer 70

From not guilty to guilty
Defendants can change their mind and choose to change their plea from not guilty to guilty.
A defendant who has pleaded not guilty can, at any time before the jury return their verdict, ask through their Counsel that the ‘indictment be put again’ (or charge sheet in the magistrates’ court). The clerk will read the indictment and the defendant can plead guilty. This usually happens before trial but from time to time a defendant might decide midway through a trial that they want to end the process by pleading guilty. It is rare, but it can and does (occasionally) happen. Usually though, defendants change their minds on the day of trial either for tactical reasons or because they were hoping that prosecution witnesses would not attend to give evidence, but realise they now have. Strictly speaking, you need the leave of the judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient. If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.
From guilty to not guilty
This is significantly more difficult! Defendants who plead guilty can, at any time before they are sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was unequivocal the discretion to allow it to be changed still exists.
Where a defendant has been represented properly a court would invariably reject the application to vacate their guilty plea and allow them to enter a fresh not guilty plea.
Represented properly means:
* proper advice has been given to the defendant;
* no undue pressure has been exerted on the defendant; and
* the defendant’s plea was clearly unequivocal.
An application of this nature will frequently feature a defendant waiving privilege (considered in another element) to establish matters such as the nature of the advice they acted upon.
In practice, then, although it is always a matter for the court, the two most common scenarios in which the rarely exercised discretion will properly be applied are where either:
* The defence can show that the prosecution has no evidence of an essential ingredient of the offence; or
* The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team.
Both of those scenarios are likely to result in criticism of Counsel who appeared when the defendant pleaded guilty and perhaps the solicitor too. It is therefore usual practice that Counsel or both Counsel and the solicitor withdraw from the case and the defendant seeks fresh representation. Where that happens, defendants may want to give evidence of their conference with Counsel or seek that Counsel explain how and why they advised the defendant to plead guilty. Both require the defendant to waive legal privilege.