Arresting issue of self-defence

In the first instalment of a continuing series, we offer advice on a variety of problems which face solicitor-advocatesQ Can I act as an advocate for a client at the Crown Court if I also advised him at the police station?A You should tread carefully here.

If your client is pleading guilty then there is clearly no difficulty.

However, if he is pleading not guilty the matter becomes more complicated.If your advice was 'no comment' and the Crown is seeking to draw an inference from silence, you cannot act as you may be required to act as a witness to justify your advice.

If the defendant answered questions then clearly there is no question of an inference; however, you cannot predict what issues will arise during the trial concerning your advice.

For example, in a straightforward case of actual bodily harm where the defendant had claimed self-defence in interview and at trial, during the trial an issue might arise as to what the police had said to the solicitor and the defendant would have to give evidence.

The safest course is never to act in a contested case in which you advised at the police station.

Q My client is charged with possession of cannabis and is alleging that the police planted the drugs on him.

He has a conviction for indecent assault and one conviction for possession of cannabis.

How do I deal with the convictions in the trial?A The best way to deal with this is to raise the issue with the judge in the absence of the jury, before your client gives evidence.

If it is decided that the convictions are to be admitted you can then take the sting out of them by raising them with the defendant in his evidence in chief.

In this case, you will have to concede straight away that in principle the defendant can be cross-examined on his previous convictions as he has clearly made grave accusations against the prosecution witnesses (section 1 F(ii) of the Criminal Evidence Act 1898).However, you can argue that the convictions should not be admitted as they are more prejudicial than probative.

The indecent assault is prejudicial because of the nature of the crime.

The possession of cannabis is prejudicial too because it suggests propensity and not merely credibility.

If either of these previous convictions are spent you can rely on the practice direction (paragraph 6 of the Rehabilitation of Offenders Act 1974).

This prohibits any party referring to a spent conviction in open court without leave of the judge, which shall not be given unless the interests of justice so require (Archbold 2001 8-220).

Q What do I do if my client departs from his proof or defence statement during the course of his evidence?A This is every advocate's worst nightmare.

Typically, this arises when the client comes up with something entirely unexpected that you did not put to the prosecution witnesses.

The judge will inevitably ask you why it was not put, and you are in a dilemma.

If you say it is your client's fault you are breaching privilege and if you say it is your fault you are misleading the court.

The most appropriate form of response to this is to tell the judge quite simply that you have acted according to the rules.

If the client's departure from his proof is fundamental to the case you should ask for a short adjournment.

If the client has finished giving his evidence, you should explain to him why you cannot continue to act, and that you will be applying to withdraw from the case.

If the client is in the middle of his evidence, you cannot speak to him about this without leave of the judge.

You should ask to see the judge in chambers and explain that you are professionally embarrassed and cannot continue to act.You must do everything you can to avoid this problem happening in the first place by going through your client's proof in detail in conference and again at court.

You should alert him to any potential pitfalls in his account and the lines of enquiry that may arise.

The code for advocates forbids 'coaching' a witness but there is nothing wrong with pointing out the line the cross-examination is likely to take.

Q I have recently been involved in a case in which I agreed a basis of plea with the Crown.

The defendant duly pleaded guilty and the judge refused to accept the basis of the plea.

What can I do? Can the client change his plea?A The short answer is that he cannot.

The sentencing judge is not bound by the agreement you made with the prosecutor and can order a Newton hearing if he does not accept the defence version of events.

If he does so, this does not provide a basis for the withdrawal of the plea of guilty, provided that it is clear the defendant admits his guilt to the offence charged (R v Beswick 1996 1 Cr App R (s) 343).

If your client pleads guilty on a basis other than that presented by the Crown, you should commit this to writing and invite the Crown and your client to sign it (R v Tolera 1999 1 Cr App R 29).

Q The Crown indicated at the plea and directions hearing that it would offer no evidence against my client but had to adjourn the matter for the paperwork to be sorted out.

When the matter came back before the court a different prosecutor indicated that the Crown intended to proceed.

Can the crown do this, and what should I do about it?A No, it cannot.

The Crown is not entitled to go back on a promise made to the defence in such circumstances and its conduct on this occasion would appear to be an abuse of process (R v Bloomfield 1997 1 Cr App R 135 CA and R v Hyatt 1997 3 Archbold News 2 CA).

The appropriate step is to inform the Crown and the court that you will be making an application to stay the indictment at the commencement of the trial and before the jury is sworn.

You should then prepare and serve skeleton arguments and copies of authorities on the Crown and the court in good time for the hearing.l This column is prepared by committee members of the Solicitors' Association of higher Court Advocates.

For additional details of SAHCA and a membership application form, contact the administrator, Sandra Dawson, tel: 020-7837 0069 or e-mail: sandra@admin4u.org.uk