Criminal law

By Anthony Edwards, TV Edwards, London

ProcedureRegulation of Investigatory Powers Act 2000Important provisions of the Regulation of Investigatory Powers Act 2000 came into force on 25 September, 2000 and 2 October, 2000.

In particular the restriction on the use of telephone 'taps' previously contained in s.9 of the Interception of Communications Act 1985 has now been replaced by ss 17 and 18 of the new Act.

This latter section introduces a procedure whereby prosecutors and judges may be told of the existence and content of relevant material but the defence is still excluded.

It is difficult to see how the new procedure can comply with the requirement for equality of arms under art.6 of the European Convention.

In order to comply with art.8 of the Convention (by providing a valid qualification on the right to private life) the Act authorises most forms of direct intrusive and human resources intelligence used in modern policing.Abuse of processCrummock (Scotland) Ltd v HM Advocate, The Times,9 May 2000The ability to use delay alone as the basis for an application to stay proceedings for abuse of process is strengthened by the Human Rights Act 1998.In the above case, the court emphasised that the underlying purpose of the right to trial within a reasonable time was the avoidance of the person charged remaining too long in a state of uncertainty about his fate.Contrary to the pre-existing position in English law, it is not necessary to show prejudice as well.DPP v Edgar, 164 JP 471In this case, the prosecution agreed to accept pleas to failure to stop and as a result did not pursue an allegation of excess alcohol on what was a misunderstanding of the law.

They later realised their error and sought to re-instate the charge, arguing that there could be no prejudice as only 24 hours had elapsed.

The Divisional Court held that there was abuse and that in these circumstances prejudice was not essential.

It was critical that nothing threatened the integrity of the criminal justice system and the initial offer to accept the denial had to be maintained.Defence statementsR v Wheeler, The Times, 7 July 2000the Court of Appeal held that a defence statement served upon the court must be signed by the individual defendant.

There is no statutory basis for such a requirement but solicitors will ignore it at their risk.

In Wheeler's case he was able to allege a mistake in the statement because it could not be proved that he had individually seen it.

The judge failed to sum up accurately that fact to the jury and the conviction was quashed.

A signed statement will make it more difficult for the defendant to run the same excuse again; an unsigned one could lead to an abandoned trial and a wasted costs order.