Criminal law

A doctrine of informed advice?A fundamental role of the defence solicitor is to advise a client whether or not there is a sufficient case against him for which he would need to raise a defence.

This role arises first at the police station.

In DPP v Ara [2001] 4 All ER 559 the suspect had attended the police station unrepresented and been interviewed.

He was bailed to return.

Having sought legal advice he returned to the police station with a solicitor.

The solicitor sought from the police a briefing on the facts and a copy of the tape of the first interview so that he might determine whether there was a sufficient case to answer.

The police declined to assist but offered to caution the suspect.

The solicitor pointed out that a caution could only be accepted if there was evidence that a crime had been committed and that without disclosure he was not able to advise on that issue.

The police declined to disclose any further information and indicated that if the suspect did not accept a caution he would be charged.

On the advice of his solicitor a caution was declined and the defendant was brought before the magistrates court.

At the court a copy of the tape was available and disclosed that there was a prima facie case.

The solicitor thereupon applied to stay the proceedings as an abuse of process of the court in that had he been able to give informed advice at the police station the proceedings would never have been brought as matters would have been concluded by way of a caution.The court accepted this submission and the decision was upheld in the Divisional Court.

Whether a defendant should accept a caution was inextricably linked to the entitlement to informed legal advice.

A similar doctrine underlay the decision of the court in R v Calderdale MC, ex parte Donohue and Cutler (2001) Crim LR 141, examining in detail the Magistrates Courts (Advance Information) Rules 1985.

The defence had sought advance information in order to advise their clients as to the appropriate plea.

The original disclosure contained little more than a reference to a video.

Without seeing the video it was not possible to know what was the strength of the prosecution case.

An application had been made under rule 4 for disclosure.

By rule 4(3) 'where ...

reference is made to a document on which the prosecutor proposes to rely, the prosecutor shall ...

also furnish either a copy of the document or such information as may be necessary to enable the person making the request ...

to inspect the document or copy thereof'.

The Crown in that case conceded that a video tape was a document within these rules.

However, that did not decide the issue as the duties of the court are contained within rule 7.

This requires that a court 'shall adjourn the proceedings ...

unless the court is satisfied that the conduct of the case for the accused will not be substantially prejudiced by non-compliance'.

The Crown argued that there was no substantial prejudice as the defendants would know whether they had committed the crime or not.

The court, upholding fundamental principles of an adversarial system, emphasised that there was prejudice if the defence was not able to receive informed advice as to whether the Crown could make out a case.

The matter received further consideration in R (DPP) v Croydon Magistrates Court (2001) Crim LR 980.

In this case there were allegations of burglary.

Blood had been found at the scene of a number of crimes.

The Crown disclosed the detail of the burglaries and that a DNA profile identified the defendant as being at the scene of each burglary.

The defence requested to see the DNA profile under the advance information rules.

That application was refused.

The court held that there was no express reference to a document and that was sufficient to decide the case.

However, the court cast some doubt on the concession that had been made by the Crown in Calderdale that a video was a document; that aspect of the decision should be challenged.

In cases such as Calderdale it is not possible for the defence solicitor to give meaningful advice without knowing the content of the video or in many cases an audio tape.

The research evidence shows that summaries of these documents made by investigators are seldom reliable.

Apart from civil law authorities, section 5A(4) of the Magistrates Courts Act 1980 defines a document as 'anything in which information of any description is recorded' and for the purpose of the Criminal Justice Act 1988 a video falls within the definition of a document (R v Duffy (1988) The Times, 2 May).

In any event, justice in these cases can be done by a proper application of rule 7.In Calderdale no advice could be given as to what the prosecution was alleging without the video.

In the Croydon case the position was different.

It was known that there had been a burglary and that blood had been found.

There was evidence that that blood belonged to the defendant.

The defence was then in a position to seek instructions as to the presence or otherwise of that body sample and was not substantially prejudiced by the lack of the DNA profile itself ahead of trial.These matters acquire a particular significance because of the importance of the correct plea being entered at the plea-before-venue stage in either-way offences.

A plea of guilty has always, with notable exceptions, justified a court in discounting, by reason of a timely guilty plea, the sentence imposed.

In R v Barber (2001) Crim LR 998 the Court of Appeal has indicated that an indication of a guilty plea at plea before venue should result in a discount greater than the normal one-third, which would have been allowed later in the proceedings.

It is inconceivable, however, that a defendant would be prejudiced by an inability to enter a plea through lack of informed advice.

By Anthony Edwards, TV Edwards, London