Tactics

I was in the Crown Court yesterday for a case.  My client has two co-defendants.  The best I can say about the charges they face is that the prosecution lawyer who drew them up was being very imaginative at the time.  It seems to me that the Crown have no hope of succeeding as the indictment stands.

There is another charge that could be brought in place of the current very imaginative one.  If the Crown were to change charges then the defendants would suddenly struggle to win their trial; they still have a chance but its a much more close run thing.

My learned friends have also noticed this deficiency.  Much to my frustration, they have chosen to handle it by listing the case for a dismissal argument.  This is basically where you tell a judge that the prosecution case is hopeless and ask him to throw the case out of court without a trial.

A dismissal argument is all well and good, but all they have done is highlighted the problems with the current charge to the prosecutor and thus made it far more likely that the Crown will amend the indictment to solve the problem.

Had they done it my way, we'd all have saved ourselves the effort of drafting a dismissal argument, there would have been a much better prospect of the Crown failing to amend the indictment and we could have argued the case out at half time.

As it stands, the prosecutor is already talking about amending the indictment on the next occasion.

It's all well and good showing off that you've spotted a problem in the other sides case, but I fear this will be a Pyrrhic victory.

Comments

  1. It is of course in the interests of justice that a case that is dogshit should be thrown out pronto rather than at a later time that suits the defendants.

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  2. The defence advocates are there to act in the best interests of their client - if the prosecution want to bring a "case that is dogshit" then that is up to them, it's not for the defence to point out the errors of their ways unless it assists the defendant.

    The interests of justice are far better served by prosecutors doing their job properly.

    Think how'd you'd feel if you were involved in a car crash, for example, and your advocate started pointing out flaws in the otherside's case that did not but give them a chance to rectify their errors. Would you be pleased with your advocate? Would you be happy that instead of acting in your best interests, your advocate was acting in the "interests of justice"?

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    Replies
    1. Ed (not Bystander)30 August 2012 at 21:12

      I trust that the advocate in question would be mindful of the overriding objective: rules 1.1 and 1.2 of the Criminal Procedure Rules, reproduced here in full (attention is drawn to 1.2(c) in particular):

      1.1.—
      (1) The overriding objective of this new code is that criminal cases be dealt with justly.
      (2) Dealing with a criminal case justly includes―
      (a) acquitting the innocent and convicting the guilty;
      (b) dealing with the prosecution and the defence fairly;
      (c) recognising the rights of a defendant, particularly those under Article 6 of the European Convention on Human Rights;
      (d) respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;
      (e) dealing with the case efficiently and expeditiously;
      (f) ensuring that appropriate information is available to the court when bail and sentence are considered; and
      (g) dealing with the case in ways that take into account―
      (i) the gravity of the offence alleged,
      (ii) the complexity of what is in issue,
      (iii) the severity of the consequences for the defendant and others affected, and
      (iv) the needs of other cases.

      The duty of the participants in a criminal case
      1.2.—
      (1) Each participant, in the conduct of each case, must
      (a) prepare and conduct the case in accordance with the overriding objective;
      (b) comply with these Rules, practice directions and directions made by the court; and
      (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules, any practice direction or any direction of the court. A failure is significant if it might hinder the court in furthering the overriding objective.
      (2) Anyone involved in any way with a criminal case is a participant in its conduct for the purposes of this rule.

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    2. It is of course important to remember, however, that Rule 1.2(c) relates to the failure to take procedural steps as required by the Rules (or practice direction or any direction of the court). It does not require a party to point out that the other side has a weak case.

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    3. Ed (not Bystander)30 August 2012 at 21:25

      It is also of course important to remember 1.1, subs a b & e. Really, you don't have a leg to stand on.

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    4. Ed (not Bystander), I stand to be corrected but making an application to dismiss is not a procedural step envisaged by the Rules. I would suggest that a procedural step is, for example, a failure to sign an indictment. Breaching the Rule could be done by an advocate realising the indictment had not been signed and not telling the court in the hope of using it to nullify a conviction should the defendant be convicted. It does not, and should not, encompass the making of a contested application that forces the defence to show their hand to their opponent.

      An application to dismiss is made sparingly and not in every (or even most) cases. It cannot thus be said to be a procedural step.

      Nor, do Rule 1.1(a), (b) or (e) strengthen that point. (a) acquittal of the innocent and conviction of the guilty. Well, if the client says he's innocent then I should act to ensure that he is acquitted and that is best done by NOT making an application to dismiss.
      (b) dealing with the prosecution and defence fairly. I do not see how that provision requires me to actively warn my opponent about defects in his case. He's a qualified and experienced lawyer being paid as such, why does he need me to help him out? If you were being sued I bet you wouldn't be happy about your brief shoring up your opponent's case for them.
      (e) dealing with cases efficiently and expeditiously. There is far too much emphasis in the CJS these days about getting things done fast rather than right. There is nothing in (e) that requires me to make an application to dismiss that is not in my client's best interests.

      I think you'll find that I have two (very strong) legs to stand upon.

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    5. Ed (not Bystander)31 August 2012 at 23:08

      I stand to be corrected but making an application to dismiss is not a procedural step envisaged by the Rules.

      A truly impressive assertion. If that were correct, how come such an application is covered by part 13 of... the Rules? In any case, I believe the only reason advocates get away with the poor practice that they do (both prosecution and defence) is the current lack of meaningful sanctions.

      It does not, and should not, encompass the making of a contested application that forces the defence to show their hand to their opponent.

      Given that both the spirit and letter of the law require such disclosure to be made (cf defence case statement), I do not know to which principle you are appealing.

      I would submit you are reading the Rules in a highly partisan way, and not with a view to promoting the genuine interest of justice. You have yourself more or less admitted (If the Crown were to change charges then the defendants would suddenly struggle to win their trial) that your clients are guilty of a crime. That is why your position is incompatible with sub (a), and I suggest your conduct is incompatible with (b) and especially (e).

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    6. Ed (not Bystander)- You are getting very close to saying that a defence lawyer should tell the prosecution which charge(s) they should bring against the client. That would, undoubtedly, be a ludicrous proposition. It is the job of the CPS to decide which charge is the appropriate one. In selecting such a charge they are supposed to apply the rules contained within the Code for Crown Prosecutors and the guidance given to them on making charging decisions. It cannot be sensibly said that a defence lawyer is under any obligation to say to the Crown "excuse me, you might like to charge my client with this offence instead, it will make your life much easier". That would indeed be a most worrying interpretation of the Rules.

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    7. Ed (not Bystander)2 September 2012 at 18:00

      If the charge is obviously defective, then the proposition is not ludicrous at all. How much public money gets wasted on such silly-buggers behaviour?

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    8. Ed, I'm afraid I still disagree with you. Simply because something is covered by the Rules does not mean it is a procedural step.

      A procedural step is, to my mind, something that must take place to ensure an outcome. In this case, the outcome is a trial. A dismissal argument is not a step that must take place in order for a trial to take place. It is an unusual and relatively rare event that intervenes in the usual pre-trial procedure.

      A procedural step covers things like signing the indictment.

      I have to say as well that your position on LegalEagle's point is ludicrous. How could any lawyer who complies with their duty to act in the best interests of their client possibly say there is no conflict of interests if they are also giving charging advice to the otherside? If somebody crashed their car into you and your lawyer started suggesting ways the other party could strengthen their case against you I suggest that you would not feel your lawyer was acting in your best interests. Why should that be any different for somebody accused of a crime who faces far more serious consequences if they lose their case?

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    9. Ed, I also want to take up the point you made earlier, "You have yourself more or less admitted (If the Crown were to change charges then the defendants would suddenly struggle to win their trial) that your clients are guilty of a crime."

      It is not for me to decide upon guilt. It is for a jury. I believe that the prosecution have a stronger case against my client on the alternative charge, that is not the same as saying that my client is guilty!

      Going back to my car crash analogy. Let's say that your lawyer formed the view that the accident was your fault. You disagree. On your version of justice presumably the lawyer would either twist your arm into admitting liability or he would tell you to get stuffed and refuse to represent you any more. I fail to see how either option does anything to serve justice or is in keeping with the lawyers duty to represent you.

      It is that sort of attitude that leads to gross miscarriages of justice.

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    10. Ed (not Bystander)5 November 2012 at 17:22

      I fear you are pursuing what I call "proof by bad analogy".

      Let me quote from the latest SRA Handbook, part 1 "SRA Principles":


      These are mandatory Principles which apply to all.

      You must:

      1. uphold the rule of law and the proper administration of justice;
      2. act with integrity;
      3. not allow your independence to be compromised;
      4. act in the best interests of each client;
      5. provide a proper standard of service to your clients;
      6. behave in a way that maintains the trust the public places in you and in the provision of legal services;


      The duty to your client is only number 4. You can't possibly believe your position is compatible with points 1, 3 or 6?

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  3. I do not believe that Criminal Procedure Rules are aimed at removal of the basic rights of defendants. Clear primary legislation is surely required for that ?

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    Replies
    1. Ed (not Bystander)21 September 2012 at 16:02

      I would say that regarding the above as removing basic rights of defendants is a gross exaggeration of the benefits of the adversarial system.

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    2. I have to disagree. The Police and Criminal Evidence Act 1984 and its associated Codes gives suspects the right to silence when being questioned by the police. What you are effectively saying is that defendants should lose that right when they reach court and should be required to actively rectify errors in the prosecution case for them.

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    3. Ed (not Bystander)5 November 2012 at 17:25

      If it is unjust to the prosecution (one of the parties to the case), then yes that is what I am saying. It is in the interest of the public (which includes you) for justice to be done, even if that involves a guilty person whom you represent being convicted. Criminal justice is not a game.

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  4. This situation I feel has been created by allowing solicitors in the crown court. If one reads the BSB ethics rules one would see that one has an over riding duty to the court.

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