Criminal Practice - 1991

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This page lists 27 cases, and was prepared on 28 October 2012.

Regina -v- Lucas [1991] Crim LR 844
1991 CACD Lord Woolf CJ	Criminal Practice	Casemap 1 Citers
	An appellant should not be allowed to make tactical decisions not to object to something at his trial, but to save it for an appeal: "an appellant should not be able to blow hot and cold in this way." and "The appellant had himself been made aware of the contents of the note. He, having been made aware of the contents of the note through his counsel, did not dissent from the course proposed by the judge, namely to take a verdict. As was pointed out in argument, for him now to seek to challenge that verdict means that he waited to see whether the verdict was favourable or not, and only sought to challenge the right of the jury to bring in a verdict when he has ascertained, in relation to one count, that the verdict is unfavourable to him. It cannot be satisfactory that in a situation of this sort an appellant should blow hot and cold, albeit through counsel."

Regina -v- Bolton Magistrates’ Court, ex parte Merna; Regina -v- Richmond Justices, ex parte Haines [1991] Crim LR 848; [1991] 155 JP 612
1991	Magistrates, Criminal Practice	Casemap 1 Citers
	The divisional court should intervene where a defendant has been deprived of a fair opportunity to present his case because of his own unavoidable absence.

Regina -v- Robb [1991] 93 Cr App R 161
1991 CACD Bingham LJ	Criminal Practice	1 Citers
	The evidence of an expert to prove identification by voice was admissible. Also voice recognition evidence given by a phonetician was admissible as expert evidence; and that evidence of police officers who listened to disputed tapes and recognised the voice of the person speaking was admissible as factual evidence, subect to section 78 considerations. Bingham LJ accepted that the phonetician was sufficiently qualified to give expert evidence on voice recognition. He said of the expert, Dr Baldwin: "He was entitled to be regarded as a phonetician well qualified by academic training and practical experience to express an opinion on voice identification. We do not doubt that his judgment, based on close attention to voice quality, voice pitch and the pronunciation of vowels and consonants, would have a value significantly greater than that of the ordinary untutored laymen, as the judgment of a hand-writing expert is superior to that of the man in the street."
	Police and Criminal Evidence Act 1984 78

Regina -v- Edwards [1991] 1 WLR 207; [1991] 93 CAR 48
1991 CACD Lord Lane CJ	Criminal Practice	Casemap 1 Cites 1 Citers
	The appellant was convicted of robbery with a firearm and sentenced to 14 years. The evidence included police evidence of his confessions in interview. He challenged the veracity of the interview notes, alleging that the police officers concerned had 'fitted him up'. After the trial those representing the appellant discovered that one of the senior officers concerned had, two months before the trial, been reprimanded for certifying interview notes in another trial when these, to his knowledge, had been wrongly rewritten. The fact that this officer was facing disciplinary proceedings should have been disclosed to the defence. Held: The court set out to control the questions that may be asked on behalf of a defendant in a criminal trial of officers who are members of a police force which has obtained a reputation for bad behaviour. The court considered at length the use to which the defendant could have put of evidence of the police officer's previous misconduct, had he been aware of this: "The test is primarily one of relevance, and this is so whether one is considering evidence in chief or questions in cross-examination. To be admissible questions must be relevant to the issue before the court. Issues are of varying degrees of relevance or importance. A distinction has to be drawn between, on the one hand, the issue in the case upon which the jury will be pronouncing their verdict and, on the other hand, collateral issues of which the credibility of the witnesses may be one. Generally speaking, questions may be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of testing his credit. " and "The distinction between the issue in the case and matters collateral to the issue is often difficult to draw, but it is of considerable importance. Where cross-examination is directed at collateral issues such as the credibility of the witness, as a rule the answers of the witness are final and evidence to contradict them will not be permitted: see Lawrence J in Harris v Tippett (1811) 2 Camp 637, 638. The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue from becoming submerged in a welter of detail." As to the admission of evidence to suggest that the testimony of a police witness appeared to have been disbelieved in a previous trial: "The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying."

Regina -v- Harrow Justices ex parte Director of Public Prosecutions [1991] 1 WLR 395
1991	Magistrates, Criminal Practice	Casemap 1 Citers
	In order to use the power to issue a warrant of commitment, committing the defaulter to custody, the court must conduct a fair and public hearing to decide what is the appropriate order to make in all the circumstances. The power to issue the warrant is discretionary. Such a warrant is a mode of enforcement of last resort.
	Magistrates Court Act 1980 76

HM Advocate -v- Mechan [1991] CLY 4657
1991	Scotland, Criminal Practice	Casemap 1 Citers

Swankie -v- H M Advocate (1999) SCCR 1
1991	Scotland, Criminal Practice	Casemap 1 Citers
	Enquiries into a jury's deliberations might be allowable as to extraneous events which might have affected them.

Regina -v- Bean [1991] Crim LR 843
1991	Criminal Practice	Casemap 1 Citers
	Jury - Enquiry

Regina -v- Leeds Crown Court ex parte Switalski [1991] COD 119; (1991) CLR 559
1991 Judge Savill QC, Neill LJ	Criminal Practice, Police, Legal Professions	Casemap 1 Citers
	It is preferable, in an ordinary case, for an application for a search warrant in a solicitor's office to be made on notice. However, if a solicitor under investigation were to have knowledge of what was contemplated the material sought might disappear or be tampered with before it could be seen by the investigator, a judge might be persuaded that an ex parte application was appropriate and necessary. Neill LJ said: "There is . . . a very powerful argument in support of the proposition that a warrant issued under section 9 schedule 1 of the 1984 Act should, however wide its scope, contain some express condition to exclude items subject to legal privilege."
	Police and Criminal Evidence Act 1984 10

Regina -v- Crook (1991) 8 Cr App R (S)
1991	Criminal Practice	Casemap 1 Citers
	A journalist appealed against orders excluding the press and public while the judge considered where the jury should sit, and again as to the behaviour of a jury member. Held: There may be circumstances where it was appropriate to distinguish between the press and public when making such decisions, allowing the press to stay when the public would be excluded.

Regina -v- Cantor [1991] Crim LR 481
1991 CACD	Criminal Practice	Casemap 1 Citers
	The court of appeal declined to lay down any rules of practice concerning changes of plea. It was for trial judges to decide how to respond to an application for that to be done.

Regina -v- Stinchombe (1991) 68 CCC (3d)
1991 Sopinka J	Criminal Practice, Commonwealth	Casemap 1 Citers
	(Supreme Court of Canada) Sopinka J described the fruits of a police investigation as: "not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done."

Farmer -v- HM Advocate 1991 SCCR 986
1991	Criminal Practice, Scotland	Casemap 1 Citers
	The judge warned the jury of the dangers in assessing evidence: "The task of assessment is not an easy one: it is certainly one which has to be approached with great care and circumspection."

Regina -v- Toner (1991) 93 Cr App R 382
1991 CACD Russell LJ	Criminal Practice	Casemap 1 Citers
	The defendant sought to have admitted expert evidence on the possible effect of hypoglycaemia on the formation of an intention: ". . . we do not know what, if any, effect mild hypoglycaemia can have upon a man's ability to form an intent, and without that expert evidence the jury were deprived of assistance in a field where their ordinary experience did not enable them to judge for themselves."

Regina -v- Bentley [1991] Crim LR 620
1991 CACD Lord Lane CJ	Criminal Practice	Casemap 1 Cites 1 Citers
	Where an identification depends upon the recognition by the witness of a person or persons previously known to him, the jury should be reminded that there is remains a risk for mistake in such cases. Many people have experienced thinking that they had seen someone in the street whom they knew, only to discover that they were wrong.

Regina -v- Lewes Crown Court ex parte Hill [1991] 93 Cr App R 60
1991 Bingham LJ	Criminal Practice, Police	Casemap 1 Citers
	Bingham LJ said: "The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a public interest in protecting the personal and property rights of citizens against infringement and invasion. There is an obvious tension between these two public interests because crime could be most effectively investigated and prosecuted if the personal and property rights of citizens could be freely overridden and total protection of the personal and property rights of citizens would make investigation and prosecution of many crimes impossible or virtually so. The 1984 Act seeks to effect a carefully judged balance between these interests and that it why it is a detailed and complex Act. If the scheme intended by Parliament is to be implemented it is important that the provisions laid down in the Act should be fully and fairly enforced. It would be quite wrong to approach the Act with any preconception as to how these provisions should be operated save in so far as such preconception is derived from the legislation itself. It is, in my judgment, clear that the courts must try to avoid any interpretation which would distort the parliamentary scheme and so upset the intended balance. In the present field, the primary duty to give effect to the parliamentary scheme rests on circuit judges. It seems plain that they are required to exercise those powers with great care and caution. " An officer applying for a search warrant is under a duty not only to avoid positive misrepresentation but "to make a full disclosure of all matters which might affect the court's decision to make or refuse the order and, in particular, to make disclosure of all matters known to [them] which might militate against the making of an order."
	Police and Criminal Evidence Act 1984

Regina -v- Stinchcombe (1991) 68 CCC (3d) 1
1991 Sopinka J	Commonwealth, Criminal Practice	1 Citers
	(Supreme Court of Canada) The Crown had decided not to call a witness who was considered unworthy of credit by Crown counsel. The witness could have given evidence directly relevant to the issues arising at the trial. The Crown also refused to disclose the statements of the witness to the defence. Held: Crown counsel misconceived his obligation to disclose the statements. Crown counsel had refused disclosure because in his view, the witness was not worthy of credit. This was not an adequate explanation. The trial judge ought to have examined the statements and erred in holding that the Crown counsel was not under an obligation to make disclosure of the statements. The failure of the Crown to make disclosure impaired the right of the accused to make full answer and defence. It must be assumed that non-production of statements was an important factor in the decision of the defence not to call the witness. The absence of this evidence might very well have affected the outcome. Accordingly, the appeal must be allowed and a new trial ordered at which the statements should be produced. Stopinka J: "I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." and "Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material."

Attorney-General of Trinidad and Tobago -v- Whiteman [1991] 2 AC 240
1991 PC	Commonwealth, Criminal Practice	Casemap
	(Trinidad and Tobago)

Regina -v- Crown Court Woodgreen, ex parte Howe (1991) 93 Cr App R 213
1991 QBD Watkins LJ and Anthony Evans J	Criminal Practice	Casemap 1 Citers
	The applicant has no right to make more than one application under section 31(1).
	Powers of Criminal Courts Act 1973 31

Regina -v- Chief Constable of Kent ex parte L [1991] 93 Cr App R 416
1991	Criminal Practice	Casemap 1 Citers
	The discretion which is vested in the Crown Prosecution Service to continue criminal proceedings commenced by the police is subject to judicial review by the High Court, but only where it can be shown that the decision was made regardless of, or clearly contrary to, a settled policy of the Director of Public Prosecutions evolved in the public interest.

In Re O (Restraint Order: Disclosure of Assets) [1991] 2 QB 520
1991 Donaldson J	Criminal Practice	Casemap 1 Cites 1 Citers
	A restraint order had been made against O in an action under the 1988 Act. He sought a variation. On the application of the prosecutor he was ordered to file an affidavit of means. He sought to appeal, but the prosecutor said no appeal lay. Held: An appeal was possible. It succeeded only to the extent that the court ordered that it should not be available in evidence against the defendant in criminal proceedings against O or his wife. Donaldson J drew a distinction between a judgment 'in a criminal cause or matter' and a judgment 'collateral to a criminal cause or matter'."
	Criminal Justice Act 1988 77(1)

Regina v Stafford Justices ex parte Customs and Excise Commissioners [1991] 2 QB 339
1991 Watkins LJ	Criminal Practice	Casemap 1 Citers
	Watkins LJ set out section 6 of the 1985 Act and observed (at 350H): "These provisions clearly envisage that persons other than the Director may institute proceedings and prosecute. As Mr Lawson said, and I accept, it would indeed be surprising if that were not so. One has only to consider the role of the Post Office, the Department of Health and Social Security, the Inland Revenue Commissioners, local authorities, the RSPCA, apart altogether from the Customs and Excise Commissioners, in the process of investigation and prosecution of offences to appreciate immediately that the Crown Prosecution Service, under severe strain as it is, could not bear their burdens too. Parliament cannot possibly, in my view, have intended to bring about such a consequence."
	Prosecution of Offences Act 1985 3(2)(a)

Cameron -v- HM Advocate 1991 JC 252
1991	Scotland, Criminal Practice	Casemap 1 Citers

Regina -v- Acton Justices ex parte McMullen and others (1991) 92 Cr App R 98
1991 CACD	Criminal Practice	Casemap 1 Citers
	Evidence in support of an application for a witness' statement which was to be read out, should be supported by oral evidence, though that may properly be given by a police officer.
	Criminal Justice Act 1988 23(3)

Regina -v- Moore Unreported, 5 February 1991
5 Feb 1991 CACD Lane CJ	Criminal Practice	Casemap 1 Cites 1 Citers
	The court considered whether to quash a count of theft: "The fact that a possible incidental effect of the purposes of the application does find itself within those sub-provisions (a) to (d) is not one of the purposes of those provisions. It is the word "purpose" by which the situation is governed. In our judgment it is improper and misconstruction to redraft the wording so as to substitute some such word as "consequences" for the word "purpose". So far as the motion to quash is concerned, it does not, in our judgment, come within those four sub-provisions. Basing ourselves on Gunawardena by which we are bound, and with which we respectively agree, in our judgment the prosecution's argument succeeds. There is no jurisdictional basis upon which this Court can entertain the appeal."

Regina -v- Chrastny (No 2) [1991] 1 WLR 1385; Times, 14 March 1991
14 Mar 1991 CACD	Criminal Practice	Casemap 1 Citers
	The defendant was the only one of several defendants convicted of involvement in a drugs case. He appealed a confiscation order under which he carried the entire weight of the confiscation order. Held: The order was correct provided that the court could assess the value to be attributed to the proceeds of drug trafficking, and that the defendant had had a sufficient degree of control. The words 'realisable property' in the Act included also property which had been acquired legitimately, and therefore such property could be included in the calculations.
	Drug Trafficking Offences Act 1986 5(1)

Oberschlick -v- Austria (1991) 19 EHHR 389; 11662/85; [1991] ECHR 30;
23 May 1991 ECHR	Human Rights, Media, Criminal Practice	Casemap 1 Citers
	A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of appeal was the same judge as had presided over it on the first occasion, contrary to the code of criminal procedure. The journalist complained that the court of appeal on the second occasion was not an independent and impartial tribunal. Held: An argument that he had impliedly waived that right because he had not raised this objection at the hearing of his appeal was rejected, on the ground that neither he nor his counsel were aware until well after the hearing of all the circumstances that provided grounds for objecting to the tribunal on the grounds of impartiality. The Court reiterated that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds set, inter alia, in the interests of "the protection of the reputation and rights of others", it is nevertheless to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'. Although formulated primarily with regard to the print media, these principles doubtless apply also to the audio-visual media.
	European Court of Human Rights 10
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