England and Wales High Court (Administrative Court) Decisions

Sullivan, R (on the application of) v Crown Court At Maidstone [2002] EWHC 922; [2002] EWHC/Admin. 967 (Admin) (16th May, 2002)

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th May 2002.

Lord Justice Kennedy :

1. On 11^th September 2000 Judge Patience QC, the Resident Judge at Maidstone, issued a local practice direction in these terms –

“For the avoidance of doubt and in light of the decision of the Court of Appeal in R v Wheeler (the Times 7^th July 2000) all Defence Statements shall be signed by the Defendant before they are given to the Court and to the Prosecutor in accordance with section 5 of the Criminal Procedure and Investigations Act 1996”.

This case concerns the validity and enforceability of that Practice Direction. It is of more than local importance because similar practice directions have been handed down, or similar practices adopted, at some other Crown Court centres, whereas elsewhere no such requirement is made and this lack of uniformity is regarded by the Crown Prosecution Service as well as by the present claimant as unsatisfactory.

2. In the instant case the claimant, together with a co-defendant, is charged with murder. Judge Patience, in conformity with his Practice Direction directed that each defendant should submit a defence statement to the court and to the prosecutor by 12^th October 2001, and that each statement should be signed. The co-defendant complied. The claimant submitted an unsigned statement. It appears that his reason for doing so may be that his statement contains material relating to other offences which he does not want to have used against him, but we have not seen the statement, and for present purposes it is not necessary to investigate his reasons for refusing to sign. On 19^th October 2001 Mr James Turner QC, for the claimant, submitted to Judge Patience that he had no power to direct that a defence statement must be signed, and even if he had such a power it should not be exercised in this case. The Judge reserved his decision, and on 24^th October 2001, in a carefully formulated ruling, he rejected those submissions.
3. These proceedings were commenced on 22^nd January 2002, but I understand that, sensibly, and in order not to interfere with the progress of the criminal trial, by agreement, the claimant’s unsigned statement has for the time being been treated as though it complied with all statutory and other requirements.

Decisions under challenge and our Jurisdiction.

4. There are in reality two decisions now being challenged, namely the decision in September 2000 to issue the Practice Direction, and the decision on 24^th October 2001 to apply that Practice Direction to the facts of this case.
5. The supervisory jurisdiction of the High Court in relation to proceedings in the Crown Court is restricted by section 29(3) of the Supreme Court Act 1981, which provides –

“In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.”

6. In Sampson v Warwick Crown Court [1985] 80 Cr App R 205 Lord Bridge at 216-217 made it clear that those statutory words should not be widely construed, and in R v Manchester Crown Court ex parte DPP [1994] 98 Cr App R 461 Lord Browne-Wilkinson said at 466 that it may be a helpful further pointer to the true construction of the section to ask the question –

“Is the decision sought to be reviewed one arising in the issue between the Crown and the defendant formulated by the indictment (including the costs of such issue)? If the answer is ‘yes’, then to permit the decision to be challenged by judicial review may lead to delay in the trial: the matter is therefore probably excluded from review by the section. If the answer is ‘no’, the decision of the Crown Court is truly collateral to the indictment of the defendant and judicial review of that decision will not delay his trial: therefore, it may well not be excluded by the section.”

If that question is asked in relation to the Practice Direction with which we are concerned I am satisfied that it must be answered in the negative, and before us Mr Johnson for the CPS as well as Mr Turner was content to accept that, as I believe, this court does have jurisdiction in relation to the decision to issue the Practice Direction.

7. That, in my judgment, makes it unnecessary to reach a final conclusion as to our jurisdiction in relation to the ruling made by Judge Patience on 24^th October 2001. Mr Turner submits that we have jurisdiction in relation to that ruling also because, as he submits, the judge had no jurisdiction to rule as he did, and Mr Turner invited our attention in particular to R v Maidstone Crown Court ex parte L.B. of Harrow [2001] 1 Cr App R 117 and R (Kenneally) v Snaresbrook Crown Court 17^th December 2001 TLR. On the other hand it is worth recalling that, as Lord Browne-Wilkinson pointed out in the Manchester case, at 466 –

“The only decisions of the Crown Court which have been held to have to be reviewable are those in which either the order was made under a wholly different jurisdiction, e.g. binding over an acquitted defendant ... or the order sought to be reviewed has been made against someone other than the accused.”

That, as it seems to me, embraces a decision to issue a local practice direction, but excludes a decision that an individual defendant in a case before the court must sign his defence statement.

Crown Court - Statute and Rules.

8. As Mr Turner points out, the Crown Court is itself a creature of statute. It was created by the Courts Act 1971, and the relevant provisions are now to be found in the Supreme Court Act 1981. It is one court, part of the Supreme Court, and its jurisdiction is entirely statutory. There is no express power in the Supreme Court Act to require a defence statement to be signed, and although section 45(2)(b) of that Act preserves for the Crown Court jurisdiction which was exercisable by it immediately before the commencement of that Act, there was no antecedent jurisdiction in relation to defence statements, which at that time did not exist.
9. Section 79(1) of the 1981 Act provides that –

“All enactments and rules of law relating to procedure in connection with indictable offences shall continue to have effect in relation to proceedings in the Crown Court.”

Section 84(1) contains a relevant rule-making power. It provides that –

“Rules of Court may be made for the purpose of regulating and prescribing the practice and procedure to be followed in the Crown Court and the Criminal Division of the Court of Appeal.”

Section 84(8) sets out how rules are to be made. It states –

“Rules of Court under this section shall be made by statutory instrument subject to annulment in pursuance of a resolution of either House of Parliament ...”

Section 86(1) deals with who is to make rules. It provides that the power to make rules is to be exercisable by the Lord Chancellor, together with 4 or more identified persons, and section 87(3) provides that –

“Rules of Court may amend or repeal any statutory provision relating to the practice and procedure of the Crown Court or the Criminal Division of the Court of Appeal so far as may be necessary in consequence of provision made by the rules.”

Mr Turner submits that a rule which required that a defence statement be signed would be within the scope of section 87(3). For present purposes it is unnecessary to decide that, but it is, in my judgment, important to note the detailed nature, formality and scope of the rule-making process.

10. Mr Turner submits that when Parliament envisages that a document which is to form part of the criminal process must be signed it says so, as in section 10 of the Criminal Law Act 1967, which enables admissions to be made. If made otherwise than in court they have to be in writing, and section 10(2)(c) requires that –

“If made in writing by an individual, shall purport to be signed by the person making it and, if so made by a body corporate, shall purport to be signed by a director or manager, or the secretary or clerk, or some other similar officer of the body corporate.”

Alibi Notices and Defence Statements.

11. Traditionally the defendant in an English trial has had the right to give no prior indication of his or her defence, but section 11(1) of the 1967 Act required a defendant to give notice if he or she proposed to rely on an alibi. That section provided –

“On a trial on indictment the defendant shall not without the leave of the court adduce evidence in support of an alibi unless, before the end of the prescribed period, he gives notice of particulars of the alibi.”

Although the burden was cast on a defendant it was envisaged that it could be discharged by his solicitor, because section 11(5) said –

“Any notice purporting to be given under this section on behalf of the defendant by his solicitor shall, unless the contrary is proved, be deemed to be given with the authority of the defendant.”

So if a solicitor gave notice of an alibi it did not have to be signed, but it was by statute deemed to be given with the authority of the defendant.

12. The next step was the requirement to produce a defence statement, which might or might not include an alibi. There were two reasons for the decision to require defence statements, the first was to prevent ambushes and give prosecutors a proper opportunity to respond to lines of defence. But the second reason was to facilitate relevant but not burdensome disclosure of documents. Primary disclosure could then be limited, and secondary disclosure could follow the service of the defence statement, and be directed to the issues of the case. So, in the Criminal Procedure and Investigations Act 1996 section 5(5) requires an accused to give a defence statement to the court, and the prosecutor. Section 5(6) states –

“For the purposes of this section a defence statement is a written statement –

(a) setting out in general terms the nature of the accused’s defence,

(b) indicating the matters on which he takes issue with the prosecution, and

(c) setting out, in the case of each such matter, the reason why he takes issue with the prosecution.”

Noticeably although the statement has to be in writing nothing is said about it being signed, and there is no equivalent to section 11(5) of the 1967 Act. The 1996 Act does not expressly refer to the possibility of a solicitor giving a defence statement on behalf of his client, which may be why there is no provision which deems a statement given on behalf of a defendant to be given with his or her authority.

13. Section 5(7) sets out the particulars which must be given if the defence statement discloses an alibi, and section 5(9) deals with when a defence statement must be served (within 14 days of the completion of primary disclosure).
14. Section 7 and section 11 deal with what is to happen if no defence statement is served, or if the statement which is served is inadequate. There are two sanctions. First, the accused does not get the benefit of secondary disclosure and, as stated in section 11(3) secondly –

“(a) the court or, with the leave of the court, any other party may make such comment as appears appropriate;

(b) the court or jury may draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned.”

In 1997 the Professional Conduct and Complaints Committee of the Bar Council gave guidance as to the duties of counsel in the preparation of defence statements. In paragraph 5 that guidance stressed the crucial important of –

“(iv) Ensuring that the client realises the importance of the defence case statement and the potential adverse consequences of an inaccurate or inadequate statement;

(v) getting proper informed approval for the draft from the client. This is particularly important, given the risks of professional embarrassment if the client seeks to disown the statement during the course of the trial, perhaps when the trial is not going well or when under severe pressure in cross-examination. Counsel ought to insist on getting written acknowledgement from the lay client that:

(a) he understands the importance of the accuracy and adequacy of the defence case statement for this case;

(b) he has had the opportunity of considering the contents of the statement carefully and approves it.

This may often mean having a conference with the lay client to explain the defence case statement and to get informed approval, although in straight-forward cases where counsel has confidence in the instructing solicitor, this could be left to the solicitor. Where this latter course is taken, a short written advice (which can be in standard form) as to the importance of obtaining the written acknowledgement before service of the statement should accompany the draft of the defence case statement. A careful record should be kept of work done and advice given.”

In somewhat similar vein the Guidelines published by the Attorney-General in November 2000 in relation to Disclosure of Information in Criminal Proceedings, which enjoy “broad support” from the Law Society, under the heading “Defence Practitioners” at paragraph 28 state –

“Defence solicitors should ensure that statements are agreed by the accused before being served. Wherever possible, the accused should sign the defence statement to evidence his or her agreement.”

That, of course, is sound advice, and is to some extent protective of the practitioner, but it falls well short of what is required by the Practice Direction under consideration in this case.

15. What undoubtedly encouraged Judge Patience to go further, and to issue the Practice Direction, was the judgment of Potter LJ sitting in the Court of Appeal Criminal Division in R v Wheeler [2001] 1 Cr App R 150. As Mr Turner points out, the Practice Direction was issued before the judgment of the Court of Appeal had been fully reported, and the brief press reports may have been somewhat misleading, but in Wheeler’s case it emerged on appeal that the defence statement was inconsistent with the defendant’s proof of evidence and his original instruction to his solicitors. His counsel had failed to discuss the discrepancies with the defendant before the trial, and it was in that setting that at 158 Potter LJ said –

“By way of postscript, we would observe that, quite apart from the absence of any statutory requirment, there seems to be no recognised guidance or other specific requirement to the effect that defence statements should be signed by the defendant as an acknowledgement of their accuracy, rather than being permitted simply to be served by solicitors on a defendant’s behalf, without taking that step.

It seems to us, and this case is a good illustration, that service of an unsigned statement can give rise to unfortunate consequences in the event that the defendant gives evidence which departs from the content of his defence statement and, when questioned about it, asserts that the matter arises as a result of a mistake. If a signature were required to be obtained, and we think that it must be wise in all cases to obtain one, then it would obviate error and dispute of the kind which has occurred in this case.”

As Mr Turner points out, the Lord Justice specifically recognised the absence of any legal or other requirement that defence statements should be signed, and his observation that it would be wise to obtain a signature does little more than reflect the stance of the Bar and of the Law Society. The Lord Justice did not specifically go so far as to suggest that an unsigned statement could properly be regarded as unacceptable.

Submissions and Conclusions.

16. The first issue that arises in relation to the relevant Practice Direction is whether the judge had power to make it. Mr Turner submits that there was no such power. Any change in the statutory requirements relating to a defence statement had to be made if not by Parliament then by the Rules Committee. Of course a Resident Judge can make Practice Directions which indicate how in his court powers which the court has will normally be exercised, but, it is said, the court had no power, express or implied, to require that a defence statement be signed. Judge Patience, in his ruling of 24^th October 2001, did not, as it seems to me, directly address that issue, although it was argued before him. He said simply at 9E of the transcript –

“My purpose was not to do what only Parliament or the Rules Committee could do, or to render admissible in evidence that which would otherwise be inadmissible, but was rather to ensure that practitioners in Kent uniformly followed the clear guidance given by Lord Justice Potter, in paragraph 3 of the judgment of the court in R v Wheeler ”.

The difficulty, as it seems to me, is that nothing said in Wheeler vested the Crown Court with authority which it did not already enjoy. Mr Johnson submitted that the Practice Direction could be made in the exercise of a discretionary power, but he was unable to identify the power, and he drew our attention to a similar Practice Direction made at St Alban’s Crown Court in October 2001 which purports to be made “under the Court’s inherent power to regulate its own procedure.” I do not doubt that the court does have inherent power to regulate its own procedure, but I do not see how that power can be said to enable an individual Crown Court to impose requirements in relation to a defence statement which Parliament has not seen fit to impose. In this context it is important to remember what was said by Beldam LJ in R v John Tibbs [2000] 2 Cr App R 309 at 315B, namely –

“We recognise that, as the provisions in both the Criminal Justice Act 1987 and section 5 of the 1996 Act diminish the accused’s right to silence and his privilege against self-incrimination, they should be strictly construed.”

17. In my judgment there was no jurisdiction in the crown court to require, as this Practice Direction did, that all defence statements be signed, and I am fortified in that conclusion by a consideration of how such a Practice Direction could in reality be enforced. Suppose, for some reason, a defendant is prepared openly to acknowledge a defence statement as his, but is not prepared to sign it. Is secondary disclosure to be withheld? At his trial is prosecuting counsel to be allowed to comment on his “failure” to serve a defence statement when in reality he has done all that the law requires? Does his behaviour constitute contempt of court? If so, as Mr Turner points out, would he not be better off if he made no defence statement at all?
18. I entirely understand why Judge Patience sought to encourage the signing of defence statements. His reasoning on the desirability of their being signed was substantially the same as that of Potter LJ in Wheeler. Mr Turner submitted that in reality a signature adds little. It may help to establish authenticity, but does little to ensure the accuracy of the contents. To some extent I agree, but if a document has to be signed that should help to concentrate the mind of the person asked to sign on the contents, and so ensure that what is served as a defence statement is an accurate account of the defence which the defendant intends to present at trial, thus reducing the emergence of discrepancies during cross-examination or in the Court of Appeal. It may be that if a defence statement is not signed a trial judge, in the absence of the jury, or a judge dealing with the matter prior to trial, might require a defendant to satisfy the court that he really had complied with the obligation in section 5(5) of the 1996 Act, in other words that the document tendered really was his defence statement. Such a step would be within the powers of the Crown Court, and if that step involved extra costs which need not have been incurred if the defence statement had been signed, and there seemed to be no good reason for the lack of a signature, it might be necessary to consider whether those costs should be paid by the defendant or by anyone who for no good reason advised him not to sign, but those are matters for consideration on another occasion. I hope that this whole matter of whether or not a defence statement must be signed and if so how that requirement is to be enforced may now receive the attention of the Rules Committee, and if necessary of the legislature. For present purposes however it is enough to say that although the aim which the Practice Direction sought to achieve was laudable, in my judgment it could not be achieved in that way.
19. I would therefore declare the Practice Direction to be unlawful. In the instant case it may not be necessary to reconsider the ruling of 24^th October 2001 in the light of the sensible concessions subsequently made, but if the ruling is to be reconsidered it should be reconsidered in the light of this judgment, and I would order that the costs of the Claimant be paid from Central Funds.

Mrs Justice Rafferty: I agree.