Criminal round-up

first_img Recent guidance issued by the LSC has been justified by a decision of the High Court. In Lord Chancellor v McLarty & Co Solicitors [2011] EWHC 3185 (QB), the court held that if interviews were electronically recorded they could only count towards the page count to the extent that the interviews were transcribed by the Crown, and only to that extent could special preparation be claimed for listening to the disc if there was no transcript. The LSC has summarised the position as follows: Solicitors are being placed under more pressure by the greater use of case management powers at the first hearing in the magistrates’ court, and yet they must ensure that their client’s privilege against self-incrimination is honoured by the court in accordance with the Criminal Procedure Rules. Harassment A ‘trial’ exists, however short it may be, after the jury is sworn, unless there is no meaningful trial because there has been no opening for instance on a guilty plea. However, a ‘trial’ may begin, notwithstanding that a jury has not yet been sworn, if submissions have begun in a continuous process resulting in the empanelling of the jury. The undertaking of substantial elements of case management in such a continuous process may result in a trial fee being payable. See LC v Ian Henery Solicitors Ltd [2011] EWHC 3246 (QB). Number of cases Conduct that is targeted at an ­individual; That conduct must be calculated to produce alarm or distress; The conduct must be oppressive and unreasonable; Provocation may be relevant both to reasonableness and to causation; and The mental element is that the defendant knew, or ought to have known, that the conduct would cause the complainant to fear violence. No magistrates’ court may grant bail to a youth charged with murder. However, having refused bail, the court must still comply with section 23 of the Children and Young Persons Act 1969 and determine the nature of the custodial remand. That aspect cannot be delayed to the first hearing in the Crown court (R (A) v Lewisham Youth Court [2011] EWHC 1193 (Admin)). When a youth is committed for trial with an adult and the adult then pleads guilty, there is (to the regret of the court) no power to remit to the youth court for trial (R (W) v Leeds Crown Court [2011] EWHC 2326 (Admin)), though it may be possible to delay arraignment of the youth so that the proceedings can be discontinued and recommenced in the lower court. In fixed-fee cases, such as committals for sentence, the test is how many sets of proceedings there are. In R v Schilling (SCCO reference 22/11), two allegations were committed for sentence on the same day but amounted to two sets of proceedings. They were charged on separate occasions. There were two prosecution files and sets of disclosure; two applications for legal aid; different magistrates’ court and Crown court numbers; and, critically, two certificates of committal. This doubled the fee allowed by the Legal Services Commission. In graduated-fee cases the test is how many indictments there are before the court. In R v Otote (SCCO reference 08/11), three sets of allegations came before the court for guilty plea on different days. All resulted in a remand to the same day for medical reports to be prepared. A mental health disposal was then imposed on a single occasion. However, notwithstanding some similarity between the charges, there had never been any joinder and, though sentenced on the same day, three graduated fees were payable. Wasted costs Trials Claim pages of prosecution evidence (PPE) when material that had been in paper form is converted into electronic format by the Crown; Claim special preparation (reasonable time at hourly rates) if documentary evidence/exhibits has only ever existed in electronic format. The judge in McLarty confirmed obiter that enhancement is not available for such claims; and No additional claim may be made if other non-documentary evidence or ‘unused’ material has only ever existed in electronic format. Page count The provisions of section 4 of the Protection from Harassment Act 1997 have come under critical observation in a series of cases, and requirements for harassment and oppression, additional to those in the statute, have been read in. This creates a group of cases involving people in relationships which will require ­particular care as to whether the ­proceedings should be brought and as to the proper plea. In R v Curtis [2010] EWCA Crim 123, the court ‘could not conclude’ that in a volatile relationship six incidents over a nine-month period could be classed as a course of conduct amounting to harassment. It noted that interspersed with those incidents were considerable periods of affectionate life together. In R v Widdows [2011] EWCA Crim 1500, the court emphasised that, when bringing a charge under section 4, the prosecution and the court should have in mind that the concept of harassment is at the core of the 1997 act, though the word does not appear in the section. Harassment is designed to include stalkers, racial abusers, disruptive neighbours, bullying at work and so forth. The section is not normally appropriate for use as a means of criminalising conduct, not charged as violence, during incidents in a long and predominantly affectionate relationship in which both parties persisted and wanted to continue. The section was reviewed in R v Haque [2011] EWCA Crim 1871 as requiring: Crown court costs R v Solicitors Reeves & Co [2011] EWCA Crim 819 may be particularly important in defeating orders for wasted costs. The court held that it was perfectly proper, on the facts of this case, for the defence not to volunteer emails (which on disclosure led the Crown to offer no further evidence) because the defence did not believe the prosecution would, in any event, be able to prove its case. While both litigators’ and advocates’ graduated fees can be calculated by using computer programs, it is critical that the correct data is entered. A number of crucial areas have recently been examined by the courts. Anthony Edwards, TV Edwardslast_img