Category: Criminal Practice

Murray v United States; 27 Jun 1988

References: [1988] USSC 147, 487 US 533, 108 SCt 2529
Links: USSC
Coram: Justice Scalia
USSC While surveilling petitioner Murray and others suspected of illegal drug activities, federal agents observed both petitioners driving vehicles into, and later out of, a warehouse, and, upon petitioners’ exit, saw that the warehouse contained a tractor-trailer rig bearing a long container.
Petitioners later turned over their vehicles to other drivers, who were in turn followed and ultimately arrested, and the vehicles were lawfully seized and found to contain marijuana. After receiving this information, several agents forced their way into the warehouse and observed in plain view numerous burlap-wrapped bales. The agents left without disturbing the bales and did not return until they had obtained a warrant to search the warehouse. In applying for the warrant, they did not mention the prior entry or include any recitations of their observations made during that entry. Upon issuance of the warrant, they reentered the warehouse and seized 270 bales of marijuana and other evidence of crime. The District Court denied petitioners’ pretrial motion to suppress the evidence, rejecting their arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. Petitioners were subsequently convicted of conspiracy to possess and distribute illegal drugs. The Court of Appeals affirmed, assuming for purposes of its decision on the suppression question that the first entry into the warehouse was unlawful.
Held: The Fourth Amendment does not require the suppression of evidence initially discovered during police officers’ illegal entry of private premises, if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.
(a) The ‘independent source’ doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. Silverthorne Lumber Co. v. United States, [1920] USSC 22; 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. There is no merit to petitioners’ contention that allowing the doctrine to apply to evidence initially discovered during an illegal search, rather than limiting it to evidence first obtained during a later lawful search, will encourage police routinely to enter premises without a warrant.
(b) Although the federal agents’ knowledge that marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry, it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, the independent source doctrine allows the admission of testimony as to that knowledge. This same analysis applies to the tangible evidence, the bales of marijuana. United States v. Silvestri, 787 F.2d 736 (CA1, 1986), is unpersuasive insofar as it distinguishes between tainted intangible and tangible evidence. The ultimate question is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Because the District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse, the cases are remanded for a determination whether the warrant-authorized search of the warehouse was an independent source in the sense herein described.
This case is cited by:

  • Cited – Her Majesty’s Advocate -v- P SC (Bailii, [2011] UKSC 44, Bailii Summary, 2012 SC (UKSC) 108)
    (Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
    Held: The admission of the . .

Practice Direction (Justices: Clerk to Court); 2 Oct 2000

References: [2000] 4 All ER 895, [2000] 1 WLR 1886
Coram: Lord Woolf LCJ
Lord Woolf gave guidance as to the duties of the clerk to the magistrates as to the manner of assistance to be provided to them. He set out that it was the responsibility of the legal adviser to provide the justices with any advice they might require properly to perform their functions whether or not the justices had requested that advice, on questions of law; questions of mixed law and fact; matters of practice and procedure; the range of penalties available; any relevant decisions of the superior courts or other guidelines; other issues relevant to the matter before the court; and the appropriate decision-making structure to be applied in any given case. In addition to advising the justices it was his responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons. The Practice Direction then goes on to note (paragraph 4) that a justice’s clerk or legal adviser must not play any part in making findings of fact. It adds that he may assist the bench by reminding him of the evidence, using any notes of the proceedings for this purpose. The practice direction is clear that if the justice’s clerk gives any advice to a bench he should give the parties or advocates an opportunity of repeating any relevant submissions prior to that advice being given. If it is given in private he should report that advice to the parties, and the advice should be regarded as provisional and clearly stated to be so. The adviser should subsequently repeat the substance of that advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or, if it is varied, the nature of the variation.
This case is cited by:

  • Cited – Nunn -v- Suffolk Constabulary and Another Admn (Bailii, [2012] EWHC 1186 (Admin))
    The claimant had been convicted of murder and his appeal had failed. He now sought disclosure if the forensic material held by the police to his own legal team.
    Held: Permission to apply for review was granted, but the claim failed. ‘It is . .

Regina v B (CA 459/06); 27 May 2008

References: [2008] NZCA 130, [2009] 1 NZLR 293
Links: Nzlii
Coram: William Young P, Robertson and Baragwanath JJ
(New Zealand Court of Appeal) The court considered directions to be given to jurors as to the use of the internet whilst sitting as jurors.
This case is cited by:

  • Cited – Thompson and Others -v- Regina CACD (Bailii, [2010] EWCA Crim 1623, [2011] 1 WLR 200, [2010] 2 Cr App R 27, [2011] 2 All ER 83)
    Six appeals were brought alleging various forms of irregularity by the jurors.
    Held: Lord Judge said: ‘The verdict must be reached, according to the jury oath in accordance with the evidence. For this purpose each juror brings to the . .

The Attorney-General v Hitchcock; 10 Jun 1847

References: [1847] EngR 616, (1847) 1 Exch 91, (1847) 154 ER 38
Links: Commonlii
Bias is an exception to the rule against collateral attack on credit
This case is cited by:

  • Cited – Regina -v- Livingstone CANI (Bailii, [2013] NICA 33)
    The defendant appealed against his conviction for murder, saying that police officers had fabricated a confession, and had severely mistreated another detainee to concoct further evidence.
    Held: The appeal was allowed. Had the material . .

Regina v Director of Serious Fraud Office ex parte KM and others; 7 Apr 1998

References: Unreported, 7 April 1998
Coram: Pill LJ
A request for assistance came from the United States pursuant to the Mutual Legal Assistance Treaty of 2nd December 1996. Pill LJ, giving the first judgment stressed the need for candour and full disclosure when a warrant is being sought, quoting Bingham LJ in ex parte Hill that the judge ‘should be told anything to the knowledge to the party applying which might weigh against making an order’. Pill LJ was critical of the width and lack of clarity of the particular warrants.
This case cites:

  • Cited – Regina -v- Lewes Crown Court ex parte Hill ([1991] 93 Cr App R 60)
    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 . .

This case is cited by:

Regina v Boyes; 27 May 1861

References: (1861) 1 B & S 311, [1861] EngR 626, (1861) 121 ER 730
Links: Commonlii
Coram: Cockburn CJ
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he merited no protection: ‘the effect of which [the pardon] was to make him a new man, and consequently to bar any proceedings by or in the name of the Crown’.
Cockburn CJ set out the level of risk required to allow a claim of the privilege against self incrimination: ‘To entitle a witness to the privilege of not answering a question as tending to incriminate him, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable grounds to apprehend danger to the witness from his being compelled to answer. If the facts of the witness being endangered be once made to appear, great latitude should be allowed to him in judging the effect of any particular question. The danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things, and not a danger of imaginary character having reference to some barely possible contingency.’
This case cites:

  • Appeal from – Regina -v- Boyes ([1860] EngR 170, Commonlii, (1860) 2 F & F 157, (1860) 175 ER 1004)
    A witness, an accomplice in a criminal offence, who has received the pardon of the Crown under the Great Seal for that offence, has no privilege of refusing to answer questions relating to the offence, which may tend to criminate himself. He is . .

This case is cited by:

Regina v Regan; 14 Feb 2002

References: 2002 SCC 12, [2002] 1 SCR 297, 201 NSR (2d) 63, 209 DLR (4th) 41, 161 CCC (3d) 97, 49 CR (5th) 1
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Criminal law – Remedies – Abuse of process – Stay of proceedings – Accused charged with sex-related offences – Police identifying accused as suspect before charges laid – Crown engaging in ‘judge shopping’ and conducting pre-charge interviews of complainants – Trial judge staying some of charges – Court of Appeal overturning stay – Whether conduct of Crown and police amounted to abuse of process – Whether partial stay of proceedings warranted – Whether Court of Appeal entitled to interfere with trial judge’s decision to grant partial stay.
This case is cited by:

  • Cited – Maxwell, Regina -v- SC (Bailii, [2010] UKSC 48, [2011] 2 Cr App Rep 31, [2011] 1 WLR 1837, SC Summary, UKSC 2010/0003, SC)
    The defendant had had his conviction for murder set aside after a finding of gross prosecutorial misconduct by the police. The Court was now asked as to the propriety of the order for a retrial. The police involved in the case had misled the CPS, . .

Richard Thompson v Regina: CACD 26 Mar 2004

References: [2004] EWCA Crim 669, Times 16-Apr-2004
Links: Bailii
Coram: Lord Justice Thomas
The defendant had been convicted of offences of possessing a large number of indecent images of children.
Held: In such cases, the prosecution should frame the charges following the classification in R v Oliver, with a small number of representative charges out of each category with a comprehensive charge for the balance. The defence should be given adequate time and facilities to check the classifications. It should be clear whether it was alleged that any image was a true or a pseudo image. In this case, and allowing for the mitigation available, the sentence was too long.
Statutes: Criminal Justice Act 1988 160(1) 160(2A)
This case cites:

  • Cited – Regina -v- Oliver etc CACD (Times 06-Dec-02, [2002] EWCA Crim 2766, [2003] 2 Cr App R (S) 15, Bailii)
    The defendants appealed their sentences for possession and distribution of indecent images of children. The court gave detailed sentencing guidelines for the offences. Distinctions were made for the gradations of pornography, from erotic posing . .

Rex v Grady And Curley; 2 Dec 1836

References: [1836] EngR 1128, (1836) 7 Car & P 650, (1836) 173 ER 284 (C)
Links: Commonlii
Coram: Lord Denman CJ
Though he may not, in legal strictness be bound to take down more than is material to prove the felony, yet since the passing of the Prisoner’s Counsel Bill, giving prisoners the right to a copy of the depositions against them, the magistrate ought to return all that was said by the witnesses with respect to the charge, as the object of the Legislature was to enable prisoners to know what they have to answer on their trial.

Regina v Cox; 18 Sep 1992

References: (Unreported), 18 September 1992, Times 02-Dec-1992, [1992] CLY 886
Coram: Ognall J
Whether the questioning of a suspect in a police station amounted to an interview was a question of fact dependant upon all the circumstances, including the rest, arrival at the police station, caution, the notification of rights, and the nature of the questions asked. The defendant doctor administered potassium chloride to a dying patient. The court had to look to the ‘primary purpose’ of his act.
This case is cited by:

  • Cited – Airedale NHS Trust -v- Bland CA (lip, [1993] 2 WLR 316)
    The official Solicitor appealed a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
    Held: The doctors sought permission to act in accordance with recommended . .
  • Cited – Airedale NHS Trust -v- Bland HL (lip, [1993] AC 789, [1993] 2 WLR 316, Bailii, [1992] UKHL 5)
    The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
  • Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA (Times 10-Oct-00, Bailii, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd’s Rep Med 425, [2001] UKHRR 1)
    Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .

Regina v Dadshani; 8 Feb 2008

References: 2008 CanLII 4266 (ON SC)
Links: Canlii
Coram: C McKinnon J
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder.
This case cites:

  • Cited – Regina -v- Rowbotham and others ((1988) 41 CCC,(3d) 1)
    Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .

This case is cited by:

  • Cited – P, Regina -v- Misc (Bailii, [2008] EW Misc 2 (EWCC))
    Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Steele, Ford, and Newton v Crown Prosecution Service and Another Etc (Consolidated Appeals): HL 28 May 1993

References: Independent 10-Jun-1993, Times 28-May-1993, [1994] 1 AC 22, [1993] 2 All ER 769
The Court of Appeal Civil Division has no power to make an award of costs out of central funds. The court referred to: ‘the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over the levying and the expenditure of the public revenue’.