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Criminal Practice - From: 1985 To: 1989

This page lists 98 cases, and was prepared on 21 May 2019.

 
Regina v McLoughin [1985] 1 NZLR 106; (1984) 1 CRNZ 215
1985


Criminal Practice
(New Zealand) The court considered the effect of failure of defence counsel on trial. Counsel had elected not to call alibi evidence in the face of his client's instructions to do so. Held: "The reason, it appears, was that counsel thought the proposed evidence unreliable and that it would be improper for him and detrimental to the applicant for it to be called. It is not for this Court to question counsel's judgement about that, or to comment upon the evidence ourselves. But the plain unvarnished fact is that counsel most certainly had no right to disregards his [the applicant's] instructions. Following any advice he thought it proper to give his client, his duty was either to act on the instructions he then received or to withdraw from the case."
1 Citers


 
Bell v Director of Public Prosecutions of Jamaica [1985] 2 All ER 585; [1985] AC 937
1985
PC
Templeman L
Commonwealth, Criminal Practice, Constitutional
The appellant had been sentenced to life for firearms offences. After a successfully appeal, a retrial was ordered. More than two years had passed, after a previous attempt failed for absent witnesses. Held: Referred to the US decision in Barker and Wingo (1972) 407 US 514, invoking the sixth amendment - "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....") which identified four factors in assessing whether a defendant had been deprived of his constitutional rights: (1) the length of delay; (2) the reasons given by the prosecution to justify the delay; (3) the responsibility of the accused for asserting his rights; and (4) prejudice to the accused. "Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. The weight to be attached to each factor must, however, vary from jurisdiction to jurisdiction and from case to case." and "It was argued on behalf of the respondents, the Director of Public Prosecutions and the Attorney-General, that the applicant was able to obtain redress by waiting until his retrial, ordered for 11 May 1982, and then submitting to the Gun Court at the commencement of the retrial that the proceeding should be dismissed on the grounds that in the events which had happened a retrial would be an abuse of the process of the court. Their Lordships cannot accept this submission. If the constitutional rights of the applicant had been infringed by failing to try him within a reasonable time, he should not be obliged to prepare for a retrial which must necessarily be convened to take place after an unreasonable time."
"Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by sections 13 and 20 of the Constitution of Jamaica, the courts of Jamaica must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica. The administration of justice in Jamaica is faced with a problem, not unknown in other countries, of disparity between the demand for legal services and the supply of legal services. Delays are inevitable. The solution is not necessarily to be found in an increase in the supply of legal services by the appointment of additional judges, the creation of new courts and the qualification of additional lawyers. Expansion of legal services necessarily depends on the financial resources available for that purpose. Moreover an injudicious attempt to expand an existing system of courts, judges and practitioners, could lead to deterioration in the quality of the justice administered and to the conviction of the innocent and the acquittal of the guilty. The task of considering these problems falls on the legislature of Jamaica, mindful of the provisions of the Constitution and mindful of the advice tendered from time to time by the judiciary, the prosecution service and the legal profession of Jamaica. The task of deciding whether and what periods of delay explicable by the burdens imposed on the courts by the weight of criminal causes suffice to contravene the rights of a particular accused to a fair hearing within a reasonable time falls upon the courts of Jamaica and in particular on the members of the Court of Appeal who have extensive knowledge and experience of conditions in Jamaica. In the present case the Full Court stated that a delay of two years in the Gun Court is a current average period of delay in cases in which there are no problems for witnesses. The Court of Appeal did not demur. Their Lordships accept the accuracy of the statement and the conclusion, implicit in the statement, that in present circumstances in Jamaica, such delay does not by itself infringe the rights of an accused to a fair hearing within a reasonable time. No doubt the courts and the prosecution authorities recognise the need to take all reasonable steps to reduce the period of delay wherever possible."
1 Citers


 
Tudhope v McCarthy [1985] CLY 3934
1985


Criminal Practice

1 Citers


 
Day v Grant (Note) [1987] QB 972
1985
CA
Sir John Donaldson MR, Kerr and Lloyd LJJ
Criminal Practice
(January 1985) The court must look to the underlying nature of the proceedings in which the order was made and against which an appeal was sought to see to which court an appeal lay. "So Lord Wright was saying that you look not at the particular order under appeal, but to the underlying proceedings in which that order was made, and those are the proceeding which have to be characterised as either criminal or non-criminal."
1 Cites

1 Citers


 
MacDonald v Skelt [1985] RTR 321
1985
QBD
Taylor J May LJ
Road Traffic, Criminal Practice
At the close of the prosecution case, it was submitted that the defendant had no case to answer because there was insufficient evidence that the blood specimen taken from him and that analysed by the Scientific Officer were the same. The Justices ruled in favour of the defendant, but the prosecutor was then allowed to re-open his case and called evidence that the specimen taken and the specimen analysed were the same. Held: The court was not functus officio. "For there to be a state of functus officio, the Justices would have to indicate clearly that they had reached a conclusion on the issues which were being argued and, further, that in consequence of their conclusion they were giving a decision on the outcome of the case. Merely for them to have expressed the first half of that pair of conclusions would not, in my judgment, be enough to indicate that they had dismissed the case and were therefore functus officio."
1 Cites

1 Citers


 
Regina v Cain [1985] AC 46; [1984] 2 All ER 737; [1984] 3 WLR 393
1985
HL
Scarman L
Criminal Practice
The sentencing judge had exceeded his powers by making a criminal bankruptcy order. S40 appeared to deny a right of appeal against such an order. Held: There is a strong presumption that except by specific provision the legislature will not exclude a right of appeal as of right or with leave where such a right is ordinarily available, and the section must be construed as being subject to an implied limitation that an appeal would lie where the issue raised was that the court in making the order had exceeded the power conferred on it by Parliament. Court orders are effective in law, and must be obeyed, unless and until set aside. "The terms used to formulate the law by the judges of the Court of Appeal (which include myself in Wehner's case) have not been happy. They have spoken of orders being void or null for lack of jurisdiction in the court to make them. But you cannot describe as a nullity an order made by a superior court of record, which is what the Crown Court is: section 4(1) of the Courts Act 1971. Nor is the question really one of jurisdiction: it is a question whether the court has exceeded its power. An order of the Crown Court, once made, may be in excess of its statutory power or otherwise irregular. But it is not a nullity. And it would undermine the authority of the criminal law if orders made by the highest court of trial in criminal matters could be disregarded as nullities. The order of the Crown Court stands unless and until set aside by the court itself upon application or, if appeal lies, by the appellate tribunal to which the appeal is taken. But the terms used by the courts do not vitiate their reasoning. …."
Powers of Criminal Courts Act 1973 39 40(1) - Courts Act 1971 4(1)
1 Cites

1 Citers


 
Regina v Elliott (1985) 81 Cr App R 115
1985
CACD

Criminal Practice
The defendant was faced with a charge under the 1882 Act. The prosecution required that the consent of the Attorney-General be given before proceedings commenced. The consent was only given after he had been charged, but before the trial. Held: Section 63 of the 1982 Act should be interpreted as meaning that instituting proceedings relates to the time when a person comes to court to answer the charge.
Administration of Justice Act 1982 63(1) - Explosive Substances Act 1882 2 - Prosecution of Offences Act 1979 6(1)(2)
1 Cites

1 Citers



 
 Regina v Derby Crown Court, ex parte Brooks; QBD 1985 - [1985] 80 Cr App R 164
 
Regina v Drew [1985] 1 WLR 914; (1985) 81 Cr App R 190
1985
CACD
Lord Lane CJ
Criminal Practice
The court considered when a judge should allow a defendant to withdraw a plea of guilty: "only rarely would it be appropriate for the trial judge to exercise his undoubted discretion in favour of an accused person wishing to change an unequivocal plea of guilty to one of not guilty. Particularly this is so in cases where as here the accused has throughout been advised by experienced counsel, and where, after full consultation with his counsel, he has already changed his plea to one of guilty at an earlier stage in the proceedings." (Lord Lane CJ) Once such discretion is exercised, an appeal court should approach the question with even more care.
It is the verdict of a jury which constitutes the conviction for the purposes of the Act.
1 Citers


 
Saeed v Greater London Council (Inner London Education Authority) [1985] ICR 637
1985

Popplewell J
Criminal Practice, Employment
The plaintiff had been acquitted of assaulting a child at the school. His employers nevertheless brought disciplinary proceedings alleging misconduct identical to those which had formed the basis of the previous criminal proceedings. The plaintiff sought a declaration that the disciplinary proceedings were unlawful in contravening the rule against double jeopardy. Held: Double jeopardy in such a case means the peril of being convicted twice in a court of competent jurisdiction. The disciplinary body is not a court of competent jurisdiction; and it applies a different standard of proof.
1 Citers



 
 in re Smalley; HL 1985 - [1985] 1 AC 623
 
Robinson v The Queen [1985] AC 956; [1985] 2 All ER 594
1985
PC

Commonwealth, Criminal Practice, Constitutional
Where a defendant found himself unrepresented on the day of trial, an adjournment should be granted. The constitutional right to representation was not a guarantee of representation but a right for the defendant to arrange representation at his own or public expense. The trial had proceeded when the defendant, having failed to put his counsel in funds, appeared unrepresented: "... the important word used in section 20(6)(c) is 'permitted'. He must not be prevented by the State in any of its manifestations, whether judicial or executive, from exercising the right accorded by the subsection. He must be permitted to exercise those rights."
Jamaica (Constitution) Order in Council 1962 SCh 2 s20(6)(c)
1 Citers


 
Colozza v Italy 9024/80; [1987] 7 EHRR 516; [1985] ECHR 1; (1985) 7 EHRR 516
12 Feb 1985
ECHR

Human Rights, Criminal Practice
The defendant complained that he had been tried and convicted in his absence. Held: The right to a fair trial had been breached: "the object and purpose of [article 6] taken as a whole show that a person 'charged with a criminal offence' is entitled to take part in the hearing. Moreover, sub-paragraphs (c), (d) and (e) of paragraph (3) guarantee to 'everyone charged with a criminal offence' the right 'to defend himself in person', 'to examine or have examined witnesses' and 'to have the free assistance of an interpreter if he cannot understand or speak the language used in court', and it is difficult to see how he could exercise these rights without being present."
European Convention on Human Rights 6.1
1 Citers

[ Bailii ] - [ Bailii ]

 
 X and Y v The Netherlands; ECHR 26-Mar-1985 - 8978/80; (1985) 8 EHRR 235; [1985] ECHR 4
 
Regina v Price Unreported, 6 November 1985
6 Nov 1985
CACD
Lord Lane CJ
Criminal Practice
The defendant appealed saying that after committal, the trial had proceeded on the basis of a voluntary bill of indictment, and he had been convicted on his own plea. He now appealed saying that the bill had not been signed as required. Held: The court ordered a venire de novo so that the case would be tried again. It considered the overall justice of the case without close attention to the jurisdictional question and without considering whether the words in section 1 of the Act were mandatory or directory. Prosecuting counsel submitted that the absence of a signature was of no consequence since, with the form signed by the High Court judge in his possession, the proper officer had had nothing to consider and had had no choice but to sign it.
Lord Lane CJ said: "It seems to us that that argument to some extent tends to beg the question. Either the words are mandatory or they are not. If they are mandatory, it does not matter that there is nothing left for the proper officer to do except to sign. If on the other hand they are not mandatory, then it does not matter that there is something left for the officer to do and he still does not sign the indictment."
Applying Liverpool Borough Bank, he said: "The answer, we feel, is to be found in the intentions of the draftsman in the first place. It seems to us that this Act was intended, so to speak, to fill the gap which was left by the abolition of the grand jury. It was intended to ensure not only that the proper requirements had been fulfilled before a trial proper could start, but that also there should be a certification by way of the signature of the proper officer to indicate that he had inquired into the situation and satisfied himself that the requirements of the subsection had properly been complied with. We have come to the conclusion therefore that it is not merely a comparatively meaningless formality that the proper officer's signature should be appended, but it is, as the words of the Act itself prima facie indicate, a necessary condition precedent to the existence of a proper indictment, that the bill should be signed and only then and thereupon does it become an indictment.
Therefore in the present case there was no valid indictment, there was no trial, no valid verdict and no valid sentence."
Administration of Justice (Miscellaneous Provisions) Act 1933 2(2)
1 Cites

1 Citers


 
Regina v Flemming (1986) 86 CAR 33
1986
CACD

Criminal Practice
It was quite unnecessary for a trial judge faced with issues about the quality or probative value of identification evidence to hold a trial-within-a-trial. The normal procedure was that laid down in Turnbull, where the court "made it abundantly clear that, where evidence of identification is such that it would be unsafe for a jury to rely on it, the judge should intervene". After citing a passage from Turnbull regarding the basis and nature of the court's intervention, the court icontinued: "In the normal way the trial judge will make his assessment whether he needs to take the action referred to by the Lord Chief Justice either at the end of the case for the prosecution or after all the evidence in the case has been called. There may be exceptional cases where the position is so clear on the depositions that he can give a ruling at an earlier stage".
1 Cites

1 Citers


 
Regina v Fairbanks [1986] 1 WLR 1202; (1986) 83 Cr App R 251
1986
CACD
Mustill LJ, Hodgson and Wood JJ
Criminal Practice
The defendant complained that the judge had not left an alternate verdict of careless driving to the jury where he had been charged with driving a motor vehicle on the road recklessly. Held: The conviction was quashed.
Mustill LJ said: "These cases bear out the conclusion, which we should in any event have reached, that the judge is obliged to leave the lesser alternative only if this is necessary in the interests of justice. Such interests will never be served in a situation where the lesser verdict simply does not arise on the way in which the case has been presented to the Court: for example if the defence has never sought to deny that the full offence charged has been committed but challenges that it was committed by the defendant. Again there may be instances where there was at one stage a question which would, if pursued, have left open the possibility of a lesser verdict, but which, in the light of the way the trial has developed, has simply ceased to be a live issue. In these and other situations it would only be harmful to confuse the jury by advising them of the possibility of a verdict which could make no sense.
We can also envisage cases where the principal offence is so grave and the alternative so trifling, that the judge thinks it best not to distract the jury by forcing them to consider something which is remote from the real point of the case: and this may be so particularly where there are already a series of realistic alternatives which call for careful handling by judge and jury, and where the possibility of convicting for a trivial offence would be an unnecessary further complication.
On the other hand the interests of justice will sometimes demand that the lesser alternatives are left to the jury. It must be remembered that justice serves the interests of the public as well as those of the defendant, and if the evidence is such that he ought at least to be convicted of the lesser offence, it would be wrong for him to be acquitted altogether merely because the jury cannot be sure that he was guilty of the greater."
1 Cites

1 Citers



 
 Regina v Andrews; 1986 - (1986) 82 Cr App R 148
 
McIntosh v HM Advocate 1986 SC 169
1986
HCJ
Lord Justice Clerk (Ross)
Scotland, Criminal Practice
The appellant was convicted of supplying cannabis to a named individual at a house in Paisley. The appellant had acted with his co-accused Miss C who had made the actual supply. There was sufficient evidence against Miss C to prove that she had made the supply from two sources: a statement that she had made to the police, admitting the supply, and the eye-witness testimony of her sister. The sister's evidence was available against the appellant, but the Appeal Court quashed the appellant's conviction on the ground that the co-accused's statement was not evidence against the appellant and therefore the sister's evidence was not corroborated, as it requires to be in Scots law. Held: "It is plain that without the evidence of Deborah Campbell's voluntary statement, there was no corroborated evidence of supply to Maureen Campbell. In a question with Deborah Campbell the jury were entitled to treat her voluntary statement as corroboration. However, the jury were not entitled to rely on the evidence of the voluntary statement of Deborah Campbell when considering the case against the other co-accused including the appellant. What Deborah Campbell said in her voluntary statement to the police was not evidence against the appellant." The co-accused's statement made no mention of the appellant, but was none the less not admissible against him to prove the supply with which he was charged.
1 Citers



 
 Lalchan Nanan v The State; PC 1986 - [1986] AC 860; [1986] UKPC 29; [1986] 83 Cr App R 292; (1986) 83 LSG 1995; [1986] 3 WLR 304; (1986) 83 Cr App R 29; [1986] 3 All ER 248
 
Regina v Newham Juvenile Court ex parte F (A Minor) [1986] 1 WLR 939; [1986] 3 All ER 17; [1986] Crim LR 557; (1986) 84 Cr App R 81
1986
QBD
Stephen Brown LJ, McCullough J
Criminal Practice, Magistrates
F who was 16 years old when he appeared before the juvenile court charged with robbery and possession of an imitation firearm. The justices decided to proceed summarily. No plea was taken. After being released on bail, he later appeared before a different bench, facing additional charges. The justices purported to reverse the previous decision. They committed the applicant to the Crown Court for trial in respect of the original charges. Held: The second decision was quashed. Once a properly constituted bench of justices had considered all the factors placed before the court that were relevant to the exercise of their discretion under section 24 of the Magistrates' Courts Act 1980 and ordered summary trial, a differently constituted bench of justices had no power to re-examine that decision on the same facts.
Stephen Brown LJ said: "Unfortunately, the justices, as is clear from their affidavits, did not take into account any additional circumstances nor, it would seem, any additional facts beyond those which had been placed before the justices on 20 September. In those circumstances the question has to be asked: were they at liberty to review and reverse a decision which had been formally taken and announced by a properly constituted bench of justices having the power and duty to make the inquiry under section 24(1)? There is an apparent anomaly if they do not have such power, because section 25 provides that where a court has begun to try an information summarily it can, if it takes the view that it should not continue to try the case summarily, continue the hearing as examining justices with a view to committal for trial. It may therefore seem anomalous that they cannot change their minds before actually embarking on a summary trial.
Justices like every other court, must of course exercise such discretion as they have judicially, but this is not merely a matter of discretion; it is a matter of power. Have they got power to reverse a decision taken by their colleagues at an earlier hearing? In my judgment the whole scheme of the Act suggests that they do not have that power before embarking upon the hearing. Once a decision has been made after proper inquiry and consideration of all relevant factors, it cannot be reversed merely by re- examining the case afresh on the same material.
It seems to me that they may well have had the opportunity for taking a different view from that taken by their colleagues in the light of the new and additional factors which had emerged since 20 September. For example, not only was it alleged that a further serious offence had been committed whilst the applicant was on bail, and with which the justices had to deal quite separately, but in addition a great deal more information was before them as to the character of the applicant. They now knew that a number of other offences were alleged to have been committed by him from May onwards. Those were matters which were not before the justices who had sat on 20 September, so there was in my judgment material upon which it could be argued that it would be proper for the justices to review the question as to mode of trial.
As I have said, that was not in fact the way in which these justices proceeded. Their affidavits are very frank and clear about that matter. It seems to me that this was simply a different view formed upon the same facts by a differently constituted bench. In my judgment in the result they did exceed their powers. Prima facie therefore that decision should be quashed and also the decision to commit for trial."
McCullough J said: "a decision under section 24(1) of the Magistrates' Courts Act 1980 is not irrevocable. However, once such a decision has been taken and announced, it will in the great majority of cases stand. But in a case where trial on indictment has been decided upon, it is in my opinion open to the justices to review that decision at any stage up to the start of their inquiry as examining justices. Such a review will be permissible if a change of circumstances has occurred since the original decision was taken and also if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court. I am thinking, for example, of a case where justices are told on a later occasion that the facts of the charge were less serious than the court was originally led to believe, or where the court learns facts about the defendant's background, character, and antecedents, which indicate that if he is found guilty there will be no need after all for it to be possible to sentence him in pursuance of section 53(2) of the Children and Young Persons Act 1933.
Similarly, in a case where summary trial has been decided upon, it is in my opinion open to the justices to review that decision at any stage up to the beginning of the summary trial. Such a review is permissible if a change of circumstances has occurred since the original decision was taken and also if circumstances are brought to the attention of the court which, although existing when the original decision was taken, were not then drawn to the attention of the court . . Put more shortly, at any stage before the tracks divide, the decision as to which track is to be pursued is open to revision upon the demonstration of what may shortly be called a change of circumstances. I see nothing in section 24(1)(a) to prevent this. On the contrary, I take it to have been the intention of Parliament that the decision should be taken on the fullest information available to the court immediately before the tracks divide. Any other construction may lead to injustice."
Magistrates' Courts Act 1980 24(1)
1 Citers


 
Regina v Rankine [1986] QB 861
1986
CACD

Criminal Practice
R appealed his conviction for unlawfully supplying a controlled drug. Officers claimed to have seen him, but the court agreed not to order disclosure of their observation location. Held: The appeal failed. It was important not to discourage members of the public from co-operating with the police. In the same way that an officer cannot be obliged to give the name of his informant, he was not to be asked to reveal information which would lead to such disclosure. It was for the defendant to show good reason why such information was required.
1 Cites



 
 Regina v Willer (Mark Edward); CACD 1986 - (1986) 83 Cr App R 225
 
Regina v Widdowson (1986) 82 Cr App R 314
1986
CACD

Criminal Practice
The defendant made dishonest representations in a document which might, at a later stage, have led to a hire purchase agreement. Held: Obtaining a hire purchase agreement can amount to the obtaining of services. Halai held that a mortgage advance cannot be described as a service. A hire purchase agreement is distinguishable. A hire purchase agreement is the hiring of goods with various options given to the hirer, who in turn agrees to pay the instalments, maintain the vehicle and so on. The hire purchasing of a vehicle on some such terms can be regarded as the conferring of some benefit by doing some act, or causing or permitting an act to be done, on the understanding that the benefit has been or will be paid for, this being the definition of services in section 1(2) of the Theft Act 1978. The finance company confers a benefit by delivering possession of the vehicle to the hirer (or by causing or permitting the garage to do so) on the understanding that the hirer has paid or will pay a deposit and subsequent instalments.
1 Cites

1 Citers



 
 Regina v Hammond; 1986 - (1986) Cr App R 65
 
Regina v Hutchison [1986] 82 Crim App R 51
1986
CACD

Criminal Practice
The court was asked whether there could be deployment at the trial of things said by the defendant's counsel at a pre-trial review. Held: Pre-trial reviews had no statutory basis. Whilst many judges and practitioners might welcome a pre-trial review having the force of law, until a change, a pre-trial review was to be regarded as an essentially voluntary discussion about matters affecting a forthcoming trial. It took place on the understanding that nothing said at such a hearing could be used at the trial without the consent of the other party. Under that approach there was no discretion on the part of the court whether to admit or exclude such evidence. It simply was not admissible, because of the very nature of the discussion and the understanding upon which the parties embarked on it.

 
Schiavo v Anderton (1986) 83 Cr App R 228
1986
QBD
Watkins LJ
Criminal Practice
"Surrender to custody" means by section 2(2) in this context "surrendering himself into the custody of the court . . at the time and place for the time being appointed for him to do so." The failure to do that is by section 6(1) an offence. The offence may be dealt with according to section 6(5) either by summary conviction before the magistrates or as if it were a criminal contempt of court. Watkins LJ said that "an offence under section 6 of the Bail Act is not a contempt of court".
Bail Act 1976 2
1 Citers


 
Regina vMasih [1986] Crim LR 395
27 Jan 1986
CACD
Lord Lane LCJ
Criminal Practice
The court considered the circumstances when expert evidence might be admissible as to the defendant's ability or inability to form the mens rea: "Generally speaking, if a defendant is mentally defective, or otherwise comes in the last class, '69 and below mental defective', then in so far as that defectiveness is relevant – relevant that is to the particular case – it may be that expert evidence should be admitted about it. That is in order to enlighten the jury upon a matter which is abnormal, and therefore ex hypothesi, presumably, outside their own experience. If it is admitted it should be confined to the assessment of the defendant's Intelligence Quotient, and to an explanation of any relevant abnormal characteristics which such an assessment involves … Where the defendant however is within the scale of normality, albeit, as this man was, at the lower end of that scale, expert evidence, in our judgment, is not as a rule, necessary and should be excluded."
1 Citers


 
Regina v Chaouk [1986] VicRp 70; [1986] VR 707; Austlii,
14 Apr 1986


Criminal Practice
(Supreme Court of Victoria) The court considered an appeal beed upon allegations as to the jury directions given after retirement.
1 Cites



 
 Regina v Spencer; Regina v Smails; HL 24-Jul-1986 - [1987] AC 128; [1987] UKHL 2; [1986] 3 WLR 348; [1986] 83 Cr App Rep 277; [1986] 2 All ER 928
 
Regina v Garrod [1997] Crim LR 445; [1996] EWCA Crim 1149
18 Oct 1986
CACD
Evans LJ, Scott Baker, Sedley JJ
Criminal Practice
The fact on its own that a statement contained matters that might amount to an admission, that did not make the statement a mixed statement
1 Citers

[ Bailii ]

 
 ex parte Adegbesan; 1987 - [1987] 84 Cr App R 219
 
Regina v Gordon (Note) (1987) 92 Cr App R 50
1987
CACD

Criminal Practice

1 Cites

1 Citers



 
 Regina v Robertson and Golder; CACD 1987 - (1987) 85 Cr App R 304

 
 Regina v Leicester Crown Court ex parte DPP; 1987 - [1987] 1 WLR 1371

 
 Regina v Gorman; CACD 1987 - [1987] 85 Cr App R 121

 
 Regina v Fulling; CACD 1987 - [1987] QB 426; [1987] EWCA Crim 4; [1987] 2 All ER 65; [1987] 2 WLR 923; (1987) 151 JP 485; (1987) 85 Cr App Rep 136; [1987] Crim LR 492
 
Carr v Atkins [1987] 3 All ER 684; [1987] 3 WLR 529; [1987] QB 963
1987
CA
Sir John Donaldson MR, Stephen Brown and Croom-Johnson LJJ
Criminal Practice, Judicial Review
The police had applied to a judge for an order under the 1984 Act requiring the applicant, a suspect in a fraud investigation, to produce documents falling within the definition of "special procedure documents" under the Act. The applicants sought leave to appeal from a refusal of an order for judicial review of the decision not to disclose to them 'special procedure material'. Held: The Court of Appeal had no jurisdiction to hear an appeal from the Divisional Court's refusal to quash an order of the Crown Court for the production of certain documents under section 9 of the Criminal Evidence Act 1984, in criminal proceedings.
Sir John Donaldson MR said: "One thing is quite clear. The nature of an order made or refused in judicial review proceedings must depend not upon that order but upon the order that is sought to be reviewed. What was being reviewed in this case was an order under the Police and Criminal Evidence Act 1984."
In this case: "It is to my mind clear beyond argument that the order which was made in this case was made in a criminal context, but it is right to note . . that there are no proceedings in existence . .I have not been able to find out whether this Act could or would be used where criminal proceedings have begun, but it does not really matter . . It is sufficient to note that no criminal proceedings have been begun here and, indeed, in most cases there is no doubt that orders would be sought under this Act where a decision had not yet been reached whether or not to prosecute. It is essentially a statutory provision in aid of a criminal investigation designed, if the evidence will stand it, to lead to a criminal prosecution. But unless it is to be said that an order under the Act is either never or very rarely one which is by its nature a criminal cause or matter merely because of the stage at which the order is made, then the fact that there are no criminal proceedings does not, in my judgment, matter. That fact stems purely from the nature of the Act and the statutory provisions and does not affect the criminal characters of the proceedings."
Police and Criminal Evidence Act 1984 14
1 Cites

1 Citers


 
Mfongbong Umoh, Regina v (1987) 84 Cr App R 138
1987


Criminal Practice

1 Citers


 
Regina v Cristini (1987) Crim LR 504
1987
CACD
Watkins LJ
Criminal Practice
In considering whether a matter should have been addressed by the judge in summing up the court should consider whether it was an issue which was "actively canvassed in the course of the hearing". For the judge to raise it for the first time after a party had finished his summing up, meant that counsel had had no opportunity to deal with it in their speeches to the jury. He ought to have given notice to them, in the interests of fairness
1 Citers


 
Regina v Roberts (William) [1987] 84 Cr App R 117
1987
CACD

Criminal Practice
A Ghosh direction can be misleading for a jury.
1 Cites


 
CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] Ch 61; [1987] RPC 42
1987
CA
Nicholls LJ, Sir Denys Buckley
Criminal Practice, Intellectual Property
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action because, as in Duke of Bedford: "the plaintiffs, and all the persons whom they purport to represent, have statutory rights of the same character under the Copyright Act 1956, which the action is designed to protect from infringement resulting from the conduct of the defendants which is complained of. They share, in my judgment, a common interest and a common grievance, such as Lord Macnaghten had in mind. The relief which is primarily claimed is injunctive in a form which would benefit the plaintiffs and all whom they purport to represent in the same way, that is to say, by protecting them from the risk of infringements incited by the defendants."
Copyright Act 1956
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Regina v Fuller [1987] 1 QB 426
1987

Lord Lane CJ
Criminal Practice
The court considered what might be oppressive behaviour by an investigating officer. Held: "oppression" must be given its ordinary dictionary meaning of "the exercise of power or authority in a burdensome, harsh, or wrongful manner, the unjust or cruel treatment of subjects, inferiors etc. or the imposition of unreasonable or unjust burdens. "Oppression" in the sub-section would be almost bound to entail some impropriety on the part of the interrogator. The ambit of section 76(2)(b) is wider than that in section 76(2)(a), so that a confession could be invalidated under that paragraph even when there had been no impropriety under the latter provision.
Police and Criminal Evidence Act 1984 76(2)
1 Citers


 
Regina v Thomas (Horatio Gerald) Times, 09 February 1987
9 Feb 1987
CACD
Tasker Watkins LJ
Criminal Practice
The jury had, after retirement, requested and been given a map which had not been referred to in the case. Counsel were not consulted. Held: The use of the map was a material irregularity: "It is hardly necessary to say that an action of this kind runs counter to all the guidance which this court has given from time to time … It can never be right for a jury to be provided with something which has not been part of the evidence in the trial." In this case the conviction was not unsafe.
1 Citers


 
Weeks v The United Kingdom Times, 05 March 1987; 9787/82; (1988) 10 EHRR 293; [2008] ECHR 18; [1987] ECHR 3
2 Mar 1987
ECHR

Human Rights, Criminal Practice, Prisons
The applicant, aged 17, was convicted of armed robbery and sentenced to life imprisonment in the interests of public safety, being considered by the trial judge on appeal to be dangerous. Held: "The court agrees with the Commission and the applicant that the clearly stated purpose for which [the] sentence was imposed, taken together with the particular facts pertaining to the offence for which he was convicted, places the sentence in a special category." In substance, Mr Weeks was being put at the disposal of the state because he needed continued supervision in custody for an unforeseeable length of time and, as a corollary, periodic reassessment in order to ascertain the most appropriate way of dealing with him, and added: "The grounds expressly relied on by the sentencing courts for ordering this form of deprivation of liberty against Mr Weeks are by their very nature susceptible of change with the passage of time, whereas the measure will remain in force for the whole of his life. In this, his sentence differs from a life sentence imposed on a person because of the gravity of the offence." The Parole Board for England and Wales has the necessary independence to constitute a "court" for the purposes of Article 5(4). In considering whether the prisoner should be released, the Board will consider whether the prisoner remains a danger to the public. The freedom enjoyed by a discretionary life sentence prisoner on licence is "more circumscribed in law and more precarious than the freedom enjoyed by the ordinary citizen" but is, nonetheless, a state of liberty for the purposes of article 5 of the Convention.
European Convention on Human Rights 5.4
1 Citers

[ Worldlii ] - [ Bailii ]

 
 Silverman, Regina v; CACD 31-Mar-1987 - [1987] EWCA Crim 3; (1988) 86 Cr App R 213
 
Regina v Straw [1995] 1 All ER 187
1 Jun 1987
CACD

Criminal Practice
It was common ground between the psychiatric experts that, at the time when the applicant killed her husband, her responsibility was materially diminished. The prosecution were prepared to accept a plea of guilty to manslaughter on this ground. The applicant refused to tender such a plea and gave express instructions that she would plead not guilty. After conviction she wished diminished responsibility to be reconsidered. Held: The court rejected the request by a defendant to bring at appeal from her conviction for murder, new medical evidence as to her diminished responsibilty at the time of the offence.
The applicant was "sufficiently capable" of tendering her plea and fully advised as to her position. "Although she may not have been a normal person, she was capable in law of making the decision".
1 Citers


 
In re K (Minors) (Wardship: Criminal Proceedings) [1988] Fam 1
24 Aug 1987
FD
Waterhouse J
Criminal Practice, Children
Children had been interviewed by the police before they became wards of court. Held: It would be a constitutional impropriety for the wardship court to intervene in the statutory process governing the conduct of a criminal trial and in matters within the jurisdiction of the Crown Court so as to grant or refuse leave for minors to be called as witnesses at a criminal trial.
Waterhouse J said: "In many cases, the wardship court is likely to be involved at an early stage because leave will have been sought for the police to interview a ward. In such circumstances it is inevitable that the court will have to perform a balancing exercise, weighing the potential damage to the child against the public interest, as a responsible parent would do. In reaching a decision, the best interests of a child may not be the first and paramount consideration . . " and "Mrs Puxon accepts on behalf of the Crown Prosecution Service that, in general, it is the practice of the police to obtain the consent of a parent who has the custody of a child before interviewing the child as a potential witness. Similarly, the police work in close co-operation with social services departments in whose care children have been placed and obtain the consent of the department (as in this case) before interviewing a child in care. It is accepted also that, in the case of a ward of court, leave should be obtained from the wardship court before an interview by the police takes place." and "Once a prosecution has been instituted however, the statutory procedure must (it is said) take its normal course. The Crown Prosecution Service will, of course, consider any representation that may be made by a parent or a local authority about the potential adverse impact upon a child of having to give evidence. This may be one of the matters to be considered in deciding whether or not to proceed with particular charges, but the discretion is vested in the prosecuting authority rather than the parent or the local authority. In the present case, it is said further, an extraordinary and anomalous situation would arise, if the wardship court were to intervene, because the minors might be "protected" from the operation of the statutory rules governing the compellability of witnesses, whereas the other children involved in the case would have no similar protection."
He concluded: "I have no doubt that I should decline to exercise the wardship jurisdiction by either giving leave for the minors to be called as witnesses or by giving a direction in the matter in another form. In my judgment, it is neither necessary nor appropriate in child abuse cases for the Crown Prosecution Service to seek the leave of the wardship court to call a ward as a witness either before or after committal proceedings.
It is necessary, first of all, to set my conclusion in its proper context. In many cases, the wardship court is likely to be involved at an early stage because leave will have to be sought for the police to interview a ward. In such circumstances it is inevitable that the court will have to perform a balancing exercise, weighing the potential damage to the child against the public interest, as a responsible parent would do. In reaching a decision, the best interests of a child may not be the first and paramount consideration, for reasons that I have sufficiently explained. It is clear also that the court will have in mind that, if leave to interview the child is granted, a prosecution based on the child's evidence, at least in part, may ensue."
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 In re Peters; CA 1988 - [1988] 1 QB 871; [1988] 3 WLR 182; [1988] 3 All ER 46
 
Regina v Maxwell [1988] 1 WLR 1265; [1988] Crim LR 760; (1988) 88 Cr App R 173
1988
CACD
Mustill LJ
Criminal Practice
The defendant admitted paying two others to burgle his partner's home, but said he had not anticipated violence, and appealed against his conviction for robbery, saying the judge should have left the alternative verdict to the jury. The jury, during their deliberations, asked whether there was a lesser charge than robbery of which the defendant could be convicted, having burglary in mind. The judge answered, correctly, that burglary was not an alternative and, incorrectly, that there was no available lesser charge: the defendant could in law have been convicted of theft. Held: The appeal was dismissed.
Mustill LJ said: "It was argued on behalf of the Crown that this test was not satisfied in the present case, where there was, it was submitted, ample evidence to justify the conviction of Campbell for murder. It seems to us that the test is material where the possible alternative is a relatively trifling offence, consideration of which would only distract the jury. It is clear from the terms of the passage which we have quoted from Mustill LJ's judgment in R v Fairbanks that other considerations may require a lesser offence to be left. In the present case it does appear that it was a tenable possibility that the jury might reject the evidence of Dawn Shaw about the conversation in her house, in which event the jury would need direction about the matters requiring proof if Campbell was to be convicted of murder on the basis of having taken part in a joint enterprise. In such event they might have acquitted him of murder, though finding him guilty of assisting the offender." A flexible approach is required: "[Defence counsel] submitted that it was for the judge to ensure that all material issues were placed before the jury, even if not argued overtly by him in closing. We feel impelled to agree with this submission. For the reasons which we have stated, we are of the opinion that the case does not fall within the category of those in which the issue does not arise in the way in which the case has been presented to the court. It is not one in which Campbell has admitted that the offence was committed. The possibility was there that he took some lesser part in the affair than full complicity in murder, and that possibility was not removed by his denial that he had anything at all to do with the attack. We therefore must conclude that the judge should have left the lesser offence to the jury and given them an appropriate direction on the law relating to join enterprise." and "To interfere with the verdict would require us to identify solid grounds for suspecting that the members of the jury had foresworn their oaths by deliberately returning a verdict of guilty when they were not sure of it, simply to avoid an unwanted outcome."
1 Cites

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Regina v Watson (1988) 87 Cr App R 1
1988
CACD

Criminal Practice
The court indicated how a jury might be directed in the event of an apparent deadlock, given two public interests which tend to pull in opposite directions: (i) the imperative that a jury should be put under no pressure; and (ii) the desirability of avoiding the delay, expense and uncertainty which is bound to arise if there has to be a second trial after a jury disagreement. Held: "In the judgment of this Court there is no reason why a jury should not be directed as follows: 'Each of you has taken an oath to return a true verdict according to the evidence. No one must be false to that oath, but you have a duty not only as individuals but collectively. That is the strength of the jury system. Each of you takes into the jury box with you your individual experience and wisdom. Your task is to pool that experience and wisdom. You do that by giving your views and listening to the views of the others. There must necessarily be discussion, argument and give and take within the scope of your oath. That is the way in which agreement is reached. If, unhappily [10 of] you cannot reach agreement you must say so.' It is a matter for the discretion of the judge as to whether he gives that direction t all and if so at what stage of the trial. There will usually be no need to do so. Individual variations which alter the sense of the direction, as can be seen from the particular appeals which we have heard, are often dangerous and should, if possible be avoided. Where the words are thought to be necessary or desirable, they are probably best included as part of the summing up or given or repeated after the jury have had time to consider the majority direction --
1 Citers


 
Regina v Pinfold (1988) 87 Cr App R 15; [1988] QB 462
1988
CACD
Lord Lane CJ
Criminal Practice
Once a person convicted of an offence on indictment appeals against that conviction and that appeal has been determined on its merits, the court has no jurisdiction to re-open it on fresh evidence coming to light.
Lord Lane CJ considered the feasibility of re-opening an appeal: "So there is nothing there on the face of it which says in terms that one appeal is all that an appellant is allowed. But, in the view of this court, one must read those provisions against the background of the fact that it is in the interests of the public in general that there should be a limit or a finality to legal proceedings, sometimes put in a Latin maxim, but that is what it means in English.
We have been unable to discover, nor have counsel been able to discover any situation in which a right of appeal couched in similar terms to that, has been construed as a right to pursue more than one appeal in one case. So far as the Criminal Appeal Act 1968 is concerned, there are perhaps two possible exceptions, or apparent exceptions because that is what they are, to that rule: first of all, where the decision on the original appeal, if I may call it that, can be regarded as a nullity. This is more commonly applied where there has been an application to treat a notice of abandonment as a nullity. The second occasion, which may be simply an example of the first, is where, owing to some defect in the procedure the appellant has on the first appeal being dismissed suffered an injustice, where, for example, he has not been notified of the hearing of the appeal or counsel has been unable to attend, circumstances such as that."
Criminal Appeal Act 1968
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Regina v Ataou [1988] QB 798
1988
CACD
Wolff LJ, Waterhouse and French JJ
Legal Professions, Criminal Practice
Legal professional privilege is an interest which falls to be balanced against competing public interests: "When a communication was originally privileged and in criminal proceedings privilege is claimed against the defendant by the client concerned or his solicitor, it should be for the defendant to show on the balance of probabilities that the claim cannot be sustained. That might be done by demonstrating that there is no ground on which the client could any longer reasonably be regarded as having a recognisable interest in asserting the privilege. The judge must then balance whether the legitimate interest of the defendant in seeking to breach the privilege outweighs that of the client in seeking to maintain it."
1 Cites

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 Chief Constable of Leicestershire v M and Another; ChD 1988 - [1989] 1 WLR 20; [1988] 3 All ER 1015
 
Regina v Sharp (Colin) [1988] 86 Cr App R 274; [1988] 1 WLR 7; [1988] 1 All ER 65; [1988] Crim LR 303
1988
HL
Lord Havers
Criminal Practice
The defendant had been seen fleeing the area of a crime. Some days later he volunteered a statement admitting his presence in the area, but providing an innocent explanation. He did not give evidence at trial. His statement was put in by the prosecution, but the judge directed the jury that they could rely upon the admission but the parts where he gave an excuse were not evidence. He appealed. Held: The jury must be given comprehensible directions. They could not make sense of part only of the statement. The whole evidence should be considered as evidence, and the judge could allow the jurirs to attach different weights to different parts, and he could point out the failure of the defendant to submit to cross examination.
"It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast upon the admission . . "
"Evidence contained in a confession is however an exception to the hearsay rule and is admissible. The justification for the adoption of the exception was presumably that, provided the accused had not been subjected to any improper pressure, it was so unlikely that he would confess to a crime he had not committed that it was safe to rely upon the truth of what he said. This exception became extended to include not only a full confession to the crime but also a partial confession in which the accused admitted some matter that required to be established if the crime alleged was to be proved against him. ...
The difference in the authorities centres upon the status to be attached to those parts of a mixed statement that excuse or explain an admission and are intended to show that the admission does not bear the inference of guilt it might otherwise attract: for example, "I admit that I stabbed him but he was about to shoot me," or, as in this appeal, "I admit I was at the scene of the burglary but I was looking for something that had fallen off my car." All the authorities agree that it would be unfair to admit the admission without admitting the explanation and the only question is how best to help the jury evaluate the accused's statement. The view expressed in Duncan, 73 Cr App R 359 is that the whole statement should be left to the jury as evidence of the facts but that attention should be drawn, when appropriate, to the different weight they might think it right to attach to the admission as opposed to the explanation or excuses. The other view, which I might refer to as the "purist" approach, is that, as an exculpatory statement is never evidence of the facts it relates, the jury should be directed that the excuse or explanation is only admitted to show the context in which the admission was made and they must not regard the excuse or explanation as evidence of its truth." (Lord Havers)
and: "My Lords, the weight of authority and common sense lead me to prefer the direction to the jury formulated in Duncan, 73 Cr App R 359 to an attempt to deal differently with the different parts of a mixed statement. How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is thought fair that it should be considered by the jury. I agree with Lawton LJ that a jury will make little of the direction that attempts to draw a distinction between evidence which is evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts. One only has to write out the foregoing sentence to see the confusion it engenders."
Lord Havers went on to amend and answer in the affirmative the question before the court: "where a statement made to a person out of court by a defendant contains both admissions and self exculpatory parts do the exculpatory parts constitute evidence of the truth of the facts alleged therein?"
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Regina v Maidstone Crown Court ex parte Waitt [1988] Crim LR 384
1988
QBD
Lloyd LJ
Legal Professions, Criminal Practice
The solicitor applicant challenged the grant of a search order under section 9. Held: The order was quashed. The court underlined the need for judges to be scrupulous in discharging their responsibilities so as to ensure that use of the procedures, which constitute a serious inroad upon the liberty of the subject, are not abused. In addition the court made clear that fulfilment of each part of the relevant conditions is a matter of substance. The reasons for authorising the seizure must be made clear and applications without notice must be fully justified. As to section 9: “The special procedure under section 9 and schedule 1 is a serious inroad upon the liberty of the subject. The responsibility for ensuring that the procedure is not abused lies with circuit judges. It is of cardinal importance that circuit judges should be scrupulous in discharging that responsibility. The responsibility is greatest when the circuit judge is asked to issue a warrant under paragraph 12. It is essential that the reason for authorising the seizure is made clear. The preferred method of obtaining material for a police investigation should always be by way of an inter partes order under paragraph 4, after notice of application has been served under paragraph 8. An ex parte application under paragraph 12 must never become a matter of common form and satisfaction as to fulfilment of the conditions is an important matter of substance.”
Police and Criminal Evidence Act 1984 10
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Regina v Whyte (1988) 51 DLR 4th 481
1988

Dickson CJC
Criminal Practice, Commonwealth
(Canadian Supreme Court) The court rejected an argument that as a matter of principle a constitutional presumption of innocence only applies to elements of the offence and not excuses: "The real concern is not whether the accused must disprove an element or prove an excuse, but that an accused may be convicted while a reasonable doubt exists. When that possibility exists, there is a breach of the presumption of innocence. The exact characterization of a factor as an essential element, a collateral factor, an excuse, or a defence should not affect the analysis of the presumption of innocence. It is the final effect of a provision on the verdict that is decisive. If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused."
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Regina v Shippey and Jedynak [1988] Crim LR 767
1988

Turner J
Criminal Practice
The defendants were tried for rape. The defence pleaded no case to answer saying that the complainant's evidence was weak uncorroborated and inconsistent. Held: The judge should assess the evidence and if the evidence of the witness upon whom the prosecution case depended was self-contradictory and out of reason and all common sense then such evidence was tenuous and suffered from inherent weakness. The requirement to take the prosecution evidence at its height did not mean "picking out all the plums and leaving the duff behind". It is necessary to look at the evidence as a whole, not merely parts of it, and assess whether a reasonable jury could come to the conclusion on that evidence that the defendant is guilty. In this case the court concluded that "a jury properly directed could not properly convict." Galbraith did not say that the prosecution need include only those parts of its case which pointed to guilt when resisting such an application.
1 Cites

1 Citers



 
 Dhillon v Secretary of State for the Home Department; CACD 1988 - [1988] 86 Cr App R 14

 
 Regina v Newland; CACD 1988 - [1988] QB 402; [1988] 2 WLR 382

 
 Regina v Rowbotham and others; 1988 - (1988) 41 CCC,(3d) 1
 
Regina v Stretton and McCallion (1988) 86 Cr App R 7
1988
CACD

Criminal Practice
The complainant had been cross-examined for some time but became ill and was incapable of continuing to give evidence. The trial judge allowed the trial to continue, but gave the jury a clear warning as to how they should approach their task. The defendant appealed. Held: The appeal failed. A trial judge has a discretion to allow the trial to continue in circumstances where the medical evidence showed that it would be undesirably, and forensically most unfair, to have the witness back in the witness box, or to be called in a new trial. It was a correct exercise of the judge's discretion to continue the trial. He had given the jury the clearest possible warning about the potential unfairness to the defendant.
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Regina v Samuel [1988] QB 615; [1988] 2 WLR 920; (1987) Cr App R 232
1988
CA
Hodgson J
Criminal Practice, Legal Professions, Police
The defendant had been arrested on suspicion of armed robbery. He asked for a solicitor, but one was refused under section 58 of the 1984 Act. He appealed against his conviction saying that he should have been allowed access to a solicitor. Held: The appeal was allowed. He could not be refused access to a solicitor after charge where, as here, the initial charges had been of burglary, and the inspector refusing access had to justify the refusal of access to any particular solicitor. The right of a suspect to consult and instruct a lawyer "as one of the most important and fundamental rights of a citizen".
Police and Criminal Evidence Act 1984 58(1)
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 Regina v Liverpool Juvenile Court ex parte R; 1988 - [1988] QB 1; [1987] 2 All ER 668; (1987) 86 Cr App R 1; [1987] Crim LR 572; [1987] 3 WLR 224
 
Regina v Director of Public Prosections ex parte Hallas (1988) 87 Cr App R 340
1988

Lloyd LJ
Criminal Practice
Without access to documents held by the police, a private prosecution would or could "wither on the vine".
1 Citers



 
 Director of Public Prosecutions v Richards; QBD 1988 - (1989) 88 Cr App R 97; [1988] QB 701
 
Regina v Evesham Justices, ex parte McDonnagh [1988] 1 QB 553
1988
QBD
Watkins LJ, Mann J
Criminal Practice, Media
The court considered the existence of a power in the magistrates court to order a hearing to be held in camera and referred to section 11 of the 1981 Act. Watkins LJ said: "However, I am bound to say that I am impressed with the argument that the action taken by the justices in the present case had nothing to do with the administration of justice. It seems to me that the concern shown by the justices for not giving publicity to Mr. Hocking's home address was solely motivated by their sympathy for his well-being if his former wife should learn of his home address and harass him yet again. That kind of predicament is not, unfortunately, unique. There are undoubtedly many people who find themselves defending criminal charges who for all manner of reasons would like to keep unrevealed their identity, their home address in particular. Indeed, I go so far as to say that in the vast majority of cases, in magistrates' courts anyway, defendants would like their identity to be unrevealed and would be capable of advancing seemingly plausible reasons why that should be so. But, section 11 was not enacted for the benefit of the comfort and feelings of defendants. The general rule enunciated in the passage I have quoted from Attorney-General v Leveller Magazine Limited [1979] A.C. 440, 450, may not, as is there stated, be departed from save where the nature or the circumstances of proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice."
Contempt of Court Act 1981 11
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1 Citers


 
Practice Direction (Jury Service: Excusal) [1988] 1 WLR 1162
1988


Criminal Practice

1 Citers


 
Regina v Morais [1988] 87 Cr App R 9
1988
CACD
Lord Lane CJ, McCowan and Pill JJ
Criminal Practice
A High Court judge had given leave to prefer a voluntary bill against the appellant, who was arraigned on six counts in the voluntary bill. He pleaded not guilty, was convicted on four counts and was sentenced. Relying on section 2 of the 1933 Act, he appealed saying that the voluntary bill had never been signed by the proper officer: without a signature, he argued, there could be no indictment, and without an indictment there could be no valid trial. Held: The Court upheld the submission.
Administration of Justice (Miscellaneous Provisions) Act 1933 2(2)
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Regina v Snaresbrook Crown Court, ex parte Director of Public Prosecutions [1988] QB 532
1988

Glidewell LJ
Legal Professions, Criminal Practice
The defendant was charged with attempting to pervert the course of justice by making a false allegation of assault against the police. It was said that he must have made a false statement in his application for legal aid for the purpose of bringing his civil action for assault. The 1974 Act made it an offence for anyone seeking legal aid knowingly to make a false statement or representation when furnishing any information required from him. Held: The common law principle of legal professional privilege cannot be excluded, by the exception established in Cox and Railton in cases where a communication is made by a client to his legal adviser regarding the conduct of his case in criminal or civil proceedings, merely because such communication is untrue and would, if acted upon, lead to the commission of the crime of perjury in such proceedings. It had been submitted by the DPP that the communication with the area office of the Law Society to obtain legal aid was made in furtherance of a crime. Held: "Obviously, not infrequently persons allege that accidents have happened in ways other than the ways in which they in fact happened or that they were on the correct side of the road when driving while actually they were on the wrong side of the road and matters of that sort. Again, litigants in civil litigation may not be believed when their cases come to trial but that is not to say that the statements they had made to their solicitors pending the trial, much less the applications which they made if they applied for legal aid, are not subject to legal privilege. The principle to be derived from R v Cox and Railton applies in my view to circumstances which do not cover the ordinary run of cases such as this is" For the purposes of section 10(2) it was the holder who had to have the criminal purpose, and that the Law Society was the holder and that the Law Society had no intention of furthering a criminal purpose:- "No intention could be further from its thoughts."
Legal Aid Act 1974 23
1 Cites

1 Citers


 
Munroe v Director of Public Prosecutions [1988] 152 JP 567
1988
QBD
Glidewell LJ
Criminal Practice
The court considered whether the Crown Court had any jurisdiction to re-open issues of fact decided by the magistrates. A Newton hearing had not been held. The defendant challenged the right of the Crown Court itself to conduct such a hearing. Held: Glidewell LJ said: 'In our view, if the magistrates do hear evidence in order to decide the facts, and thereafter under section 38 commit the accused to the Crown Court for sentence, the magistrates should ensure that the Crown Court is informed of the facts they have so found. The Crown Court should then normally proceed to sentence upon the version of the facts found by the magistrates and should not allow the dispute as to the facts to be reopened. But if, on the other hand, the accused does not raise an issue as to the facts until he reaches the Crown Court, while, as we have said, the court has a discretion to remit the issue to the magistrates, we think that the discretion should normally be exercised by the Crown Court following the course advised by Watkins LJ, that is, by determining the issue itself, after hearing any necessary evidence before proceeding to sentence.'
1 Citers



 
 Leggate v HM Advocate; 1988 - 1988 JC 127
 
AGL and EDB v H M Advocate 1988 SCCR 62
1988


Criminal Practice

1 Citers


 
Regina v Moxon-Tritsch [1988] Crim LR 46
1988


Criminal Practice


 
HM Advocate v Ashrif 1988 SLT 567
1988

Lord Justice Clerk (Ross)
Criminal Practice
The accused had sought to recover the previous convictions of the complainant not from the prosecution, but from the Scottish Criminal Record Office. Held: The appeal court came down firmly against permitting defence agents to recover the previous convictions of Crown witnesses: "In my opinion, there are very sound reasons why a diligence in these terms should not be granted. If access is to be given to such criminal records of a witness, it could not be confined to solicitors acting for accused persons but would also be available to accused persons who were appearing on their own behalf. This might then result in an accused getting full information of all offences of which the witness had been convicted even though these were not relevant and even though they had occurred many years before. If that were to be the position, the result might well be that members of the public would be slow to come forward to give evidence if they knew that their past record was liable to become public and in particular to be disclosed to an accused person to whom they might be known. This difficulty was recognised by the Thomson Committee who stated their ultimate conclusion in para 27.07 as follows: 'While we have some sympathy with the view that the defence should be able to use previous convictions in the same way as the Crown, bearing in mind the general public interest, we are not persuaded that it is desirable that the previous convictions of witnesses should be disclosed to the accused person or his solicitor'."
1 Citers


 
Regina v Harper-Taylor and Bakker Unreported, 19 February 1988
19 Feb 1988
CA
Mustill LJ
Criminal Practice
There had been a prolonged discussion, ranging over a wide field in the judge's room: "Since we regard the discussion in the judge's room as the source of all the subsequent entanglements, some general observations on the practice of meeting the judge in his private room may be appropriate. A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this court stated in Turner that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interests of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. " and "Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room." and "The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or not) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a mis-statement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority."
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S Buxoo and Another v The Queen (Mauritius) [1988] UKPC
19 May 1988
PC
Lord Keith of Kinkel Lord Brandon of Oakbrook Lord Griffiths
Criminal Practice, Commonwealth
(Mauritius) Mauritius had passed an Act extending rights of Appeal. The Board considered and confirmed that it does not sit as a court of criminal appeal. In order to interfere, there must be something so irregular or so outrageous as to shake the very basis of justice. The Badry case guidelines will continue to be followed. This case did not fall within that ambit and the appeal failed.
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Ekbatani v Sweden 10465/83; [1988] 13 EHRR 504; [1988] ECHR 2; 10563/83; [1988] ECHR 6; [1988] ECHR 2; [1988] ECHR 6
26 May 1988
ECHR

Human Rights, Criminal Practice
The defendant was convicted of threatening a civil servant. His appeal was dealt with without a hearing in the Court of Appeal. The Court confirmed the decision. Held: Though the Court confirmed that if there had been a public hearing at first instance, and the absence of a public hearing before a second or third instance tribunal might be justified, and since the Court of Appeal had to make what a "full assessment of the question of the applicant's guilt or innocence" its re-examination of the conviction ought to have comprised a full rehearing. "…..it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present at the trial hearing".
European Convention on Human Rights
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Murray v United States [1988] USSC 147; 487 US 533; 108 SCt 2529
27 Jun 1988

Justice Scalia
International, Criminal Practice
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.
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Barbera, Messegua, and Jabardo v Spain 10590/83; (1988) 11 EHRR 360; [1988] ECHR 25
6 Dec 1988
ECHR

Human Rights, Criminal Practice
ECHR The presumption of innocence would be violated if, without the accused having previously been proved guilty according to law, a judicial decision concerning him reflected an opinion that he was guilty. The burden of proof is on the prosecution and any doubt should benefit the accused.
European Convention on Human Rights
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 Regina v Windass; CACD 1989 - (1989) 89 Cr App Rep 258
 
Regina v Stewart and Sappleton (1989) 89 Cr App R 273
1989
CACD

Criminal Practice
After retirement, the jury requested provision of scales which were given. The defendants faced an accusation of importing cannabis of a certain weight, and claimed to have been unaware of the presence of the cannabis in their bags. Held: Once they had retired, no additional evidence should be supplied to the jury. The provision of the scales was a material irregularity. The request suggested that they were having difficulty accepting the prosecution case, and they should not have been allowed to settle such a dispute by an experiment of their own. There had been a material irregularity.
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Attorney General's Guidelines on the Exercise by the Crown of its Right of Stand-by (1989) 88 Cr App R 123
1989


Criminal Practice

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 Regina v Sat-Bhambra; CACD 1989 - (1989) 88 Cr App R 55
 
Regina v Ford [1989] 89 Cr App R 278
1989
CACD
Lord Lane LCJ
Criminal Practice
The appellant challenged the judge's refusal to accede to an applicant to swear in a multi-racial jury. Held: The judge was right in coming to the conclusion that he should not order a multi-racial jury to be empanelled. He had no power to do so. Lord Lane said: "The whole essence of the jury system is random selection."
The trial judge had no discretion: ""to discharge a competent juror or jurors in an attempt to secure a jury drawn from particular sections of the community, or otherwise to influence the overall composition of the jury."
and: "So far as the mode of summoning the panel is concerned, the judge is limited, we repeat, to considering, in a challenge for cause, whether the summoning officer has displayed bias or other impropriety. If that cannot be established, the judge has no power to review or take action in respect of any procedures that are alleged to have led to the panel not being in fact ´random'. Any such complaint would be a complaint of administrative error and has to be tackled by means other than the judges action. If the officer is in fact not performing his duty properly, in circumstances that fall short of his displaying bias or impropriety, he must be corrected, in other words, by administrative means.
As emphasised above, action could certainly not take the form of directions by the judge as to how the task of selection should in fact be performed. That being the case, in the present instance, although the judge was not given the opportunity of argument on this point to any extent, he was right in the upshot to come to the conclusion that he should not order a multi-racial jury to be empanelled, because he had no power to do so."
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Regina v Pawsey [1989] Crim LR 152
1989

Judge Gower
Criminal Practice
(Central Criminal Court ) The CPS was ordered to disclose unused witness statements and exhibits from the original investigation on the application of a private prosecutor once a prosecution had commenced.
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Rubin v Director of Public Prosecutions [1989] 3 WLR 1088
1989

Watkins LJ
Criminal Practice
The court considered the standing of a private prosecutor. Watkins LJ said: "It is, I also believe, equally well established that, generally speaking, any member of the public may lay an information. There are statutory exceptions to that right and in some instances consent to prosecute has to be obtained from a specified authority. But in the vast majority of the cases it is a member of the public who informs and with rare exceptions that member of the public is a constable."
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Regina v Clerk to Croydon Justices ex parte Chief Constable of Kent (1989) 154 JP 118
1989
QBD
Glidewell LJ
Criminal Practice
A partnership or an unincorporated association could be registered as a fine defaulter if it failed to pay a fixed penalty arising from its ownership of a motor vehicle; that was because the statutory definition of defaulter depended on the use of the words 'any person', and thus the Interpretation Act applied to it. Paragraph 4(5) of the 1978 Act is of no assistance in construing the breadth of the definition of 'person' in Schedule 1 of the Act.
Interpretation Act 1978
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McGeown v HM Advocate [1989] CLY 4029
1989


Scotland, Criminal Practice

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 Regina v Laming; CACD 1989 - (1989) 90 Cr App R 450

 
 Regina v Beattie; CACD 1989 - [1989] 89 Cr App R 302
 
Scott and another v Regina, Barnes and others v Regina (1989) 89 CAR 153
1989
PC
Lord Griffiths
Commonwealth, Criminal Practice
(Jamaica) The defendants appealed the dismissal of their appeals against convictions for capital murder. In Scott, a special constable was shot with his own revolver in a bar, and subsequently died of his wounds. The only evidence identifying Scott and his co-accused, Walters, was contained in the deposition of a witness who had died before trial. In Barnes and others the deceased was shot after stopping his van and his money was stolen. Three defendants were charged with his murder. The only evidence identifying them was given by a witness, who gave evidence at the preliminary inquiry, but who was murdered before the trial. In each case, the evidence of the missing witness was read as his evidence. Held: Lord Griffiths summarised the common law. He underlined the discretion of the judge to exclude such evidence, but pointed out: " If the courts are too ready to exclude the deposition of a deceased witness it may well place the lives of witnesses at risk particularly in a case where only one witness has been courageous enough to give evidence against the accused or only one witness has had the opportunity to identify the accused". A number of precautions could be taken: "no rules can usefully be laid down to control the detail to which a judge should descend in the individual case…. This much however can be said that neither the inability to cross examine, nor the fact that the deposition contains the only evidence against the accused, nor the fact that identification evidence will of itself be sufficient to justify the exercise of the discretion."
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Regina v X, Y and Z; Regina v DJX, SCY and GCZ (1990) 91 CAR 36; (1989) 91 Cr App R 36
1989
CACD

Criminal Practice
The court upheld the decision of the Common Sergeant, sitting at the Central Criminal Court, that screens should be erected to enable children who had been treated indecently to give evidence screened from the defendant. The judge was required to see that: "the system operates fairly; fairly not only to the defendant, but also to the prosecution and also to the witnesses. Sometimes he has to make decisions as to where the balance of fairness lies. . . We do not need authority to confirm us in the view that what the judge did here in his discretion was a perfectly proper, and indeed a laudable attempt to see that this was a fair trial to all, the defendants, the Crown, and indeed the witnesses."
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 Scott v The Queen; PC 1989 - [1989] AC 1242; [1989] 2 All ER 305; (1989) 89 Cr App R 153; [1989] 2 WLR 924
 
Lamy v Belgium [1989] ECHR 5; 10444/83; (1989) 11 EHRR 529; [1989] ECHR 5
30 Mar 1989
ECHR

Human Rights, Criminal Practice
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 5-4; Pecuniary damage - claim rejected; Non-pecuniary damage - finding of violation sufficient; Costs and expenses award - domestic proceedings; Costs and expenses award - Convention proceedings
As a general rule all evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument, giving him an adequate and proper opportunity to challenge and question witnesses against him.
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Regina v Lawson [1989] 90 Cr App R 107
1 Jun 1989
CACD

Criminal Practice
The prosecution did not give the defence a copy of the statement of a witness as to material facts which supported the defence case because it considered that it might require to use the statement if the person who had made it were called as a defence witness. In fact, the defence did not call the witness because it was unaware of a change in the relationship between her and a co-defendant. Held: The Court allowed the appeal and quashed the conviction . Though the Court accepted that the rule in Bryant and Dickson laid down the general practice as to a prosecutor's obligation to disclose, it stated that in some cases, including the case before it, an inflexible application of the rule could lead to injustice and there should be exceptions to it: "This Court . . wishes to endorse the observation made in the paragraph in Archbold: that it must be remembered that an inflexible application of Bryant and Dickson (supra) can lead to an injustice. In the circumstances of this case, the Court has no doubt whatever that for that trial to proceed on the basis that it did, with the defence wholly unaware of the change in the relationship between these two witnesses and of the fact that the statement had been given, is the sort of injustice which may occur." and "It is not possible to make a ruling as to the circumstances in which it is or is not right to exercise the discretion one way or the other. In the vast majority of cases the experience and feeling of counsel will lead to the right decision being made but when a wrong decision is made then the matter has to be dealt with properly and the appeal allowed on that ground."
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Jago v District Court of New South Wales (1989) 168 CLR 23
12 Oct 1989

Brennan J
Criminal Practice
(High Court of Australia) If applications to stop criminal proceedings for abuse were commonly granted, they would be seen with suspicion.
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Kostovski v The Netherlands [1990] ECHR 8; [1989] ECHR 20; 11454/85; (1989) 12 EHRR 434; [1989] ECHR 20
20 Nov 1989
ECHR

Human Rights, Criminal Practice
K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled him to demonstrate the witnesses unreliability. Held: There had been a violation of article 6(3)(d) where the court treated the statements of anonymous witnesses, who had been examined in the absence of the accused and his representatives, as sufficient proof of guilt of armed robbery. The Court explained its approach: "In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of Article 6, provided the rights of the defence have been respected.
As a rule, these rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings." and "The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency. The Convention does not preclude reliance at the investigation stage of criminal proceedings on sources such anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction as in the present case is a different matter. It involved limitations on the right of the defence which were irreconcilable with the guarantees contained in Article 6."
European Convention on Human Rights 6(3)(d)
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