swarb.co.uk - law index
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Criminal Practice - From: 1991 To: 1991
This page lists 33 cases, and was prepared on 21 May 2019.
Regina v Stinchcombe (1991) 68 CCC (3d) 1
1991
Sopinka J
Commonwealth, Criminal Practice
(Supreme Court of Canada) The Crown had decided not to call a witness who was considered unworthy of credit by Crown counsel. The witness could have given evidence directly relevant to the issues arising at the trial. The Crown also refused to disclose the statements of the witness to the defence. Held: Crown counsel misconceived his obligation to disclose the statements. Crown counsel had refused disclosure because in his view, the witness was not worthy of credit. This was not an adequate explanation. The trial judge ought to have examined the statements and erred in holding that the Crown counsel was not under an obligation to make disclosure of the statements. The failure of the Crown to make disclosure impaired the right of the accused to make full answer and defence. It must be assumed that non-production of statements was an important factor in the decision of the defence not to call the witness. The absence of this evidence might very well have affected the outcome. Accordingly, the appeal must be allowed and a new trial ordered at which the statements should be produced.
Stopinka J said: "I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done." and "Refusal to disclose is also justified on the ground that the material will be used to enable the defence to tailor its evidence to conform with information in the Crown's possession. For example, a witness may change his or her testimony to conform with a previous statement given to the police or counsel for the Crown. I am not impressed with this submission. All forms of discovery are subject to this criticism. There is surely nothing wrong in a witness refreshing his or her memory from a previous statement or document. The witness may even change his or her evidence as a result. This may rob the cross-examiner of a substantial advantage but fairness to the witness may require that a trap not be laid by allowing the witness to testify without the benefit of seeing contradictory writings which the prosecutor holds close to the vest. The principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material."
1 Citers
Regina v Bolton Magistrates' Court, ex parte Merna; Regina v Richmond Justices, ex parte Haines [1991] Crim LR 848; [1991] 155 JP 612
1991
Magistrates, Criminal Practice
The divisional court should intervene where a defendant has been deprived of a fair opportunity to present his case because of his own unavoidable absence.
1 Citers
Regina v Robb [1991] 93 Cr App R 161
1991
CACD
Bingham LJ
Criminal Practice
The evidence of an expert to prove identification by voice was admissible. Also voice recognition evidence given by a phonetician was admissible as expert evidence; and that evidence of police officers who listened to disputed tapes and recognised the voice of the person speaking was admissible as factual evidence, subect to section 78 considerations.
Bingham LJ accepted that the phonetician was sufficiently qualified to give expert evidence on voice recognition. He said of the expert, Dr Baldwin: "He was entitled to be regarded as a phonetician well qualified by academic training and practical experience to express an opinion on voice identification. We do not doubt that his judgment, based on close attention to voice quality, voice pitch and the pronunciation of vowels and consonants, would have a value significantly greater than that of the ordinary untutored laymen, as the judgment of a hand-writing expert is superior to that of the man in the street."
Police and Criminal Evidence Act 1984 78
1 Citers
Regina v Edwards [1991] 1 WLR 207; [1991] 93 CAR 48
1991
CACD
Lord Lane CJ
Criminal Practice
The appellant was convicted of robbery with a firearm and sentenced to 14 years. The evidence included police evidence of his confessions in interview. He challenged the veracity of the interview notes, alleging that the police officers concerned had 'fitted him up'. After the trial those representing the appellant discovered that one of the senior officers concerned had, two months before the trial, been reprimanded for certifying interview notes in another trial when these, to his knowledge, had been wrongly rewritten. The fact that this officer was facing disciplinary proceedings should have been disclosed to the defence. Held: The court set out to control the questions that may be asked on behalf of a defendant in a criminal trial of officers who are members of a police force which has obtained a reputation for bad behaviour. The court considered at length the use to which the defendant could have put of evidence of the police officer's previous misconduct, had he been aware of this: "The test is primarily one of relevance, and this is so whether one is considering evidence in chief or questions in cross-examination. To be admissible questions must be relevant to the issue before the court.
Issues are of varying degrees of relevance or importance. A distinction has to be drawn between, on the one hand, the issue in the case upon which the jury will be pronouncing their verdict and, on the other hand, collateral issues of which the credibility of the witnesses may be one. Generally speaking, questions may be put to a witness as to any improper conduct of which he may have been guilty, for the purpose of testing his credit. " and "The distinction between the issue in the case and matters collateral to the issue is often difficult to draw, but it is of considerable importance. Where cross-examination is directed at collateral issues such as the credibility of the witness, as a rule the answers of the witness are final and evidence to contradict them will not be permitted: see Lawrence J in Harris v Tippett (1811) 2 Camp 637, 638. The rule is necessary to confine the ambit of a trial within proper limits and to prevent the true issue from becoming submerged in a welter of detail."
As to the admission of evidence to suggest that the testimony of a police witness appeared to have been disbelieved in a previous trial: "The acquittal of a defendant in case A, where the prosecution case depended largely or entirely upon the evidence of a police officer, does not normally render that officer liable to cross-examination as to credit in case B. But where a police officer who has allegedly fabricated an admission in case B, has also given evidence of an admission in case A, where there was an acquittal by virtue of which his evidence is demonstrated to have been disbelieved, it is proper that the jury in case B should be made aware of that fact. However, where the acquittal in case A does not necessarily indicate that the jury disbelieved the officer, such cross-examination should not be allowed. In such a case the verdict of not guilty may mean no more than that the jury entertained some doubt about the prosecution case, not necessarily that they believed any witness was lying."
1 Cites
1 Citers
Regina v Harrow Justices ex parte Director of Public Prosecutions [1991] 1 WLR 395
1991
Magistrates, Criminal Practice
In order to use the power to issue a warrant of commitment, committing the defaulter to custody, the court must conduct a fair and public hearing to decide what is the appropriate order to make in all the circumstances. The power to issue the warrant is discretionary. Such a warrant is a mode of enforcement of last resort.
Magistrates Court Act 1980 76
1 Citers
HM Advocate v Mechan [1991] CLY 4657
1991
Scotland, Criminal Practice
1 Citers
Swankie v H M Advocate; 1991 - (1999) SCCR 1
Regina v Bean [1991] Crim LR 843
1991
Criminal Practice
Jury - Enquiry
1 Citers
Regina v Leeds Crown Court ex parte Switalski [1991] COD 119; (1991) CLR 559
1991
Judge Savill QC, Neill LJ
Criminal Practice, Police, Legal Professions
It is preferable, in an ordinary case, for an application for a search warrant in a solicitor's office to be made on notice. However, if a solicitor under investigation were to have knowledge of what was contemplated the material sought might disappear or be tampered with before it could be seen by the investigator, a judge might be persuaded that an ex parte application was appropriate and necessary.
Neill LJ said: "There is . . . a very powerful argument in support of the proposition that a warrant issued under section 9 schedule 1 of the 1984 Act should, however wide its scope, contain some express condition to exclude items subject to legal privilege."
Police and Criminal Evidence Act 1984 10
1 Citers
Regina v Acton Justices ex parte McMullen and others (1991) 92 Cr App R 98
1991
CACD
Criminal Practice
Evidence in support of an application for a witness' statement which was to be read out, should be supported by oral evidence, though that may properly be given by a police officer.
Criminal Justice Act 1988 23(3)
1 Citers
Regina v Cantor [1991] Crim LR 481
1991
CACD
Criminal Practice
The court of appeal declined to lay down any rules of practice concerning changes of plea. It was for trial judges to decide how to respond to an application for that to be done.
1 Citers
Regina v Lucas [1991] Crim LR 844
1991
CACD
Lord Woolf CJ
Criminal Practice
An appellant should not be allowed to make tactical decisions not to object to something at his trial, but to save it for an appeal: "an appellant should not be able to blow hot and cold in this way." and "The appellant had himself been made aware of the contents of the note. He, having been made aware of the contents of the note through his counsel, did not dissent from the course proposed by the judge, namely to take a verdict. As was pointed out in argument, for him now to seek to challenge that verdict means that he waited to see whether the verdict was favourable or not, and only sought to challenge the right of the jury to bring in a verdict when he has ascertained, in relation to one count, that the verdict is unfavourable to him. It cannot be satisfactory that in a situation of this sort an appellant should blow hot and cold, albeit through counsel."
1 Citers
Farmer v HM Advocate 1991 SCCR 986
1991
Criminal Practice, Scotland
The judge warned the jury of the dangers in assessing evidence: "The task of assessment is not an easy one: it is certainly one which has to be approached with great care and circumspection."
1 Citers
Regina v Bentley [1991] Crim LR 620
1991
CACD
Lord Lane CJ
Criminal Practice
Where an identification depends upon the recognition by the witness of a person or persons previously known to him, the jury should be reminded that there is remains a risk for mistake in such cases. Many people have experienced thinking that they had seen someone in the street whom they knew, only to discover that they were wrong.
1 Cites
1 Citers
Ex parte Central Independent Television [1991] 1 WLR 4
1991
Lord Lane CJ
Criminal Practice, Media
An appeal under section 159 can be made even after the reporting restriction order has been discharged.
Criminal Justice Act 1988 159
1 Citers
Regina v Stafford Justices ex parte Customs and Excise Commissioners; 1991 - [1991] 2 QB 339; [1991] 2 All ER 201; [1990] Crim LR 742; [1990] 3 WLR 656; (1990) 154 JP 865
Regina v Telford Justices, ex parte Badhan; CACD 1991 - [1991] 2 QB 78; [1991] 2 All ER 854; (1991) 93 Cr App R 171; [1991] 2 WLR 866
Director of Public Prosecutions v Denning [1991] 2 QB 532
1991
Nolan LJ
Criminal Practice, Costs
Nolan LJ considered the test for whether proceedings had been begiun "unnecessarily or improperly"so as to decide the question of costs awards in Magistrates proceedings, saying: "I would add in this connection that the word 'improper' in this context does not necessarily connote some grave impropriety. Used, as it is in conjunction with the word 'unnecessary', it is in my judgment intended to cover an act or omission which would not have occurred if the party concerned had conducted his case properly."
1 Citers
Regina v Crown Court Woodgreen, ex parte Howe (1991) 93 Cr App R 213
1991
QBD
Watkins LJ and Anthony Evans J
Criminal Practice
The applicant has no right to make more than one application under section 31(1).
Powers of Criminal Courts Act 1973 31
1 Citers
Regina v McCann and Others; CACD 1991 - (1991) 92 Cr App R 239
Regina v Chief Constable of Kent ex parte L [1991] 93 Cr App R 416
1991
Tasker Watkins LJ
Criminal Practice
The discretion which is vested in the Crown Prosecution Service to continue criminal proceedings commenced by the police is subject to judicial review by the High Court, but only where it can be shown that the decision was made regardless of, or clearly contrary to, a settled policy of the Director of Public Prosecutions evolved in the public interest.
1 Citers
In Re O (Restraint Order: Disclosure of Assets); 1991 - [1991] 2 QB 520
Cameron v HM Advocate 1991 JC 252
1991
Scotland, Criminal Practice
1 Citers
Regina v Lewes Crown Court ex parte Hill; 1991 - [1991] 93 Cr App R 60
Director of Public Prosecutors v Gane [1991] Crim LR 711; [1991] JP 846
1991
Admn
Taylor LJ, Rougier J
Magistrates, Criminal Practice
The defendant was charged with driving with excess alcohol and being in charge of a vehicle with excess alcohol. It was clear that on the facts the former charge included the latter. The magistrates found the facts proved but convicted only on the driving charge and acquitted on the lesser charge. The prosecutor appealed by way of case stated. The justices stated in the case that they had concluded that it would be oppressive to convict on the lesser charge because they were only dealing with a single set of facts. Held: The court said that the Magistrates' Court was wrong to acquit on the lesser charge. Taylor LJ said: "If, however, the prosecution had at that stage wished to keep its position open, pending any possible appeal with regard to the driving offence, certain alternatives were available.
Section 10 of the Magistrates' Courts Act 1980 provides for adjournment of trial as follows: 'A magistrates' court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.'
The justices could, therefore, have adjourned the alternative charge No.2 sine die, which would have left it open for them to pursue it to conviction had the matter been referred back after a successful appeal on charge 4. Alternatively, they could have convicted of it and imposed a concurrent disqualification on that charge but no further penalty if they felt it would have been oppressive to have imposed any further fine. The result of that would have been that if a successful appeal had been mounted in regard to the driving charge there would still have remained a conviction on the alternative offence of charge 2 with an appropriate disqualification, although of course no fine."
Magistrates' Courts Act 1980 10
1 Citers
Regina v Toner (1991) 93 Cr App R 382
1991
CACD
Russell LJ
Criminal Practice
The defendant sought to have admitted expert evidence on the possible effect of hypoglycaemia on the formation of an intention: ". . we do not know what, if any, effect mild hypoglycaemia can have upon a man's ability to form an intent, and without that expert evidence the jury were deprived of assistance in a field where their ordinary experience did not enable them to judge for themselves."
1 Citers
Regina v Crook (1991) 8 Cr App R (S)
1991
Criminal Practice
A journalist appealed against orders excluding the press and public while the judge considered where the jury should sit, and again as to the behaviour of a jury member. Held: There may be circumstances where it was appropriate to distinguish between the press and public when making such decisions, allowing the press to stay when the public would be excluded.
1 Citers
Regina v Stinchombe (1991) 68 CCC (3d)
1991
Sopinka J
Criminal Practice, Commonwealth
(Supreme Court of Canada) Sopinka J described the fruits of a police investigation as: "not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done."
1 Citers
Regina v Moore Unreported, 5 February 1991
5 Feb 1991
CACD
Lane CJ
Criminal Practice
The court considered whether to quash a count of theft: "The fact that a possible incidental effect of the purposes of the application does find itself within those sub-provisions (a) to (d) is not one of the purposes of those provisions. It is the word "purpose" by which the situation is governed. In our judgment it is improper and misconstruction to redraft the wording so as to substitute some such word as "consequences" for the word "purpose". So far as the motion to quash is concerned, it does not, in our judgment, come within those four sub-provisions. Basing ourselves on Gunawardena by which we are bound, and with which we respectively agree, in our judgment the prosecution's argument succeeds. There is no jurisdictional basis upon which this Court can entertain the appeal."
1 Cites
1 Citers
Regina v Chrastny (No 2) [1991] 1 WLR 1385; Times, 14 March 1991
14 Mar 1991
CACD
Criminal Practice
The defendant was the only one of several defendants convicted of involvement in a drugs case. He appealed a confiscation order under which he carried the entire weight of the confiscation order. Held: The order was correct provided that the court could assess the value to be attributed to the proceeds of drug trafficking, and that the defendant had had a sufficient degree of control. The words 'realisable property' in the Act included also property which had been acquired legitimately, and therefore such property could be included in the calculations.
Drug Trafficking Offences Act 1986 5(1)
1 Citers
Attorney-General of Trinidad and Tobago v Whiteman [1991] 2 AC 240; [1991] UKPC 16; (1991) 39 WIR 397
17 Apr 1991
PC
Keith of Kinkel, Templeman, Griffiths, Ackner, Jauncey of Tullichettle LL
Commonwealth, Criminal Practice, Constitutional
(Trinidad and Tobago) The time at which an arrested or detained person is to be informed of his/her right to consult with a legal adviser of choice is at a stage before the commencement of "in-custody interrogations".
Lord Keith, in delivering the opinion of the Judicial Committee said:
"Their Lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)( h ) of the Constitution of 1976 and on the basis of a settled practice existing when that Constitution was introduced. Davis JA said towards the end of his judgment of the Court of Appeal:
'I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any "in-custody interrogation" takes place.'
Their Lordships would endorse that. It is possible to envisage circumstances where it would not be practicable to inform the person of his right immediately upon his arrest. They would add that it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information."
1 Citers
[ Bailii ]
Oberschlick v Austria (1991) 19 EHHR 389; 11662/85; [1991] ECHR 30
23 May 1991
ECHR
Human Rights, Media, Criminal Practice
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of appeal was the same judge as had presided over it on the first occasion, contrary to the code of criminal procedure. The journalist complained that the court of appeal on the second occasion was not an independent and impartial tribunal. Held: An argument that he had impliedly waived that right because he had not raised this objection at the hearing of his appeal was rejected, on the ground that neither he nor his counsel were aware until well after the hearing of all the circumstances that provided grounds for objecting to the tribunal on the grounds of impartiality.
The Court reiterated that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. Whilst the press must not overstep the bounds set, inter alia, in the interests of "the protection of the reputation and rights of others", it is nevertheless to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of 'public watchdog'. Although formulated primarily with regard to the print media, these principles doubtless apply also to the audio-visual media.
European Court of Human Rights 10
1 Citers
[ Bailii ] - [ Bailii ]
Hui Chi-ming v The Queen; PC 5-Aug-1991 - [1992] 1 AC 34; [1991] 3 All ER 897; [1991] 3 WLR 495; Gazette, 02 October 1992; [1991] UKPC 29; [1991] UKPC 29; (1991) 94 Cr App R 236
