The defendant appealed against sentence after being found in contempt. His lawyers had filed a defence statement, based on the defendant’s case, which the judge felt was inadequate. It was said that the defendant was in contempt after failing to amend it as required by the judge. He appealed against a sentence of imprisonment.
Held: Section 11 provides the sanction for failure to comply with the statutory duty, first to file a defence statement, and second to put into it those things which are required by section 6A. The sanction is comment by either the court or any other party and the freedom of the tribunal of fact to conclude that the explanation for such a failure contributes to the case against the defendant as indicating that the failure is attributable to his guilt. The course taken by the judge was different, but that this was at a pretrial stage where different sanctions were available.
At the time, it was not possible for the judge to know whether the defence statement was incomplete, and nor was he entitled to require counsel to reveal his instructions if no positive case was going to be made in the choices apparent at the time. ‘ The sanction for non-compliance is explicit in the statute in section 11. It is not open to the court to add an additional extra statutory sanction of punishment for contempt of court.’
Since the duty to file a defence statement was statutory, it was not open to deence counsel to advise a client not to do so. What should happen where a defendant proposed no positive defence to his lawyers must be decided by them on a case to case basis, but: ‘The defence statement must say that the defendant does not admit the offence or the relevant part of it as the case may be, and calls for the Crown to prove it. But it must also say that he advances no positive case because if he is going to advance a positive case that must appear in the defence statement and notice of it must be given. Unless the requirement is that the statement is made but no positive case is advanced it would be open to defendants simply to ignore section 5(5) and 6A.’ and ‘the lawyer’s duty is first of all never to advise either the absence of a defence statement or the omission from it of something which section 6A requires to be there because of the way the trial is going to be conducted. The lawyer’s duty is not to give the defendant advice on what to do. The lawyer’s duty is to explain the statutory obligation that he has and to explain the consequences which follow from disobedience of it.’
Hughes LJ VP, Rafferty DBE, Maddison JJ
[2010] EWCA Crim 1928, [2011] 1 Cr App R 11, [2011] 1 WLR 534
Bailii
Criminal Procedure and Investigations Act 1996, Adminsitration of Justice Act 1960 13
England and Wales
Citing:
Cited – Penner, Regina v CACD 5-May-2010
The combination of the 1996 Act and the Criminal Procedure Rules had or at least were designed to abolish what was known as trial by ambush. . .
Cited – Kelly, Regina (on the Application of) v Warley Magistrates Court and The Law Society Admn 31-Jul-2007
. .
Cited by:
Cited – Regina v Farooqi and Others CACD 30-Sep-2013
Defendants appealed against their conviction of terrorist acts alleging incompetence by their leading counsel.
Held: The appeal failed: ‘ Notwithstanding many unfortunate features of this trial the convictions of three of the defendants, and . .
Lists of cited by and citing cases may be incomplete.
Criminal Sentencing, Criminal Practice
Updated: 08 January 2022; Ref: scu.426481
