Steps for criminal defence solicitors to consider when gathering information at the pre-charge stage of an investigation

The need for criminal defence solicitors to take pro-active steps to gather information in support of their client’s defence, and not simply rely on prosecuting authorities to do so, has been highlighted by a Judgment given earlier this year by the Administrative Court.

In Morris v DPP [2014] EWHC 105 (Admin) the appellant was convicted of common assault in February 2013 at Watford Magistrates Court. She appealed her conviction by way of case stated on the basis that the magistrates should have acceded to an application made on her behalf to stay the proceedings as an abuse of process.

The background to the case was as follows. The appellant was alleged to have assaulted a fellow student after leaving a lesson at the college they both attended. It was alleged that the appellant began shouting abusively towards victim. After attempts to calm the appellant failed, the victim slapped her lightly to her face. In response, the appellant punched and kicked the victim resulting in injuries to her torso, arms, forehead and left eye. The appellant maintained that she had acted in lawful self-defence.

Following the incident, the appellant attended the police station voluntarily and was interviewed under caution. She was represented by a solicitor. During the course of the interview the appellant named potential witnesses that she said would support her defence. Following the interview, she also contacted the officer dealing with the case and provided contact details for the witnesses that she had named during the interview.  It later transpired that the police did not take steps to contact the witnesses that the appellant had named.

Prior to her trial in the magistrates court the appellant argued that she could not receive a fair trial as there was no tape recording or transcript available of her interview and the police constable dealing with her case had failed to take statements from the potential witnesses that she had identified during the course of her interview. The Magistrates Court refused to stay the proceedings as an abuse of process, the trial took place and the defendant was convicted. Essentially the Magistrates held that no serious prejudice would result as the witnesses were known to the appellant and there had been plenty of time for her to contact the witnesses herself.

The appeal by way of case stated did not pursue the argument that no fair trial was possible by reason of a failure by the police to retain the tape of the interview and/or make a transcript. The appeal focused on whether the Magistrates should have stayed the proceedings as an abuse of process on the basis that the police failed to take statements from the potential witnesses notified to them by the appellant.

When considering this issue, the Administrative Court firstly emphasised that the power of justices to stay criminal proceedings for an abuse of process is to be used sparingly. The court applied the guidance contained in R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr App R 23. Where a complaint raised by an accused relates to the non-availability of evidence, Ebrahim stated that the following should be considered:

• The nature and extent, in the particular circumstances of the case, of the duty, if any, of the investigating authority and/or of the prosecutor to obtain and/or retain the material or evidence in question. If, in the circumstances, there is no duty to obtain and/or retain that material before the defence first seeks its retention, then there can be no question of the subsequent trial being unfair on that ground.

• If there is a breach of the obligation to obtain or retain the relevant material, it is next necessary to decide whether the defence has shown, on balance of probabilities, that owing to the absence of the relevant material the defence will suffer serious prejudice to the extent that a fair trial cannot take place.

The police constable had explained to the Magistrates that she had consulted with her Sergeant about whether she should contact the witnesses and take statements and was advised not to as the witnesses were known to the appellant and so they were only likely to be partial witnesses. It was also noted that following the issue of the summons attempts were made to contact the witnesses but three could not be reached. No detail was provided about any attempts made by the defence to contact the witnesses, when any steps were taken and what results were produced.

Whilst the Administrative Court accepted that the police constable was under a duty to contact the witnesses that had been named by the appellant, and obtain any information that they could provide, the court did not accept that the officer’s failure to take these steps caused the appellant to suffer serious prejudice to the extent that it was impossible for her to have a fair trial. The court stated that the appellant had the means herself to contact the witnesses and she could have asked them to give statements to her solicitor.

Importantly for solicitors who are considering what steps to take for a client at the pre-charge stage of an investigation, the Administrative Court commented that “throughout this period the appellant was represented. The importance of obtaining statements from eyewitnesses while events were fresh in their mind was, in my judgment, self-evident to any lawyer.” The court’s view was that the opportunity to obtain and retain evidence was just as much available to the appellant and her advisors as it was to the police.

The Judgment in Morris v DPP serves as an important reminder to defence solicitors that it will not be enough to pass the burden of gathering potential evidence solely to the police. This will have an inevitable impact on costs for clients when they are considering what steps should be taken on their behalf prior to any charging decision. However, where an opportunity to pursue defence evidence is available to the defence team, a proactive role by defence lawyers is expected and a defendant may find themselves prejudiced by a decision to take a passive role.