From the Archers to Archbold – week ending 04/09/16
Rob eyes up and snares his latest victim in Charlotte, the new nanny for Henry and Jack (I refuse to refer to him as Gideon). Ian stands up to Rob and rejects Rob’s “advice” to stay away from the proceedings. Ian is a defence witness and so Rob is sailing close to the wind with the implicit threats that he has made. I am really glad that Ian resisted the temptation to clock Rob, even though some might think he thoroughly deserved it.
Kas made an attempt on her life having found out that her partner, Blake, had removed her daughter from Kas’s grandmother’s care. It turns out that Kas’s crisis was the catalyst that Helen needed to get her head straight and she has since been much more forthcoming with Anna, her barrister.
“The stakes are very high”
Carol is worried about the amount of work Anna is doing in preparing Helen’s case. Anna worked over the bank holiday weekend. The reality is that most solicitors practicing criminal law work ridiculously long hours. The nature of the work means that someone’s future, quite literally, depends on how well or not, the job is done. My roomie is in the middle of a trial at the moment. She has worked in excess of 50 hours every week for the last 3 weeks. Along with the paralegals in the case she has, in addition, worked the last 3 weekends. I am not seeking sympathy for lawyers. Rather pointing out the huge personal and professional commitment that is required to practice in this area of law. The most onerous cases are the ones where the defendant is so obviously innocent. Moments of self-doubt and concern, as Anna has expressed this week, are in fact a sign of how seriously she takes her job. When I stop worrying about my clients or start feeling overly confident, I know it is time to find another job. Having someone else’s future in your hands should always be a cause for concern.
What is Anna actually doing to prepare the case?
In addition to taking instructions the preparation of Helen’s case includes:
- Considering the prosecution evidence – identifying the strengths and weaknesses
- Collating the defence evidence
- Drafting applications e.g. to admit bad character
- Drafting areas for the examination of witnesses. (see later)
- Preparing for anticipated applications e.g. the crown will make an application under s34 of the Criminal Justice and Public Order Act 1994 inviting the jury to draw an adverse inference from Helen’s failure to answer questions in her police interview. In law, an inference is a common sense conclusion based on the facts/evidence. Helen is relying on self-defence but, did not raise this in her police interview (and, given that she is only now giving Anna the details of the incident these will not have been particularised in her defence statement either). The prosecution will ask the judge to direct the Jury to the effect that they can hold these failures against Helen if they think she could reasonably have raised a particular fact at the time she was questioned (or when she submitted the defence statement). If the jury think that Helen failed to raise a fact, which she now relies on because either:
- she did not have an answer at the time (or one that would stand up to scrutiny when questioned); or
- she has simply made it up since then to provide her with or bolster her defence;
Then the inference goes in to the mix (against Helen) when the jury are considering her guilt or innocence.
Admitting evidence at the trial
This can be done in a number of ways including:
- Live Evidence;
- Agreed witness statements; or
- Agreed facts
This is when the witness actually attends court to give evidence. The witness gives their evidence (referred to as evidence in chief) and is then questioned by the opposing side (cross examination).
Examination in chief is undertaken by the party who has called the witness e.g. Rob’s examination in chief will be led by the advocate for the Crown/prosecution because he is a prosecution witness. The questioner cannot lead the witness i.e. ask questions in a way that points to the answer e.g. you did nothing to provoke Helen did you? Questions are more likely to be open-ended e.g. can you tell me what happened or what did you do next?
The rules for cross examination are different and here closed questions (bordering on statements) are common e.g. you told Helen the only way she could leave you is if she killed herself, didn’t you?
The Crown’s main and likely first witness will be Rob. Rob has already given a statement, which Anna has seen, but his statement is not “evidence” until the information in his statement is elicited in evidence during examination in chief. He will then answer questions from Anna who will seek to undermine his evidence by identifying discrepancies in his account and drawing out the things he has failed to mention or sought to minimise. For instance, the fact that he took the knife out of the drawer and the way he goaded Helen to kill herself. Anna must carefully identify the areas for cross examination and decide how she will approach them. Sorry, but It is nothing like American legal dramas. Showy dramatic pauses, hastily shouted “objections” and paralegals running in clutching the vital piece of exculpatory evidence, really do not happen in the UK criminal courts.
The best kind of cross examination seeks to:
- Secure agreement on the basic facts to fix the witness with a position e.g. Helen has a phone which does not belong to you; You met Helen at Henry’s school on the day Helen attended with Kristy intending to take Henry out of school.
- Puts Helen’s case – The only reason you knew about the meeting was because you placed a tracking device on Helen’s phone as part of your campaign to undermine her, didn’t you? The “didn’t you” is required because there must be a question or proposition (advocates are not allowed to simply make comment or sweeping statements until the speeches at the end of the trial).
- Helen did not give you permission to place a tracker on her car (which completes the facts necessary for the behaviour to be a crime or otherwise reprehensible and indicative of the level of control which resulted in Helen’s actions.
As an advocate I often start my trial preparation by deciding what facts I am required to establish in order to:
- legally defend the charge e.g. self-defence;
- make the speech I want to make at the end of the trial to support the legal or factual case.
Only then will I consider and draft the questions I need to ask, to elicit necessary evidence.
Agreed witness statements aka Section 9 Statements
Where a witness has made a statement and neither the prosecution nor the defence take issue with the content of the statement i.e. there is no need for cross examination, the parties can agree that the statement is simply read to the jury at the trial (pursuant to section 9 of the Criminal Justice Act 1967). Section 9 statements contain wording to confirm that the witness is telling the truth and is aware that they are liable to prosecution if the contents of the statement are found to be wilfully untrue. The judge will tell the jury that the statement is to be treated in the same way as live evidence.
In Helen’s case statements such as the statement from the officer who arrested Helen are likely to be read as s9 statements. However, statements such as the statement from the doctor who treated Rob are unlikely to be read. This is because despite seemingly uncontroversial nature of the evidence, the fact that there are two wounds, the order in which order they occurred, the tract, depth and direction of the wound together with the level of force employed are important matters for both the prosecution and the defence to explore.
Evidence can be admitted as an agreed fact between the prosecution and the defence under section 10 of the Criminal Justice Act 1967 without the need for a live witness or a witness statement. These agreed facts are drafted before and during the trial to deal with uncontroversial but essential evidence. The agreed facts can cover a range of issues, for instance, the fact that Helen was interviewed, that she did not answer questions, that Helen does not have any relevant previous convictions.
The combined effect of Section 9 statements and Section 10 Agreed Facts is to deal with the case expeditiously, so that court time is used effectively to deal with only those issues that are contentious.
Understatement of the week
Goes to Kas, who in her heart to heart with Helen says “you and me, we are not that different”. You are spot on Kas. I accept that some people make a career out of it, but it is not, generally, “other” people who end up as defendants in our courts. There are a large proportion of ordinary, hardworking, honest people who find themselves facing a court of law. It could be me, it could be you.