Experts, Adjournments and the Death of Legal Professional Privilege

On 28th March 2019, the Lord Chief Justice issued the eighth amendment to the Criminal Practice Directions 2015. Those changes came in to force on 1st April 2019 and they have a familiar and slightly depressing tone. Benjamin Knight highlights the changes most likely to affect the way lawyers must deal with matters from April Fools’ Day 2019.

Benjamin Knight

The CrPDs 2015 have the effect of law. They are frequently only relied upon where one or other party is fed-up of failings or where something is going wrong with proceedings. It may be for this reason that the new edition begins with a rather prescriptive additional paragraph to the overriding objective.

1A.3      The Criminal Procedure Rules and the Criminal Practice Directions are the law. Together they provide a code of current practice that is binding on the courts to which they are directed, and which promotes the consistent administration of justice. Participants must comply with the Rules and Practice Direction, and directions made by the court, and so it is the responsibility of the courts and those who participate in cases to be familiar with, and to ensure that these provisions are complied with.

It does rather sound as though the Lord Chief’s office is rather tired of the blasé approach of some to the CrPRs and CrPDs. So, obviously, one can expect a nice, even-handed tweaking of what follows in this update. Well, the Lord Chief gives with one hand and takes with another, that’s for sure.

Below, I have extracted the changes that bite the hardest and which bite quickest.

Experts with skeletons in their closets

I would like to start with the new rules on “Expert Evidence”. This one will be of crucial importance to defence lawyers and prosecutors alike. I would even suggest opening your template Defence Case Statement document and adding to it as you read.

Rules 19A.1-6 remain the same and they deal with admissibility of expert evidence. However, my issue with those rules is that they more or less require the court, the judge and the lawyers to exercise their scientific minds to the meaning of the expert evidence. That’s no small feat when some areas of expert testimony are so complicated that only computer algorithms are able to produce analysis of the data in question. And, whilst we have “sex ticket” judges and “designated POCA judges”, we do not yet have “tech ticket” judges. I have written about this several times before and will be revisiting the subject in a future article, no doubt.

My issue with the existing Rules 19A.1-6 is that one may expect an expert’s written conclusions to be intelligible to the lay person or the lawyer – but are those people really in any position to scrutinise the methodology of the expert? You may think not. So, where one expert is instructed, as night follows day, a second expert may be expected, if only to verify the route to the conclusions of that first expert.

New CrPD 19A.7 does give the expert witness a good shake up and down. Its purpose is to require the party introducing an expert to give notice of anything that might reasonably be expected to undermine that expert’s reliability, credibility or impartiality.  CrPR 19.2(3)(d) obliges the expert to give that information to those who seek its disclosure.

The new Practice Direction helpfully provides a non-exhaustive list of the sort of thing that might be caught by this provision and it is this list that I would suggest ought to be added to any Defence Case Statement in a case where the Prosecution relies upon an expert.

It requires the disclosure of:

(a) any fee arrangement under which the amount or payment of the expert’s fees is in any way dependent on the outcome of the case (see also the declaration required by paragraph 19B.1 of these directions);

(b) any conflict of interest of any kind, other than a potential conflict disclosed in the expert’s report (see also the declaration required by paragraph 19B.1 of these directions);

(c) adverse judicial comment;

(d) any case in which an appeal has been allowed by reason of a deficiency in the expert’s evidence;

(e) any adverse finding, disciplinary proceedings or other criticism by a professional, regulatory or registration body or authority, including the Forensic Science Regulator;

(f) any such adverse finding or disciplinary proceedings against, or other such criticism of, others associated with the corporation or other body with which the expert works which calls into question the quality of that corporation’s or body’s work generally;

(g) conviction of a criminal offence in circumstances that suggest:

(i) a lack of respect for, or understanding of, the interests of the criminal justice system (for example, perjury; acts perverting or tending to pervert the course of public justice),

(ii) dishonesty (for example, theft or fraud), or

(iii) a lack of personal integrity (for example, corruption or a sexual offence);

(h) lack of an accreditation or other commitment to prescribed standards where that might be expected;

(i) a history of failure or poor performance in quality or proficiency assessments;

(j) a history of lax or inadequate scientific methods;

(k) a history of failure to observe recognised standards in the expert’s area of expertise;

(l) a history of failure to adhere to the standards expected of an expert witness in the criminal justice system.

Of course, this list is also something that should form a part of the letter of instruction to any expert upon which the defence may seek to rely. So maybe add the list to your template letters now.

CrPDs 19A.8-9 deal with the extent of the duty of the disclosure in relation to previous criticism and what happens when the court finds that the case requires a more “searching examination of the circumstances” of that criticism. The ultimate sanction of an adverse finding is that the evidence may be excluded pursuant to s.81 of PACE 1984 or s.20 of CPIA 1996.

Adjournments codified for the Magistrates’ and Crown Courts

I do not propose to rehearse the details of these provisions – there are 32 new paragraphs) but I rather direct you to CrPD 24C.1 for the Magistrates’ Courts provisions; for the Crown Court, see CrPD 25B.1

All practitioners will be familiar with cases such as Director of Public Prosecutions v Petrie [2015] EWHC 48 (Admin) and DPP v Picton [2006] EWHC 1108 (Admin) and most of this Practice Direction can be seen as the codification of the ratio of those authorities.  

I will only highlight one important element of this codification. It is the part that deals with adjournments where failures in disclosure are the issue. For this, please read the following paragraphs because, although the law herein is not new, I have a feeling that these paragraphs will be cited ad nauseum:

24C.25 If the prosecutor has complied or purported to comply with his or her initial disclosure obligations, no further material is disclosable and consequently no application to adjourn should be entertained unless the defendant has served a defence statement in accordance with section 6 of the Criminal Procedure and Investigations Act 1996 and CrimPR 15.4.

24C.26  If the defendant has served a defence statement and asks for further disclosure, in consequence of the prosecutor’s allegedly inadequate response or in consequence of a failure to respond at all, the court has no power to entertain an application for that further disclosure unless it is made pursuant to section 8 of the Criminal Procedure and Investigations Act 1996 and CrimPR 15.5. The court should consider hearing such an application immediately, provided that there is sufficient time available for the application itself and then for the defence to consider any material disclosed in consequence of it.

I present those paragraphs without further comment. Maybe we all need to get better at using defence case statements in the magistrates’ courts and non-compliance letters. But this is easier said than done when defence firms have been stripped to the bone by legal aid cuts.

Trials in absence

Again, this is more the codification of existing common law and statute but it is worth highlighting.

“Absence of defendant

24C.17  If a defendant has attained the age of 18 years, the court shall proceed in his absence unless it appears to the court to be contrary to the interests of justice to do so: section 11 of the Magistrates’ Courts Act 1980. In marked contrast to the position in the Crown Court, in magistrates’ courts proceeding in the absence of a defendant is the default position where the defendant is aware of the date of trial and no acceptable reason is offered for that absence. The court is not obliged to investigate if no reason is offered. In assessing where the interests of justice lie the court will take into account all factors, including such reasons for absence as may be offered; the reliability of the information supplied in support of those reasons; the date on which the reasons for absence became known to the defendant; and what action the defendant thereafter took in response. Where the defendant provides a medical note to excuse his or her non-attendance the court must consider 5C of these Practice Directions (issue of medical certificates) and give reasons if deciding to proceed notwithstanding.

24C.18  If the court does not proceed to trial in the absence of the defendant it is required by the 1980 Act to give its reasons, which must be specific to the case: section 11(7), and see also CrimPR 24.16(h).

24C.19  Where a defendant is under 18, there is no presumption that the court should proceed in absence. In deciding whether it is in the interests of justice to proceed the court should take into account:

that trial in absence can and sometimes does result in acquittal and that it is in nobody’s interests to delay an acquittal;

– that if convicted the defendant can ask that the conviction be re-opened in the interests of justice, for example if absence was involuntary;

– that if convicted the defendant has a right to a rehearing on appeal to the Crown Court;

– the age, vulnerability, or experience of the defendant;

– whether a parent or guardian is present, whether a parent or guardian ordinarily would be required to attend and whether such a person has attended a previous hearing;

– the interests of any co-defendant in the case proceeding;

– the interests of witnesses who have attended, including the age of any such witness;

-the nature of the evidence and whether memories of relevant evidence are liable to fade;

– how soon an adjourned trial can be accommodated in the court list.

When proceeding in absence or adjourning the court must give its reasons.

Absence of witness

24C.20  Where the court is asked to adjourn because a witness has failed to attend, the court must:

– rigorously investigate the steps taken to secure that witness’ attendance, the reasons given for absence and the likelihood of the witness attending should the case be adjourned;

– consider the relevance of the witness to the case, and whether the witness’ statement can be agreed or admitted, in whole or part, as hearsay, including under section 114(1)(d) of the Criminal Justice Act 2003;

– in the case of a defence witness, consider whether proper notice has been given of the intention to call that witness;

– consider whether an absent witness can be heard later in the trial;

– where other witnesses have attended and the court has determined that the absent witness is required, consider hearing those witnesses who are present and adjourning the case part-heard, provided the next hearing can be held conveniently in a matter of days or weeks, not months, to avoid having to recall all the witnesses.

I respectfully observe the following about these provisions.

First, if there were any doubts, the default position in the magistrates’ court is to proceed in absence.

The death of Legal Professional Privilege (LPP) and the “stay behind after class” provisions

Let me deal firstly with the HMCTS letter that has been doing the rounds and causing untold excitement. It is, as per usual, heavy-handed and overbearing in tone. But there is some truth in what the letter says is to be expected. The new paragraphs in CrPD 24 set out the actual new law. Again, as per usual, these new paragraphs are problematic.

I find it hard to read these new paragraphs without the feeling that the tone is slightly loaded. It is correct to say that the duty to properly raise issues that might affect the trial are split between the prosecution and defence. That has been so for many years. However, the batting-order of interests gives the defendant third billing and the following sentence has been put into the mix, where a change of plea occurs (at CrPD 24C.3):

“The sooner that notice of such a plea is given, the greater the reduction in sentence the defendant can expect. The court will expect an explanation for the change of plea to assess the level of credit to be applied.”

Well, the first sentence perhaps overstates its own importance. There is already a Sentencing Council Definitive Guideline on credit for guilty pleas. There is already statutory authority to that Guideline. The risk inherent in this Practice Direction is that the magistrates’ court reading it may well conclude that it is free to depart from the existing Guideline and to apply less credit than that Guideline requires.

The second sentence is one that has caused considerable excitement amongst defence lawyers – and not without good reason. How exciting this is rather depends upon what the reader imagines it to mean.

Legal Professional Privilege (LPP) still exists between a lay client and their lawyers. It is important to understand that there is a world of difference between a defendant being obliged to tell the court and prosecution what they admit, deny and positively assert about their case. This is a balancing exercise to avoid “ambush” defences, allow investigation that may assist them (Ed – yes, I know) and avoid an adverse inference being found against them. Crucially, it is not a requirement for the defendant to “show his working”. The defence lawyer’s duty not to mislead the court is not offended by a lawyer not telling all and sundry all the details of his instructions from his lay client.

We already have “cracked trial forms” and have had for some years. Often they say something like:

“Reason for crack:

Prosecution comment: defendant G plea to offence charged.

Defence comment: defendant now accepts prosecution’s case.”

Delightfully vague, of course. But probably accurate. What does it matter why the defendant now accepts the prosecution’s case? There is a good chance that this means, “defendant has now been told that the complainant is here and is prepared to give evidence, so accepts that he is probably going to get convicted, if he has his trial. He’d rather not because he’d quite like the tiny 10% credit that still remains on the table.”

Of course, it could mean, “defendant doesn’t really remember what happened but is worried that he’ll not be believed because he clearly has a drug problem.” Or maybe, “defendant has run out of money. He couldn’t get legal aid and now cannot find the cash for the trial so is going to throw his hand in because a conviction is better than becoming homeless.”

Perhaps it even means, “defendant has been asking through his lawyers for the evidence in this case to be served and it has only arrived with the prosecutor at court today. He was once told that the burden of proof is on the prosecution and, up until today, the prosecution couldn’t do so but they have now handed over the evidence that they had six months ago. He would have pleaded guilty then and happily taken the credit available then but the police/CPS has sat on this and, in doing so, has cheated him out of about 23% worth of that credit.”

But whatever his reasons, they are his reasons to give or not to give. He is under no obligation to explain himself to his lawyer or to the court. Less still is the lawyer in any position to offer-up the defendant’s reasons for his decisions to the court simply to please Her Majesty’s Statisticians.

It is my respectful submission to the reader that, irrespective of the wording of this CrPD, the correct way to approach the question of change of plea when mitigating is with an eye only to the exceptions found in Appendix F to the Definitive Guideline. That is to say, mitigate in the way that you always have. IF the plea was late because of the defendant wanting to see the whites of the eyes of his accuser, probably least said, soonest mended. If the delay was because you were not able properly to advise the defendant due to some later stage due to the usual list of reasons, say so.

Lord Chief Justice – Sir Ian Burnett

What this CrPD cannot and must not do is encourage you to disclose the private instructions of your lay client to the court or anybody else. It seems to me that the courts may need to be reminded of the constraints as to their discretion to hack away at the defendant’s credit. This new paragraph does not, I submit, add anything to the guidance found elsewhere. It must not do so.

What is Legal Professional Privilege (LPP) in this context?

Solicitors should see:

In short, LPP is what guards the communications between lay clients and their solicitors and barristers. It is regarded as being nigh-on sacrosanct in the law of England and Wales and has existed for over 400 years.  The Law Society guidance on LPP helpfully summarises it in this way:

Confidential communications between a lawyer and a client, and all material forming part of the continuum of those communications (Balabel v Air India [1988] 1 Ch 317) will attract legal advice privilege if they relate to public or private rights, liabilities, obligations or remedies or are otherwise made in a ‘relevant legal context’ (as described in Three Rivers (No 6) [2005] 1 AC 610).

We know that law enforcement agencies and professional regulators may not force a breach of privilege. Neither can the specific powers in, for example, s.29 of the Data Protection Act 1998.

So why does the Lord Chief Justice think that the CrPD can force such a breach? Why does HMCTS think it appropriate to write to solicitors and inform them that they must breach privilege?

In truth, neither the LCJ nor HMCTS probably do think that. The wording of the letter that was sent to solicitors last week and the wording of the new CrPD simply state that the court is expected to be told of the reason for a late guilty plea in so far as it affects credit. That does not mean that the courts (most likely, the magistrates’ courts) will not try to overplay their hand.

The duty on the legal representative

It is clear that advocates will have to be very careful when asked to give an explanation under the new provision. It is submitted that, only where the lawyer is able to agree what submission is to be made about the change in plea, with specific regard to credit, should such an explanation be proffered to the court. The alternative to such instructions being provided is simply that you are unable to answer due to LPP (and await the High Court case that seeks to deal with that).

I have seen suggested that the response should be that the lawyer has no instructions as to the answer. But that, respectfully, cannot be right. A change of plea necessitates some instructions.

There are, of course, various half-way answers such as, “change of plea following legal advice”. That may be tempting (and may be accurate) and does not offend LPP on the face of it. But caution must be exercised so as not to mislead the court or cross the line into breach of LPP.

I have specifically been asked whether I read the CrPD as “overriding” LPP and my answer is that it cannot. It may come from secondary legislation and have the effect of being law but LPP is derived from the common law, human rights law, international law, multiple statutes (primary legislation) and, to my mind, it cannot have been the Lord Chief’s intention that LPP should be breached for this purpose.

I have come to terms with the provision by thinking of it as a rather cack-handed way of inviting mitigation to address change of plea as a more central part of the plea in mitigation.

Conclusions – are there any?

TL:DR is that nothing much has changed but litigators need to amend their letters of instruction to experts and their pro forma Defence Case Statements. Advocates need to be aware that change of plea instructions can be disclosed to the court but only insofar as they relate to credit and only where the lay client agrees to those explanations being given. Finally, the adjournment of trials hasn’t really changed but there has been a slightly prosecution-biased shift in reasons to force the case to proceed.

The take away message appears to be, in the magistrates’ court, that trials in absence will be expected and can be fixed by re-opening or appealing later. In the Crown Court, woe-betide those defence lawyers who do not do at least half of the heavy-lifting for their opponent when it comes to disclosure. In both courts, make more use of s.8 applications and Defence Case Statements.

TL:DR is that nothing much has changed but litigators need to amend their letters of instruction to experts and their pro forma Defence Case Statements. Advocates need to be aware that change of plea instructions can be disclosed to the court but only insofar as they relate to credit and only where the lay client agrees to those explanations being given. Finally, the adjournment of trials hasn’t really changed but there has been a slightly prosecution-biased shift in reasons to force the case to proceed. The take away message appears to be, in the magistrates’ court, that trials in absence will be expected and can be fixed by re-opening or appealing later. In the Crown Court, woe-betide those defence lawyers who do not do at least half of the heavy-lifting for their opponent when it comes to disclosure. In both courts, make more use of s.8 applications and Defence Case Statements.

TL:DR is that nothing much has changed but litigators need to amend their letters of instruction to experts and their pro forma Defence Case Statements. Advocates need to be aware that change of plea instructions can be disclosed to the court but only insofar as they relate to credit and only where the lay client agrees to those explanations being given. Finally, the adjournment of trials hasn’t really changed but there has been a slightly prosecution-biased shift in reasons to force the case to proceed. The take away message appears to be, in the magistrates’ court, that trials in absence will be expected and can be fixed by re-opening or appealing later. In the Crown Court, woe-betide those defence lawyers who do not do at least half of the heavy-lifting for their opponent when it comes to disclosure. In both courts, make more use of s.8 applications and Defence Case Statements.

The other conclusion that seems to me to be inescapable is that we all need to look long and hard about how we got here and when, if ever, we will make a stand against a system that is gradually falling apart and skewing in favour of the prosecution.  


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