Author Archives: UK Crime Blog Admin Team

Was the BBC’s legal drama ‘Common’ a missed opportunity?

Common-BBC-cast

Did anyone watch Jimmy McGovern’s drama ‘Common’ on BBC1 last Sunday? I did, but not without serious reservations. I don’t really like TV legal dramas, particularly not the earnest, moralising ones: they tend to miss the subtle shades-of-grey ethical questions that real trials throw up, and the legal howlers in them are just too cringeable.

‘Common’ was not without mistakes. Defence counsel addressing a High Court Judge repeatedly as ‘Your Honour’ instead of ‘My Lord’ was the sort of clanger that, had it occurred in an actual court room, would have led to other counsel wanting to gnaw their wigs to ease the embarrassment.

But what put me off ‘Common’ in particular was its billing as an exploration of the legal concept of ‘joint enterprise’. To explain: since 1861 it has been the law that anyone who assists or encourages the commission of a crime can be tried just as if they had committed the crime themselves. Thus the gang-leader can be tried for the murder of a witness even though he only paid the hitman who ultimately pulled the trigger (‘encouragement’). The getaway driver can be tried for armed robbery even though he only waited outside while the rest of the gang carried the guns and grabbed the bank notes (‘assisting’). What do you do, though, when a suspect says: ‘I only thought my guy was going to beat the witness up’ or ‘I didn’t know the rest of my gang had guns’? It is when someone’s actions assist or encourage a crime, but they say they only intended a lesser offence to be committed, that the rules as to ‘joint enterprise’ come in.

And that is where, for me, ‘Common’ fell down. Because it proceeded on the basis that its protagonist, a likeable 17 year old called ‘Johnjo’, hadn’t intended that a crime be committed at all.

At the start of the programme Johnjo agrees to drive his mate Tony and others to a pizza shop where, unbeknown to him, they all plan to beat someone up. During the assault one of them, Kieran, fatally stabs a bystander. Johnjo then drives them away, still none the wiser as to what has transpired.

On the factual premise of the programme, therefore, Johnjo was not guilty of the murder, or the assault, because he had no inkling that either offence was going to be committed.

Despite that, the programme makers then used Johnjo’s predicament to include comments from various characters about how awful ‘joint enterprise’ was – but Johnjo’s case wasn’t about ‘joint enterprise’. Had a jury known all the facts and been directed about ‘joint enterprise’ correctly they would have returned a unanimous verdict of Not Guilty on him before trial counsel had blown the froth off their coffee.

The greatest shame is that it would have been so easy to rewrite the script in a way that would have highlighted the potential injustice that ‘joint enterprise’ does create.

The way to do that would have been to have written the drama from the point of view of Johnjo’s mate Tony. As I say, Tony, Kieran and others planned to beat someone up in the pizza shop. Had Tony known that Kieran was carrying a knife, and had Tony foreseen that during the assault Kieran might stab someone, intending to kill them or at least seriously injure them, then Tony would also have been guilty of the murder committed by Kieran – because Tony would have had the requisite degree of foresight and because the murder took place during Tony and Kieran’s illegal ‘joint enterprise’. That is how ‘joint enterprise’ works.

In order to be guilty of murder committed by your own hand you must intend to kill, or at least intend to inflict really serious injury. However, you can be guilty of a murder committed by an accomplice, but which you assisted or encouraged – provided you both intend to commit a crime – and you at least foresee the possibility that during that crime your accomplice might commit a murder with murderous intent.

In other words, you can be guilty of ‘joint enterprise’ murder without you yourself intending that anyone should be seriously hurt.

To what extent does such ‘joint enterprise’ liability constitute an injustice? Some might say that if you commit a crime with a homicidal maniac armed with a deadly weapon you deserve all you get. Others might say: you deserve to go to prison, certainly, but not to be convicted of murder.

But whatever the rights and wrongs, it is situations like the one I’ve just outlined, situations where people who richly deserve to spend, say three years in prison, are instead looking at sentences of, say, 20 years, that are exactly the kind of shades-of-grey moral questions that actually arise in our criminal justice system.

The sad thing is that those real-life situations are too subtle, too full of moral ambiguity, involving characters whose own repellent actions have put them too far beyond mainstream ethics, for them to be of any interest to TV dramatists.

Guest post, by David Allan, barrister.

Celeb sexual offence trials: The CPS can’t win

Crown CourtOh dear, it seems the police and the Crown Prosecution Service can’t win. First they were villified for not bringing a case against Jimmy Saville during his lifetime. Now they are being criticised because they did bring ultimately unsuccessful cases against Dave Lee Travis and Bill Roache. Meanwhile Operation Yewtree, the police enquiry set up in the wake of the posthumous Saville allegations, is being derided as a celebrity “witch hunt”.

The Saville, Roache and Lee Travis cases of course all depend on their own circumstances. I’m not going to comment on the merits of individual cases. What I do want to discuss is the basis on which decisions to prosecute and not prosecute are made, and in particular, the significant influence of the High Court over the way such decisions are made in sex cases.

Generally, decisions whether to commence criminal proceedings are made on the basis of at test laid down in the Code for Crown Prosecutors, the “Evidential Stage test” or “the realistic prospect of conviction test”.

It provides that a case must only go ahead if prosecutors believe an “impartial and reasonable jury… acting in accordance with the law is more likely than not to convict the defendant…”.

In other words: the chances of a conviction have got to be 51% or better. But note the other very important element to the test: it requires prosecutors to assume the jury will be impartial and will act in accordance with the law. In cases involving well-loved celebrities and historic allegations from what might be described as a bygone age that might be a big ask.

In any event, that is the test prosecutors must apply. However, in relation to sex cases, since 2009 it has been given an additional “spin” by the Queen’s Bench Division of the High Court.  It arises out of the case of R(FB) v DPP.

“FB”, as it is known, was a very sad case. The complainant, FB, who has never been identified, was the victim of a serious attack: his ear was bitten off. He went to the police, identified his assailant and picked him out on an identity procedure.

However, FB had a history of mental illness. An expert said he suffered from hallucinations. It’s clear the CPS wrestled for some time with its conflicting obligations to disclose to the defendant’s legal team material which might assist him; to protect FB’s privacy, including his confidential medical records; and to put the defendant through a trial only where the case passed the Evidential Stage test. The deeply unfortunate result was that FB attended court on what was intended to be the first day of the trial only to be told the case had been dropped and a verdict of Not Guilty returned against the defendant.

FB instructed solicitors who went to the High Court. The court found that the CPS’s decision to drop the case had been “irrational” under their own guidance, and had breached the state’s duty to provide protection to persons suffering ill-treatment at the hands of others. FB was awarded £8,000 compensation. The Not Guilty verdict returned against the defendant remained, of course, unaffected.

The significance for the CPS’s future practice was twofold: first of all it established that  decisions not to pursue those suspected of criminal offences were susceptible to judicial review. Secondly, the High Court said that the CPS’s Evidential Stage test must be interpreted differently in certain types of cases. The relevant part of the judgment is worth quoting in full:

“49. There was also discussion whether in applying the “realistic prospect of conviction test” a prosecutor should adopt a “bookmaker’s approach” (as it was referred to in argument) or should imagine himself to be the fact finder and ask himself whether, on balance, the evidence was sufficient to merit a conviction taking into account what he knew about the defence case. In many cases it would make no difference, but in some it might. Mr Perry QC submitted that the latter was the correct approach…I agree with Mr Perry. 

50. There are some types of case where it is notorious that convictions are hard to obtain, even though the officer in the case and the crown prosecutor may believe that the complainant is truthful and reliable. So-called “date rape” cases are an obvious example. If the crown prosecutor were to apply a purely predictive approach based on past experience of similar cases (the bookmaker’s approach), he might well feel unable to conclude that a jury was more likely than not to convict the defendant. But for a crown prosecutor effectively to adopt a corroboration requirement in such cases, which Parliament has abolished, would be wrong. On the alternative “merits based” approach, the question whether the evidential test was satisfied would not depend on statistical guesswork.”

In other words: in certain types of cases, where prosecutors know from their experience that on the evidence before them the jury is likely to acquit the defendant, but where the prosecutor nevertheless believes the complainant, they should proceed with the case – notwithstanding that on the balance of probabilities they expect that the jury will ultimately find the defendant Not Guilty.

The High Court having authoritatively interpreted the Evidential Stage test in this way the CPS has had no choice but to incorporate it into their official guidelines in dealing with sex cases.

It’s worth comparing the words of the High Court in FB with the note sent to the trial judge by the jury in the Dave Lee Travis case after two days of deliberations, and before returning Not Guilty verdicts on 12 out of 14 counts:

‘…[the prosecutor], in summing up, said if we believe that the complainant was telling the truth, then we must find the defendant guilty. Can you give us any guidance on how that should be weighed with the lack of supporting evidence and the passage of time so we are sure beyond reasonable doubt?’

It seems to me therefore that the Dave Lee Travis jury was troubled by precisely the same doubts – i.e. lack of corroborating evidence – that the High Court said prosecutors should ignore when deciding what cases to bring.

Personally I’m not sure that the gloss put on the Evidential Stage test by the High Court in FB is correct or helpful. My worry is that it may lead to the running of weak cases when allegations of sexual misconduct are concerned. The High Court described the alternative as the “bookmakers approach”. If that means, as well as can be done, a cool and objective estimation of whether the chances of success are 51% or above, and if not, dropping the case; perhaps that is not such a bad thing. Let me explain why:

First of all it seems anomalous to have one test for whether to charge defendants in the general run of cases, and what amounts at least to a “different interpretation” of the test for sex cases.

Secondly, with respect, I’d suggest that the High Court risked engaging in a little “statistical guesswork” itself when saying that convictions are hard to obtain in certain types of cases. Certainly no empirical evidence to this effect was referred to in the judgment. In my opinion, it is not that convictions are hard to obtain in certain types of cases, it is that convictions are hard to obain in cases where the evidence is essentially one person’s word against another – and sex cases are more likely that others to fall into that category. But they are not the only kind of case where this problem applies: FB itself wasn’t a sex case, but one of wounding with intent, the kind of case that is a staple of CPS work. It’s hard therefore to see why the problem of the evidence being one person’s word against another should be treated differently depending on the nature of the allegation.

A point made by the High Court was that prosecutors should not adopt what was described as “a corroboration requirement which Parliament has abolished”. I’m not quite sure to what this was intended to refer. There was an old rule requiring corroboration, but it applied to a very narrow category of cases, not including rape or indecent assault.

The wider corroboration rules, which is what I believe the High Court had in mind, did not concern whether cases should be brought or not, but simply required judges to warn juries in cases where there was no corroboration. They were abolished in 1995.

My point, therefore, is that adopting a “probability-based” interpretation of the Evidential Stage test would not be to restore a corroboration requirement as abolished by Parliament, because, in relation to rape and indecent assault certainly, there never was such a corroboration requirement in the first place.

Rape and other sexual offences are horrible crimes that can damage people for life. Having read the heart-rending accounts of many complainants in such cases I don’t need anyone to convice me of that. I can also speak with some authority on the subject of how difficult it can be to make a decision to prosecute or not prosecute a case. It is very tempting, when reading moving accounts from complainants, to feel that not to take on their case would be a betrayal of them. It’s very tempting to think “Well, we’ll let it run and see what happens”. That is why the strictures of the Evidential Stage test are so important: it really does no-one any favours to build up a victim’s hopes, to put them through months of anxiety about giving evidence, to oblige them to relive their experiences in the witness box, where there is not even a 50/50 chance of a conviction – whatever the type of case and the good intentions of the prosecutors.

The CPS works within the confines of our criminal justice system and part of that system is that juries are instructed in the firmest terms: unless you are sure the defendant is guilty you must acquit him. That is obviously what was concerning the jury in the Dave Lee Travis case.

I don’t know the details of the Bill Roache or Dave Lee Travis cases: whether they were apparently weak cases, strong cases or somewhere in between. Whatever the merits, they at least serve as an opportunity to consider the guidance given to prosecutors in such cases. In my opinion there is an argument that such guidance should be consistent with guidance in other cases: that everything must be done to build a case, to gather all available evidence, but once that has been done – if there is not a better than evens chance of achieving a conviction that case should not be run.

By David Allan, a barrister specialising in the criminal law.

Follow David on Twitter: @DavidAllanLegal

Neil Wilson – judgment in ‘predatory’ case

£££-Nigel-Peters-and-Neil-Wilson-2349957

Introduction

Well, as we’ve noted, it’s taken a long time but we’ve finally got there. The case of Neil Wilson is well known (our post on the initial sentence, the notification of the AG Reference and the outcome of the prosecution appeal).

Judgment

The bottom line is that the sentence was increased from 12 months suspended to 2 year immediate imprisonment.

CrimeLine has posted the full judgment, which is well worth a read. What was it that caused the Court of Appeal to make such a huge increase to the sentence?

The main issue that the Attorney-General raised (and the only error that was identified) is at para 18:

Miss Whitehouse, on behalf of Her Majesty’s Attorney General, contends that the sentences passed, and in particular that in respect of the offence of sexual activity with a child, were unduly lenient. She submits that the judge adopted an approach that was wrong in principle. Far from it being any mitigation that, on the offender’s account, the victim had initiated what happened, that was, in the Attorney General’s submission, an aggravating not a mitigating factor. Other criticisms are made of the judge’s approach to which we will refer in a moment [it seems that this related to other aggravating features which had been identified by the Judge – see para 16]”.

The Court of Appeal said that this point was ‘unarguably right’ as the “reduction of punishment on the basis that the person who needed protection encouraged the commission of an offence is therefore simply wrong“.

The Judge was “appreciated that for an offence of sexual touching of this kind a sentence of immediate custody is the sentence that should ordinarily be imposed. There may of course be circumstances where that may not be the just and right sentence. However, in this case, there were no circumstances whatsoever that justified a departure from the principle that a custodial sentence was appropriate. An immediate sentence of imprisonment should therefore have been imposed.

After noting the sentencing guidelines had a starting point (after a trial) of 2 years with a range of 1-4 years, the Court of Appeal imposed the sentence of 2 years.

Comment

Victim initiating the offence as an aggravating feature

Despite the Court of Appeal saying this is ‘unarguably right’, it is likely to prove controversial.

It is quite correct (para 19) that when Parliament passed the ss51-52 Offences Against the Person Act 1861, it’s purpose was to protect those under 12 (increased to 13 in 1875 and 16 in 1885). That is not in doubt, but it does not necessarily follow that factual (sometimes called ostensible) consent (or the background to the offending) is irrelevant.

It seems to me that where there is factual consent because of a history of grooming, this is an aggravating feature. Where the conduct is initiated by the victim without this backdrop, this lessens the culpability of the defendant (and is therefore a mitigating feature).

The Court of Appeal say (para 18) “the victim had initiated what happened was …an aggravating not a mitigating factor“. It is hard to know what to make of this. The conduct can be initiated by the defendant or the victim. Logically, a factor can only be aggravating relative to a state of affairs that is less serious, which would seem to imply that for a defendant to initiate an offence is a mitigating feature (you cannot have a situation where every way of committing an offence aggravates it).

There could, in theory, be a ‘baseline’ of it being initiated by both simultaneously, but this raises the same issue. It surely cannot be the case that a defendant initiating the offence is a mitigating feature?

It may be that (as was suggested by Lyndon Harris on twitter) where the defendant initiates the offence, this is ‘very aggravated’ but where it is mutual or initiated by the victim, it is merely ‘aggravated.

This doesn’t make much logical or semantic sense (and has shades of Spinal Tap), and most people would agree that that interpretation is wrong. It may be that the Court of Appeal meant this, but looking for example at what they said at para 20 “an underage person who encourages sexual relations with her needs more protection, not less“, it is not clear. This may have to be resolved at a later date.

Other matters

In our write up of the case when it was in the news, we wrote “Two particular things that I will be looking out for see (1) what is said about double jeopardy (an idea which, sadly, seems to be going out of fashion) and (2) the actual reasons given. I mention (2) because reading the Stuart Hall Attorney-General reference, despite it being lengthy, there was no explanation by the Court of Appeal given for the length of the actual sentence passed.

How have the Court of Appeal measured up to this? Sadly, on both points it has to be said ‘not particularly well’.

Nothing at all was said about double jeopardy (the completion of part of the Community Order, as mentioned at para 29, is a separate matter) which is strange.

The sentence that the Court of Appeal passed indicates a sentence after a trial of 3½ years (after the guilty plea and double jeopardy, which always is more significant when a defendant who received a non-custodial sentence is imprisoned). This is right at the top of the range of sentences that could be passed, especially as it appear that Mr Wilson was of effective good character.

This may well be right, but there is not a great deal of analysis to explain the reasoning, which is unhelpful for later cases that try to apply the principles.

It may be that this case, like the Stuart Hall one, is a result of the specific nature of the case, and should be confined to it’s own facts.

Ian Watkins sentenced – 35 year extended sentence (29 yrs + 6 yr licence)

Ian-Watkins3

Introduction

We covered the case of Ian Watkins (and two women, named as A and B) who pleaded guilty on 26th November 2013 to various child sex offences. His case was adjourned for sentence. We had said that (on the information that was in the news reports) that the likely sentence was in the region of 20-25 years, and that he was in line for a sentence of life imprisonment.

Offences

Mr Watkins pleaded guilty to 13 offences. Unfortunately the press have not definitively what the charges are, but we believe them to be :

  • 2 attempted rapes of a baby
  • 4 sexual assault (by touching) of a one year old
  • 6 child pornography offences
  • 1 Possessing extreme pornography a  involving a sex act with an animal  

Woman A pleaded guilty to:

  • 1 attempted rape of a baby
  • 2 sexual assaults
  • 1 making an indecent image of a child

Woman B pleaded guilty to:

  • 1 conspiracy to rape a child
  • 3 sexual assaults
  • 4 making indecent images of a child

In each case of the women, the children referred to were their own children.

It was reported that Watkins held 27TB of data. To put that in context, 1TB is 1000 GB. 1 TB can store 17,000 hours of music, 320,000 high resolution photos, 1000 hours of digital video or 250 dvd movies. In short, 27TB is absolutely enormous.

Telephone calls whilst in prison – LOLz

Some more details came out of the sentencing hearing (Wales online seems to have the best coverage if you want more details), including telephone calls Mr Watkins made from prison which appeared to downplay the seriousness of it.

He is reported having said “I’m going to put a statement on the 18th now just to say it was megalolz, I don’t know what everyone is getting so freaked out about.” And in another conversation –“I’m not a paedophile, I’m not. You know I plead (sic) guilty just to avoid a trial, not realising ‘Hang on, that makes me look a bit guilty’ but I would never harm anybody.”

Mitigation

Ian Watkins:

a)      His late plea of guilty, therefore avoiding a trial.

b)      A suggestion that obsessive fans had somehow ‘set him up’, after bombarding him with sexual attention (including, allegedly, messages of extraordinary depravity).

c)       His drug addiction resulting in him being out of control.

d)      Watkins could not remember the events depicted in the videos. He could not believe that he had done the acts in the videos when he saw them.

e)      The fact that the victims will have no memory of the events because of their ages.

f)       In relation to the attempt, no force was used on the child, it was an attempt (not the full offence) and the touching was minimal.

g)      It was claimed that Watkins had been vilified and much of the comment was sensationalist.

h)      That Watkins did not groom woman A and woman B into producing their children for abuse; it was a joint enterprise.

i)        A psychiatric assessment indicated that Watkins was preoccupied with sex generally, not specifically sex with children. It was claimed it was co-incidental that children were involved in the offending. He has no sexual preference in children.

j)        A PSR indicated he had a medium risk of reoffending.

k)      Other mitigation: how much the proceedings had affected him and his good character.

Woman A:

a)      She claimed that she had been manipulated by Watkins to “facilitate his sexual desire”

b)      She was deeply remorseful and felt “disgusted” by what she did and was “frightened of losing” Watkins.

c)       It was claimed that Watkins introduced Woman A to drugs and injected her with heroin.

d)      She was described by her barrister as vulnerable.

e)      Woman A’s barrister reportedly stated that there was nothing to reduce her culpability and that she accepted full responsibility.

f)       It was said that Woman A was not an obsessive fan seeking attention but was exploited by Watkins having allowed herself to be.

g)      Woman A’s barrister closed by asking the judge to look at the planning of the offences, commenting that it was chilling. That presumably referred to the planning and manipulated by Watkins.

Woman B:

a)      She was a fan of Watkins. She had 1,200 images of him on her iPod Touch.

b)      She said to Watkins ‘You are a big deal, you are Ian Watkins’ and he told Woman B ‘I am. You and your daughter now belong to me’.

c)       There were traces of meth amphetamine in Woman B’s child’s hair. It was submitted that it showed the child was exposed to the drugs, but not taken by the child. The judge reportedly replied with ‘I find that a little hard to swallow’.

d)      Woman B’s barrister disputed the view taken by the Judge that it was ‘obvious’ to see the enjoyment the mother gets from the abuse of her child.

e)      The Judge reportedly said that this was a classic case where there should be no credit for a guilty plea.

f)      She was described as ‘a very immature young woman’ suffering from an undiagnosed personality disorder and post natal depression when she first met Watkins.

Rupert Evelyn, a journalist for ITN, was tweeting live from the court room. You can see his twitter feed here.

The Daily Mirror live reported from the hearing. Their account can be viewed here.

Sentencing remarks

Here is a PDF of the sentencing remarks. Woman A is referred to as ‘B’ in the sentencing remarks, and Woman B is referred to as P.

The following exceprts were taken from news reports.

The Judge said:

‘This case breaks new ground. What the three of you did plumbs new depths of depravity.’

On Watkins:  ‘Watkins had power and knew he could use that power to partake in insatiable lust.’ and ‘he clearly had delight in engaging in sexual activity with children’

On Watkins: Mr Justice Royce said: “I am satisfied that you are a deeply corrupting influence. You are highly manipulative…You are a sexual predator. You are dangerous. The public, and in particular young females and children, need protection from you.”

On Woman A’s behaviour: ‘You are mother, your infant was 10 months old, a mother naturally loves… cherishes… you totally betrayed that trust”

On the planning between Woman A and Watkins: ‘could there be a greater betrayal?’

On Woman A and Watkins’ activities: ‘What you are doing is sickening and incomprehensible’ and ‘”In all it’s a dreadful catalogue of abuse of a previously innocent boy to satisfy your own interests and lusts.”

On Woman B and Watkins: Watkins told Woman B about the child: ‘that’s all she will know. A life of filth’

On the messages between Woman B and Watkins: ‘They defy belief’

On Watkins and Woman B’s child: ‘Watkins viewed the child as a sex object’

Dangerousness

The Judge said he had no doubt that there was a serious risk to the public posed by Watkins. This required either a life sentence or an Extended Sentence.

In the event, the Judge imposed an extended sentence on Watkins and determinate (ordinary) sentences on both women.

Guilty plea discounts

Woman A: Full 1/3 credit for early plea of guilty

Woman B: 10 %

Watkins: 10 %

The Judge said it was arguable that Woman B and Watkins should receive no credit at all because the case was so overwhelming.

Sentence

The Judge adjourned over lunch and said he would pass sentence at 2pm.

When he returned, he imposed the following sentences.

Ian Watkins:  35 year extended sentence: 29 years imprisonment, 6 year extended licence

He will serve 2/3 before he can apply for parole. He will then serve the remainder of the 29 years on licence, then an additional 6 years on licence.

Woman A: 14 years determinate

Woman B: 17 years determinate

Both women will serve half of their sentences in custody and the remainder on licence.

A view from… the police interview room

My view from the Police Interview Room, by Tracey McMahon

Police interview

Image from West Midlands Police

I’ve always had an interest in law and the wheels of justice. I’ve watched crime dramas such as The Bill, Prime Suspect and a plethora of television programmes. I have commented on many forums reviewing such shows. I’ve read court reports, followed high profile cases and shouted with the rest of them when a case which raises hackles is presented to the public by the media. I can tell you first-hand that being on the wrong side of the law is nothing as it portrayed by drama serials.

I am known as an offender. This is the modern-day; politically correct term for a criminal. I’ve had my name in the press, on Twitter, on Facebook and well, I wouldn’t be surprised if my name doesn’t crop up on some people’s lips as they have their morning cup of tea. Particularly those who I have done harm to; my family.

I was never arrested as procedures have now changed. I was ‘invited’ to attend the police station on a voluntary basis. Had I not accepted this invitation then I would likely have been arrested and brought in for questioning. Off I marched at 10.00am on Monday 12 March to my police interview, dressed as if I was going to be sitting on the board of a global conglomerate.

My police interview room was a small room without a window. The devil inside me tells me it’s so we cannot escape. I remember the smell too; a musty smell that permeated through me. I did feel dirty and I saw evidence of other people who had been there before me etched into the table. The police officer who interviewed me was respectful, kind and guided me through the list of allegations which had been made against me. I had an A4 piece of paper with my rights listed placed in front of me as they were read out to me. The officer placed the tapes into the huge machine and introduced herself and asked me my name, my date of birth and my ethnic origin. Then she proceeded with the interview and I answered the questions accordingly. Looking back I was foolish. I was of the mind and it is a myth, “I’ve done nothing wrong therefore why would I need a solicitor’ I’ve since learned to take everything that is your right. This is not to say that I don’t trust the police,  I do. It’s purely and simply to protect each person who is being questioned. It also protects the police. We all know that we are now living in a litigious society, any person can say anything and while everything is taped, words can still become a matter of ambiguity.

I was calm, yet upset. I don’t think any person could ever possibly anticipate what it is like to be questioned about allegations that have been made against you. How many times do we hear the words ‘I was treated like I was a criminal?’ I was treated as a human being; this is what I am and still am. In fact no person becomes a ‘criminal’ until the day they are The interview took around an hour and then I was taken for my fingerprints and my photograph. I was expecting it to be like it is on those American shows, with a board in front of you. It is not like that. It’s like being in a hospital x-ray department. Couple of snaps and you’re done. I even had my lip gloss on. If I’m going to be in the depths of a Police National Computer, you can be sure I am going to look my best. I was scared, frightened and feeling as though I wanted my dad. It’s daunting and just writing about the experience has made me feel the same sense of emotion and fear I felt on that day. After the fingerprinting and photograph session, I was taken past the custody suite (The word suite still makes me smile now) where I saw a pair of trainers outside a door. I found myself staring at those trainers and wondering who was behind the large, heavy door.

I was waiting for the words which I knew were ultimately coming: “We will send the tapes to the CPS who will make a decision on whether you will be charged. You can now go. We will be in touch”

Then the purgatory begins…

By Tracey McMahon

About the author: Tracey McMahon is a 45 year, copy writer/transcriber/translator. She’s also a contributor on ex-offender.co.uk. She is a convicted offender and is currently serving her sentence.

A welcome resolution to an unhappy saga – R.v. Imtiaz Ahmed [2013] EWCA Crim 99

The facts

In December 2004, a young mother was brutally killed by a seriously ill young man.  He was found unfit to plead and sent to a psychiatric unit where he remained for about three and a half years.  It seems he then became sufficiently lucid to be deemed fit by his responsible clinician to return to the prison system.   Since it was acknowledged by all the doctors that he remained serious mentally ill with schizophrenia, the prosecution did not take much persuading to accept his plea of guilty to manslaughter by reason of diminished responsibility.  At sentencing the doctors did not agree as to whether his illness was of a nature and degree that warranted his detention in a hospital (which is a pre-requisite for a hospital order).  Two doctors must support an order under s. 37 of the Mental Health Act 1983 and since only one did, the judge had no option but to reject the idea of a disposal under the MHA.  Again, since there was little room for argument that Mr Ahmed remained very dangerous and since the judge did not consider that the killing was so very grave as to merit a life sentence, especially given recent Court of Appeal authority in R.v. Kehoe [2009] 1 Cr. App. R. (S.) 41 that discretionary life sentences should be reserved for the very gravest offences, the judge’s decision to impose an indefinite sentence of imprisonment for public protection did not seem wrong in principle.  The judge took as his starting point for sentence a determinate sentence of 12 years.  He then deducted one sixth for his guilty plea (something the Court of Appeal later said was an error – it should have been one-third) deducted the 3½ years he had spent in hospital and a further 15 months in custody and came to a final total of 5 years and 3 months to serve.

First appeal hearing

Mr Ahmed challenged the length of the minimum term of his IPP.  Shortly before his appeal was due to be heard in April 2012, it became apparent that he had in fact been returned from prison to the very mental health facility from which he had been removed back in 2010.  The Court of Appeal was urged to adjourn the hearing to enable fresh grounds of appeal to be considered since it now seemed there were realistic prospects of persuading the court that the sentence of IPP was wrong in principle since a man suffering from serious mental illness ought, in principle at least, to receive treatment rather than punishment.   As the hearing had been convened the Court of Appeal adopted what they thought was a practical approach to the problem posed.  They purported to allow the appeal as to the length of the minimum term and reduced the figure to 3 years and 3 months (by deducting one-third for the guilty plea rather than one-sixth as the judge had done) and adjourned the balance of the appeal to enable fresh grounds relating to the mental health issue to be formulated and presented.  Shortly thereafter the Court of Appeal realised that it had no power to decide part of an appeal and adjourn the balance.   Accordingly the appeal was adjourned generally.

Second appeal hearing

In due course fresh reports were prepared in which two psychiatrists stated their opinions that in fact a hospital order with a restriction order under s.41 would have been appropriate at the time of sentence and in any event were certainly appropriate by the time they examined the patient.  The responsible clinician (the same man who had sent Mr Ahmed back to the prison system in 2010) did not take kindly to having his professional opinion challenged by new doctors and re-stated his opinion that at the time of the original sentence a hospital order was not justified.  He did however concede that since the patient was back in a psychiatric unit and was receiving treatment for his condition that the conditions for a hospital order were now satisfied.  So the hearing was scheduled.

A few days before the hearing the responsible clinician had a further change of mind.  He informed the Court of Appeal that in his opinion orders under s. 37/41 were not appropriate and instead the court should exercise its little used power under s.45A of the Act.  This is a provision that allows a court which has decided that a person suffering from mental illness should be sentenced to imprisonment to nonetheless make an order that rather than being taken immediately to a prison he should be transferred to a mental hospital where he could receive appropriate treatment before being returned to the prison system.  This somewhat cumbersome provision seems to have been considered necessary to deal with those prisoners who suffer from a personality disorder linked to mental illness so that they do not usually meet the criteria for a hospital order but who nevertheless do require treatment from time to time.  It seems that this provision was intended to deal with those persons who in the past had been treated as “technical lifers” as explained in R.v. Beatty [2006] EWCA Crim 2359, para. 23.  It was evidently thought that this provision would be more satisfactory than the administrative transfer of a prisoner who becomes mentally unwell through s.47 of the MHA 1983.

At the hearing in January 2013 the Court received the fresh evidence of the two new psychiatrists under s.23 of the Criminal Appeal Act 1968, both of whom supported the making of the hospital order under sections 37/41.   The responsible clinician maintained his new stance but as is clear from paragraph 29 of the judgment it seemed that his reasons for preferring s.45A to s.37/41 had nothing to do with the treatment of the patient and was instead based on his concerns about the release provisions for someone who was in fact unlawfully in the UK in any event.  Not surprisingly the Court of Appeal did not consider that this was a proper basis for their decision.  Agreeing that the appellant was a man in need to treatment as a patient rather than punishment as a criminal the Court quashed the sentence of IPP and made the orders requested under ss.37/41.

Comment

The case does not lay down any new principles and indeed refers in paragraph 32 to a number of previous authorities including R.v. Beatty (see above) although unhelpfully not including their citations.  Nonetheless paragraph 1 to 16 of the judgment are a useful starting point for those who are unfamiliar with this area of the law and readers will find the basic principles for dealing with cases under the Mental Health Act set out there.

The transrcipt, courtesy of Crimeline, is available here.

By Mark George Q.C., counsel for Imtiaz Ahmed.

Andrew Keogh – guest post on the Chris Huhne case

On Monday 4th February 2013 Chris Huhne, fomer Liberal Democrat cabinet minister pleaded guilty to an offence of perverting the course of justice and thereby brought to an end (or at least substantively) a long running legal saga.

The proceedings against Huhne and his former wife had commenced many months before and there was rumour circulating that the ‘trial’ had started and was being heard in secret. This is an example of many posts on twitter:

AK Tweet

So, was the trial being heard in secret? No is the answer.

The trial, or at least legal argument that had begun many months earlier was being heard before the trial Judge. The hearing was not however ‘secret’, most notably as the proceedings were being heard in open court with reporters present. The Judge was in fact hearing 2 different legal applications, one in relation to an abuse of process argument (essentially arguing that Chris Huhne could not have a fair trial), the second an application to dismiss (which means that the defence argued that there was insufficient evidence to place the case before a jury). Legal arguments both before and during trial are extremely common and are rarely reported. Indeed there are statutory restrictions on such reports. The reason for this is common sense not conspiracy. Matters of law are for a trial judge to determine; matters of fact for the jury. Therefore, particularly when the case is high profile, measures need to be taken to ensure that arguments and issues raised during legal proceedings do not inadvertently go before a jury if the case proceeds to full trial (by way of press reports), as they simply have no bearing on the issues that they must decide. This is the case for hundreds of cases argued up and down the land each day – Chris Huhne was not given any favourable treatment.

It is fair to say however that there were some other matters floating around that potentially impacted on this case. Whilst most of the repororting restrictions were lifted following Huhne’s guilty plea some remain in place. There are 2 reasons for this – the first is that the trial of Huhne’s ex-wife is still being heard, and the other reason I cannot tell you about as to do so would defeat the reporting restrictions still in place. It all sounds very cryptic, but in fact it is no more than ensuring the integrity of the trial process – something that is rightly held in the very highest regard.

So, what of the legal arguments advanced by Huhne, what were they about?

The final legal argument was heard between 22-24 January 2013, and judgment was given to the parties on 28 January 2013, no doubt prompting Huhne’s change of heart in relation to his plea.

Since Huhne’s plea a number of orders in relation to reporting restrictions (and relaxation of) have been made, so the detail below is in accordance with the directions to date. When the proceedings are finally resolved more may well emerge as to the background.

What was the actual charge?

“…on a day between the 12th day of March 2003 and the 21st day of  May 2003 with intent to pervert the course of public justice, [they] did an act which had a tendency to pervert the course of public justice in that they, during the course of an investigation by the Essex police into an offence of driving a vehicle in excess of the speed limit on 12 March 2003 committed by Christopher Huhne, falsely informed the investigating authorities that Vasiliki Pryce had been the driver of the said vehicle, thereby enabling Vasiliki Pryce falsely to accept responsibly for the said offence and enabling Christopher Huhne, as a consequence, to avoid prosecution and punishment for the said offence.”

Abuse of process

Counsel for Huhne argued that a fair trial was not possible because:

  • It was 8 years after the event that Huhne was first confronted with the allegation
  • The section 172 forms (which identify the driver of the vehicle) were no longer available
  • Adverse press publicity, including a YouGov poll recording that 60% of those questioned believed Mr Huhne to be guilty
  • Some other issues that cannot yet be reported

Prosecuting counsel’s response to this was robust:

“There was no abuse of process and the application, which consisted largely of adjectival condemnation, was hopeless and unarguable…”

The trial judge ruled:

“…the trial process itself is well equipped to fairly deal with all the points raised on Mr Huhne’s behalf (not just, as conceded, those in relation to delay, the missing s.172 forms, and publicity), and thereby to ensure that he receives a fair trial.  That process will include directions as to the burden and standard of proof, publicity…”

This result was not at all surprising. A successful abuse of process argument acts to bring the proceedings to a halt and therefore will only succeed if the deficiencies alleged are such that they cannot properly be dealt with during the trial.

Application to dismiss the case

The correct approach to apply on a dismissal application in such a case is that identified in para. 36 of the judgment of the Court of Appeal in R v G & F [2012] EWCA Crim 1756as follows:

“We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury would be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury”.

The evidence relied upon by the prosecution as against Mr Huhne is set out at pp 3 – 6 of its “Response to Dismissal Application by the Second Defendant” dated 15 July 2012, and in the various iterations of the Opening Note. It may be summarised under the following headings;-

(1)          The implausibility of anyone else being the driver.

(2)          Mr Huhne’s propensity to drive too quickly.

(3)          Mr Huhne’s motive (9 points).

(4)          The inference that Mr Huhne must have been party to the return of the Forms 172 and that therefore he could not have forgotten the events of 2003 as he claimed in interview in 2011.

(5)          The nature of Mr Huhne’s response during four recorded telephone conversations with Ms Pryce – particularly during the fourth call.

(6)          The nature of Mr Huhne’s response to certain text messages from his son Peter.

The evidence admissible against Mr Huhne showed, amongst other things, that:

(1) Mr Huhne acquired the BMW in 1998, and it was registered in his name.

(2) At all material times Ms Pryce had her own car – a Volvo.

(3) The BMW was added to Ms Pryce’s insurance policy in January 2001, with Mr Huhne being declared as a frequent driver of it.

(4) Mr Huhne committed speeding offences on 28 January 2002, 28 March 2002 and 8 February 2003, and his licence was endorsed with 3 Fixed Penalty points in relation to each.

(5) At the material time Mr Huhne was an MEP and attended parliamentary sessions every month. His routine was to fly out early on a Monday morning and to return, preferably, on Wednesday night, and sometimes on Thursday.

(6) Because he was an MEP he had a free car parking pass at all BAA car parks.

(7) On Monday 3 March 2003 Mr Huhne booked a return flight from Stansted to Strasbourg with Ryanair – departing at 6.50 am on Monday 10 March 2003, and returning late Wednesday 12 March 2003.

(8) The usual arrangement was that Mr Huhne would drive the BMW to the airport, park it in the free parking space, pick it up on his return and drive it home.

(9) Whilst the journey was possible by public transport, it would involve departing from Victoria Coach Station at around 4.30 am, or from Liverpool Street Station at around 5am.

(10) Mr Huhne duly caught the 6.50 am Ryanair flight on Monday 10 March 2003 – although it left a little late that morning.

(11) In the evening of Wednesday 12 March 2003 Ms Pryce was part of a Panel at a large function at the LSE. The function finished at about 7.30 – 8 pm after which there was a dinner for the Panel and selected guests. However, none of the witnesses can recall whether Ms Pryce stayed for the dinner.

(12) At about 9 pm (UK time) Mr Huhne’s return flight from Strasbourg closed. It arrived on stand at Stansted at 10.27 pm.

(13) In interview with the police Mr Huhne was unable to remember any occasion when his wife, who had a clean licence, had come to collect him when he returned from Strasbourg. The most likely scenario, he said, was that he would drive, or that someone who had travelled with him on the flight might drive them both in the BMW.

(14) He further indicated in interview that when he was driving his usual route on the over 40 mile journey home was via the M11 and the Rotherhithe Tunnel. He could not recall taking any other route.

(15) At 11.23 pm, at a point on the M11 some 21 miles south of Stansted, and at a time consistent with his earlier arrival at Stansted, Mr Huhne’s BMW was caught speeding at 69 mph – i.e. 19 mph above the limit, at that point, of 50 mph.

(16) On Tuesday 25 March 2003 a combined Notice of Intended Prosecution and s.172 Notice was sent by Essex Police to Mr Huhne as the registered keeper of the BMW at the family home in Clapham. The Notice required him to indicate whether he was the driver and, if not, who was.

(17) On Friday 28 March 2003, Mr Huhne was involved in an incident in the Old Kent Road area when he was seen by police officers to be using a mobile phone whilst at the wheel of his car. He was able to remember that incident in some detail during his police interviews in 2011.

(18) On Wednesday 23 April 2003 the s.172 Notice sent on 25 March 2003 was received back by Essex Police. It indicated that Ms Pryce was the driver on 12 March 2003. The form itself was routinely destroyed in 2006, however surviving computer records suggest that it may have been completed by Ms Pryce, rather than Mr Huhne – in which case, in view of the provisions of s.12 of the Road Traffic Offenders Act 1988, it was not acceptable as an admission of guilt.

(19) At all events, on Thursday 1 May 2003, a combined Notice of Intended Prosecution and s.172 Notice, together with a “not filled in right” letter, were sent by Essex Police to Ms Pryce at the family home in Clapham.

(20) The form was received back on Wednesday 7 May 2003. It confirmed that Ms Pryce was the driver. That form too was routinely destroyed in 2006.

(21) Mr Huhne accepted in interview that it seemed unlikely that Ms Pryce would have filled out the form dishonestly without mentioning it to him.

(22) On 21 May 2003 the DVLA received notification of a fixed penalty of 3 points on Ms Pryce’s licence.

(23) On 31 October 2003, having pleaded guilty to careless driving in respect of the mobile phone incident on 28 March 2003, Mr Huhne was disqualified for 6 months under the totting up provisions.

Against that background the prosecution submitted, amongst other things, that:

(1)          Any suggestion that Ms Pryce might have taken the points for some unknown third party could be safely discarded.

(2)          In order for her to have been driving the following unusual and memorable things must happened, namely:

(i)      She was driving the BMW which she did not normally do, and at a time when both were in the car.

(ii)    Mr Huhne had not taken the BMW to the airport, which he normally did.

(iii)   Ms Pryce had left the Panel function at the LSE and then driven an 80 odd mile round trip to collect Mr Huhne from the airport when she had young children at home.

(3)          Such a scenario would have been extraordinary and pointless.

(4)          In any event, when set against the routine which Mr Huhne admitted in interview, if such a scenario had happened then both would be likely to remember it – not least Mr Huhne because of the relief that his wife was responsible for the offence at a time when he had nine points on his licence. Yet, in contrast to the careless driving offence on 28 March 2003, he purported to have no recollection of relevant events.

(5)          Against that background, and in the light of the practical difficulties in getting to Stansted by public transport in time for the outbound flight, as compared to the obvious sense and ease of driving there in his own car, leaving it parked there for free, and picking it up on his return, combined with Ms Pryce’s known whereabouts on the evening of 12 March 2003 and Mr Huhne’s propensity for speeding and obvious motive to avoid the resulting 3 points, together with the fact that they were living together in the family home in Clapham, there was a clear inference (whoever returned the first s.172 Notice) that Mr Huhne, driving home alone at exactly the right time, was the driver on 12 March 2003 and that thereafter he and Ms Pryce were jointly concerned in Ms Pryce falsely taking the points – even though it only resulted in a temporary avoidance of disqualification.

Mr Kelsey-Fry (counsel for Huhne) submitted, amongst other things, that:

(1)          There was no evidence that Mr Huhne had been involved in a crime at all.

(2)          The starting point should be that Ms Pryce had stated in one or more s.172 forms that she was the driver at the material time, and the question was whether the prosecution had sufficient evidence to rebut that.

(3)          There was no direct evidence that the BMW had been parked at Stansted on Monday 10 March 2003, and the absence of such evidence was fatal.

(4)          The evidence showed that it was possible to get to Stansted in time by public transport.

(5)          It was a common feature in two car families that, on occasion, only one of the cars would be available, and there was no evidence to rebut that being the case on this occasion.

(6)          The motive relied on was less than compelling – given that the incident on 28 March 2003 took place prior to the return of the first s.172 form, and that it would have been obvious to Mr Huhne that, as a result, prosecution and disqualification were inevitable.

(7)          In view of Mr Huhne’s account in interview  as to the arrangements for dealing with the post at the family home, and of the evidence in relation to the return of the first s.172 form, it was likely that Ms Pryce had filled out both forms without Mr Huhne’s knowledge.

(8)          Hence the test set out in para. 36 of the judgment in R v G & F  was not met – particularly because the evidence was insufficient to result in the requisite rejection of all realistic possibilities consistent with innocence.

Much has been made of the text messages between Huhne and his Son and the telephone conversations where the then Mrs Huhne tried to get Huhne to confess, but how are they admissible against Huhne?

Mr Kelsey-Fry’s objections to the admissibility of the four recorded telephone conversations between Ms Pryce and Mr Huhne  and to the admissibility of the text messages passing between Mr Huhne and his son Peter  were broadly the same – namely that neither had any probative value at all or that, if they did, that probative value was wholly outweighed by the prejudicial effect such that they ought to exclude the evidence under s.78 of PACE.

As the House of Lords made clear in Christie [1914] AC 545 the law is that a statement made in the presence of an accused person, even on an occasion which should reasonably call for some explanation or denial from him, is not evidence against him of the fact stated save in so far as he accepts the statement, so as to make it, in effect, his own.

At p. 554 of the report, Lord Atkinson  considered the various ways in which an accused  might accept an accusation put to him, as follows:

“He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when the statement was made amounts to an acceptance of it in whole or in part. It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgement can be inferred.”

The questions the Judge had to ask himself included whether a jury, properly directed, could conclude that Mr Huhne had in fact adopted any relevant statement, or had otherwise conducted himself so as to make his conduct relevant and admissible; if so, whether the matter was of sufficient relevance to justify its introduction in evidence; and whether its admission in evidence would have such an adverse effect on the fairness of the proceedings that it ought to be excluded.

The Judge held as follows:

“In the end, having listened to the tapes, and applying the law as I have set it out above, I was persuaded that the Prosecution argument was right, and that the probative value was not outweighed by any prejudicial effect […]. The jury will be directed, on conventional lines, that what Ms Pryce said is not evidence, as against Mr Huhne, of the facts stated save and in so far as they surely conclude that Mr Huhne accepted a statement, or any part of it, such as to make it his own.

The admissibility of the text messages exchanged between Mr Huhne and his son Peter was, it seemed to me, more straightforward – albeit, as is clear, Peter Huhne had clearly been deeply affected by the circumstances of the split between his parents, was firmly on his mother’s side, and may well have been put up to trying to get his father to make an admission.

The texts of particular relevance all took place on 21 May 2011 (shortly before the Police were due to interview Ms Pryce and Mr Huhne) and, starting with a text from Peter Huhne, were as follows:

(1)          “We all know that you were driving and you put pressure on Mum. Accept it or face the consequences. You’ve told me that was the case. Or will this be another lie?”

(2)          “I have no intention of sending Mum to Holloway Prison for three months. Dad”

(3)          “Are you going to accept your responsibility or do I have to contact the police and tell them what you told me?”

(4)          “Discuss it with Mum”

(5)          “It’s not about her its about your accepting your responsibility to me”

(6)          “Happy to talk about it with you. Dad”

During the course of his interviews Mr Huhne stated, amongst other things, that:-

(1)          His son was honest, and he was sure that his son believed what he (Peter) had said.

(2)          He was attempting periodically to maintain contact with his son – just to text him and be sympathetic – in the hope that it would lead to a reconciliation in the end.

(3)          His son was very much taking Ms Pryce’s part, and he was generally trying to calm his son down as much as he could.

(4)          He assumed that his son was under the impression that taking his mother’s side would end the problem for her.

(5)          His son knew that Ms Pryce was going to be interviewed by the Police and had sent the text message(s) in the hope that Mr Huhne could save her.

(6)          In stating that he had “no intention of sending Mum to Holloway Prison for three months” he had meant, or was implying, that he had no intention of lying about what had happened. It had been a straightforward point to try and make his son think.

(7)          His son was lying to protect his mother (which was absolutely admirable) but in circumstances in which Mr Huhne could not reason with him as his son would not talk to him. There was a very limited amount that could be put in a text. He was simply trying to calm the situation down.

(8)          It was not true that he had told his son that Ms Pryce had taken the points. His son was clearly attempting to get him to say something which would relieve the pressure on Ms Pryce.

(9)          Whilst his son might have sincerely believed that he had told him that, people could misremember and the reality was that it was not the case.

(10)      His son was in a very distraught situation.

(11)      […]

(12)      It was not true that he had told his son that Ms Pryce had taken the points. He had no recollection of any conversation with his son that could be construed in that way, and he was not trying to frighten Ms Pryce.

(13)      His relationship with his son was essentially emotional and could not be repaired by phone or text.

(14)      He was not saying that his son was lying – rather that he was under a lot of stress.

(15)      He had been trying to get his son into a better place by calming him down.

(16)      In the “Holloway” text what he had been trying to do was to make the point that there are real world consequences to flinging around wild allegations.

The prosecution submitted that it was significant that Mr Huhne had not, in the exchange of texts, denied either the suggestion that he had been driving or the specific allegation that he had admitted it to Peter Huhne. It was submitted that it was very surprising, notwithstanding the difficulties in their relationship, that (if he was innocent) Mr Huhne did not text back saying that he had not done either thing. Equally, Mr Huhne’s text in relation to “sending Mum to Holloway Prison for three months” plainly gave rise, it was submitted, to the inference that what he had meant was that that would be the result if he told the truth, rather than if he lied. Likewise, it was submitted, his explanation for that text in interview was plainly implausible. Thus it was submitted that it was clearly open to a jury, properly directed, to conclude that Mr Huhne had adopted Peter Huhne’s statements, or had otherwise conducted himself so as to make his conduct relevant and admissible.

Mr Kelsey-Fry took me through the text messages in detail, and to a number of the passages in Mr Huhne’s interviews. He submitted that, […], it was simply not open to a properly directed jury to draw the inferences contended for. In the alternative, as I have already indicated, he submitted that the prejudicial effect, particularly in relation to the alleged confession to Peter Huhne who is not being called as a witness, far outweighed any probative value.

Again, applying the law as I have set it out above, I was persuaded that the Prosecution argument was right, and that the probative value was not outweighed by any prejudicial effect. Equally, the jury will again be directed, on conventional lines, that what Peter Huhne said in the texts is not evidence, as against Mr Huhne, of the facts stated save and in so far as they surely conclude that Mr Huhne accepted a statement, or any part of it, such as to make it his own.

It followed from my conclusions in relation to the admissibility of the potential inferences to be drawn, in the case of Mr Huhne, from the fourth telephone conversation with Ms Pryce and the text exchanges with Peter Huhne, that those were also matters that could be taken into account as, at the least of it, further circumstances in relation to the application to dismiss.

Having decided already that there was a case to answer, the potential inferences reinforced that conclusion. Indeed, even if my earlier decision was wrong, and again applying the R v G & F test, I concluded that the totality gave rise to a case to answer.”

Conclusion

Following these rulings Huhne changed his plea to one of guilty; There can be little doubt that the admission of the text messages from his Son would have factored heavily into that decision, although contrary to the arguments of the defence some commentators reject the suggestion that without them the case against Huhne was ‘gossamer thin’.

Huhne now awaits sentence.

About the author

Andrew Keogh really needs no introduction. He runs Crimeline (including the regular, and FREE, Crimeline Updater which all lawyers should sign up for). If you don’t follow him @CrimeLineLaw, then you really should.