BabyBarista formerly of The Times has now moved to here. The team wishes him the best of luck with his move, now that the Times has decided to start charging for online content. Good luck Tim! On the 24th May the Supreme Court started to hear the devolution appeal from Scotland,as to whether or not there is a right to access a solicitor whilst being detained in a police station.
The remedies available for a breach of s 58, may include exclusion of evidence under s 78 or 76 of PACE. The common law also supports a strong right to access a solicitor within a reasonable amount of time see R v Chief Constable of South Wales, ex parte Merrick  1 WLR The Cadder case will ultimately involve the difference between English and Scots Law, but also the extent to which the right of access to a lawyer is embedded in the European Court of Human Rights case law.
There have been a string of cases that have all firmly been of the view that denial of access to a lawyer during the investigatory stages of the proceedings will lead to a breach of Art 6 1 , 6 3 b and 6 3 c. Though whilst I am not an expert on Scots criminal Law, it will be interesting to see whether the Supreme Court believes that the Scottish courts have fallen foul of the European Convention.
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In the House of Lords in Re McE set out the limits to s 58 and the common law right to access a lawyer, with good coverage albeit perhaps not the best interpretation of the European Jurisprudence on this point. United Kingdom. You can listen to the podcast of the proceedings here. Al-Khawaja and Tahery were both convicted on evidence, that included the use of hearsay.
Mr Al-Kawaja was convicted on two counts of indecent assault whilst his patients were under hypnosis. One of the complainants died before trial, however made a statement to the police that was admitted as Hearsay, there being no other evidence as to her assault apart from the statement she made to the police. Therefore no hearsay, no count one. Mr Tahery was convicted of wounding with intent to cause GBH, based on evidence of one witness who claims he saw Tahery stab the victim.
When firstly taking their case to the European Court of Human Rights, the Court held that there had been a breach of Art 6 1 and Art 6 3 d. The court held that the evidence against both applicants was either the sole or at least the decisive evidence against them and that in further cases where witnesses are unavailable, any conviction based solely or decisively on such evidence will be in breach of Art 6 1 and Art 6 3 d.
The Government sought leave to appeal to the Grand Chamber. In R v Horncastle, the exact facts of Alkawahja and Tahery arose again. Mr Horncastle conviction was based solely or decisively on the evidence of a witness that had died before trial, but had given a written statement to the police, that was read out to the court under the hearsay rules. The second defendant Mr Blackmore argued in similar terms to Tahery, the witness was too afraid to testify, so their statement was also read under the hearsay provisions. The Court of Appeal sitting as a special five bench panel, refused to put it lightly to follow the European Court, and held that the provisions contained within the Criminal Justice Act , such as the power to stop a trial from proceeding on the basis of unsound hearsay evidence s , and the discretion of a trial judge to exclude evidence under s 78 PACE.
Following from the uncertainy of what the European Court meant when setting out their test, the Supreme Court held that they were not bound to apply the sole or decisive test. The Grand Chamber granted an adjournment so that Horncastle could be heard in the Supreme Court, and have now just heard argument in relating to the original Al-khawaja and Tahery case.
With extreme anticipation, criminal defence lawyers will be waiting to see whether the Grand Chamber re-affirms its decision in Al-Khawaja , that a conviction based solely or decisively on the use of hearsay evidence, may lead to a violation of Article 6 1 and 6 3 d. The Supreme Court showed no inclining of budging on the issue, which of course may lead the Grant Chamber to be somewhat more resilient to uphold the lower sections findings.
The problem yet to be discovered, is how many convictions are based solely or decisively on the use of hearsay evidence? Could there be a matter of policy involved in their Lordships decisions? One thing is for certain the spat between the domestic courts and the European court, may not yet be over for quite some time. Number 10 informs us that the main aims of the Freedom Bill will be to restore civil liberties and freedoms, reducing state inference with citizens and making the state more accountable to its people.
Whilst the bill is yet to be drafted, the new coalition government has set out key areas of reform, whilst it is still unknown if all the vast proposals originally made by Chris Huhne MP , the Liberal Democrat Shadow Home Secretary before the election will come to pass, some indication has been given by the Deputy Prime Minister Nick Clegg as to the key aspects of the bill that will be focussed on.
Why the government has sought to introduce this is particularly mysterious.
Especially when on the other side of the coin, anonymous witnesses has recently caused great difficulty. The following legislation in the Criminal Evidence Witness Anonymity Act , and the latest rules now in force under the Coroners and Justice Act , which enable a judge to grant anonymity orders provided certain conditions are met. These provisions are all meticulously worked out in order to ensure a fair trial for the accused, whom it may be said cannot effectively challenge the evidence of anonymous witnesses.
Now switch sides, what are the problems when anonymity is granted for those charged with rape? What are the benefits and disadvantages of having an anonymous defendant?
Are the benefits to stop cases like this? Another benefit may be reinforcing the burden of proof, the alleged rapist, is not a rapist until proven to be, then their details may be published. The disadvantages however are equally as important. When complaints go to the police, victims feel assured that the alleged offender is named, which may inspire others to report that they too have been raped.
If this stops, then it may take more attempts to bring a serious offender to trial, due to the unwillingness of other people to come forward. Is there also a case to be made on the effect of an anonymous defendant, and its effect on the jury?
The Courts so far have placed great reliance on the need to see demeanour of a witness, how they react, which is why currently anonymous witnesses are seen by the judge and the jury. Could a possible effect be that the jury see the defendant as more credible? He is being granted the status of being anonymous, so therefore his account is to be more believed than the witnesses and evidence against him?
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Click here to purchase from Kobo. About the Author Tim Kevan is a barrister and writer. As well as writing the BabyBarista blog first for The Times and now for the Guardian, he practised as a barrister in London for ten years, during which time he wrote or co-wrote ten law books and was a regular legal pundit for television and radio. He now lives by the sea in Braunton in North Devon, goes surfing at the merest hint of swell and is a co-founder of two businesses which provide online legal training and publishing respectively: CPD Webinars and Law Brief Publishing.