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Featured
Young Defendant Acquittal in Joint Enterprise Murder Trial
Nina Grahame KC and Jane Greenhalgh successfully defended Brandon White, a 21 year old man of good character following a 5 week trial at Manchester Crown Court.
A complex and historic feud between 2 Manchester families had developed after another family member’s death in 2018. That death had been witnessed by the victim in this case, Warren Burns, who died after the infliction of multiple injuries in the bedroom of his partner’s home after she and the couple’s 10 week old baby had fled into the garden.
Nina and Jane’s client admitted presence and the use of limited, ineffectual violence, but denied any participation in unlawful violence, acting only in lawful defence of his uncle. In addition to consideration of non-accidental presence and defence of another in this joint enterprise case, an additional crucial issue for the jury was the relevance of honest but mistaken belief in self-defence. By detailed analysis, the jury were urged to carefully dissect and dismiss the prosecution ‘theories’ about BW’s involvement and the co-defendant’s lies.
BW’s credibility was of particular importance as his evidence incriminated RW, who was convicted of murder. DW was convicted of manslaughter. BW’s partner, tried for her alleged role in knowingly assisting him after the event, was acquitted. The verdicts followed more than 9 hours of jury deliberation over 3 days.
Nina and Jane combined their extensive experience of defending young people in joint enterprise cases, an area of law currently the subject of proposed and, in our view, much needed revision.
https://www.manchestereveningnews.co.uk/news/greater-manchester-news/warren-burns-white-murder-manchester-28288877?utm_source=linkCopy&utm_medium=social&utm_campaign=sharebar
Nina and Jane were instructed by Ahmad Jawad of Central Chambers Law whose excellent preparation made a valuable contribution to this outcome.
Libertas Chambers
Featured
Chambers & Partners and Legal 500 Guides 2024 – Libertas Rankings Announced
Libertas Chambers are delighted to announce that our clerking team and 12 of our Barristers have been ranked in the latest editions of the Chambers & Partners and Legal 500 directories.
Libertas thanks all those who provided such positive assessments and congratulates all our clients, partners and colleagues who have also been ranked.
Head of Chambers, Simon Csoka comments “In Libertas Chambers’ third year we have gone from strength to strength with our members appearing in many of the main fraud and criminal trials nationally. We are delighted to see many of our silks and juniors ranked as leading practitioners in Crime and Financial Crime / Fraud. We congratulate them all and also acknowledge the many achievements of all of our other members over the last 12 months, together with the hard work of our clerking team. We thank our instructing solicitors for their continuing support and their positive feedback in the guides.”
Libertas Chambers – Leading Set – Crime & Financial Crime – View Chambers & Partners profile
Crime – London (Bar) Band 4 -Libertas Chambers is a virtual set with its London facilities on Old Bailey. The set has expanded considerably since its formation in 2020 and now has a considerable crime offering. Barristers here frequently defend clients accused of the most serious crimes, including those involving infanticide, familicide, homicide and terrorism. It has specialist teams for human trafficking and modern slavery, and appellate cases. Recent cases have included the defence of Agneskia Kalinowska in her trial for the torture and death of her son.
Financial Crime – London (Bar) Band 4 –
The barristers at Libertas Chambers are regularly called upon to represent major corporates, financial institutions and individual clients in complex cases involving allegations of bribery, corruption, money laundering and investment fraud. Additional areas of expertise for the team include insider trading, pension mis-selling and tax evasion cases. The set’s tenants also have considerable experience handling cases with an international element. Tenants are involved in some large-scale cases such as the defence of an individual in a £26 million money laundering prosecution following high-profile celebrity burglaries.
Client Service:
“The clerks are very proactive and their networking is great, which is massively helpful.”
Director of Clerking Marc King is “hugely experienced. He works hard to deliver the best results for everyone.”
Clients note in particular the set’s flexibility due to its virtual nature, highlighting that Libertas “was one of the first sets to go virtual and have an offering with meeting rooms in every city in the country. It has really worked.”
“If any work needs to be done, the clerks carry it out professionally and quickly.”
“Their clerking is very good.”
Director of clerking Marc King is “super – he is always contactable, day or night, he is very proactive and his networking is great as well.”
Individual Ranked KCs & Juniors
Simon Csoka KC – Ranked in: Crime Band 3, Financial Crime Band 2 – View Chambers & Partners profile
Simon Csoka KC is a well-regarded criminal barrister who is regularly called upon to defend individual clients in complex and high-profile criminal cases. He has considerable experience handling cases involving allegations of large-scale fraud.
“He has a phenomenal capacity for memory and is so great on the detail. He is a polished performer and a great advocate.”
“He is a bright and able advocate.”
“His memory and grasp of a case is absolutely phenomenal.”
“He is dynamite: fierce in his arguments, with a very big intellect.”
“His knowledge and willingness to fight for a client are of the highest level.”
“He is just phenomenal. You sit back and watch him at work and you just see a true expert.”
“He’s a go-to for encrochat cases because of his intellect. The arguments he deploys are exceptional.”
Legal 500 – Crime – Tier 3
‘Simon is at the top of his game – a silk that everybody wants to instruct. He is incredibly bright and extremely persuasive. A phenomenal advocate that commands the respect of the courtroom. He is highly respected by the judiciary and his peers and is a joy to watch. One of the best around.’
Leonard Smith KC – Ranked in: Crime Band 5, Financial Crime Band 4 – View Chambers & Partners profile
Leonard Smith KC is a criminal defence silk who commands respect for the pains he takes with his preparation and for the persuasive advocacy he delivers in court. He regularly handles cases involving allegations of mortgage fraud, breach of sanctions and overseas corruption. Smith is frequently instructed by both corporations and individuals, and has a strong record of acting in cases with a global reach. He has notable expertise in international bribery cases.
“A fierce advocate who leaves no stone unturned.”
“His knowledge base and his mental agility are unrivalled.”
“His gravitas is undeniable.”
“His advocacy is absolutely fierce.”
Legal 500 – Crime – Tier 3
‘A leading star of the criminal Bar, Leonard excels in cases of the utmost complexity. Thoroughly prepared, he knows all the angles and you want him on your side when the odds are against you. A devastating cross-examiner.’
Adam Kane KC – Ranked in: Crime Band 3, Financial Crime Band 3 – View Chambers & Partners profile
Adam Kane KC handles matters involving suspected corruption, tax evasion and money laundering. Kane is frequently instructed to represent professionals facing charges of tax and investment fraud. He has added experience in bribery cases.
“He is very good at the detail of frauds and is able to understand the realities of what is going on.”
“Adam is a fearsome competitor, an impeccable advocate and highly knowledgeable about the law.”
“He’s incredibly erudite and has a wonderful turn of phrase.”
“Adam is a heavyweight advocate with vast experience and great tactical know-how.”
Legal 500 – Crime – Tier 4
‘Adam is an extremely hard working and diligent silk. His legal knowledge is extensive and his applications and arguments beautifully and clearly presented, both in writing and orally.’
Felicity Gerry KC – Ranked in Crime Band 5 – View Chambers & Partners profile
“She’s an advocate’s advocate, who presents well to juries.”
Legal 500 – Crime – Tier 3
‘Felicity is a fearless courtroom performer, dedicated to putting her clients’ cases faithfully and sympathetically. She is also an authoritative legal analyst. She therefore engages the attention of both juries and judges.’
Keith Mitchell – Ranked in: Financial Crime Band 3 – View Chambers & Partners profile
Keith Mitchell frequently acts unled, acting for the defence in high-value cases. His caseload includes a number of tax fraud, corruption and trading standards matters. He has noted expertise in major bribery cases and is adept at handling cross-border issues.
“Clients love him and he is a joy to watch in court.”
“From managing clients to focus of instructions, guidance and the way he presents himself, Keith is a pleasure to work with.”
Legal 500 – Fraud: Crime – Tier 3
Keith is a very persuasive jury advocate and and has excellent pastoral skills with lay clients putting them at ease in the most stressful of cases.’
Roxanne Morrell – Ranked in: Crime Band 5 – View Chambers & Partners profile
“Hard-working, professional and no nonsense in her approach.”
“She’s an excellent cross examiner.”
James Walker – Ranked in: Crime Band 6 – View Chambers & Partners profile
“Excellent, not only in his preparation, but also with the client and before the jury.”
Gerard Hillman – Ranked in: Crime Band 4, Financial Crime Band 3- View Chambers & Partners profile
Gerard Hillman is a proven defence advocate who handles high-value financial crime work, including money laundering, VAT and investment fraud cases. He is singled out for his ability in tax fraud cases. Hillman offers significant expertise in boiler room fraud matters.
“He has got really good tactical acumen and a fantastic practice.”
“Gerard is a brilliant jury advocate – he’s very persuasive and has a nice, easy going manner.”
“Gerard has really good tactical acumen. He sees where he wants to get to in a case and just exactly how he’s going to get there.”
“He’s very persuasive and has a very good style in front of a jury.”
Legal 500 – Crime – Tier 4
‘Gerard is intellectually strong and excellent on the facts of a case. His advocacy is second-to-none and he is a user-friendly counsel. Gerry is also a team player and a class act.’
Marie Spenwyn – Ranked in: Crime Band 5 – View Chambers & Partners Profile
“Always well prepared and a consummate professional, she is fantastic to work with.”
“She has fantastic judgement and is really good at the detail.”
Frances Hertzog – Ranked in: Crime Band 6 – View Chambers & Partners Profile
“Excellently well prepared and dedicated to the cause.”
Matthew Lawson – Legal 500 – Crime Tier 4
‘Matt is a true jury advocate – he is extremely engaging with a jury and inevitably gets them on side. He is an excellent barrister with exceptional client care and clients love to have him on their side. He is a real fighter and leaves no stone unturned.’
Oliver Cook – Ranked in: Crime Band 5 – View Chambers & Partners profile
“Oliver has just got this presence in court about him and he always connects with clients and juries. He is able to present very difficult cases in the most attractive way and gets some extraordinary results.”
“A fearless, polished advocate.”
Legal 500 – Crime Tier 4
‘Oliver is a fighter and will not accept any adverse evidence without challenging it and trying to do the best for his client. He is also a natural advocate.’
Of the chambers, and clerking team Legal 500 report the following:
Libertas Chambers
Founded in 2020 as a virtual set, Libertas Chambers is fast gaining a reputation for excellence, with members having recently been instructed in relation to significant murder, terrorism and organised crime cases. Simon Csoka KC, ‘a fearsome cross-examiner and one of the finest criminal silks in the land’, has a leading practice which largely consists of organised crime and murder cases as well as major drugs mandates and high-profile private instructions. He has recently represented Fleetwood Town manager and former professional footballer Joey Barton in two cases, in which he was both acquitted. Felicity Gerry KC is ‘a force of nature‘ who handles homicide, terrorism, and modern slavery cases, among others.
Testimonials
‘Marc King is a cut above. He understands the difficulties solicitors have to deal with and does all he can to try and deliver on consistent service. Louis King also takes the time to make sure solicitors are updated and is always courteous and respectful.’
‘Marc King is a truly remarkable figure amongst criminal clerks. He is agile, responsive and understands what is needed in cases such that his recommendations are well received. He leads an excellent team of counsel and practice administrators.’
‘Louis King abounds with calmness and common sense and Gary Douglas is a work-horse who loves the job and will do anything for a client.’
You can read more about what the Guide says about us by visiting Chambers Guide 2024
Libertas Chambers
Latest News
Suspended Sentence obtained in Class A Drug Supply case
Darren Snow, instructed by Ziyad Lunet, of Z & Z solicitors, recently represented the defendant at Leicester Crown Court, who faced charges of supply of Class A and B drugs. Indications at plea from the judge were of immediate custody. The Prosecution asserted the evidence established a significant role in street dealing – which carried a starting sentence of 4 ½ years in prison.
The case was adjourned for a pre-sentence report from Probation. The report provided acknowledged a lack of history and the positive steps by the defendant since his arrest to turn his life around. Submissions examining the evidence undermined the significant role attributed and, with the benefit of extensive mitigation material, Darren and his Solicitor were able to put forward very persuasive submissions at the recent sentencing hearing, securing a suspended prison sentence.
Libertas Chambers
Absolute Discharge in historic sex offences case
Darren Snow, instructed by Kabir Saleem of Sakhi Solicitors, represented the defendant in respect of a series of allegations of historic child sexual abuse over a 6 years period to a grandchild.
Age 80 and now suffering dementia, Darren was able to persuade the Court that his client was now unfit to plead nor stand trial. The case proceeded at Leicester Crown Court with a fact-finding hearing before a jury without the defendant present, where allegations were found proved.
Notwithstanding the serious nature of the jury’s findings Darren secured an absolute discharge.
Libertas Chambers
Umar Shahzad Murder Dismissal in Nelson, Lancashire
Umar Shahzad, led by Frida Hussain KC of Furnival Chambers represented one of four men charged with Murder.
A trial date was set for the four men charged for the murder of a man in Nelson, Lancashire.
After an application to dismiss was made on behalf of their client, the Crown reviewed their position against him and offered no evidence.
The client was released after the hearing and walked away a free man no longer having to stand trial for Murder.
Umar Shahzad was instructed and assisted by Mudassar of Shafi Solicitors.
Libertas Chambers
Operation Desolate – Not Guilty verdict
Ayaz Qazi instructed by Rebecca Smith and Trevor Ashforth of Wilford Smith secures Not Guilty verdict on behalf of his client.
The Client was accused of being party to a Conspiracy to Evade Duty in the sum of £3,000,000 in relation to cigarettes.
Operation Desolate was a longstanding investigation into large quantities of cigarettes imported into Humberside.
Libertas Chambers
View more News
Latest Insights
Sending Christine Keeler to prison was a National disgrace
By Dr Felicity Gerry KC
I am delighted to see our campaign for the posthumous exoneration of Christine Keeler being covered for 4 days in The Mirror.
The campaign is being brought by her son Seymour Platt who was left the task of telling her real story in her will. At the height of the “Profumo Scandal” Christine was the victim of a violent assault by a man called Lucky Gordon. He was prosecuted but sacked his lawyers and represented himself. In cross examination of her, he admitted assaulting her. She told the police she had not mentioned two other witnesses because they asked her not to. On the suggestion that she had lied about about who was present, Gordon’s conviction was quashed by the Court of Appeal (the court unusually expressing their belief that Christine was telling the truth). Nonetheless she was prosecuted for perjury and PCJ. She pleaded guilty and was sent to prison.
She was under terrible pressure. For example, news reports account members of the public throwing eggs at her outside the Old Bailey in Stephen Ward’s trial where she was also wrongly accused of being a sex worker. Ward took his life before verdicts on whether it could be shown he was not living on her “immoral” earnings. These events framed Christine Keeler appallingly for the rest of her life, as Seymour Platt has explained in the Mirror. The law on the charges Christine faced (despite being a victim) only applies if there is a “material lie”. That Christine did not state that two other men were present when she was violently assaulted was totally irrelevant, especially as a proper investigation would have revealed they saw the attack and because her attacker admitted in court he assaulted her The Criminal Cases Review Commission is now quite properly investigating the case.
The implications of the comments her silk Jeremy Hutchinson QC made at the time made it obvious she pleaded guilty when she was not, and she was shamed, unlike others whose reputation has been restored. There is a real risk that she was wrongly convicted. Sending her to prison was dreadful and she rightly deserves a posthumous exoneration. It would also go a long way to reframing a case that is the epitome of slut shaming, fitting with modern CPS guidance on violence against women and girls
Libertas Chambers
Chambers Article: Rule 25.9(2)(c): Defence Statements and ‘openings’
Traditionally in England and Wales the defence may give an opening address at the start of the defence case, but only where evidence is to be called other than from the accused person. In many cases this means that the issues are not identified clearly until a late stage and in long cases there can be an advantage to the prosecution to dominate the trial issues.
In a recent webinar we discussed this topic of delivery of defence openings / summary of issues and how defence statements can be framed to support a defence opening.
This article is a summary of the key provisions discussed.
Click below to read in full.
Download Article now
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Libertas Chambers
Chambers Article: The ‘Fediverse’ vs P2P: The next generation of digital forensics
The courts of England and Wales may still be dealing with the many EncroChat-related prosecutions, but technology has already moved on. While many are focused on AI and its potential for misuse, what some overlook are the networks on which these platforms operate. You may never have heard of the ‘fediverse’ but, if you practise criminal law, you should understand the basics, says Benjamin Knight.
Click below to read in full.
Download Article now
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Libertas Chambers
Unreasonable delay… Sufficient to warrant a permanent stay of criminal proceedings?
Article originally posted 9th June 2023.
Updated: 18th August 2023
In England and Wales, the answer to this question is no. However, in Canada, a more robust approach is taken to procedural delay in certain circumstances. This article discusses delay to the criminal trial process, once it has begun. This is to be distinguished from the timely prosecution of certain categories of offence which come to light or are reported many years after they were committed, as occurred e.g., in Sawoniuk who was tried and convicted some 50 odd years after his war crimes.
England and Wales
Article 6(1) of the European Convention on Human Rights provides that every person charged with a criminal offence has the right to a fair trial by an independent and impartial tribunal within a reasonable time. The reasonable time right is not unqualified, but it has been held to be both independent of and separate to the co-existing rights in article 6 to a fair trial by an independent and impartial tribunal. It has been given effect in the domestic laws of England and Wales by the Human Rights Act 1998 which requires public authorities to act in a convention compliant manner. Therefore, as far as an individual charged with a criminal offence is concerned, and in very broad terms, this means that their convention rights not only trump the common law where there may be conflict between the two, but that prosecuting authorities and criminal courts must act in a manner which is compatible with their convention rights.
In most cases, time starts to run from the moment a person is charged or summonsed and it continues until the conclusion of any appeals, including appeals against confiscation orders. In order to establish a breach of the reasonable time requirement, an accused is not required to demonstrate prejudice; once a breach has been established, however, the concept of prejudice looms large when the criminal court comes to consider the appropriate remedy for the breach. Typically, this is because an accused whose reasonable time right has been breached, will apply for a stay of the proceedings as an abuse of the process of the court, thereby bringing into play ordinary and well-settled abuse of process principles.
The established cases in England and Wales which deal with the appropriate remedy for a breach of the reasonable time requirement are: Attorney General’s Reference (No.1 of 1990) [1992] 95 Cr. App. R. 296, Attorney General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, R v S. (S.P.) [2006] 2 Cr. App. R. 23 and R v F. (S.) [2011] 2 Cr. App. R. 28.
Taken together, the following principles emerge:
(i) a permanent stay is the exception rather than the rule;
(ii) there should be no stay in the absence of serious prejudice to the defendant being tried;
(iii) the court is under a duty to regulate and control its proceedings to ensure that the defendant receives a fair trial, notwithstanding the delay.
(iv) a permanent stay of proceedings should only ever be ordered in circumstances where the defendant cannot receive a fair trial or where, for a compelling reason, it is no longer fair for the defendant to be tried;
(v) in the latter case, a permanent stay will never be warranted in circumstances where a lesser remedy to mark the breach will suffice.
Canada
Section 11(b) of the Canadian Charter of Rights and Freedoms, contained in Part 1 of the Constitution Act 1982, provides that, “any person charged with an offence has the right to be tried within a reasonable time.” Section 11(d) provides for the co-existing rights to a fair trial by an independent and impartial tribunal.
Prior to 2016 and the Supreme Court of Canada’s decision in R v Jordan, [2016] SCC 27 (CanLii), violations of the section 11(b) charter right were determined according to the “the Morin framework”, following the Court’s earlier decision in R v Morin, [1992] CanLii 89 (SCC).
The Morin Framework
Morin was a straightforward drink-driving case from the state of Ontario which enjoyed a delay of 14.5 months between the defendant being charged and her trial taking place. Her counsel had requested the earliest possible trial date. On the day of trial, counsel applied to stay the proceedings alleging a violation of the defendant’s section 11(b) constitutional right to be tried within a reasonable time. This application was dismissed and the defendant was convicted. Her case progressed all the way up the Supreme Court of Canada (“SCC”).
The Court held that in determining an alleged section 11(b) violation, it was not apposite to apply a mechanistic or mathematical formula. Instead, a judge was required to balance the protection afforded to the individual by section 11(b) against other factors which inevitably lead to delay. These other factors were:
the length of the delay;
any waiver of time periods by the defence;
the reasons for the delay, including
(a) the inherent time requirements of the case,
(b) the actions of the accused,
(c) the actions of the Crown,
(d) limitations on institutional resources, and
(e) other reasons for delay; and
prejudice to the accused.
The majority stated that unreasonable delay should only be investigated if the period was long enough to raise an issue as to its reasonableness. Short periods of delay would only be capable of raising an issue if a defendant could demonstrate prejudice.
With respect to limitations on institutional resources in particular, the Court suggested guidelines of 8 to 10 months for provincial courts to determine matters and 6 to 8 months, post-committal, for trial in the higher courts. It made clear, however, that these were guidelines only, not intended to operate as a limitation period and that they were to be weighed in the scales with the other factors which they had identified. The Court recognised that the practical application of these guidelines would be influenced by the extent to which an accused might suffer prejudice. The Court noted that the guidelines would require adjustment by regional courts to reflect local conditions and that they would also need to be adjusted from time to time to reflect changing circumstances.
The Court observed that prejudice might be inferred from the length of the delay: the longer the delay, the more likely an inference of prejudice. However, if prejudice could not be inferred by the court or proved by an accused, any suggestion of an alleged violation would be seriously undermined. The protection afforded by section 11(b) was to ensure that trials were brought on swiftly and to minimise prejudice, not to avoid trials on their merits from ever taking place. A defendant’s attitude to securing a timely trial was an important consideration to be weighed in the scales. A balance had to be struck between the public interest, which demands that persons charged with offences should be brought to trial, and the accused’s interest in the prompt and efficient determination of criminal proceedings.
Prior to the SCC’s decision in Morin, an extreme example of a section 11(b) violation which resulted in a stay is to be found in R v Rahey [1987] CanLii 52 (SCC).
The provincial court judge presiding over the matter caused an 11-month delay after the prosecution had closed its case and the defendant had asked for a directed verdict of acquittal.
Initially, the accused did not object to the delay. After 9 months, he wrote to the Crown requesting that it should press the judge for a decision. He then alleged that his constitutional rights were being violated and requested a withdrawal of the charges. These requests were refused.
Instead, the Crown made an application to the superior court for mandamus to compel the provincial judge to deliver a ruling. The day before the provincial judge was due to give the ruling, the defendant made an application to the superior court for an order dismissing the charges on the basis that his section 11(b) constitutional right had been violated by the provincial court.
The superior court judge granted the defendant’s application and held that the trial judge’s delay had caused him serious prejudice by frustrating his ability to (i) conduct his defence, and (ii) carry on business while under a financial restraint order.
The superior court judge concluded that the only appropriate remedy for the breach was a dismissal of the charges. The Court of Appeal reversed this decision and directed that the trial in the provincial court should continue. It found that the evidence of prejudice was “insubstantial and entirely speculative.” The SCC allowed the accused’s appeal and ordered a stay of the provincial court proceedings. It is of some note that 6 of the 9 SCC Justices empaneled to hear this appeal were of the view that a stay of proceedings was the minimum remedy because the provincial court had lost its jurisdiction to continue trying the accused when it became the author of the section 11(b) violation.
R v Jordan [2016] SCC 27 – The New Framework
Jordan was charged in December 2008 with offences relating to the supply of controlled drugs. His trial ended in February 2013. He made an application under section 11(b) for a stay of the proceedings on account of the delay. The trial judge applied the Morin framework, dismissed the application and the defendant was convicted. He appealed to the Court of Appeal which dismissed his appeal. The SCC allowed his appeal, set aside his conviction, and ordered a permanent stay of proceedings.
The SCC introduced a new concept of presumptive ceilings beyond which any delay is presumed to be unreasonable unless there are exceptional circumstances justifying it. Once a presumptive ceiling has been exceeded, a permanent stay will follow unless the crown can justify the delay. There is no longer a need for an accused to demonstrate prejudice. Unlike the position in England and Wales, accused persons do not have to invoke abuse of process principles and prove on balance of probabilities that they cannot have a fair trial or that it is no longer fair for them to tried.
Unless there are exceptional circumstances to justify it, exceeding the presumptive ceiling, in and of itself, leads to a permanent stay and the burden is on the Crown to justify any delay under the exceptional circumstances exception.
The majority of the SCC opted for a new framework stating that the Morin framework,
“…had given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. Doctrinally, the Morin framework is too unpredictable, too confusing, and too complex. It has itself become a burden on already over‑burdened trial courts. From a practical perspective, the Morin framework’s after‑the‑fact rationalization of delay does not encourage participants in the justice system to take preventative measures to address inefficient practices and resourcing problems.”
“A new framework is therefore required for applying s. 11(b)… At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable unless exceptional circumstances justify it. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry).”
The new framework is applied as follows:
Defence delay (caused or waived) does not count towards the presumptive ceiling.
Once the applicable presumptive ceiling has been exceeded, the Crown bears the burden of rebutting the presumption of unreasonableness on the basis of exceptional circumstances.
If the Crown cannot do this, a stay will follow.
“Exceptional circumstances” are circumstances which lie outside the Crown’s control. They must be reasonably unforeseen or reasonably unavoidable, and not reasonably capable of remedy.
Whether circumstances are exceptional will depend on the trial judge’s good sense and experience.
In general, exceptional circumstances will fall under two categories: discrete events and particularly complex cases.
If the exceptional circumstance relates to a discrete event (such as an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay.
If the exceptional circumstance arises from case complexity, the delay is reasonable and no further analysis is required.
An exceptional circumstance is the only basis upon which the Crown can justify a delay that exceeds the presumptive ceiling.
The seriousness or gravity of the offence cannot be relied on, nor can chronic institutional delay.
The absence of prejudice to an accused person cannot be used to justify delays after the presumptive ceiling has been breached.
Only circumstances that are genuinely outside the Crown’s control and ability to remedy may excuse prolonged delay.
Below the presumptive ceiling, the burden is on the defence to show that the delay is unreasonable. To do so, the defence must establish that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. Stays beneath the presumptive ceiling should only be granted in clear cases.
Turning to Jordan’s appeal, the total delay from the date on which he was charged to the end of his trial was 49.5 months. From this, the Court deducted a 4-month adjournment period for a delay which had been caused by the defendant changing his counsel shortly before his trial was due to begin. A further 6 weeks was deducted on account of a further delay occasioned when the defendant’s counsel was unavailable. This left a delay of 44 months which the Court found “vastly exceeded” the 30-month presumptive ceiling for superior court cases under its new framework. While there were some complexities to the defendant’s case, they were not of a kind that could reasonably justify this level of delay. Accordingly, as the Crown was unable to demonstrate that the delay was reasonable, the only remedy for the breach was a stay of the proceedings.
Discussion
On any view, the Canadian presumptive ceilings are very generous for most criminal cases being tried in the higher and lower courts. They amount to this: superior court cases must conclude within 2.5 years from the date on which a suspect is charged and provincial court cases must finish within 18 months. These are significant time periods for the vast majority of criminal cases. They were set with a view to tackling chronic delays and a culture of complacency to delay which had become embedded in some parts of the Canadian system. The SCC spoke of the need for everyone involved in the Canadian criminal justice system to address inefficient working practices and adequacy of resource problems.
In considering the potential utility, therefore, of the Canadian model to practice in England and Wales, one probably needs to consider, first, whether there are, in fact, any Crown Court cases presently taking longer than 2.5 years from charge to conclusion? And in Magistrates and Youth Courts, whether there are any cases that are not being disposed of within 18 months? There may not be that many. Judges and list officers in England and Wales have consistently shown a determination to have trials warned or fixed in the court calendar as soon as possible. Most trials, including those requiring High Court or specialist ticketed judges, used to be warned or fixed for trial within no more than 6 to 9 months of the PCMH; many within less time than this depending on the court centre. Cases were not infrequently moved between different court centres, both on and off circuit, to ensure that they could be tried as quickly as possible, regardless of counsel’s convenience and often to the chagrin of busy counsel. So, in a sense, the Canadian model may not be a good fit to the system in England and Wales.
However, should the criminal justice system in England and Wales ever find itself overwhelmed or close to breaking point, to the extent that criminal cases are no longer capable of being listed and disposed of within the reasonable time frames that judges and list officers applied historically and did their best to adhere to, a brave counsel somewhere might wish to take a stab at presenting the Canadian model, with the ceilings suitably adjusted to reflect our own historic standards of efficiency and expedition. Who knows, it might just find favour with some Judges in some cases without the need to demonstrate prejudice and unfairness.
In relation to substantial complex fraud cases which in some instances can conceivably take longer than 2.5 years to reach a conclusion, under the Canadian model the complexity of these cases is deemed capable of amounting to an exceptional circumstance justifying the reasonableness of the delay such that no further inquiry is required. Having said this, it is probably fair to observe that there must come a point at which even complex cases should not be allowed to drift on if they cannot be made ready for trial and accommodated by a crown court centre within a reasonable time.
Rahey and Morin were considered by the House of Lords in Attorney General’s Reference (No.2 of 2001) [2004] 2 A.C. 72, as indeed was the New Zealand Court of Appeal case, Martin v Tauranga District Court [1995] 2 NZLR 419, in which an approach similar to that in Canada was taken.
Lord Bingham described the argument in favour of a permanent stay as a powerful one and opined that it was not at all surprising that such a powerful argument had been accepted by highly respected Courts around the world. However, in addition to the compelling public interest in the determination of criminal charges, he provided four reasons why it should not be accepted in England and Wales:
the right which a defendant has is to a hearing which should have certain characteristics; he said it would be anomalous if a breach of the reasonable time requirement had more far-reaching consequences than a breach of a defendant’s other section 6(1) rights e.g., the right to a fair trial. Lord Bingham cited the example of a defendant being convicted after an unfair trial, the Court of Appeal quashing the conviction because of the unfairness but nevertheless ordering a re-trial if a fair trial is still possible.
automatic termination of proceedings cannot sensibly be applied in civil proceedings;
in practice, automatic termination of proceedings has been shown to weaken the requirement. Citing the Judicial Committee of the Privy Council in the Scottish case of Dyer v Watson [2004] 1 A.C. 379, Lord Bingham pointed out that the convention is directed to breaches of basic human rights, not to departures from an ideal, and that the threshold of proving a breach of the reasonable time requirement is a high one, not easily crossed. Lord Bingham expressed a concern that should a breach result in an automatic stay, judges might set the threshold at an unacceptably high level because the idea of setting free dangerous criminals or those who are guilty of serious crime on account of delay has always been repugnant;
finally, a close analysis of the ECHR jurisprudence did not support the contention that a breach of the reasonable time requirement should lead to an automatic stay of the proceedings.
Adrian Kayne
18th August 2023
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We recently held a webinar on Defence Statements and Openings: Rule 25.9 and being fair and concise. A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair.
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Defence Statements & Openings: Rule 25.9 and being fair and concise
This webinar has now finished. You can view the replay at our later blog post.
A practice is growing of asking Defence Counsel to open 1 or 2 sentences after the prosecution opening in serious cases which may not be in accordance with the Criminal Procedure Rules. Rule 25.9, taken together with the overriding objective allows for a fair and concise rehearsal of the issues raised in the defence statement or alternatively for the jury to be given the defence statement. This webinar discusses the delivery of defence openings / summary of issues, how defence statements can be framed to support a defence opening, and what is the bare minimum for opening defence issues which is fair.
Presented by our Dr Felicity Gerry KC and Marie Spenwyn
Felicity and Marie have significant experience defending in the most serious of criminal matters including homicide, terrorism and war crimes. Both are co-authors of The Sexual Offences Handbook (3rd Ed forthcoming). They are well versed in taking procedural challenges and taking the best strategic approaches for clients.
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