Newell, R v

An advocate’s statement on a Plea and Case Management Form may be admissible in principle as an admission made by the defendant’s agent. The defendant may nevertheless adduce evidence that the statement was made without instructions.

In the Crown Court, however, a Plea and Case Management Form primarily assists active case management. Where the parties comply with the Criminal Procedure Rules, the court should ordinarily exclude information on the form under section 78 of the Police and Criminal Evidence Act 1984. Admission will be appropriate only in very rare, fact-specific circumstances, such as an attempted ambush inconsistent with information previously supplied.

The appellant was convicted at the Crown Court at Reading of possessing cocaine with intent to supply. At trial he admitted possession but denied an intent to supply. The prosecution cross-examined him on an earlier Plea and Case Management Form on which his former counsel had written “No possession”. The trial judge admitted the entry as a previous inconsistent statement and gave a direction permitting the jury to treat it as a lie if made on the appellant’s instructions.

The appellant contended that the entry was not admissible and, alternatively, that it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. The central issue was the proper evidential use of statements made on a Plea and Case Management Form.

1. Appeal allowed; conviction quashed. The form entry was admissible in principle, but the judge should have excluded it under section 78 of the Police and Criminal Evidence Act 1984. Its admission rendered the conviction unsafe.

2. Under the preserved common-law rule in section 118 of the Criminal Justice Act 2003, an advocate may make an admissible admission for a defendant. Recording matters on a Plea and Case Management Form is ordinarily incidental to the advocate’s authority to conduct the defence. In any event, an advocate appearing before the court has ostensible authority to make such a statement. Evidence that the advocate acted without instructions goes to whether the statement was authorised, not to its admissibility in principle: R v Turner (Bryan) (1975) 61 Cr App R 67.

3. The Crown Court’s statutory and procedural regime gives the Plea and Case Management hearing a central case-management function. The defence statement identifies the nature of the defence, while section 11 of the Criminal Procedure and Investigations Act 1996 supplies sanctions, including comment and proper inferences, for non-compliance. Accordingly, information on a Plea and Case Management Form should normally be supplied without the risk of its later use as evidence against the defendant, provided the defence observes the letter and spirit of the Criminal Procedure Rules.

4. Exceptional admission may be justified where a defendant has failed to provide a required defence statement and attempts an ambush inconsistent with the form, particularly if admission avoids an adjournment. Such cases should be very rare.

5. Here, the late defence statement had made the appellant’s position clear and the statutory sanction for lateness was sufficient. The Crown suffered no disadvantage. The form was introduced without warning to defence counsel and was used to invite the jury to find a lie evidencing guilt. That procedure was unfair to the defence and the section 78 discretion should have been exercised to exclude it.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2012] EWCA Crim 650.
• Crown Court at Reading: The appellant was convicted on 11 July 2011 of possession of cocaine with intent to supply and sentenced on 8 August 2011. No lower-court citation was stated.