Minchin, R. v

Documents containing an alleged false alibi are not hearsay when tendered to prove that the alibi was advanced, rather than that its contents were true. Any hearsay elements may nevertheless be admitted under section 114(1)(d) of the Criminal Justice Act 2003 where the interests-of-justice factors, including provenance, reliability, probative value and available supporting evidence, justify admission.

Legal professional privilege does not prevent a production order where freestanding and independent evidence permits the court to find that the documents furthered a criminal purpose, without deciding issues reserved for trial.

The appellants Minchin and Healey were convicted at the Crown Court at Snaresbrook of conspiracy to pervert the course of justice arising from an alleged false alibi for Healey. Healey was also convicted of wounding with intent. Dwyer was convicted of attempted murder.

Before trial, production orders obtained documents from Healey’s solicitors recording the alibi. The trial judge admitted the documents and rejected submissions of no case to answer. Minchin and Healey appealed their convictions. Dwyer renewed his application for leave to appeal against conviction, challenging the refusal to sever his trial. Healey also renewed his application for leave to appeal against sentence.

The central issues were privilege, the admissibility of the solicitors’ documents, and whether their use rendered the convictions unsafe.

1. The appeals against conviction were dismissed. The renewed applications by Dwyer for leave to appeal against conviction and by Healey for leave to appeal against sentence were refused.

2. The production order was properly made. Sections 9(1) and 14(1) of the Police and Criminal Evidence Act 1984 prevented a production order for legally privileged material. However, section 10(2) removed that protection for material held to further a criminal purpose. Applying the guidance in R (Hallinan, Blackburn-Gittings & Nott (a Firm)) v Middlesex Guildhall Crown Court [2005] 1 WLR 766, there was freestanding and independent evidence of a conspiracy to create a false alibi. It included Small’s lies, her concealed relationship with Kimpton, the alibi instructions and her retraction. The court could assess that evidence without deciding the issues for trial.

3. Most of the solicitors’ documents were real evidence. The prosecution relied on the false-alibi assertions to prove that they were made, not to establish their truth. The parts recording attendance at the solicitors’ office and communication with police were hearsay, but were admissible in the interests of justice under section 114(1)(d) of the Criminal Justice Act 2003. Their professional provenance, high probative value, written form, support from other evidence, and the practical difficulty of calling the solicitor justified admission. Section 117(5)(b) did not provide a basis for admission because the solicitor might have retained a recollection of the matters recorded.

4. The documents were therefore properly admitted and the applications of no case to answer were correctly refused. The convictions were safe; the remaining challenge to Healey’s conviction for wounding with intent also failed.

5. The refusal to sever Dwyer’s trial was within the trial judge’s discretion. Dwyer was not alleged to join the false-alibi conspiracy, advanced a separate alibi, and the jury received clear directions to consider each defendant and count separately.

6. Healey’s sentences were not manifestly excessive. The sentence for the section 18 offence was within the applicable guideline range, and the consecutive conspiracy sentence had been reduced to reflect totality.

1. Court of Appeal (Criminal Division) In [2013] EWCA Crim 2412, dismissed Minchin’s and Healey’s conviction appeals, refused Dwyer leave to appeal against conviction, and refused Healey leave to appeal against sentence.

2. Crown Court at Snaresbrook On 16 March 2012, Minchin and Healey were convicted of conspiracy to pervert the course of justice; Healey was also convicted of wounding with intent; and Dwyer was convicted of attempted murder.

3. Crown Court pre-trial rulings HH Judge Bright QC ordered production of the solicitors’ documents and refused an application to dismiss the conspiracy count. HH Judge Bing admitted the documents at trial and refused submissions of no case to answer.