Public Law

I’d imagine Chris Huhne feels as if the sky is falling on him today. News that he will face a charge of perverting the course justice is announced live on TV. And within the hour he is tendering his resignation from the cabinet.

Keir Starmer QC, the Director of Public Prosecutions, and Head of the Crown Prosecution Service in England and Wales, announced the decision to prosecute Chris Huhne at a televised press conference. (Before I go further, I should remind everyone that Scotland has its own criminal law and procedure, and that in Scotland the senior prosecutor is the Lord Advocate as Head of the Crown Office and Procurator Fiscal Service.) 

You can read Mr Starmer’s full statement here. I do appreciate that this statement is concerned with transparency and accountability, and sets out to explain the time taken to bring a prosecution in this case, but I couldn’t help but alight on the DPP’s concluding remarks:-

“Can I remind all concerned that Mr Huhne and Ms Pryce now stand charged with criminal offences and that they each have a right to a fair trial. It is very important that nothing is said, or reported, which could prejudice their trial.”

What does it matter?

In Scotland prejudicial pretrial publicity can be used by the defence to stop a prosecution in its tracks. This can lead to a trial being delayed or postponed, but it can also mean the end of the prosecution altogether. The argument runs that such has been the pre-trial media coverage of a case, that it’s simply not possible for the accused person to get a fair hearing from a jury. 

The Scottish Courts take a sceptical approach to such arguments, and start from the position that as long as a jury is given proper advice or directions by the trial judge, these should be able to overcome any risk of prejudice. The test was set out by Lord Justice-General Emslie in Stuurman v HM Advocate (1980) as “whether the risk of prejudice is so grave that no direction of the trial judge, however careful, could reasonably be expected to remove it”.

Which brings us back to the statement made by the DPP today. I’m not suggesting that this statement – had it been made in Scotland by the Lord Advocate, live to the television cameras and assembled media – would of itself have provided the basis for a successful prejudicial pretrial publicity plea. 

But I do wonder whether announcing the decision to prosecute in this manner was really the best way to protect against prejudicial pretrial publicity. I do wonder whether announcing the decision to prosecute in this manner has in fact greatly increased the risk of prejudicial pre-trial publicity…

Paul Marshall

Partner at Brodies LLP
Paul leads Brodies’ Corporate Crime and Investigations team. He has more than a decade of experience conducting and managing internal investigations for clients who suspect that something has gone wrong within their business. He advises and support clients facing investigation by the police and specialist regulators
Paul Marshall