Personal Injury and Medical Negligence Limitation Period
Update- since week ending 01/05
Last week Helen pleaded not guilty to the two charges she faces, Attempted murder and in the alternative Grievous Bodily Harm with intent. Her trial has been fixed for September 2016. Helen was refused bail on the basis that she might commit further offences or interfere with prosecution witnesses. In the meantime Rob has started the process of subtly poisoning Henry’s mind and thereby contaminating his evidence. Helen has applied for a place in a mother and baby unit (see our previous post of this series part three ending 24/04/16 for more details of mother and baby units within the prison estate.
Bail – why was Helen refused bail
Unless the offence falls into a small number of offences such as murder, the Bail Act 1976 presumes that bail will be granted to the defendant in criminal cases unless one of the exceptions apply.
In order to refuse bail the court has to be satisfied that there are substantial grounds to believe that the defendant, would:
The onus is on the crown to convince the court that the defendant should not be granted bail. However the crown is significantly assisted by the fact that the court is obliged, when considering whether to grant bail to accept the prosecution evidence as correct without any serious inquiry into its strength or provenance. As such it is often up to the defence to establish the basis for bail by identifying and dealing with the factors which can demonstrably be undermined and offering conditions of bail that might allay the court’s concerns.
Any bail package that does not anticipate the likely objections from the crown and address them specifically, as with Helen’s, is frankly doomed to fail. Luckily the law provides an opportunity for Helen to apply again if she can establish a significant change in her circumstances. What amounts to a change in circumstances varies from case to case but the best way to think about it is: if the judge had this new/additional information at the time they made the original bail decision, might it have made a difference to the decision regarding bail?
So for instance, Helen was denied bail because it was thought that she might commit further offences. Well once the baby is born, the passage of time together with the fact that she will be significantly occupied while caring for the baby may well amount to a change in circumstances that allows her to renew her application for bail.
Timing of Helen’s trial
Helen’s trial has been fixed for September 2016. Six months feels like a long time for Helen but with all that needs to be accomplished in preparing her defence it is about the correct amount of time needed to prepare the prosecution and the defence properly.
There are strict rules referred to as the "Custody Time Limits" which set out the periods within which a trial should take place for someone who is remanded in custody (prison) before trial.
Those fortunate enough to have bail are perhaps hampered by the fact that the time limits do not apply to them. There have been significant periods in recent times when trials for those on bail have been set 12-18 months in advance. Clients tell me that trying to live their lives normally with allegations hanging over your head can be a form of sentance in itself.
What are the defence team doing now?
The defence preparation will include many things which we can deal with as they arise but one of the most important is a proof of evidence.
This is the main defence document. It is drafted to comprise the instructions Helen gives her defence team. It is subject to legal professional privilege. This means it is a private document between Helen and her solicitors, the contents of which cannot be shared with anyone else without Helen’s permission. It allows Helen to have confidence that what she says will remain private and thereby give her the freedom to be open and honest with her defence team. I cannot over emphasise how important this principle of privacy is. Without it clients might lack confidence in providing full instructions and the advice they consequently receive will be inaccurate.
You can expect that every aspect of her relationship with Rob, what happened on the day of the incident to be set out in significant detail within the proof of evidence.
If full instructions are taken (for which the solicitor will need Helen’s help) the proof of evidence should identify further areas of investigation in respect of Helen’s defence. For instance committed Archers fans will remember that Helen contacted a domestic violence helpline shortly before the stabbing incident. She told the helpline volunteer that there had been occasions when Rob had forced himself on her. Like many women, Helen was not sure whether what happened constituted rape given that she was married to Rob (Sotto voce we all know that rape can happen within a marriage and any doubt we had about that was extinguished in R.(F) v DPP  2 Cr.App.R. 21,DC). Helen’s call was interrupted by Rob and Helen rang off before she was able to take the reference number for the call. The record of that call could provide probative evidence of Rob’s violence towards and intimidation of her. One of the things her defence team might now consider is submitting a Subject Access Request to the helpline under section 7 of the Data Protection Act 1998 obtain any records regarding the call.
A further example can be found if we revisit the incident when Helen stabbed Rob. As the incident builds Rob puts some music on and says “remember this, it was playing when I gave you our baby”. Those committed listeners will remember that this was the piece of music that Rob put on when he raped Helen and she conceived the baby she is currently carrying. A detailed proof of evidence will identify this as an issue that may be useful ground for cross examination when Rob gives his evidence at trial.
In any case, no matter how big or small a detailed proof of evidence based on instructions from the defendant is essential.
Contact between Helen and her mother
The situation here is becoming intolerable. You will recall that Pat Archer gave a statement to the police and thereby became a “prosecution” witness. On advice from Helen’s barrister, she is therefore a witness that Helen cannot have contact with. I referred to this issue in part two week ending 17/04/16 but let’s think about that again. If Helen were on bail it is likely that she would have a bail condition indicating that she cannot contact prosecution witnesses, directly or indirectly. This would be to prevent her affecting their evidence or their willingness to give that evidence. But Helen is in custody. So far as I am aware there is no rule that prevents Pat from visiting Helen. Helen and Pat may be well advised not to talk about the case, Helen’s instructions or the advice that Helen receives from her legal representatives. Even having allowed the appropriate latitude for poetic licence this aspect of the storyline is, in my opinion, just plain wrong. Send your mum a visiting order Helen, it can hardly get any worse!!
Contact between Helen and Henry
A similar issue arises with Henry. Admittedly complicated by the fact that he is an eye witness and his age. It is a perfect example of a clash of laws. The Children Act creates an expectation of contact, even if supervised, between children and their parents (or others with parental responsibility). There is a clear opportunity for supervised contact and I hope someone will consider this soon.
Understatement of the week
Comes from Helen’s paternal grandmother Peggy Woolley who is incensed by the court’s refusal to grant Helen bail and in explaining her position says “ I accept something has gone badly wrong but…..”. Badly wrong, really?.
For more information regarding any of the legal issues featured in this blog please contact Sandra.
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