The Cipriani Defence: How Much Can I Test The Evidence?
The right to a fair trial.
The right to see the evidence against you.
The right to defend yourself.
Most people think they know their rights – they may not know where those rights are enshrined in law but for most they have a general idea about what those rights actually are. They may even claim that it’s their “Human Rights” but do you actually know the limitations on those rights?
We are often contacted by people wanting to ‘see the evidence’, wanting to know that the police can prove their case before they accept the charges against them. Even for things like speeding – they want the police to prove that they were the driver. Innocent until PROVEN guilty right? Well not exactly. If your car is found to be speeding then the onus is on you as the owner of the vehicle to identify who the driver is – and there are timeframes for you to do this in. You can ask for photographic evidence of the offence but this doesn’t have to identify the driver, only the vehicle – it is down to the registered keeper to do that.
So what about when the case is more serious? When it’s not just a simple speeding matter? When a person’s livelihood, licence or even freedom is at risk? Then what?
Yes, it is the prosecution’s responsibility to prove that the offence has been committed by the defendant in the manner in which they assert it occurred – it is not down to the defence to prove that their client did not do it, though it can certainly feel that way sometimes, and indeed as a Defence Lawyer I often spend my days feeling as if I am proving that my client did not commit the offence they are accused of.
As a firm Forrest Williams don’t offer promises about ‘getting clients off’ – we do however listen to a client and do our best to accommodate and understand their needs. So if we use the offence of Drink Driving for example, we don’t assure clients that the police will have made a mistake, that we will get them off – because if they accept that they were drinking, that they would have been over the limit, and that the reading was probably about right for what they had to drink – then in many cases the right option for the client is to plead Guilty and then mitigate for the lowest possible sentence and to ensure that maximum credit for that early guilty plea is obtained. However in cases where a client tells us that they are sure it can’t be right, that it’s just not possible, then we can “put the crown to proof” and test the evidence against our client.
This isn’t something we do for every client – it’s more costly, its more stressful for the client, and there is no guarantee of success – for many it is just not the right option for them. But there are firms out there that do do this as standard, testing every minute element of the prosecution’s case looking for flaws to be exploited. And now the courts are catching onto this fact and they do not like it – seeing it as a waste of the court’s time.
In June 2015 the rugby player Danny Cipriani was arrested for Drink Driving. There was a car accident between his Mercedes and a Taxi. The Taxi driver called the police after smelling alcohol. When asked, Mr Cipriani confirmed to the Police officer that he was the driver and produced his car keys. He failed a roadside test and was arrested and taken to the station.
Mr Cipriani’s solicitors “put the crown to proof”:
- They challenged the reading – providing an expert report to show what Mr Cipriani’s reading should have been.
- They challenged the efficacy of the machine – saying that the expert report shows that the machine must have been faulty as was giving incorrect readings.
- They challenged the calibration of the machine.
- They challenged the service history of the machine.
- They challenged the evidence that he was even the driver of the vehicle
- They challenged the police procedure saying it was incorrectly completed.
- They even asserted that the defendant was unlawfully detained at the station.
- They served an Abuse of Process and Exclusion of Evidence application upon the Prosecution.
The Defence asserted that given all the above, the prosecution had failed to meet the standard and burden of proof.
The client was, nonetheless, convicted of the offence. The court commented that the defence had
at one stage or other argued almost every conceivable defence that there might be
The court commented that the defence never made it clear why they argued that the procedure was not followed – their own client seemed to confirm under oath that they had! The court highlighted that in the case law cited that there is a ‘presumption in law that the machine is reliable’ – so evidence must therefore be put forward to rebut this. The expert’s report does help here however witness evidence (including that of the other driver) suggests Mr Cipriani was showing signs of being affected by alcohol. The court found that the prosecution does not have to prove that on each occasion the machine has tested itself.
Then the court went further. The court said that Drink Driving cases cannot be conducted like this in the future. In short that a Defence cannot be a ‘fishing expedition’ – matters in dispute must be clearly and specifically identified and only relevant evidence requested. In their words
trials [should] concentrate on the real contested issues…not descend into a game of smoke and mirrors
This doesn’t change your rights, but it does change the way solicitors should be working. We have a duty to act in your best interests – we can still test the evidence but if, during the course of the evidence it becomes clear that there is little chance of success then it is our responsibility to tell you this. I have a client at the moment with whom we have ‘tested’ the evidence and we have found a mistake in the procedure – so it does happen. On review of the CCTV it appears the Statutory Warning was not given. This means our client has grounds to continue to plead Not Guilty – had we been unable to find this error then our advice to the client would have been that he may wish to reconsider his plea and to instead try to regain some of the credit for the guilty plea and try to persuade the courts to impose a more lenient sentence.
If you want a firm to work in your best interests then give Forrest Williams a call on 01623 397200 – we will listen to you and advise you based upon what you tell us about your specific case and circumstances.