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Prosecutor memo leads to abuse of process ruling

An abuse of process

Mary Smith was driving her car down a two-way street through the town of Middle England when, owing to a temporary distraction she swerved and went over the central dividing line. A police officer was in a patrol car behind her and responded by signalling her to stop.

It appeared to the officer that Ms Smith's breath smelled of alcohol, so he requested Ms Smith to accompany him to the police vehicle where he could breathalyse her. She got into the back of the vehicle and was handed the mouthpiece. However, despite several attempts she was not successful in giving a satisfactory sample. As a result, the officer arrested Ms Smith and took her to Middle England police station where the breathalysing process was again attempted, but this time using the station equipment, known as a Lion Intoxilyzer 6000, which is standard issue in police stations throughout the UK. Again, Ms Smith failed to provide a sample. According to the officers, several attempts were made to breathalyse Ms Smith, but she was not co-operative. According to Ms Smith she was unable to provide a sample because she was hyperventilating and in a state of panic.

The officers charged Ms Smith with the offence of failing to provide a sample.

The case came to the Middle England magistrates' court and was heard in front of three lay magistrates. The alternative in the UK for some hearings of this kind is that the case is heard before a district judge (this official used to be known as a 'stipendiary magistrate'). In this case, however, the case came before three lay magistrates. Among the evidence tended by the prosecution were two statements from the two officers who had attempted to breathalyse Ms Smith. Upon disclosure (prior to the trial) what struck the defending barrister (attorney) was the similarity between the two police statements.

He questioned the first police officer as to the similarities. The officer maintained that the similarity was purely co-incidental. Asked if he could account for this 'co-incidence' the officer replied that he could not. Asked if he had shown his own statement to the second officer the first officer said he had not and that there was no possibility that the second officer could have seen his, the first officer's statement. The barrister was nothing if not determined. He pressed the officer for a satisfactory answer. Eventually, the officer said the only thing he could think of which might account for the similarity was a memo he had received from the prosecutor. The barrister asked him what memo he was referring to, pointing out that no memo had been disclosed to the defence. Of course this was somewhat disingenuous of the defence barrister, because memos sent by prosecutors are not normally disclosed to the defence. Perhaps they should be, but that's another matter.

The officer re-iterated that he had received a memo from the prosecutor. The defence barrister requested the court to ask the prosecutor to disclose the memo. The prosecutor said he was unaware of any memo. He appeared to look through the bundle of documents in front of him but could apparently find no memo. The defence barrister offered to help him. This offer was declined, but the magistrate then asked if perhaps the officer could be allowed to look through the prosecutor's papers, since he would surely recognise the memo more easily. The bundle of prosecutor documents was handed somewhat reluctantly to the officer as he stood at the witness box and he immediately found the memo. The memo was copied and all parties were given a copy. It should be said that the prosecutor in court on the day was not the same prosecutor who had written the memo.

What the memo said

The memo purported to be a request from the prosecutor to the disclosure officer to make disclosure of several items which the defence required in order to run the case. This list included the mouthpiece, any notes the officers may have made in the course of Ms Smith's detention at the police station and, crucially, a request to the officers to provide Section 9 statements (i.e. witness statements) on the breathalysing process as it had applied to Ms Smith. These were the statements upon which the defence barrister was examining the officer when the fact of the memo's existence was first mentioned.

However, the memo was extremely derogatory to the defendant and her legal representatives, and in fact represented the task of collecting this evidence as a 'pain' – effectively a nuisance to the officers and the prosecution.

The defence immediately took issue with the memo and requested permission from the court for an adjournment so that an expert could be called to look at the memo and the two statements. This adjournment and the request for an expert was immediately granted by the bench.

The memo was sent to me, along with the two statements and an analysis was made. The key points of the analysis were these:

1. The memo does not appear to be a request for a disclosure, but a demand for the disclosure to follow the prosecutor's prescription. For example, the memo requests the officers to provide statements 'that Ms Smith was not suffering from any form of hyperventilation or panic attack'. The linguist in the case considered that this was not an objective, impartial request, but a direction to the officers to state 'that Ms Smith was not suffering from any form of hyperventilation', etc. Similarly, the memo asks the officer to provide details of his experience in operating the breathalyser equipment, but this is also phrased as a demand. The prosecutor says 'I want to show you are an experienced operator [of this equipment]'. However, at the time of writing there was no way that the prosecutor could have known if this were true or not. The memo also contains a presumption of the doctor's findings: "Can I have an explanation as to why the doctor was called to rebut the defence assertion that it was due to the 'shock/hyperventilation'." The linguist considered that this is really a question followed by a statement of intent: (i) Can I have an explanation as to why the doctor was called- And (ii) there is a purposive infinitive 'to', which can be rendered as '[in order to] rebut the defence assertion that it was due to ...hyperventilation'. In other words, properly parsed, the memo appeared to say: 'Can I have an explanation as to why the doctor was called [because I wish] to rebut the defence assertion that...' The legal view was that the prosecutor should not have disclosed the defence's arguments to the officer because the officer was also a witness. The linguistic view was that the prosecutor was informing the officer of how he intended to counter the defence case, but also that he had apparently done so in a confusing and ambiguous way which could have been designed to obscure this fact from the officer's notice.

2. In this memo the prosecutor also tells the officer that he should expect questioning regarding the issue of whether he, the officer, acted unreasonably in refusing to allow the defendant the opportunity to give another sample.

3. Additionally, the prosecutor also gives the officer unnecessary information regarding defence disclosure.

4. Finally, the memo talks about the defendant and her defence team in the most disparaging and insulting terms, and, effectively, invites the police officer – who, it must be recalled – is a witness to the alleged offence – to share this view. For example, he writes: 'Enclosed is a copy of a defence case statement received from the defendant's solicitor (a lot of nonsense in a vain attempt to avoid the inevitable) which sadly we have to respond to'. There are several points at issue: (i) the prosecutor should not, unless under exceptional circumstances, be disclosing a defence case statement to a witness. Regrettably, the officer is not only a witness he is also the disclosure officer. This, it was claimed, is not best practice; (ii) at the linguistic level, the prosecutor uses inclusive 'we', thus inviting the officer to share his view that the defence case is 'nonsense' and hence that the task of collecting the evidence is a nuisance. Added to the unnecessary information the prosecutor gives the officer in connection with the defence arguments and evidence, this invites the officer to take a hostile attitude to the defence and forewarns him how the defence will be run, possibly creating an opportunity for tainting his evidence.

The trial was reconvened at the Middle England magistrates' court in front of the same magistrates as before. I was called and asked to comment on the memo, and so I outlined the arguments in my report and was examined and cross-examined on them. There was no prior examination on my admissibility as a witness because the prosecution had not objected to a linguist appearing.

I explained the linguistic issues, which were as follows:

1. A linguistic analysis of the memo was valid because (i) it is not only what we say that counts, but the context in which we say it. Thus, it might not be wrong for the prosecutor, if having a conversation with a colleague (who was not also a witness) to exclaim privately out of earshot from any of the parties that 'the defence case is a lot of nonsense'. Also, it would not be wrong for the prosecutor, if cross-examining the defendant, to say 'Madam, that is a lot of nonsense' or to say to the bench, 'Your worship, in my view the defence case is a lot of nonsense'. However, the prosecutor was writing to a witness in the case, and was inviting that witness to share his view, with the use of inclusive 'we'. This is the second linguistic point: speakers can include or exclude others by the use of 'we'. In the present case both the prosecutor and the witness have certain duties which they both have to carry out under the law. This is certainly a valid use of 'we'. However, the prosecutor went beyond the strict allocation of functions to the witness and invited him to share a derogatory, partial, view which was – crucially (in terms of prosecutorial codes of conduct) – anything but dispassionate. A prosecutor may have contact with a witness prior to a trial, but in his/her dealings with a witness must be dispassionate. This applies particularly to comments about a defendant. The prosecutor must not contaminate a case by commenting on such matters to a witness.

2. I also claimed that the way in which the prosecutor requested the evidence hardly constituted a request, but was in effect a demand for the presentation of evidence in a particular way. This applied to the 'that' clause previously referred to, and to the officer's status as an 'experienced operator'. Nobody disputed that the officer was probably experienced, but the prosecutor should have been more circumspect in his phrasing, saying for example 'Could you please provide me with any information as to your experience as an operator of this equipment' or, even more plainly, 'What is your experience as an operator?' In court I claimed that the prosecutor's sentence 'I want to show you are an experienced operator' was the equivalent of a leading question. Few judges or magistrates would allow counsel to say something like, 'Constable X, tell us about your qualifications with this breathalysing equipment because I would like to show the court that you are an experienced operator'.

3. It was also noted that the prosecutor, by using deprecating language to an official who was, in the sphere of such issues as 'chain of command' an inferior official, and therefore not at liberty to contradict the prosecutor, effectively put the officer under pressure. This was, in a manner of speaking, the equivalent of a junior employee having to laugh at a boss's racist or sexist jokes. All of these points together, it was claimed, meant that the officer was under pressure to conform to a set of instructions in a particular way, and was not free to gather his evidence in an impartial, objective manner.

4. The defence asked whether the close lexical and phrasing similarities across the two statements showed causation, in the sense that the statements – which used some of the same phrases as the memo and a number of phrases which were identical to each other (one or two of which were very rare phrases) must have been influenced by the memo. I felt that there were strong similarities, but that causation here was a legal issue, rather than a linguistic one, but that insofar as both witness statements followed the structure and wording of the memo, there were strong grounds for believing that the language of the memo influenced the language and structure of the statements.

As I have mentioned before, the prosecuting attorney in this 'failure to provide a specimen' charge was not the same prosecutor who had written the memo.

The prosecutor raised several very interesting points:

1. He pointed out (in the form of 'Wouldn't you agree with me...') that the fact that the statements contained many similar phrases could be attributed to the fact that police officers speak and write in a 'jargon-like' manner, i.e. that they use what linguists call 'police register'.

2. He stated that, since police officers are a hardworking community, it was quite reasonable that an officer witness could also be a disclosure officer in a case. He suggested that police officers can make up their own minds about such matters and would not necessarily be liable to influence.

I replied to these two points:

A. It is true that practitioners of different professions develop a kind of jargon or register, and this is particularly true of members of highly institutionalised professions such as police officers. Nevertheless, this could not explain the joint occurrence of several phrases of more than six words in length, as well as one or two very unusual phrases, e.g. 'non-verbal signs'. The officer who had appeared on the witness stand had not used the phrase 'non-verbal signs', but had spoken of 'body language'. Moreover, there was a very high common lexical content between the two statements.

B. I could not comment on the propriety or otherwise of witnesses acting as disclosure officers, since this was an operational or even a legal point rather than a linguistic one, and I could not comment on whether police officers are any more able or not able to make up their own minds regarding their views of a case, a defendant in a case, or that defendant's legal representatives. I simply pointed out that there is a memo, the memo is written in certain terms, and that the statements follow the structure of the memo almost precisely, that they contain many similar and identical phrases, and that the two statements are so like each other as to make the probability of their having been independently produced exceedingly low.

Following this evidence the defence requested that they be able to file a motion for abuse of process. Defence described how the question is laid out in the Police and Criminal Evidence Act, 1984 (Section 78). This section allows the exclusion of evidence if the result would mean unfairness to a defendant. The defence barrister argued that admission of the police statements would contradict the provisions of Section 78, and would result in an unfair trial. This provides that officials cannot abuse their rôle in a prosecution and, crucially, that they cannot act in 'bad faith'. The Code for Crown Prosecutors states that prosecutors "must be fair, independent and objective", that they should provide "guidance and advice to investigators" and that they have a duty to put "all relevant evidence...before the court". However, prosecutors "should...tell...police if they believe that some additional evidence may strengthen the case". An important phase in the decision process of whether to go forward with a case is the evidential stage. A crucial aspect of this is the way in which evidence is gathered. This is because the court can apply a number of rules to test whether evidence should be excluded or not. When considering an application under Section 78, the court will first consider how the evidence was obtained. A breach does not automatically entail exclusion of evidence. Rather, the breach has to be "significant and substantial".

In R v. Derby Crown Court, ex parte Brooks, Lord Ormond defined abuse of process as a case where "the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by law..."

In reality, the granting of an abuse of process is a rare legal event. According to Dilhorne, in DPP v. Humphrys (1977), proceedings are stayed only "in exceptional circumstances". This comment was echoed by Lord Lane when he was Attorney General in 1990, while Lord Justice Stuart-Smith noted that "it is a power that should only be exercised sparingly". One Canadian decision noted that in order for a stay to be granted "the fundamental principles of justice which underlie the community's sense of fair play and decency" would have to be violated.

In the present case the issue was whether misconduct which undermines the rule of law had taken place, and whether this in turn would constitute an affront to justice.

The prosecution countered by claiming that any such issue could be dealt with in the course of the trial, and that the memo, though clumsily worded, was not an abuse of process because there was no way of knowing what effect it had on the officers' conduct. He also claimed to quote case law stating that an abuse of process ruling to exclude evidence could only be granted if the evidence had not yet been adduced. Since, however, the officer had already begun his evidence, it could not be applied in the present instance.

Defence was able to respond to these points and to put the memo in a much stronger light, especially given the linguistic analysis. He reiterated the previously mentioned linguistic points about context, inclusive 'we', declarative demands, and embedded multiple implicatures. He pointed out, as did the justices' clerk, that prosecution was not correct to say that evidence could only be excluded before it was given, since this would in itself violate natural justice.

The ruling

The magistrates considered the application over a two to three hour period, and were able to avail themselves of the services of the justices' clerk in the matter. On returning to the court they ruled that the memo had abused the trial process and that an affront to justice had occurred. The case was dismissed and costs were awarded to the defendant, Ms Smith.

The significance for forensic linguistics

This is a significant ruling for forensic linguistics for a number of reasons. Firstly, it is believed to be the first time that linguistic evidence has been given in an abuse of process case. What was demonstrated with this case is that when we speak or write we also act. If we are in a position of power we can get others to act. Therefore, to consider the memo as harmless would be to miss the fact that language is action, and – in this case – that it is a type of action which causes other actions. If those actions are illegal or unethical, then it is the causative action to which we should first turn our attention.