Kiryukan Case Commentary
The decision in R v Brown (Anthony)
Subject: Criminal procedure. Other related subjects: Human rights.
Keywords: Abuse of British Common Law by Judiciary; Murder; Nurses; Right to a fair trial; Privileged communications; Right of access to legal advice.
R. v Brown (Edward)  EWCA Crim 1328;  2 Cr. App. R. 31 (CA (Crim Div))
The appellant, Edward Brown (B), serving two life sentences for 2 attempted murders, had been institutionalized at Rampton Hospital. B was accused of attempted murder of one Mr. Walker, another patient at the hospital. Prior to the trial, the appellant’s barrister requested in writing, that appropriate arrangements be made during the trial, to speak with his client in private, so as to enable him to direct his client and take direction from his client about the trial. He suggested the “secure dock of the relevant court” be used.
At the trial, an unusual motion was made on behalf of the Rampton Hospital, namely that B be accompanied and handcuffed to two nurses during his meetings with legal counsel. The Judge allowed the motion on the basis that B had attempted serious harm to himself and others on several occasions at the hospital.
B’s defense council reiterated the original suggestion that B be put in the secure dock in the courtroom, handcuffed, with the nurses ready to assist behind closed doors, a similar arrangement to when prior solicitors had visited him in the hospital. During those meetings the hospital staff had waited behind closed doors, while B and his legal councillors spoke through microphones separated by a glass partition. The Judge did not allow it citing that the facilities were not adequate to guarantee B’s safety: “given his history and his individual ability to harm himself, to use the walls of the dock or glass or anything that is within the dock, be it a lock, a handle, the seating, the glass or wooden panelling, he could throw himself about in such a way that he could injure himself.”
When, B mentioned that he felt the nurses were his jailers. The judge went on to suggest that B’s incarceraters “nurses from Rampton” were not the same as “police officers who are investigating a case, overhearing deliberately what a defendant may say to his lawyers…”
B’s council also appealed to the Judge on the basis that it was unfair that his European Convention on Human Rights right to “…defend himself through legal assistance of his own choosing”, and concurrent existing right to private discussions with them (art.6 (3) (c)), had been breached by the Judge when he set the requirement that two of the incarcerating nurses be present at meetings with his legal counsel. The court held that the exception did not breach ECHR art 6(3)(c). From Ocalan v Turkey (2005) 41 E.H.R.R. 45 “the relevant issue is whether, in light of the proceedings taken as a whole, the restriction (on the right of access to a lawyer) has deprived the accused of a fair hearing.” The appeal was rejected. The court created a new common law exception to the right to attorney / client privilege where a “real” possibility of abuse or impropriety of the privilege can occur.
During the sessions of nurse supervised meetings with D and his defense council, when council had just explained that he could not successfully prove an insanity plea, one of the nurses interrupted the meeting saying: “one of the things he stated yesterday was how he was feeling generally leading up to this incident. That’s what you said the other day. You told us you would…You remember? You said…” at which point the councillor interrupted the nurse. This clear violation of B’s rights led B’s counsel to take the opinion that to further speak in front of the nurses was inappropriate due to the lack of privacy, and could potentially further hurt the case.
B, later on the stand, without further consultation with council, confessed as to his intent to kill Mr. Walker, thus incriminating himself.
Though, the court held that these exceptional circumstances, which required third parties to be present during privileged meetings with council, was allowed under art. 2 of the ECHR to ensure no abuse to the privilege occurs with respect to a threat to human life, it seems clear that this threat seems to have been over blown. As mentioned above, several pre-trial meetings with legal council had recently taken place at the hospital, leading up to the trial with no incident. Thus, the potential danger of self harm seems unlikely in this case. Further, duty of care by the state under art. 2 is to take all reasonable precautions regarding the safety of life and not to erase all possible risks involved.
The Judge has set a dangerous precedent here in waving a citizen of the EU’s rights, merely due to his a lack of imagination of potential solutions. For example, restraints such as a ‘straight jacket’ could have been used or a portable hospital bed with restraint straps could have been brought to the courthouse to name two possible solutions. The Judge did not even attempt to protect the citizen’s rights, which it can be clearly seen were in fact violated by the nurse’s suggestions to B during the session with his council. The nurse demonstrated that information was being gathered by them on what B had said prior, and a willingness to volunteer said information without impartiality. The Judge should have at least directed the nurses to silence and secrecy during B’s sessions with council.