Andrew Keogh – guest post on the Chris Huhne case

On Monday 4th February 2013 Chris Huhne, fomer Liberal Democrat cabinet minister pleaded guilty to an offence of perverting the course of justice and thereby brought to an end (or at least substantively) a long running legal saga.

The proceedings against Huhne and his former wife had commenced many months before and there was rumour circulating that the ‘trial’ had started and was being heard in secret. This is an example of many posts on twitter:

AK Tweet

So, was the trial being heard in secret? No is the answer.

The trial, or at least legal argument that had begun many months earlier was being heard before the trial Judge. The hearing was not however ‘secret’, most notably as the proceedings were being heard in open court with reporters present. The Judge was in fact hearing 2 different legal applications, one in relation to an abuse of process argument (essentially arguing that Chris Huhne could not have a fair trial), the second an application to dismiss (which means that the defence argued that there was insufficient evidence to place the case before a jury). Legal arguments both before and during trial are extremely common and are rarely reported. Indeed there are statutory restrictions on such reports. The reason for this is common sense not conspiracy. Matters of law are for a trial judge to determine; matters of fact for the jury. Therefore, particularly when the case is high profile, measures need to be taken to ensure that arguments and issues raised during legal proceedings do not inadvertently go before a jury if the case proceeds to full trial (by way of press reports), as they simply have no bearing on the issues that they must decide. This is the case for hundreds of cases argued up and down the land each day – Chris Huhne was not given any favourable treatment.

It is fair to say however that there were some other matters floating around that potentially impacted on this case. Whilst most of the repororting restrictions were lifted following Huhne’s guilty plea some remain in place. There are 2 reasons for this – the first is that the trial of Huhne’s ex-wife is still being heard, and the other reason I cannot tell you about as to do so would defeat the reporting restrictions still in place. It all sounds very cryptic, but in fact it is no more than ensuring the integrity of the trial process – something that is rightly held in the very highest regard.

So, what of the legal arguments advanced by Huhne, what were they about?

The final legal argument was heard between 22-24 January 2013, and judgment was given to the parties on 28 January 2013, no doubt prompting Huhne’s change of heart in relation to his plea.

Since Huhne’s plea a number of orders in relation to reporting restrictions (and relaxation of) have been made, so the detail below is in accordance with the directions to date. When the proceedings are finally resolved more may well emerge as to the background.

What was the actual charge?

“…on a day between the 12th day of March 2003 and the 21st day of  May 2003 with intent to pervert the course of public justice, [they] did an act which had a tendency to pervert the course of public justice in that they, during the course of an investigation by the Essex police into an offence of driving a vehicle in excess of the speed limit on 12 March 2003 committed by Christopher Huhne, falsely informed the investigating authorities that Vasiliki Pryce had been the driver of the said vehicle, thereby enabling Vasiliki Pryce falsely to accept responsibly for the said offence and enabling Christopher Huhne, as a consequence, to avoid prosecution and punishment for the said offence.”

Abuse of process

Counsel for Huhne argued that a fair trial was not possible because:

  • It was 8 years after the event that Huhne was first confronted with the allegation
  • The section 172 forms (which identify the driver of the vehicle) were no longer available
  • Adverse press publicity, including a YouGov poll recording that 60% of those questioned believed Mr Huhne to be guilty
  • Some other issues that cannot yet be reported

Prosecuting counsel’s response to this was robust:

“There was no abuse of process and the application, which consisted largely of adjectival condemnation, was hopeless and unarguable…”

The trial judge ruled:

“…the trial process itself is well equipped to fairly deal with all the points raised on Mr Huhne’s behalf (not just, as conceded, those in relation to delay, the missing s.172 forms, and publicity), and thereby to ensure that he receives a fair trial.  That process will include directions as to the burden and standard of proof, publicity…”

This result was not at all surprising. A successful abuse of process argument acts to bring the proceedings to a halt and therefore will only succeed if the deficiencies alleged are such that they cannot properly be dealt with during the trial.

Application to dismiss the case

The correct approach to apply on a dismissal application in such a case is that identified in para. 36 of the judgment of the Court of Appeal in R v G & F [2012] EWCA Crim 1756as follows:

“We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the “classic” or “traditional” test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury would be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury”.

The evidence relied upon by the prosecution as against Mr Huhne is set out at pp 3 – 6 of its “Response to Dismissal Application by the Second Defendant” dated 15 July 2012, and in the various iterations of the Opening Note. It may be summarised under the following headings;-

(1)          The implausibility of anyone else being the driver.

(2)          Mr Huhne’s propensity to drive too quickly.

(3)          Mr Huhne’s motive (9 points).

(4)          The inference that Mr Huhne must have been party to the return of the Forms 172 and that therefore he could not have forgotten the events of 2003 as he claimed in interview in 2011.

(5)          The nature of Mr Huhne’s response during four recorded telephone conversations with Ms Pryce – particularly during the fourth call.

(6)          The nature of Mr Huhne’s response to certain text messages from his son Peter.

The evidence admissible against Mr Huhne showed, amongst other things, that:

(1) Mr Huhne acquired the BMW in 1998, and it was registered in his name.

(2) At all material times Ms Pryce had her own car – a Volvo.

(3) The BMW was added to Ms Pryce’s insurance policy in January 2001, with Mr Huhne being declared as a frequent driver of it.

(4) Mr Huhne committed speeding offences on 28 January 2002, 28 March 2002 and 8 February 2003, and his licence was endorsed with 3 Fixed Penalty points in relation to each.

(5) At the material time Mr Huhne was an MEP and attended parliamentary sessions every month. His routine was to fly out early on a Monday morning and to return, preferably, on Wednesday night, and sometimes on Thursday.

(6) Because he was an MEP he had a free car parking pass at all BAA car parks.

(7) On Monday 3 March 2003 Mr Huhne booked a return flight from Stansted to Strasbourg with Ryanair – departing at 6.50 am on Monday 10 March 2003, and returning late Wednesday 12 March 2003.

(8) The usual arrangement was that Mr Huhne would drive the BMW to the airport, park it in the free parking space, pick it up on his return and drive it home.

(9) Whilst the journey was possible by public transport, it would involve departing from Victoria Coach Station at around 4.30 am, or from Liverpool Street Station at around 5am.

(10) Mr Huhne duly caught the 6.50 am Ryanair flight on Monday 10 March 2003 – although it left a little late that morning.

(11) In the evening of Wednesday 12 March 2003 Ms Pryce was part of a Panel at a large function at the LSE. The function finished at about 7.30 – 8 pm after which there was a dinner for the Panel and selected guests. However, none of the witnesses can recall whether Ms Pryce stayed for the dinner.

(12) At about 9 pm (UK time) Mr Huhne’s return flight from Strasbourg closed. It arrived on stand at Stansted at 10.27 pm.

(13) In interview with the police Mr Huhne was unable to remember any occasion when his wife, who had a clean licence, had come to collect him when he returned from Strasbourg. The most likely scenario, he said, was that he would drive, or that someone who had travelled with him on the flight might drive them both in the BMW.

(14) He further indicated in interview that when he was driving his usual route on the over 40 mile journey home was via the M11 and the Rotherhithe Tunnel. He could not recall taking any other route.

(15) At 11.23 pm, at a point on the M11 some 21 miles south of Stansted, and at a time consistent with his earlier arrival at Stansted, Mr Huhne’s BMW was caught speeding at 69 mph – i.e. 19 mph above the limit, at that point, of 50 mph.

(16) On Tuesday 25 March 2003 a combined Notice of Intended Prosecution and s.172 Notice was sent by Essex Police to Mr Huhne as the registered keeper of the BMW at the family home in Clapham. The Notice required him to indicate whether he was the driver and, if not, who was.

(17) On Friday 28 March 2003, Mr Huhne was involved in an incident in the Old Kent Road area when he was seen by police officers to be using a mobile phone whilst at the wheel of his car. He was able to remember that incident in some detail during his police interviews in 2011.

(18) On Wednesday 23 April 2003 the s.172 Notice sent on 25 March 2003 was received back by Essex Police. It indicated that Ms Pryce was the driver on 12 March 2003. The form itself was routinely destroyed in 2006, however surviving computer records suggest that it may have been completed by Ms Pryce, rather than Mr Huhne – in which case, in view of the provisions of s.12 of the Road Traffic Offenders Act 1988, it was not acceptable as an admission of guilt.

(19) At all events, on Thursday 1 May 2003, a combined Notice of Intended Prosecution and s.172 Notice, together with a “not filled in right” letter, were sent by Essex Police to Ms Pryce at the family home in Clapham.

(20) The form was received back on Wednesday 7 May 2003. It confirmed that Ms Pryce was the driver. That form too was routinely destroyed in 2006.

(21) Mr Huhne accepted in interview that it seemed unlikely that Ms Pryce would have filled out the form dishonestly without mentioning it to him.

(22) On 21 May 2003 the DVLA received notification of a fixed penalty of 3 points on Ms Pryce’s licence.

(23) On 31 October 2003, having pleaded guilty to careless driving in respect of the mobile phone incident on 28 March 2003, Mr Huhne was disqualified for 6 months under the totting up provisions.

Against that background the prosecution submitted, amongst other things, that:

(1)          Any suggestion that Ms Pryce might have taken the points for some unknown third party could be safely discarded.

(2)          In order for her to have been driving the following unusual and memorable things must happened, namely:

(i)      She was driving the BMW which she did not normally do, and at a time when both were in the car.

(ii)    Mr Huhne had not taken the BMW to the airport, which he normally did.

(iii)   Ms Pryce had left the Panel function at the LSE and then driven an 80 odd mile round trip to collect Mr Huhne from the airport when she had young children at home.

(3)          Such a scenario would have been extraordinary and pointless.

(4)          In any event, when set against the routine which Mr Huhne admitted in interview, if such a scenario had happened then both would be likely to remember it – not least Mr Huhne because of the relief that his wife was responsible for the offence at a time when he had nine points on his licence. Yet, in contrast to the careless driving offence on 28 March 2003, he purported to have no recollection of relevant events.

(5)          Against that background, and in the light of the practical difficulties in getting to Stansted by public transport in time for the outbound flight, as compared to the obvious sense and ease of driving there in his own car, leaving it parked there for free, and picking it up on his return, combined with Ms Pryce’s known whereabouts on the evening of 12 March 2003 and Mr Huhne’s propensity for speeding and obvious motive to avoid the resulting 3 points, together with the fact that they were living together in the family home in Clapham, there was a clear inference (whoever returned the first s.172 Notice) that Mr Huhne, driving home alone at exactly the right time, was the driver on 12 March 2003 and that thereafter he and Ms Pryce were jointly concerned in Ms Pryce falsely taking the points – even though it only resulted in a temporary avoidance of disqualification.

Mr Kelsey-Fry (counsel for Huhne) submitted, amongst other things, that:

(1)          There was no evidence that Mr Huhne had been involved in a crime at all.

(2)          The starting point should be that Ms Pryce had stated in one or more s.172 forms that she was the driver at the material time, and the question was whether the prosecution had sufficient evidence to rebut that.

(3)          There was no direct evidence that the BMW had been parked at Stansted on Monday 10 March 2003, and the absence of such evidence was fatal.

(4)          The evidence showed that it was possible to get to Stansted in time by public transport.

(5)          It was a common feature in two car families that, on occasion, only one of the cars would be available, and there was no evidence to rebut that being the case on this occasion.

(6)          The motive relied on was less than compelling – given that the incident on 28 March 2003 took place prior to the return of the first s.172 form, and that it would have been obvious to Mr Huhne that, as a result, prosecution and disqualification were inevitable.

(7)          In view of Mr Huhne’s account in interview  as to the arrangements for dealing with the post at the family home, and of the evidence in relation to the return of the first s.172 form, it was likely that Ms Pryce had filled out both forms without Mr Huhne’s knowledge.

(8)          Hence the test set out in para. 36 of the judgment in R v G & F  was not met – particularly because the evidence was insufficient to result in the requisite rejection of all realistic possibilities consistent with innocence.

Much has been made of the text messages between Huhne and his Son and the telephone conversations where the then Mrs Huhne tried to get Huhne to confess, but how are they admissible against Huhne?

Mr Kelsey-Fry’s objections to the admissibility of the four recorded telephone conversations between Ms Pryce and Mr Huhne  and to the admissibility of the text messages passing between Mr Huhne and his son Peter  were broadly the same – namely that neither had any probative value at all or that, if they did, that probative value was wholly outweighed by the prejudicial effect such that they ought to exclude the evidence under s.78 of PACE.

As the House of Lords made clear in Christie [1914] AC 545 the law is that a statement made in the presence of an accused person, even on an occasion which should reasonably call for some explanation or denial from him, is not evidence against him of the fact stated save in so far as he accepts the statement, so as to make it, in effect, his own.

At p. 554 of the report, Lord Atkinson  considered the various ways in which an accused  might accept an accusation put to him, as follows:

“He may accept the statement by word or conduct, action or demeanour, and it is the function of the jury which tries the case to determine whether his words, action, conduct or demeanour at the time when the statement was made amounts to an acceptance of it in whole or in part. It by no means follows, I think, that a mere denial by the accused of the facts mentioned in the statement necessarily renders the statement inadmissible, because he may deny the statement in such a manner and under such circumstances as may lead a jury to disbelieve him, and constitute evidence from which an acknowledgement can be inferred.”

The questions the Judge had to ask himself included whether a jury, properly directed, could conclude that Mr Huhne had in fact adopted any relevant statement, or had otherwise conducted himself so as to make his conduct relevant and admissible; if so, whether the matter was of sufficient relevance to justify its introduction in evidence; and whether its admission in evidence would have such an adverse effect on the fairness of the proceedings that it ought to be excluded.

The Judge held as follows:

“In the end, having listened to the tapes, and applying the law as I have set it out above, I was persuaded that the Prosecution argument was right, and that the probative value was not outweighed by any prejudicial effect […]. The jury will be directed, on conventional lines, that what Ms Pryce said is not evidence, as against Mr Huhne, of the facts stated save and in so far as they surely conclude that Mr Huhne accepted a statement, or any part of it, such as to make it his own.

The admissibility of the text messages exchanged between Mr Huhne and his son Peter was, it seemed to me, more straightforward – albeit, as is clear, Peter Huhne had clearly been deeply affected by the circumstances of the split between his parents, was firmly on his mother’s side, and may well have been put up to trying to get his father to make an admission.

The texts of particular relevance all took place on 21 May 2011 (shortly before the Police were due to interview Ms Pryce and Mr Huhne) and, starting with a text from Peter Huhne, were as follows:

(1)          “We all know that you were driving and you put pressure on Mum. Accept it or face the consequences. You’ve told me that was the case. Or will this be another lie?”

(2)          “I have no intention of sending Mum to Holloway Prison for three months. Dad”

(3)          “Are you going to accept your responsibility or do I have to contact the police and tell them what you told me?”

(4)          “Discuss it with Mum”

(5)          “It’s not about her its about your accepting your responsibility to me”

(6)          “Happy to talk about it with you. Dad”

During the course of his interviews Mr Huhne stated, amongst other things, that:-

(1)          His son was honest, and he was sure that his son believed what he (Peter) had said.

(2)          He was attempting periodically to maintain contact with his son – just to text him and be sympathetic – in the hope that it would lead to a reconciliation in the end.

(3)          His son was very much taking Ms Pryce’s part, and he was generally trying to calm his son down as much as he could.

(4)          He assumed that his son was under the impression that taking his mother’s side would end the problem for her.

(5)          His son knew that Ms Pryce was going to be interviewed by the Police and had sent the text message(s) in the hope that Mr Huhne could save her.

(6)          In stating that he had “no intention of sending Mum to Holloway Prison for three months” he had meant, or was implying, that he had no intention of lying about what had happened. It had been a straightforward point to try and make his son think.

(7)          His son was lying to protect his mother (which was absolutely admirable) but in circumstances in which Mr Huhne could not reason with him as his son would not talk to him. There was a very limited amount that could be put in a text. He was simply trying to calm the situation down.

(8)          It was not true that he had told his son that Ms Pryce had taken the points. His son was clearly attempting to get him to say something which would relieve the pressure on Ms Pryce.

(9)          Whilst his son might have sincerely believed that he had told him that, people could misremember and the reality was that it was not the case.

(10)      His son was in a very distraught situation.

(11)      […]

(12)      It was not true that he had told his son that Ms Pryce had taken the points. He had no recollection of any conversation with his son that could be construed in that way, and he was not trying to frighten Ms Pryce.

(13)      His relationship with his son was essentially emotional and could not be repaired by phone or text.

(14)      He was not saying that his son was lying – rather that he was under a lot of stress.

(15)      He had been trying to get his son into a better place by calming him down.

(16)      In the “Holloway” text what he had been trying to do was to make the point that there are real world consequences to flinging around wild allegations.

The prosecution submitted that it was significant that Mr Huhne had not, in the exchange of texts, denied either the suggestion that he had been driving or the specific allegation that he had admitted it to Peter Huhne. It was submitted that it was very surprising, notwithstanding the difficulties in their relationship, that (if he was innocent) Mr Huhne did not text back saying that he had not done either thing. Equally, Mr Huhne’s text in relation to “sending Mum to Holloway Prison for three months” plainly gave rise, it was submitted, to the inference that what he had meant was that that would be the result if he told the truth, rather than if he lied. Likewise, it was submitted, his explanation for that text in interview was plainly implausible. Thus it was submitted that it was clearly open to a jury, properly directed, to conclude that Mr Huhne had adopted Peter Huhne’s statements, or had otherwise conducted himself so as to make his conduct relevant and admissible.

Mr Kelsey-Fry took me through the text messages in detail, and to a number of the passages in Mr Huhne’s interviews. He submitted that, […], it was simply not open to a properly directed jury to draw the inferences contended for. In the alternative, as I have already indicated, he submitted that the prejudicial effect, particularly in relation to the alleged confession to Peter Huhne who is not being called as a witness, far outweighed any probative value.

Again, applying the law as I have set it out above, I was persuaded that the Prosecution argument was right, and that the probative value was not outweighed by any prejudicial effect. Equally, the jury will again be directed, on conventional lines, that what Peter Huhne said in the texts is not evidence, as against Mr Huhne, of the facts stated save and in so far as they surely conclude that Mr Huhne accepted a statement, or any part of it, such as to make it his own.

It followed from my conclusions in relation to the admissibility of the potential inferences to be drawn, in the case of Mr Huhne, from the fourth telephone conversation with Ms Pryce and the text exchanges with Peter Huhne, that those were also matters that could be taken into account as, at the least of it, further circumstances in relation to the application to dismiss.

Having decided already that there was a case to answer, the potential inferences reinforced that conclusion. Indeed, even if my earlier decision was wrong, and again applying the R v G & F test, I concluded that the totality gave rise to a case to answer.”

Conclusion

Following these rulings Huhne changed his plea to one of guilty; There can be little doubt that the admission of the text messages from his Son would have factored heavily into that decision, although contrary to the arguments of the defence some commentators reject the suggestion that without them the case against Huhne was ‘gossamer thin’.

Huhne now awaits sentence.

About the author

Andrew Keogh really needs no introduction. He runs Crimeline (including the regular, and FREE, Crimeline Updater which all lawyers should sign up for). If you don’t follow him @CrimeLineLaw, then you really should.

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