Pre-Trial Hearings and Confessions

Question 1

When are pre-trial matters considered?

Answer 1

Magistrates’ court

In simple, summary only cases in the magistrates’ court, many if not all pre-trial matters can be resolved at the first hearing. In more complex cases further pre-trial hearings may be required.

Crown Court

In cases to be dealt with at the Crown Court, there will be at least one hearing in the Crown Court, the PTPH, to deal with pre-trial matters. In more complex Crown Court cases further pre-trial hearings may be necessary in order to ensure parties are trial ready.

The Criminal Procedure Rules have a clear aspiration running through them that the parties and the court resolve all pre-trial matters before the day of trial where possible. The expectation is that on the day of trial parties will be ready to start immediately unless something unexpected has arisen.

Question 2

Pre-trial matters in the magistrates’ court

Answer 2

Where a trial takes place in the magistrates’ court the parties will be expected to deal with case management issues at the first hearing. There is a magistrates’ court case management form that the court will expect parties to complete before the first hearing commences.

At the first hearing the court will give directions for:

• service of documents between the parties (should any be needed)
• either resolve there and then any matters of law (rarely) or set out a timetable as to when they will be resolved either at a pre-trial hearing or on the morning of trial.

The court will also set a trial date.

If the magistrates’ court holds a pre-trial hearing to for example, decide the admissibility of a piece of evidence, that ruling is binding on the magistrates’ court that hears the trial (whether composed of the same lay justices/District Judge, or not, unless one party applies for the ruling to be discharged or varied).

In short, you cannot make an application to vary or discharge based on the same arguments and facts. Such an application can only be made if either:

(a) there has been a material change in circumstances; or

(b) something was not brought to the attention of the court when they made the ruling which could justify variation or discharge.

The types of applications that might be made are largely the same in both courts save that in the magistrates’ court, the lay justices or District Judge hear the application and then rule on it. This causes difficulties with applications to exclude evidence for example. The lay justices or District Judge hears the potentially prejudicial evidence and, if they agree it should be excluded, somehow have to ignore it when they decide the case at trial. You can try to avoid this by having a differently constituted magistrates’ court decide the point in advance, but this rarely happens.

Question 3

How is the evidence served on the defence?

Answer 3

Where the magistrates’ court sends the case for trial to the Crown Court:

• It must set a date for a Plea and Trial Preparation Hearing (PTPH) within 28 days.
• The magistrates’ court will complete a ’sending sheet’- a notice specifying the offences for which the defendant is being sent and the Crown Court where the defendant will be tried. This notice should be sent to the defendant and the Crown Court. There is no prescribed form for such a notice.
• Evidence must be served within:
• 50 days (if the defendant is in custody); or
• 70 days (if the defendant is on bail)

of the date on which the defendant has been sent for trial in the Crown Court.

• Evidence is uploaded on to the Crown Court Digital Case System: i.e. copies of the documents containing the evidence on which a charge is based.
• Draft indictment must be served by the prosecutor on the Crown Court officer not more than 20 business days after serving prosecution evidence.

Question 4

Pre-trial matters in the Crown Court

Answer 4

There are no more hearings in the magistrates’ court for:

• indictable only matters; or
• triable either way matters where:
• the defendant is sent for trial by the magistrates’ court; or
• the defendant elects Crown Court trial.

There will be a PTPH and there may be other hearings. The PTPH is the focus of this element.

Question 5

What is the PTPH?

Answer 5

· PTPH (must happen in all cases)

· Further applications (possible further hearings)

· Trial

Where a defendant wants to enter a guilty plea to an indictable only matter, D is unable to do so at the first hearing because the magistrates’ court has no jurisdiction to hear it. The defendant can ask for an early guilty plea hearing in the Crown Court in order to enter their guilty plea as quickly as possible instead of waiting until the PTPH to enter their guilty plea, thereby trying to receive maximum credit for their plea.

Plea and trial preparation hearing (PTPH)

The PTPH is the main, and often only, pre-trial Crown Court hearing.

At the first hearing in the magistrates’ court when the case is sent ‘forthwith’ by s.51 Crime and Disorder Act (CDA) 1998, the magistrates’ court will make a series of standard directions for the prosecution to serve its case on the defence and for a defendant to serve a defence statement in response. The PTPH is scheduled shortly after this.

Where a trial is anticipated the parties are required to fill in a PTPH form in advance of the hearing as the judge uses it when the hearing is conducted.

The PTPH consists of two parts:

• first ‘plea’; and
• second either ‘sentence’ or ‘trial preparation’ stage.

Question 6

What is the plea stage in the PTPH?

Answer 6

If the defence want to make an application to dismiss the charges, they must do so before a plea is taken.

At the plea stage, the indictment is put to the defendant and they enter a plea of guilty or not guilty to each count on the indictment, this is known as arraignment.

• If the defendant pleads guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the case moves to sentence.
• If the defendant pleads not guilty to the sole count on the indictment / all of the counts on a multi-count indictment: the court proceeds to the ‘trial preparation’ of the hearing.
• Where a defendant enters at least one guilty plea and at least one not guilty plea on an indictment consisting of two or more counts: the prosecution will need to consider how it wishes to proceed, the result being either that the court moves to sentence or if there is to be a trial the ‘trial preparation’ stage needs to take place.

Question 7

When is a defendant considered unfit to plea?

Answer 7

If the judge has determined that the defendant is unfit to plead (a judge can make that determination after hearing medical evidence), then no plea is taken.

The court will have to hold a trial with a jury to determine whether the defendant committed the act (i.e. the actus reus of the offence, but not mens rea) and so the ‘trial preparation’ stage of the hearing will need to take place.

Please note that a defendant who is found unfit to plead and a jury finds they have committed the act can only be made subject to:

• an absolute discharge
• supervision order; or
• a hospital order.

Question 8

What does the trial preparation stage consist of?

Answer 8

• Special measures. Directions will apply for any special measures (such as live link and screens) sought by witnesses.
• Bad character. Directions will apply for any bad character applications by the prosecution and defence and timetables set for the service of bad character applications and responses.
• Witness summons. If a witness summons is required, details must be given and the application can be made at the PTPH or a timetable given for making the application.
• Agreed facts and issues. The defence must set out what factual matters are agreed so that they can be drafted as admissions for use at trial.
• Disputed facts and issues. The defence must set out those matters where there is a dispute with the prosecution case so that the issues for the trial are clear.
• Defence statement. The defence must serve a defence statement at stage 2 which sets out the defence case.
• Disclosure. If there are issues relating to advance disclosure of unused material, this can be dealt with or the standard directions will deal with this.
• Defendant’s interview. A timetable will apply for the prosecution and defence to agree an edited interview record for use at trial.
• Hearsay. Directions will apply on the service of applications to rely on hearsay evidence.
• Admissibility and legal issues. All issues relating to the admissibility of evidence and other legal issues should be notified. Directions will be given or apply on when these applications will be made (e.g. at or before trial) and on the service of any documents in support, such as skeleton arguments.

At the end of the hearing the parties should know the trial date, the timetable for any further preparatory work to be completed and whether the case needs to be listed in court again before trial (although this may only become apparent at some later stage). Where a party fails to comply with any directions, they may be required to come to court and explain their failure to do so. The expectation is that no further hearings will be required, either because there are no further issues to resolve before trial or because they can be dealt with on the day the trial is listed.

Question 9

What does disclosure consist of?

Answer 9

During a criminal investigation the police or other prosecuting authority will often speak to a number of witnesses and take statements from them. They will often look through documents, check CCTV and follow various avenues in their search for evidence. The result, depending on the nature of the case, is that a significant volume of material builds up, some of which will be relevant to proving the case and some of which will not.

It is predominantly from this investigative material that the prosecution decide which material will be:

• used- ie relied upon at trial; and
• unused- ie not relied upon at trial.

Used material is the material the prosecution will rely upon at trial to prove its case against a defendant. Used material consists of the case papers and other material that forms part of the evidence in the case, so it will include such items as:

• statements from the prosecution witnesses
• the defendant’s record of taped interview
• other documentary exhibits such as plans and diagrams that are relevant to proving the case.

It is from these materials that defendants will know what the cases against them are.

Unused material is material that is not being relied upon by the prosecution. Unused material will include items such as:

• statements from witnesses that the prosecution is not relying upon at trial to prove its case
• records of previous convictions of prosecution witnesses
• disciplinary findings against police officers.

The importance of unused material

Unused material can be extremely important to a defendant in a criminal trial. Often a case will be based on a number of witnesses whose evidence, if believed, is sufficient to convict the defendant of a criminal charge. In the same case there might be other witnesses who throw doubt on this.

If the prosecution, having reviewed all the material available, considers that there is a realistic prospect of conviction and that it is in the public interest to prosecute the case, it would clearly be wrong to only reveal to the defendant the material that supports its case and not the material that does not.

Fairness demands that material in the hands of the prosecution that might help a defendant is served on that defendant.

The defendant may choose to present that material in defence at trial.

It follows that full and proper disclosure is at the heart of a fair system of criminal justice. It is a vital part of the preparation for trial and for this reason rules have developed as to both the duty to disclose unused material and the duty to retain material during a criminal investigation.

Question 10

What are the four stages of disclosure?

Answer 10

(1) the investigation stage- the duty to record and retain material during the investigation;

(2) the initial duty of disclosure on the prosecution;

(3) defence disclosure; and

(4) the continuing duty on the prosecution to keep disclosure under review.

Question 11

What does the investigation stage entail?

Answer 11

The duty to retain and record relevant material

Under the Disclosure Code of Practice, during a criminal investigation all material (including information) which may be relevant to the investigation must be recorded in a durable or retrievable form and retained.

Every investigation will have:

• an officer in charge of the investigation- who is responsible for directing the investigation and ensuring that proper procedures are in place for recording information and retaining records of information and other material;
• an investigator- namely any police officer conducting the investigation; and
• a disclosure officer- who is responsible for examining material retained and revealing material to the prosecutor and to the defence at the prosecutor’s request.

Question 12

Is there a duty to retain relevant material?

Answer 12

In routine cases all these functions may be carried out by the same person, although in complex cases the roles will be individually assigned.

• The investigator- must follow all reasonable lines of enquiry, whether these point towards or away from the suspect and the investigator must be ‘fair and objective’.
• Disclosure officers- must inspect, view, listen to or search all relevant material that has been retained by the investigator and must provide a personal declaration that this has been done. Where there is doubt as to whether any material is disclosable, the disclosure officer must seek the advice and assistance of the prosecutor.

All material which may be relevant to a criminal investigation must be retained. This includes, in particular:

• crime reports
• records from tapes or telephone messages (such as 999 calls) containing the description of an alleged offender
• witness statements (and drafts if they differ from the final version)
• exhibits
• interview records
• experts’ reports and communications between the police and experts for the purposes of criminal proceedings
• records of first descriptions of suspects and any material casting doubt on the reliability of a witness.

In addition, the duty to retain relevant material includes information provided by an accused person which indicates an explanation for the offence charged and any material which casts doubt on the reliability of a confession.

The duty to retain material lasts at least until a decision is taken whether to institute proceedings against a suspect for a criminal offence.

Once proceedings are commenced, all material must be retained until the accused is acquitted or convicted, or the prosecutor decides not to continue with the case.

Where the defendant is convicted, the material must be retained at least until the defendant is released from custody (or discharged from hospital) or, in cases which did not result in a custodial sentence or a hospital order, until six months from the date of conviction.

In cases where an appeal against conviction is in progress all material that may be relevant must be retained until the appeal is concluded. Where material comes to light after proceedings have concluded which throws doubt upon the safety of the conviction, the prosecutor must consider disclosure of the material.

Question 13

What is the provision of unused material for the prosecutor?

Answer 13

The Disclosure Code of Practice sets out a procedure for the Prosecutor to be notified by the disclosure officer of every item of Unused Material.

• In Crown Court cases the disclosure officer prepares a schedule known as an MG6C which individually lists the items of unused material.
• In magistrates’ court cases where a Not Guilty plea is anticipated the unused material is listed on a streamlined disclosure certificate.

In cases involving sensitive material (ie material the disclosure of which the disclosure officer believes would give rise to a real risk of serious prejudice to an important public interest) the sensitive material is listed in a separate schedule or, in exceptional circumstances where its existence is so sensitive that it cannot be listed, it is revealed to the prosecutor separately. This may form the subject of a Public Interest Immunity Application at a later stage.

Disclosure Officers must certify that to the best of their knowledge and belief they have complied with their duties under the Disclosure Code of Practice.

This will include ensuring that all relevant unused material is clearly listed and brought to the attention of the prosecutor so that full and proper disclosure can be made in accordance with the test set out on the next page.

It is worth noting that the disclosure officer should exercise judgement and be directed by the prosecutor as to what is likely to be the most relevant and important material for disclosure.

Question 14

What is the prosecutor’s initial duty of disclosure?

Answer 14

The initial duty of disclosure is contained in the Criminal Procedure and Investigations Act (CPIA) 1996 s 3:

‘s 3(1) The prosecutor must:

(a) disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused, or

(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).’

The duty of disclosure relates to ‘prosecution material’ – this is defined in s.3(2) as material:

‘(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or

(b) which, in pursuance of [the Disclosure Code of Practice], he has inspected in connection with the case for the prosecution against the accused.’

Question 15

What is the test for deciding whether or not material should be disclosed?

Answer 15

The disclosure test under s.3 CPIA is an objective one. In essence, where there is in existence prosecution material which might help the defence then it should be disclosed.

The A-G’s Guidelines add further detail to the disclosure test, namely that in deciding whether or not material should be disclosed under s.3 CPIA, prosecutors should consider, amongst other things:

(a) the use that might be made of the material in cross-examination;

(b) its capacity to support submissions that could lead to:

(i) the exclusion of evidence;

(ii) a stay of proceedings as an abuse of process, where the material is required to allow a proper application to be made;

(iii) a court or tribunal finding that any public authority had acted incompatibly with the accused’s rights under the ECHR.

(c) its capacity to suggest an explanation or partial explanation of the accused’s actions;

(d) the capacity of the material to have a bearing on scientific or medical evidence in the case (including relating to the defendant’s mental or physical health, intellectual capacity, or to any ill treatment which the accused may have suffered in custody).

The A-G’s Guidelines go on to state that it should also be borne in mind that while items of material viewed in isolation may not be reasonably considered to be capable of undermining the prosecution case or assisting the accused, several items together can have that effect.

As such, when considering if unused material must be disclosed, prosecutors must take into account all those circumstances in which such material might reasonably be capable of supporting the defence case or undermining the prosecution case.

Material which is supportive of the prosecution case (and which the prosecution chooses not to rely upon) or which is neutral in its effect need not be disclosed as unused material because it does not satisfy the disclosure test.

What is of paramount importance is that the prosecution fulfil its duty of considering all material in light of the disclosure test and acting in accordance with it.

Question 16

What about where large volumes of material are seized?

Answer 16

The prosecution are in the driving seat at the initial disclosure stage - the prosecution must adopt a considered and appropriately resourced approach to giving initial disclosure and must explain what it was doing and what it would not be doing at this stage, ideally in the form of a “Disclosure Management Document”;

The prosecution must encourage dialogue with the defence and engage promptly with them – the defence had then to engage with the prosecution and assist the court in fulfilling its duty of furthering the overriding objective;

The law is prescriptive of the result, not the method of disclosure – at the initial disclosure stage the prosecution should formulate a disclosure strategy, then canvass that strategy with both the court and the defence and should use technology to make an appropriate search or conduct an appropriate sampling exercise of the material seized;

The disclosure process should be subject to robust case management by the judge – the court was entitled and obliged to give orders and directions to address disclosure failings with which it was confronted;

Flexibility is critical – disclosure was not a “box-ticking” exercise and the constant aim was to make progress.

Question 17

What are the time limits for initial disclosure?

Answer 17

The prosecution will serve initial details of the prosecution case (used material) no later than the beginning of the day of the first hearing in accordance with CrimPR Part 8.

The details must include sufficient information to allow the defendant and the court at this first hearing to take an informed view:

(1) on plea;

(2) on venue for trial (for either-way offences);

(3) for the purposes of case management;

(4) for the purposes of sentencing (including committal for sentence for either-way offences).

Concerning the disclosure of unused material by the prosecution, this statutory duty under the CPIA (the initial duty of disclosure) arises:

• in the magistrates’ court only when a defendant pleads not guilty and the case is adjourned for summary trial; and
• in the Crown Court when a defendant is sent for trial or where a Voluntary Bill of Indictment has been preferred against a defendant (s.1 CPIA).

However, even when this statutory duty has not arisen, a responsible prosecutor has to be alive to the need for advance disclosure of material which the prosecutor recognises should be disclosed at this early stage in the interests of justice and fairness, such as which might assist the defence with the early preparation of their case or at a bail hearing; this is known as the common law duty of disclosure.

The CPIA section 12 provides for statutory time limits for prosecution initial disclosure to be set by regulation but none has yet been made. The default position under CPIA section 13 is that the prosecutor must act ‘as soon as is reasonably practicable’ once the initial duty of disclosure arises.

Question 18

What is a summary trial?

Answer 18

In practical terms, at the first hearing in the magistrates’ court, where a defendant pleads not guilty and the case is adjourned for summary trial:

• if there is any further prosecution evidence still to be served the court will give a date by which this must be done.
• if the prosecution has not complied with its initial disclosure of unused material at this stage, a date will be given for this to be completed.

In any event, prosecutors should serve initial disclosure in sufficient time to ensure that the trial date is effective.

Question 19

When does a crown court trial take place?

Answer 19

If the case is sent to the Crown Court for trial, a Plea and Trial Preparation Hearing (PTPH) will take place usually 28 days after sending. The prosecution should serve sufficient evidence in advance of or at the PTPH to enable the court to case manage effectively without the need for a further case management hearing, unless the case falls within certain exceptional categories such as murder or cases involving children where a further hearing will be envisaged. At the PTPH, if there is more prosecution evidence still to serve and/or if initial disclosure has not been complied with, dates will be given by when this must be done.

Once the prosecution has complied (or purported to comply) with its initial duty of disclosure, this does not bring to an end the prosecution’s duty in this regard because the prosecution is under a continuing duty to review disclosure throughout the criminal proceedings. Following initial disclosure by the prosecution, there is a duty on the defence (mandatory in the Crown Court and optional in the magistrates’ court) to provide a defence statement which sets out the accused’s defence to the allegation. This defence statement will allow the prosecution to review disclosure in light of what it is told about the nature of the defence.

Question 20

What is the defence statement?

Answer 20

In the Crown Court, s.5 Criminal Procedure and Investigations Act (CPIA) 1996 imposes a duty on a defendant to serve a defence statement on the Crown Court and the prosecution.

A defence statement is a written statement which sets out the nature of the accused’s defence.

It should not be confused with a defendant’s proof of evidence to D’s own legal advisers which is a privileged document and, thus, not disclosable to the prosecution.

Defence disclosure should also not be confused with prosecution disclosure in that there is no duty on the defence to serve material which might be helpful to the prosecution; rather, the defence statement is all about setting out with reasonable clarity what the defence case is.

Question 21

What does the defence statement contain?

Answer 21

Section 6A CPIA 1996 provides that a defence statement must contain:

‘6A Contents of defence statement

(1) For the purposes of this Part a defence statement is a written statement—

(a) setting out the nature of the accused’s defence, including any particular defences on which he intends to rely,

(b) indicating the matters of fact on which he takes issue with the prosecution,

(c) setting out, in the case of each such matter, why he takes issue with the prosecution, and

(d) setting out particulars of the matters of fact on which he intends to rely for the purposes of his defence, and

(e) indicating any point of law (including any point as to the admissibility of evidence or an abuse of process) which he wishes to take, and any authority on which he intends to rely for that purpose.

(2) A defence statement that discloses an alibi must give particulars of it, including:

(a) the name, address and date of birth of any witness the accused believes is able to give evidence in support of the alibi, or as many of those details as are known to the accused when the statement is given;

(b) any information in the accused’s possession which might be of material assistance in identifying or finding any such witness in whose case any of the details mentioned in paragraph (a) are not known to the accused when the statement is given.’

Question 22

What are the time limits for the defence statement?

Answer 22

Crown Court

A defence statement is compulsory only in the Crown Court and must be served on the prosecution and the court (CrimPR r.15.4(2)) within 28 days of the date when the prosecution complies with its duty of initial disclosure (or purports to do so).

This time limit can be extended but only if the application to extend is made within the time limit and only if the court is satisfied that it would not be reasonable to require the defendant to give a defence statement within 28 days.

Magistrates’ court

In the magistrates’ court a defence statement is not compulsory, but if a defendant chooses to serve a defence statement in such a case standard directions in the magistrates’ court provide that the defendant must do so within 10 business days of the prosecution complying (or purporting to comply) with the initial duty of disclosure. It is worth noting here that although there is no obligation to serve a defence statement in the magistrates’ court, failure to do so will mean that the defence will be unable to make an application for specific disclosure.

Question 23

What does it mean to say that the defence statement is an issue of fact and law?

Answer 23

‘Service of the defence statement is a most important stage in the disclosure process, and timely service is necessary to facilitate proper consideration of the disclosure issues well in advance of the trial date. Judges expect a defence statement to contain a clear and detailed exposition of the issues of fact and law. Defence statements that merely rehearse the suggestion that the defendant is innocent do not comply with the requirements of the CPIA.’

On the next page is an example of a Defence Statement in a simple case. The defence statement sets out, in accordance with CPIA s.6A:

(1) the nature of the accused’s defence (alibi);

(2) those matters of fact on which D takes issue with the prosecution (that D attacked the complainant Stephen Holmes/correctness of the identification);

(3) why D takes issue (because D was not present);

(4) any points of law D wishes to take including authority in support (breach of Code D on Identification/s.78 PACE);

(5) particulars of alibi witness (D’s mother’s name, address and date of birth).

Question 24

What are the rules regarding defence witnesses?

Answer 24

In both the Crown Court and the magistrates’ court, the defendant must disclose to the court and the prosecutor a notice indicating:

• if D intends to call any witnesses at trial (other than the defendant being a witness); and
• if so, identifying the witness by name, address and date of birth or any information to locate and identify the witness.

Alibi witnesses should be included in the defence statement and do not need to be repeated in the Notice of Intention to Call Defence Witnesses.

The Notice of Intention to Call Defence Witnesses must be given within 10 business days (magistrates’ court) and 28 days (Crown Court) of the prosecution complying or purporting to comply with initial disclosure.

The notice may be amended to add or remove witnesses.

Question 25

What happens if the defence fail to disclose evidence?

Answer 25

A number of consequences may follow, where a defendant in the Crown Court:

(a) fails to serve a defence statement

(b) fails to do so within the required time limits

(c) serves a defence statement which is deficient in its content (such as not adequately setting out the defence relied on at trial or not including an alibi witness called at trial)

(d) relies on a defence at trial which is different to that contained in the defence statement

(e) fails to give notice of defence witnesses.

Consequences- defence disclosure failure

Under s.11 CPIA the jury may draw such adverse inferences as appear proper against the defendant for such a failure although a defendant cannot be convicted solely or mainly on the basis of such an adverse inference.

In addition, the prosecution or co-defendant may comment on such failure without the leave of the court, other than where it relates to a point of law where leave is required.

Section 6E(2) CPIA provides that a judge can warn the defendant at the PTPH or other pre-trial hearing that failure to comply with the relevant provisions may lead to comment being made or adverse inferences being drawn.

Similarly, the A-G’s Guidelines state that ‘Prosecutors should challenge the lack of, or inadequate, defence statements in writing, copying the document to the court and the defence and seeking directions from the court to require the provision of an adequate statement from the defence.’ (para 33).

Section 11 CPIA contains the only sanctions available to the court for failure by the defence to comply with its duties of disclosure. Accordingly, for example, it is not open to the court to prevent a defendant calling an alibi witness D has failed to include in a defence statement. The appropriate sanction here is comment/adverse inference.

However, if the choice is made to serve a defence statement in the magistrates’ court, an adverse inference could be drawn for the same reasons as in the Crown Court, such as for serving it out of time or for putting forward a different defence at trial to that contained in the defence statement.

In the magistrates’ court, no adverse inference can be drawn against a defendant for failing to serve a defence statement because there is no duty to do so under the CPIA.

If a defence statement is not served in the magistrates’ court or the Crown Court the defendant will not be able to make an application for specific disclosure under s.8 CPIA.

Moreover, failure to serve a defence statement in either the magistrates’ court or the Crown Court will mean that the prosecution will not have the opportunity to review disclosure in light of the issues that would otherwise have been set out within them.

Question 26

What does the continuing duty of the prosecution to disclose evidence entail?

Answer 26

The duty to keep disclosure under review

Service of the defence statement provides the prosecution with a reasonable outline of what the defence to a particular charge is and should prevent the prosecution being ambushed at trial with a surprise defence. The defence statement also allows prosecutors, in conjunction with disclosure officers and investigators, to revisit disclosure in light of any particular matters raised in the accused’s defence. It is therefore of assistance to the prosecution in informing them of what the defence is and to the defence in ensuring that disclosure is carried out in an informed way.

The A-G’s Guidelines para 39 advise that:

‘Defence Statements are … intended to help focus the attention of the prosecutor, court and co-defendants on the relevant issues in order to identify exculpatory unused material.’

Section 7A(2) Criminal Procedure and Investigations Act (CPIA) 1996 provides that there is a duty on prosecutors to keep disclosure under review throughout the case and in particular when a defence statement is served.

The Judicial Disclosure Protocol para 20 puts it like this:

‘In order to secure a fair trial, it is vital that the prosecution is mindful of its continuing duty of disclosure. Once the Defence Statement has been received, the Crown must review disclosure in the light of the issues identified in the Defence Statement.’

This continuing duty means the prosecutor must keep under review whether there is any material that should be disclosed, even after it has carried out a review following service of the defence statement.

This also means that material must be disclosed even if it is discovered at a late stage in proceedings (eg even after close of the prosecution case at trial) and this duty lasts until the defendant is convicted, acquitted or the prosecutor decides not to proceed with the case.

The A-G’s Guidelines para 42 provide as follows: ‘The prosecution’s continuing duty to keep disclosure under review is crucial, and particular attention must be paid to understanding the significance of developments in the case on the unused material and earlier disclosure decisions. Meaningful defence engagement will help the prosecution to keep disclosure under review. The continuing duty of review for prosecutors is less likely to require the disclosure of further material to the defence if the defence have clarified and articulated their case, as required by the CPIA.’

Question 27

What is an application for specific disclosure?

Answer 27

Under s.8 CPIA the defence can make an application to the court where it has reasonable cause to believe that there is prosecution material which should have been disclosed under s.7A(5) CPIA (namely disclosure following service of the Defence Statement) but which has not been disclosed.

This is commonly known as a ‘section 8 application’ or an ‘application for specific disclosure’.

In order to make an application for specific disclosure, the defendant must have served a defence statement (in the magistrates’ court or the Crown Court) and the prosecutor must have either provided further disclosure in light of that Defence Statement or notified the defendant there is no further disclosure to be made (s.7A(5) CPIA).

Note that failure to serve a defence statement (even in the magistrates’ court where there is no statutory obligation to do so) will mean that an application for specific disclosure cannot be made.

The Judicial Disclosure Protocol para 26 provides that ‘defence requests for disclosure of particular pieces of unused prosecution material which are not referable to any issue in the case identified in the defence statement should be rejected’.

As such the defence statement must set out the issues clearly as a prerequisite to applying under s.8 for specific disclosure. The procedure is governed by CrimPR r.15.5 – the defendant must serve the application on the court and the prosecution. The application must describe the material the defendant wants to be disclosed and explain why there is reasonable cause to believe:

(a) that the prosecutor has the material; and

(b) that it is material that should be disclosed under the CPIA.

The defendant should ask for a hearing if one is required and explain why it is needed. The prosecution has 10 business days to respond in writing to any such application.

It is worth noting that applications of this nature should be seen as a last resort. Discussion and co-operation between the parties outside court is encouraged in order to ensure that the court is asked to make a ruling only when strictly necessary.

Question 28

What are the consequences of the prosecution failing to disclose evidence?

Answer 28

Disclosure by the prosecution and the defence is an important matter in any criminal trial and can form a significant part of case management in court, particularly in the Crown Court where a defence statement is mandatory.

Even though there are clear guidelines and rules regarding disclosure of unused material, proper disclosure still relies on trusting the prosecution to do its job properly.

Given the importance of disclosure in criminal cases, where it becomes apparent that the prosecution has failed in its duty to disclose relevant material the consequences can be serious:

• The defence could bring an application to stay the indictment on the ground that to continue the case would be an abuse of process of the court.
• It could result in a conviction being quashed on appeal due to being unsafe.
• It would be likely to result in delay and the imposition of wasted costs for unnecessary hearings or a refusal to extend custody time limits.
• It could also potentially result in the exclusion of evidence in the case due to unfairness.

Prior to making any such formal application the defence should write to the prosecution specifying the material which they seek and make a formal application for specific disclosure. Particularly in large and complex cases, legal representatives are encouraged to cooperate.

Question 29

What is third party disclosure?

Answer 29

The Disclosure Code of Practice and the A-G’s Guidelines impose a duty on investigators and prosecutors to pursue all reasonable lines of enquiry.

Sometimes it will become clear during an investigation that material which is relevant to the prosecution case may be held by third parties such as local authorities, health and education authorities, or financial institutions.

No duty of disclosure under the CPIA rests upon such third parties but, if the material might be considered capable of undermining the prosecution case or of assisting the case for the accused, then prosecutors should take appropriate steps to obtain it.

An approach has been developed to obtain third-party disclosure where it is properly required. The A-G’s Guidelines and the Judicial Disclosure Protocol contain guidance for dealing with material held by third parties.

In cases where it is believed the third party holds relevant information, they should be informed of the investigation and a request should be made for the material in question to be retained in case a request for disclosure is made.

There must be some reason to believe that the third party holds relevant material, so speculative inquiries of third parties are not required.

Where material is requested from a third party but access or disclosure is refused, the prosecution can consider (in the Crown Court) seeking a summons under s.2 Criminal Procedure (Attendance of Witnesses) Act 1965 for production of the material, or (in the magistrates’ court) under the similar provisions in s.97 of the Magistrates’ Court Act 1980.

Question 30

What is public interest immunity?

Answer 30

Circumstances may arise where the prosecution is under a duty to disclose material to the defence (because it satisfies the disclosure test under s.3 CPIA) but the prosecution does not wish to disclose the material, believing that to do so would give rise to a real risk of serious prejudice to an important public interest.

In such circumstances the prosecution cannot simply hold this sensitive material back and keep quiet. The required course of action under the CPIA is to apply to the judge for non-disclosure in the public interest. This is called a Public Interest Immunity (usually abbreviated to ‘PII’) Application.

The court will consider the material and may withhold disclosure of such material to the minimum extent necessary to protect the public interest, whilst always ensuring that the defendant(s) can have a fair trial.

Sensitive material of this nature must be recorded at the investigation stage in the Sensitive Material schedule in which investigators must state:

• why the material is sensitive and to what degree
• the consequences of disclosing the material to the defence (including the involvement of third parties in bringing the material to the attention of the prosecution)
• the relevance of the material to the issues in the case
• the implications for continuing the prosecution if the material is ordered to be disclosed
• whether it is possible to make disclosure without compromising its sensitivity.

Question 31

What are facts in issue?

Answer 31

Let’s start with asking what it is that evidence is called for. That is not a difficult concept; you call evidence to prove your case.

We will look in a moment at what burdens there may be on either side to prove a case, but what we can agree on right away is that evidence is called by any party in order to prove the ‘facts in issue’.

The facts in issue are the facts that any party needs to prove in order to prove its case.

For the prosecution then, the facts in issue are those facts that are needed to prove the offence(s) charged. The obvious place to start here is to simply list the ingredients of the offence. So, for a theft, the prosecution has to prove that the defendant appropriated property, belonging to another, dishonestly, with an intention of permanently depriving another of it.

The job of the court is then to try to narrow the issues as much as possible, by seeing what elements, if any, the defence agree upon. They still require proof, but you would be able to prove these elements by means other than calling live evidence (see the next pages).

Question 32

How can you prove a fact other than calling live evidence?

Answer 32

• agreeing a witness statement as true by consent of the parties, Criminal Justice Act 1967, s.9;
• agreeing any fact between the parties, Criminal Justice Act 1967, s.10; and
• a judge or a jury to take ‘judicial notice’ of the fact.

Question 33

What is the protocol for agreeing a witness statement as true by consent of the parties?

Answer 33

The witness’s statement can be agreed as accurate and true in its written form.

The statement is then simply read out, and carries the same weight as if the witness had attended in person, sworn (or affirmed), and given the evidence from the witness box.

Evidence will only be agreed in this way if there is no challenge to the evidence. If the evidence is disputed, then the witness must be called and challenged orally, so that the court can see and assess the dispute being aired openly and decide upon the dispute accordingly.

Question 34

What is the protocol for agreeing any fact between the parties?

Answer 34

Another way to prove a fact is simply for the advocates in a case to agree that the fact is so. The fact is reduced to writing, and both parties (the lawyers, not the witnesses) agree and sign the agreement.

So, for example, if a defendant is found with someone else’s credit card, the prosecution would need to prove that the owner of the card had not given anyone authority to take and use the card. One could either acquire a witness statement from the original owner of the card or, more simply, just agree that the defendant was not the owner of the card and did not have permission to have it. We assume in this scenario that the defendant is challenging guilt on some other basis and is not challenging that the card was someone else’s.

Question 35

What is the protocol for judicial notice?

Answer 35

The next way in which a fact may be ‘proven’ without evidence is for a judge or a jury to take ‘judicial notice’ of the fact. It is clearly the case that we all know some things without needing to have them proven to us. We know if we are in a recession, or if the economy is doing well. We know that traffic in city centres at rush hour is pretty much universally awful. It would be remarkably tedious for the parties in trial to have to prove every last fact which might help the jury understand a case when much of the factual context for a case is simply ‘known’. Where facts are generally and widely known, then formal proof of them is therefore not required.

The doctrine of ‘notice’ goes a touch further, in that a judge is permitted to take judicial notice of a fact ‘on enquiry’. This simply means that judges might not know a particular fact ‘off the top of their head’ but could find out very easily, from a source that would be incontrovertible. So, for example, which counties border Staffordshire? If this was relevant to the case, the parties would have the option of asking the judge to take judicial notice ‘on enquiry’ and simply let the judge look up the answer. Jurors are not allowed to do their own research at any time.

The final point on taking notice is that the jurors cannot take notice on personal matters that they happen to know, but are not generally known. If a juror has personal knowledge of matters that are relevant to a case, they should let the court know, and the judge can deal with any issues that might arise.

Question 36

What are the different types of evidence?

Answer 36

Evidence can come in a variety of forms:

a) oral evidence given by a witness in court- the most common

b) written form:

a) agreed statements (s 9 CJA 1967);

b) admitted facts (s.10 CJA 1967)

c) ‘real’ evidence

d) ‘direct’ evidence

e) ‘circumstantial’ evidence

f) a ‘view’.

We will consider (c)- (f) on the next page in greater detail.

Types of evidence

• Real evidence- simply means objects and things which are brought to court for inspection. Some real evidence will be in the form of documents that are exhibited by a witness who can vouch for their origin.
• Direct evidence v circumstantial evidence- the other way in which it is important to classify evidence is according to whether it is ‘direct evidence’, namely evidence that a witness gives of having had direct experience of a matter in issue, or circumstantial evidence, ie evidence from which facts are inferred. An example of the difference might be (in a case where it is in issue where the defendant was at midnight) witness 1 saw the defendant at the station at midnight (direct oral evidence) and a train ticket found in the defendant’s pocket showing a train ticket for a train arriving just before midnight at the station (circumstantial real evidence).
• A view- occasionally juries can visit a scene of a crime, or leave court to view an object that cannot be brought into court. This is called a ‘view’. Their observations become evidence in the case.

Question 37

What evidence is admissible?

Answer 37

For any evidence to be admissible, it must be relevant. This is the first and most fundamental principle of evidence.

Relevance is established by whether the evidence is ‘logically probative’ of a fact in issue – ie does the evidence tend to prove or disprove a fact in issue.

If evidence is irrelevant, it is inadmissible, and if the evidence is relevant, it is admissible.

R v Usayi [2017] EWCA Crim 1394

In the case of R v Usayi a trial took place where the defendant was charged with a sexual assault.

The defence had, in its possession, a note that tended to suggest that the complainant had earlier incorrectly indicated that her mother had died. The defence argued that this showed her to be dishonest.

In the trial, there had been an argument about the admissibility of this evidence (on the basis of ‘hearsay’- that a statement made out of court may not be presented in evidence as proof of its contents).

The Court of Appeal indicated that the evidence was insufficiently relevant regardless of the hearsay arguments, and should not have been admitted as it had insufficient bearing on the issues at hand.

Question 38

What are the exclusionary rules?

Answer 38

That is, of course, not the end of the matter in terms of admissibility. Having first considered relevance, you then consider whether the relevant evidence is nonetheless subject to an exclusionary rule. There are rules to protect the fairness of trials to prevent evidence which is relevant, but should still not be admitted because of the effect on the fairness of a trial.

For example, if the police acquired relevant information by using an illegal phone tap, then the courts would consider an exclusionary rule to prevent the use of the evidence in court.

Question 39

What is a tribunal of fact and a tribunal of law?

Answer 39

The answer to question one is that the ‘tribunal of fact’ is responsible for determining the facts. In the Magistrates’ Court, the tribunal of fact is the bench of magistrates (or District Judge). In the Crown Court, the tribunal of fact is the jury.

The second question is answered in similar terms, namely that the tribunal of law is responsible for the law, and in the Magistrates’ Court, the tribunal of law comprises the magistrates (or District Judge) and in the Crown Court, the tribunal of law is the judge. Issues of admissibility of evidence are matters of law for the tribunal of law to determine.

The other critical point to note is that the tribunals are different in the Crown Court (ie judge and jury take one role each) but in the magistrates’ court, it is the same person (or people) playing both roles. This has huge practical implications. As an example, a defendant might confess in a criminal case, but then challenge the admissibility of the confession, perhaps saying that officers used force to extract the confession. In the Crown Court, the judge alone will hear the application to exclude as inadmissible the evidence of the confession. If the application is successful, the jury (as tribunal of fact) will never be told that there had been a confession. In the magistrates’ court, it is the same bench that hears the application to exclude the confession that will ultimately consider guilt. Having ruled the confession as inadmissible, the magistrates must then ‘put out of their mind’ the confession and not let their knowledge of the confession influence their consideration of the facts of the case. It is like the dramas we all see from the U.S. where attorneys use foul play or some trick in the courtroom and the judge says ‘strike that from the record’ and the jurors have to pretend that they never heard the improperly adduced evidence.

The fact that in the magistrates’ court, the tribunals and fact and law are the same is regularly a strong reason for defendants to prefer trial in the Crown Court.

Question 40

What are the principle ways of excluding evidence?

Answer 40

• Applications for dismissal;
• Submissions of no case to answer;
• Applications to exclude evidence under s.78 of the Police and Criminal Evidence Act 1984 (PACE);
• Applications to exclude confessions under s.76 PACE;
• Applications to exclude evidence under the preserved common law provisions – s.82(3) PACE;
• Abuse of process applications.

Question 41

What is the protocol for applications for dismissal?

Answer 41

An application for dismissal is a pre-trial application to have the charges against a defendant dismissed.

Such an application can be made:

(1) only after a defendant is sent by the magistrates’ court for trial to the Crown Court;

(2) only after the defendant has been served with the evidence relating to the offence; and

(3) only before the defendant is arraigned (ie the offence is put to D and D pleads guilty or not guilty).

The power to make the application is contained in Schedule 3 of the Crime and Disorder Act (CDA) 1998 and the procedure is set out in CrimPR r.9.16.

The application is made to a Crown Court Judge and if the defendant wishes to make an oral application D must give written notice of D’s intention to do so.

The test for dismissing the charge is set out in Schedule 3 para 2(2) CDA:

‘The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment …) … if it appears to him that the evidence against the applicant would not be sufficient for him to be properly convicted.’

This amounts to the same test to be applied where the defence make a submission of no case to answer, as set out in the case of R v Galbraith [1981] 73 Cr App R 124, CA, namely that the judge should stop the case:

(a) where there is no evidence that the crime has been committed by the defendant; or

(b) where the prosecution evidence, taken at its highest, is such that a properly directed jury could not properly convict on it.

R (on the application of Inland Revenue Commissioners) v Crown Court at Kingston [2001] 4 All ER 721; [2001] EWHC Admin 581

The Divisional Court held that a judge considering an application to dismiss must take into account the whole of the evidence and not view matters in isolation from their context or other evidence; where the prosecution seeks inferences to be drawn from the evidence the judge should assess whether such inferences could properly be drawn by the jury.

R (Snelgrove) v Woolwich Crown Court [2005] 1 Cr App R 18; 1 WLR 3223 (DC)

It was held that judicial review cannot be used to challenge a decision by the Crown Court on an application to dismiss. Nonetheless, the ruling in R (on the application of Inland Revenue Commissioners) v Crown Court at Kingston regarding the approach to be applied in such applications remains valid.

Question 42

What is a submission for no case to answer?

Answer 42

Submissions of no case to answer

During a trial and after the prosecution has presented all of its evidence, the defence are entitled to submit to the judge that there is no case to answer on any one or all of the charges faced by the defendant. The application can be made in the magistrates’ court and the Crown Court.

In the case of R v Galbraith [1981] 73 Cr App R 124 Lord Lane CJ set out the following principles to be applied:

‘(1) if there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case; (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury …’

A submission of no case to answer is made at the close of the prosecution case because it is only at this stage that the entirety of the prosecution case against a defendant can be considered. It is for this reason that a submission of no case to answer is often referred to as a ‘half-time submission’ (ie after the prosecution case but before the defence case).

In the Crown Court the application will take place in the absence of the jury; if the application is unsuccessful the jury will not be informed that such an application has been made. However, if the application is successful, the jury will be informed that there is insufficient evidence on the count or counts involved and the judge will instruct the foreman to enter a verdict/verdicts of not guilty.

As can be seen from the Galbraith test, where there is no evidence to support the charge then there will be no difficulty in stopping the case. This would be an application under the first limb of Galbraith, such as where a witness accepts that the person who committed the offence is not the person standing in the dock. In these circumstances, assuming there is no other evidence available to the prosecution, there is no evidence that the offence has been committed by the defendant and the case will be stopped.

The difficulty arises, as set out in the Galbraith test itself, when there is some evidence, albeit the integrity of that evidence is open to question. This is where the judge/magistrates will have to consider whether that evidence, taken at its highest, is such that a conviction can properly be founded upon it. This is an application under the second limb of Galbraith, such as where a witness has given inherently weak, vague or contradictory evidence, or where the credibility of the witness is open to question, such that the evidence presented by the prosecution could not properly found a conviction. In general, issues of credibility are matters for the tribunal of fact (the jury/magistrates) to weigh up in reaching a verdict and will not normally result in a case being stopped on a submission of no case to answer.

In the magistrates’ court the procedure is contained in CrimPR r.24.3(3)(d) and in the Crown Court CrimPR r.25.9(2)(e), both of which provide that, at the conclusion of the prosecution case, on the defendant’s application or on its own initiative, the court (i) may acquit on the ground that the prosecution evidence is insufficient for any reasonable court properly to convict, but (ii) must not do so unless the prosecutor has had an opportunity to make representations (ie the prosecution must be given the right to reply to such an application). The test here is taken from Galbraith and there is no material difference between the two. There is no obligation in the magistrates’ court or the Crown Court for reasons to be given when rejecting a submission of no case to answer.

Question 43

What is an abuse of process application?

Answer 43

Sometimes there is an issue of unfairness or impropriety so fundamental that for the trial to continue would be an abuse of the process of the court. Such cases often go beyond applications to exclude evidence; rather, they go to the heart of whether or not a case should be allowed to continue. In such cases the defence can apply to stay proceedings as an abuse of process of the court.

R v Crawley [2014] 2 Cr App R 16; [2014] EWCA Crim 1028

Sir Brian Leveson P summarised the power to stay proceedings as an abuse of process as follows: “there are two categories of case in which the court has power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.“

He went on to say, “Furthermore, it is clear from the authorities and beyond argument that there is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is a remedy of last resort. As Lord Bingham of Cornhill observed in Attorney General’s Reference (No.2 of 2001) … ‘The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.’”

R v Maxwell [2011] 2 Cr App R 31, SC

Dyson LJ put it like this: ‘It is well established that the court has the power to stay proceedings in two categories of case, namely: (i) where it will be impossible to give the accused a fair trial; and (ii) where it offends the court’s sense of justice and propriety to be asked to try the accused in the particular circumstances of the case. In the first category of case, if the court concludes that an accused cannot receive a fair trial, it will stay the proceedings without more. No question of the balancing of competing interests arises. In the second category of case, the court is concerned to protect the integrity of the criminal justice system. Here a stay will be granted where the court concludes that in all the circumstances a trial will offend “the court’s sense of justice and propriety” (per Lord Lowry in R v Horseferry Road Magistrates’ Court Ex p. Bennett [1994] 98 Cr App R 114 at 135; [1994] 1 A.C. 42 at 74) or will “undermine public confidence in the criminal justice system and bring it into disrepute” (per Lord Steyn in R v Latif [1996] 2 Cr App R 92 at 100; [1996] 1 W.L.R. 104 at 112).’

Question 44

Where might the defendant apply to have proceedings stayed as an abuse of process application?

Answer 44

• where a defendant has been tricked or coerced into committing an offence the defendant would not otherwise have committed
• where a defendant is prosecuted despite an unequivocal promise by the prosecution that the defendant will not be
• where the police have acted in such a way as to undermine public confidence in the criminal justice system and bring it into disrepute, such as by deliberately destroying evidence that would have assisted the defence
• where the prosecution has manipulated or misused the process of the court so as to deprive a defendant of a protection afforded by law.

Delay can amount to an abuse of process of the court. If the prosecution has deliberately delayed proceedings in order to gain a tactical advantage this is likely to amount to an abuse of process. Even if the defence cannot assert that the prosecution has deliberately delayed proceedings, inordinate or unconscionable delay due to the inefficiency of the prosecution in bringing a case coupled with prejudice caused to the defence as a result may be sufficient for an abuse of process application to succeed (R v Gateshead Justices, ex parte Smith [1985] 149 JP 861).

The application is to stay the proceedings as an abuse of process. This means that, if the application is successful, the prosecution case will not be able to proceed. This is not the same as a ‘not guilty’ verdict, albeit there will be no conviction and the defendant’s record will not be tarnished. In bringing such an application the defence will have to prove abuse of process on the balance of probabilities. Abuse of process applications are mainly dealt with in the Crown Court (where the application is to stay the indictment as an abuse of process). They can, however, be brought in the magistrates’ court but only on the ground that a defendant is unable to have a fair trial (and not on the ground that the integrity of the justice system has been brought into disrepute – an application on this basis would have to be made to the Divisional Court by way of judicial review).

Question 45

Does the court have discretion to exclude evidence?

Answer 45

PACE Section 82(3)

‘82(3) Nothing in this Part of this Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.’

Section 82(3) PACE preserves the common law discretion of the courts to exclude evidence where its prejudicial effect outweighs its probative value; this includes the discretion to exclude evidence if it is necessary in order to secure a fair trial for the accused.

Like s.78, this discretion to exclude evidence applies only to prosecution evidence. As such, at common law, it is not open to the prosecution to apply to exclude defence evidence, or for one defendant to apply to exclude evidence which a co-defendant seeks to admit. If significant unfairness would result to a defendant from a co-defendant’s evidence in such circumstances the defendant could apply to be tried separately from the co-defendant.

In practice, the common law discretion to exclude evidence has little relevance.

This is due to the wide-ranging statutory powers to exclude evidence, particularly under s.78 and s.76 PACE.

Other elements will cover s.76 & s.78 PACE.

As you have read, the court also has considerable powers in a number of circumstances to stay the indictment where to allow the case to continue would be an abuse of process.

Question 46

How can evidence be excluded under PACE 78?

Answer 46

‘Exclusion of unfair evidence

(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.’

Section 78 PACE is concerned with the fundamental concept of fairness and is the principal and most important means by which the defence can seek to have prosecution evidence excluded.

Section 78 only applies to ‘evidence on which the prosecution proposes to rely’ so it cannot be used by the prosecution or a co-defendant to exclude evidence that a defendant seeks to admit.

R v Quinn [1990] Crim.L.R. 581

Lord Lane CJ explained the nature of the court’s exclusionary discretion under s.78:

‘… The function of the judge is therefore to protect the fairness of the proceedings, and normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to adduce relevant evidence which, for one reason or another, the other side cannot properly challenge or meet.’

Being of general application, s.78 has been used in a wide variety of cases to seek to exclude any prosecution evidence which the defence consider would result in unfairness. This often, but not always, includes taking into account matters which the defence contend amounts to such evidence having been obtained unlawfully, improperly or unfairly. This could include situations in which evidence was obtained in breach of the European Convention on Human Rights or the provisions of PACE (or the Codes of Practice issued under PACE).

Section 78 is also commonly utilised alongside s.76 PACE to seek to exclude evidence of confessions which the prosecution seek to rely upon (the elements on confessions will cover this in more detail).

It is worth bearing in mind that simply because evidence has been irregularly obtained does not per se render it inadmissible.

Question 47

What is the key test for the exclusion of evidence under PACE 78?

Answer 47

The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The court is not concerned with marking its disapproval of police conduct by excluding evidence, or otherwise seeking to punish the prosecution for the way in which evidence has been obtained, it is simply concerned with whether fairness dictates that the evidence should be excluded in the circumstances.

However, where there has been bad faith on the part of the police when acting in breach of PACE or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence.

Question 48

What Codes of Practice related to s 78 PACE?

Answer 48

Since s.78 refers to having regard to all the circumstances, including the circumstances in which the evidence was obtained the defence will, where applicable, refer to breaches of the Codes of Practice under PACE when making a s.78 application.

The Codes of Practice are issued under s.66 PACE and set out the procedures that the police (or other investigators) must follow in the exercise of their powers under PACE. As such, it will often be the case that the defence will rely on a breach of the code as the basis for seeking to exclude the evidence under s.78.

Under s.67(11) PACE the codes are admissible in evidence; this means that where a breach of a code is alleged the defence are entitled to rely in court on the content of the code which sets out those procedures which should have been followed.

There are eight Codes of Practice, namely:

• Code A (Stop and Search);
• Code B (Entry, Search and Seizure);
• Code C (Detention, Treatment and Questioning of Non-Terrorist Suspects);
• Code D (Identification);
• Code E (Audio Recordings of Interviews);
• Code F (Visual Recording of Interviews with Sound);
• Code G (Arrest); and
• Code H (Detention, Treatment and Questioning of Terrorism Suspects).

Question 49

What are some key examples of s 78 PACE applying?

Answer 49

• the “fundamental right” of access to legal advice has been improperly denied;
• where waiver of the right of access to legal advice was not voluntary, informed or unequivocal;
• where there has been a failure to caution a suspect before questioning;
• where an appropriate adult has not been provided for a youth, mentally disordered or mentally vulnerable suspect;
• where identification procedures have not been followed.

Question 50

What happens where there is a significant and substantial breach of the codes?

Answer 50

Charles v Crown Prosecution Service [2009] EWHC 3521

Moses LJ stated (concerning Code C):

‘These provisions are not a mere rigmarole to be recited like a mantra and then ignored. The provisions of the PACE Act and the code relating to caution are designed to protect a detainee. They are important protections. They impose significant disciplines upon the police as to how they are to behave. If they can secure a serious conviction in breach of those provisions that is an important matter which undermines the protection of a detainee in the police station. That is not to say, by any means, that every breach will lead to the exclusion of the evidence obtained in consequence of that breach; far from it. It is merely to emphasise the general importance of the breaches when exercising the judgment in Section 78. Their significance must be taken into account.’

Where breaches of the codes are significant and substantial this may well result in exclusion under s.78.

In R v Keenan, a case concerning the ‘Verballing’ Provisions of Code C (requirement to make accurate record of interview and for the suspect to sign the record as accurate), Hodgson J said:

‘It is clear that not every breach or combination of breaches of the codes will justify the exclusion of interview evidence under section 76 or section 78 … They must be significant and substantial. If this were not the case, the courts would be undertaking a task which is no part of their duty: as Lord Lane CJ said in Reg v Delaney, The Times, 30 August 1988: ‘It is no part of the duty of the court to rule a statement inadmissible simply in order to punish the police for failure to observe the Codes of Practice. But if the breaches are “significant and substantial”, we think it makes good sense to exclude them.’

R v Roberts [1997] 1 Cr App R 227

The Court of Appeal gave guidance on the approach that should be adopted to questionable police conduct. Hirst LJ:

‘In our judgment … the true test is whether, having regard to the circumstances of the case as a whole, the conduct of the police, either wittingly or unwittingly, led to unfairness or injustice: and we consider that the proper adjudicator of this question is the trial judge himself, who has seen the witnesses, and who has a wide margin of discretion under section 78 which should only be disturbed in this court if it can be shown that he erred in principle or was plainly wrong.’

It is important to remember that when considering an application under s.78 the principal consideration is not the seriousness of any breach per se, but rather the effect of the breach, namely whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The position is therefore that the more significant and substantial the breach, the more likely it is to result in unfairness and, thus, exclusion. Conversely, even major breaches will not lead to exclusion if the court reaches the view that no unfairness was caused in the circumstances.

See R v Quinn [1995] 1 Cr App R 480 and R v Dures [1997] 2 Cr App R 247 for the proposition that the Court of Appeal will not interfere with a judge’s decision under s.78 unless satisfied that the decision was perverse, ie no reasonable judge having heard the evidence could have reached the conclusion that he did.

R v Ryan [1992] Crim LR 187

The Court of Appeal held that it was far from inevitable that where there had been a substantial breach of the PACE Codes the evidence was always required to be excluded. In this case the judge could properly conclude that despite a breach of Code D no prejudice had been caused to the defendant.

Question 51

When can a s 78 application be made?

Answer 51

An application under s.78 PACE can be made:

• before the trial;
• at the commencement of the trial; or
• just prior to the prosecution seeking to admit the evidence which the defence wish to be excluded.

Where an application to exclude evidence under s.78 would, if granted, result in the prosecution case being fatally weakened (because the prosecution would be left with no or insufficient remaining evidence to proceed) a judge will often want that argument to take place at a pre-trial hearing or at the commencement of the trial; in the Crown Court this would often be before a jury is sworn. On the other hand, where the application relates to a matter of less significance the judge may direct that the matter is dealt with at a convenient moment during the trial itself. If the argument is not heard before the case commences, the prosecution should avoid making any reference to the disputed evidence in the opening speech. The key point is that a s.78 application should be made before the evidence to which objection is taken is adduced.

Where the point of law is clear from the case papers or becomes clear following initial disclosure, the defence should include the point of law in the Defence Statement together with any authorities relied upon (s.6A(1)(d) Criminal Procedure and Investigations Act (CPIA) 1996).

In practice, the defence representative will often draft a skeleton argument in support of D’s application and the prosecution will draft a skeleton argument opposing it.

Directions will be given by the judge in the Crown Court, usually at the Plea and Trial Preparation Hearings (PTPH), as to when a s.78 application will be heard.

Similar directions will be given when dealing with case management at the magistrates’ court.

Question 52

What is voir dire?

Answer 52

Since a s.78 application is an application by the defence (to exclude prosecution evidence), the defence representative will address the court first followed by the prosecution advocate responding.

In the Crown Court, where there is a dispute on the facts between the defence and the prosecution, the judge will not be able to determine the s.78 application until the factual matter has been resolved. For example, if the defendant is advancing an argument that the police acted in a way that was in breach of the PACE codes but the police officers concerned deny this, then the judge will have to hear evidence and make a decision on the facts before the judge can decide how the law should be applied. The normal burden and standard of proof in criminal cases apply, so in order to find in favour of the prosecution version of the facts the judge will have to be satisfied of that factual position beyond reasonable doubt. If the judge concludes after hearing the evidence that the police acted appropriately, the legal argument will fail. On the other hand, if the judge concludes that the police misbehaved and that there had been a significant and substantial breach of the code resulting in unfairness to the defendant, then the evidence concerned is likely to be excluded.

Hearing evidence in this way on a legal argument is called a trial ‘on the voir dire’ (commonly referred to simply as a ‘voir dire’) and is a type of mini-trial or ‘trial within a trial’. The evidence called by the prosecution and defence will relate only to the matters in dispute. In a voir dire the witnesses testify on a special form of oath/affirmation ‘that I will true answer make to all such questions as the court shall demand of me’.

Being a legal argument, in the Crown Court a voir dire takes place in the absence of the jury. In the magistrates’ court, the magistrates (being both the tribunal of fact and law) can rule on a s.78 application when it arises or hear all the evidence (including the disputed evidence relating to the legal argument) before ruling on admissibility. However, the interests of justice may dictate that a ruling on admissibility is made early enough to allow the defendant to know whether that evidence forms part of the case, to deal with it in cross-examination and in D’s evidence and, if appropriate, to make a meaningful submission of no case to answer. This is particularly the case where the disputed evidence is a confession which forms the main evidence against a defendant. As such, disputed confessions should be determined as a preliminary issue. When the application is under both s.76 and s.78 PACE a voir dire should be held as a preliminary issue.

Question 53

What amounts to a confession?

Answer 53

‘Section 82

In this Part of this Act—

“confession”, includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise.’

The definition of a confession in the Police and Criminal Evidence Act 1984 (PACE), s82(1) is deliberately wide and the following will fall within the definition:

• unequivocal confessions of guilt (ie wholly inculpatory statements such as ‘I did it’).
• mixed statements (those which are partly inculpatory and partly exculpatory, such as ‘I had nothing to do with it but I was glad to see the victim die’). These fall within the definition of a confession because they are partly adverse to the maker.
• depending on the context, a nod, sign or gesture can be sufficient, as a confession does not have to be articulated in words.

Wholly exculpatory statements (‘It was nothing to do with me’) do not fall within the definition of a confession.

Question 54

How can a confession be challenged under s 76?

Answer 54

It follows that there are two main ways under s.76 to challenge a confession:

(1) under s.76(2)(a)- ‘oppression’; or

(2) under s.76(2)(b)- ‘anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof’.

Note that s.76 does not automatically come into play to challenge confessions. Rather, it only operates where ‘it is represented to the court’ by the defence that s.76(2)(a) or (b) apply. However, even where there is no defence challenge, s.76(3) provides that the court itself can require the prosecution to prove that the confession was not obtained as set out in s.76(2)(a) or(b).

Question 55

When might the s76 exclusion for oppression apply?

Answer 55

Section 76(2)(a) provides that where it is represented to the court that the confession was or may have been obtained by oppression of the person who made it, then the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.

Limb 1 – Exclusion for oppression – s.76(2)(a)

‘Oppression’ is widely defined in s.76(8) to include torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture). This wording reflects that contained in European Convention on Human Rights, Article 3.

_R v Fulling [_1987] QB 426, 85 Cr App R 136- The Court of Appeal held that ‘oppression’ in s.76(2)(a) should be given its ordinary dictionary meaning:

‘The Oxford English Dictionary as its third definition of the word runs as follows: “exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc., or the imposition of unreasonable or unjust burdens.” One of the quotations given under that paragraph runs as follows: “There is not a word in our language which expresses more detestable wickedness than oppression.” We find it hard to envisage any circumstances in which such oppression would not entail some impropriety on the part of the interrogator.’

What might be oppressive to one person might not be oppressive to another, so it is legitimate to consider the character and attributes of the accused.

Once the defence represent that the confession was obtained by oppression, or the court chooses to act of its own motion under s.76(3), the prosecution must prove beyond reasonable doubt that it was not so obtained.

If the prosecution cannot prove beyond reasonable doubt that the confession was not obtained by oppression, then the confession must be excluded as inadmissible evidence and this applies even if the confession may have been true.

If, however, the judge is satisfied beyond reasonable doubt that the confession was not obtained by oppression (and is therefore admissible), this does not prevent the defence during the trial seeking to discredit the same evidence by cross-examination and making reference to it in their closing speech, ie that it was obtained by oppression and is therefore unreliable. Of course, it would then be for the jury to decide for themselves whether to rely upon the alleged confession or not.

Question 56

When might the s76 exclusion for unreliability apply?

Answer 56

Section 76(2)(b) provides that:

• where it is represented to the court that
• the confession was or may have been obtained in consequence of anything said or done
• which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof
• the court shall not allow the confession to be given in evidence against him
• except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid

Question 57

How should the exclusion for unreliability be approached?

Answer 57

The Court of Appeal in R v Barry [1991]95 Cr App R 384 set out the approach to adopt in cases involving s.76(2)(b). Where a defendant alleges that their confession is unreliable within s.76(2)(b) PACE, the correct approach is:

• First, to identify the thing said or done, which requires the trial judge to take into account everything said and done by the police.
• Secondly, to ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence. The test is objective taking into account all the circumstances.
• Thirdly, to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done, which is a question of fact to be approached in a common sense way.

Question 58

What constitutes identifying the thing said or done?

Answer 58

The first step is to identify the thing said or done.

There are numerous examples of what the thing said or done can be.

These can be positive acts, such as a promise, inducement or trick. Examples are:

• a promise to release someone promptly from police custody only if they ‘tell all’; or
• a promise of bail from the police station conditional on a full and frank confession; or
• a threat to arrest a suspect’s partner or other family members if the suspect does not ‘cooperate’.

The thing said or done can also be an omission or failure to act, such as interviewing a young or mentally vulnerable suspect without an appropriate adult.

The thing said or done must not simply be something from the suspect, but from something external to the person. A suspect who makes an admission because they consider this is likely to get them bail (when the suspect has not been induced into believing this) cannot subsequently rely on s.76(2)(b).

Often when s.76(2)(b) is invoked the defence will be submitting that what was said or donewas itself a breach of PACE Code C – the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers. Code C contains numerous provisions concerning the detention and questioning of suspects; these include the right not to be held incommunicado, the right to legal advice and the right to be cautioned prior to being questioned. Code C also contains provisions regarding the right to appropriate rest at the police station and the right (for juveniles, the mentally disordered and the mentally vulnerable) to an appropriate adult. This is not to say that the thing said or done will always include an alleged breach of Code C, or that it must involve such a breach, but it will often do so.

There will be occasions where the conduct of the police or other investigator amounts both to ‘oppression’ within s.76(2)(a) and to ‘anything said or done’ within s.76(2)(b). These provisions are disjunctive and therefore either or both can be used to challenge a confession depending on the circumstances of the particular case.

Detention, treatment and interviewing suspects are covered in separate elements.

Question 59

How can you ask whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence

Answer 59

A hypothetical question

Having established what was said or done, the second step is to ask whether what was said or done was likely in the circumstances to render unreliable a confession made in consequence.

When an application is made under s.76(2)(b) the court does not consider the reliability of the confession which has been made, but a hypothetical question – the court must decide whether there is a likelihood that any confession would be unreliable in the circumstances prevailing at the time ( R v Gill [2004] EWCA 3245).

Re Proulx [2001] 1 All ER 57

Mance LJ stated:

‘the test is not whether the actual confession was untruthful or inaccurate. It is whether whatever was said or done was, in the circumstances existing at the time of the confession, likely to have rendered such a confession unreliable.’

Unreliable

What does ‘unreliable’ mean?

R v Crampton [1990]92 Cr App R 369, CA

Stuart-Smith LJ put it as follows:

‘The word “unreliable”, in our judgment, means “cannot be relied upon as being the truth”. What the provision of subsection 2(b) is concerned with is the nature and quality of the words spoken or the things done by the police which are likely to, in the circumstances existing at the time, render the confession unreliable in the sense that it is not true. It is quite plain that if those acts and words are of such a quality, whether or not the confession is in fact true, it is inadmissible.’

Unreliable

The test is an objective one taking into account all the circumstances. For example, even if the police were not aware at the time of the need to call an appropriate adult (and as such are not deliberately breaching the provisions of PACE Code C), if the suspect was in fact mentally vulnerable and should, therefore, have had the assistance of an appropriate adult and – viewed objectively – the absence of an appropriate adult would have been likely to render any confession unreliable, then the confession should have been excluded under s.76(2)(b).

In Gill it was put this way:

‘The relevant question is whether, having regard to the purpose for which an appropriate adult is required, the absence on this occasion of the protection which such presence would have provided is likely to have rendered any confession made at that time unreliable.’

Question 60

What are some key examples of unreliable confessions?

Answer 60

Deprivation of sleep

R v Trussler [1988] Crim LR 446

The defendant had been 18 hours without rest prior to his confession during interview. This was a clear breach of Code C and his confession was unreliable and should have been excluded under s.76(2)(b) PACE.

Failure to caution

R v Doolan [1988] Crim.L.R. 747, CA

The appellant argued that there had been breaches of PACE Code C during his robbery trial and that his interview containing a confession should have been excluded. Amongst other things there had been a failure to caution the appellant at interview or to remind him of an earlier caution. The court held that the confession had been wrongly admitted – the failure to caution was likely, in the circumstances existing at the time, to render the confession unreliable.

Denial of access to legal advice

R v McGovern (1990) 92 Cr App R 228, CA

When she was arrested for murder, the appellant was 19 years old and 6 months pregnant. She was of limited intelligence. She was refused access to a solicitor in breach of Code C. She was ill, distressed and not readily able to understand the caution. During her first interview she confessed to taking part in the killing. During her second interview she made further admissions in the presence of a solicitor. She was convicted of manslaughter at trial.

On appeal against her conviction, she argued that her confessions should have been excluded. The Court of Appeal allowed the appeal on the basis that the first confession was made as a result of a denial of access to a solicitor and was therefore likely to be unreliable under s.76(2)(b) PACE, even though it was later admitted to be true. Concerning the second interview, the court found that because the first interview was conducted in breach of Code C the subsequent interview was similarly tainted.

Question 61

What does it mean to ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done (s.76(2)(b))?

Answer 61

Having identified the thing said or done and whether what was said and done was likely in the circumstances to render unreliable a confession made in consequence, you must now ask whether the prosecution has proved beyond reasonable doubt that the confession was not obtained in consequence of the thing said and done.

As stated in Barry [1991]95 Cr App R 384, this is a question of fact for the judge and must be approached in a common sense way.

By way of reminder, Defence Counsel will be acting on the instructions from the defendant or from other evidence. Once it is represented by Defence Counsel to the court that the confession ‘was or may have been obtained’ by anything said or done which was likely in the circumstances to render any confession unreliable (s.76(2)(b)), ‘the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.’

Question 62

How should you treat evidence discovered as a result of excluded evidence?

Answer 62

PACE s.76(4)

Section 76(4) PACE provides: the fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—

‘(a) of any facts discovered as a result of the confession; or

(b) where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.’

Facts discovered- section 76(4)(a)

Even where a confession is excluded, this does not prevent facts discovered as a result of it being relied upon in evidence. If, for example, the police locate the body of a murder victim following the confession of a defendant, even if that confession is excluded under s.76(2)(a) or(b), the fact of the discovery of the body in that place is still admissible under s.76(4)(a). There is, therefore, no rule excluding the ‘fruit of the poisoned tree’.

However, in these circumstances it would not be open to the prosecution to suggest that the body was discovered by reason of something said by the defendant (eg ‘Members of the jury, we cannot tell you what the defendant said, but as a result of what the defendant said the police discovered the body of the deceased.’). To do so would be to circumvent the exclusion of the confession itself.

This rule is contained in s.76(5) PACE:

‘Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.’

The speech, writing or expressions of the accused- section 76(4)(b)

Section 76(4)(b) concerns situations where, even though the words of the confession have been excluded, the prosecution wants to use such part of the confession as is necessary to show the accused speaks, writes or expresses himself in a particular way.

R v Nottle [2004] EWCA Crim 599

The appellant was convicted of criminal damage by scratching ‘Fck you Jutin’ on a number of cars. The most potent piece of evidence against him derived from what had emerged when the appellant had attended a police interview with his solicitor. The interviewing officer said this: ‘On four of the cars was some writing. I want you to write it for me. It does not matter the style of the writing, how it is spelt, just make it as you see fit. The words are: “Fck you, Justin”.’ The officer said that he wanted it written out 12 times. The appellant then wrote out the words ‘F*ck you Jutin’ and later admitted during the course of the interview that he spelt the word ‘Justin’ J-U-T-I-N. The defence applied to exclude the evidence under s.76 but the judge refused to exclude it.

On appeal it was held that under s.76(2)(b) PACE there was nothing said or done which was likely, in the circumstances existing at the time, to render what was said in interview unreliable. In any event, the words could be relied upon to show how Nottle spelt ‘Justin’ under the provisions of s.76(4)(b). There was no error or unfairness to Nottle in the admission of the evidence given in interview as to how he spelt the name ‘Justin’. In any event, even if what was said otherwise was to be excluded under s.76, the words could be relied upon to show how the appellant spelt ‘Justin’ under the provisions of s.76(4)(b).

Question 63

When might you make applications to exclude confessions under s 76 and/or s 78?

Answer 63

It is perfectly appropriate and common practice for the defence to seek to exclude evidence of a confession under s.76 and, as an alternative, s.78.

Beeres v Crown Prosecution Service [2014] EWHC 283 (Admin)

The defence practice to seek to exclude evidence of a confession under s.76 and s.78 was considered in this case concerning PACE Code C breaches.

In giving judgment Green J stated:

‘Finally, the position under s.78 PACE 1984 which concerns fairness will not normallydiffer from that based upon the application to the same facts of s.76 PACE 1984: see Gill para [68(5)] where the court concluded that on the facts of the case no difference between ss.76 and 78 PACE 1984 arose.

Mr Rasiah accepted, however, that s.78 could in principle exert a broader protective sweep than s.76 and therefore that it acted as an override protection for a detainee. He gave by way of example the hypothetical case of a detainee who was woefully deprived of adequate legal advice but in circumstances where it could not be said that an interview without legal representation was “likely to render any confession unreliable”. He said that s.78 PACE 1984 might nonetheless intervene to exclude the confession in order to reflect the fact that s.78 incorporates broader Article 6 (ECHR) type considerations and a court might reflect the seriousness of the violation in an order excluding the confession. It seems to me that in principle this is correct: s.78 PACE and the common law will enable a court to examine a case, including one also engaging s.76, from a perspective of overall fairness. Hence in principle a tailpiece to any s.76 application as to reliability will be a “fairness” appraisal. The fact that there may be substantial overlap and that a s.76 analysis might normally indicate the result of a fairness test does not mean that the two tests are always or necessarily identical and that s.76 precludes the operation of s.78 PACE 1984.’

Question 64

What is a key example
of exclusion under s.78?

Answer 64

The Court of Appeal held that evidence of a confession should have been excluded under s.78 due to significant and substantial breaches of Code C which caused unfairness to the appellant. The appellant had been charged with possessing an offensive weapon recovered from a car. The defence case was that the appellant had only recently purchased the car and had no idea the weapon was there. The prosecution relied on a confession (which the appellant denied making) that he knew about the weapon. The confession was allegedly made to police officers in the charge room at the police station. At trial the defence objected to the admissibility of this confession on the basis of a number of breaches of Code C (commonly known as the ‘verballing’ provisions of the code) which included requirements to make a record of any interview and to allow a suspect the opportunity to read the record of the interview and to sign it as correct or to indicate the respects in which he considered it inaccurate. The defendant was convicted after the judge allowed the confession to be admitted.

On appeal (on the grounds that the confession had been wrongly admitted in evidence) the conviction was quashed. In giving the judgment of the court Hodgson J said that Code C:

‘addresses two main concerns. First, it provides safeguards for detained persons and provides for their proper treatment with the object of ensuring that they are not subjected to undue pressure or oppression. Equally importantly, these code provisions are designed to make it difficult for a detained person to make unfounded allegations against the police which might otherwise appear credible.

Second, it provides safeguards against the police inaccurately recording or inventing the words used in questioning a detained person. These practices are compendiously described by the slang terms “to verbal” and “the verbals”. Again, equally importantly, the provisions, if complied with, are designed to make it very much more difficult for a defendant to make unfounded allegations that he has been “verballed” which appear credible.’

He continued, ‘We think that in cases where there have been “significant and substantial” breaches of the “verballing” provisions of the code, the evidence so obtained will frequently be excluded.’

The court went on to explain that unfairness had been caused to the appellant; he had been put at a substantial disadvantage because, amongst other things, he had been denied the contemporaneous opportunity to correct any accuracies in what the police alleged he had said.

Example of exclusion under s.78

The R v Keenan case is helpful in highlighting the importance of the Codes of Practice in safeguarding not only the interests of a suspect but also the interests of the police when it comes to confession evidence.

If, for example, a suspect confesses to an offence outside a formal interview at a police station, the requirements under Code C are that a record of the confession is made (and timed and signed by the maker) and the suspect is asked to read the record and sign it as correct or indicate how the suspect considers it inaccurate, and that the confession is put to the suspect at the commencement of the interview at the Police Station when the suspect should be asked to confirm or deny it . These measures allow the suspect to deal with the alleged confession at the time it is said that the suspect made it. They also provide some measure of protection for the police should it be suggested subsequently that they invented the confession.

It is worth bearing in mind that simply because evidence has been irregularly obtained (for example, in breach of the codes) does not per se render it inadmissible.

The key test for the court in deciding whether to exclude prosecution evidence under s.78 is whether the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

The court is not concerned with marking its disapproval of police conduct by excluding evidence, or otherwise seeking to punish the prosecution for the way in which evidence has been obtained, it is simply concerned with whether fairness dictates that the evidence should be excluded in the circumstances.

However, where there has been bad faith on the part of the police when acting in breach of PACE or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence. The court will consider how, if at all, the defendant has been unfairly prejudiced.