The English criminal trial process is an adversarial one. A proper examination of the evidence is achieved by both the prosecution and the defence being represented by equally able advocates who can present their client's case and test that of their opponent. This partisan representation is overseen by an impartial judge, and verdicts are reached by an independent jury.
However, the duties of the parties differ. The defence advocate must represent his clients interests without restraint, save for an overriding duty to the court. Conversely, the prosecution must be conducted in the interests of justice. It must be fair. This difference between defence and prosecution is most clearly seen in the context of disclosure. The Prosecutor must disclose to the defendant material which could assist the defendant's case. There is no corresponding duty on the defendant to provide inculpatory evidence to the Crown.
But does the duty of the Prosecutor extend further? Must the Crown, as part of its own case, lead evidence that assists the defence? In particular, must the Crown lead an exculpatory interview?
In the normal course of events, a defendant's interview will be either played or read to the jury. However, is the Crown obliged to do this?
The most recent case to consider this question is Gonzales1. G was charged with common assault. His account, given in interview, was that he was present but was acting in self defence. The prosecution decided that they did not want to adduce the evidence of what was said in interview. The defence argued that the prosecution should be compelled to adduce it. It was common ground that the defendant could not adduce it as part of his case as it was a mixed statement and, to an extent, self serving. The justices ruled that there was no requirement for the prosecution to adduce such evidence. The practical consequence of this ruling was to compel the defendant, in order to raise self-defence as an issue, to give evidence.
The High Court, on hearing the appeal, mentioned several authorities addressing the adduceability of mixed statements. The court then concluded, without giving reasons, that the prosecution should have adduced the interview as part of its case. This point had been conceded by the CPS, which may be why there was little discussion of it in the course of the judgement.
The Court in Gonzales was not directed to the case of Blinkhorn2. B had given a prepared statement and subsequently made no comments in interview. He also made a witness statement which was given to the police. The defence submitted that his prepared statement and witness statement were mixed as the defendant admitted to holding down the victim and punching her, as well as saying that he acted in self defence. The trial judge ruled that the statements were wholly exculpatory and therefore inadmissible.
On appeal against conviction, the Court of Appeal commented that, in the context of the case, the trial judge was entitled to take the view that the statements were exculpatory. However, the Court stated that the ground of appeal was misdirected. The real question was not whether the statements were admissible, but whether the prosecution could be compelled to admit them. The Court noted that in practice a defendant's interview was normally led by the prosecution, but added that where there was a carefully prepared written statement, it could be excluded as inadmissible. In this case the prosecution did not seek to adduce the evidence, and the defence were not entitled to oblige them to do so.
The decision in Blinkhorn, which denies the existence of an obligation on the Crown to adduce evidence of what is said to the police, appears to be at odds with the decision in Gonzales, which suggests that the crown do have a duty to adduce such evidence. It is arguable that the two may be distinguished by reference to the case of Pearce3, which envisaged that a carefully worded statement, produced with a view to it being adduced as part of the prosecution case, would be excluded. Blinkhorn falls into this category, whereas Gonzales does not. However, that does not appear to be a proper distinction to make. The question is whether the prosecution could be compelled to adduce evidence. In McGregor4 Lord Parker commented that "if the prosecution are minded to put in an admission or a confession they must put in the whole, and not merely a part of it." This comment suggests that the decision on whether or not to adduce the evidence remains with the prosecutor.
The position on the duty of the prosecution to call witnesses who may give evidence adverse to the Crown's case is tolerably clear, although the circumstances in which it would be right not to call such witnesses are not yet exhaustively categorised.
The duty to call statements made by the defendant himself is less clear. Fairness must be the touchstone – evidence which may assist the jury should not be left out simply to bolster the chances of a conviction.
In many cases the Prosecutor will want to present the defendant's interview – be it exculpatory, mixed or inculpatory, as part of the prosecution case. But where there is good reason to leave out the evidence, it is the prosecutor's discretion which should be determinative. It is likely that the factors set out in Russell-Jones5 – for example that the witness is not a witness of truth – are likely to be useful guidance for the exercise of that discretion. However, it would be a rare case where the Crown would say that the defendant was a witness of truth and so the test for not calling such evidence would always be passed. The true test must be one of fairness. The prosecution are not required to advance the defendant's case for him. Where the sole purpose in calling evidence of the defendant's interview would be to assist the defendant in putting his case, it is submitted that, contrary to the concession in Gonzales, the prosecution is not obliged to do so.
Footnotes
1. Gonzales v Folkestone Magistrates Court [2010] EWHC 3428 (Admin)
2. R v Blinkhorn [2006] EWCA Crim 1416
3. (1979) 69 Cr.App.R 365
4. [1968] 1 Q.B. 371
5. R v Russell-Jones [1995] 1 Cr App R 538
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