The Criminal Procedure Rules – Not Just for Decoration by Paul Canfield
Mon 29th Jun 2020
The recent case of R v Smith  EWCA Crim 777 highlighted just how important the Criminal Procedure Rules are, and how, despite the pressures that practitioners face, they must be complied with to deal with any disputes surrounding evidence or procedure that may arise.
The Court of Appeal heard that having been convicted of a sexual assault that took place in 1969, 48 years before his trial and subsequent conviction in November 2017, the evidence used to convict the appellant had contained extensive hearsay material.
Before the trial, the prosecution had not served any hearsay application in breach of criminal procedure rule 20.2(2), despite hearsay being present within the complainant’s ABE interview and some of the witness statements.
Notably, the hearsay evidence specifically went to an apparent confession made by the appellant at the time after being confronted by the complainant’s now-deceased mother. That ‘confession’ was contained in both (1) the complainant’s ABE interview and (2) a statement from the complainant’s sister. After the judge had pointed out that the confession in the ABE was hearsay he was told by the Crown that the defence had agreed that the material could go in for the jury. The defence then highlighted that the admission into evidence of the confession was not agreed.
Despite both pieces of evidence having been identified by the judge as multiple hearsay, no formal ruling took place prior to the evidence being called following oral submissions and neither advocate reminded the judge of the need for such a ruling before any evidence was called. The confession hearsay was then adduced when both the complainant and her sister gave oral evidence.
When summing up the hearsay aspect of the case to the jury, the judge warned that it was not exactly clear to what subject or act the ‘confession’ went towards. The court was not fully aware of the context of the conversation held between the parties several decades earlier because the complainant’s mother, who had been the source of the hearsay, was deceased. The appellant had maintained throughout that he had patted the complainant on the knee in an effort to comfort her one evening, and the judge highlighted that any confession made at the time may have related to that action alone, especially as the appellant’s former wife had given evidence that he had denied doing anything more.
The Appellant’s Submissions
During the appeal, the appellant’s submissions, inter alia, focused on the admissibility of the hearsay confession, namely that because the prosecution had failed to make a written notice of hearsay application the defence had been unable to provide a considered and detailed response. The absence of both notice and response then led to haphazard discussions of the hearsay statements and no proper ruling from the judge.
Furthermore, the hearsay was multiple hearsay within the meaning of section 121 of the Criminal Justice Act 2003 and was not admissible pursuant to section 121(1)(a) or (c) and therefore, it had not been admissible by agreement between the parties. Had the judge received adequate submissions, a proper analysis would have been possible with the likely outcome being that the hearsay would not be admissible or that it would have been excluded under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”).
The Respondent’s Submissions
The respondent submitted in response that because the defence had assisted in the editing of the ABE interview before the trial they had been aware of its contents, and as they had not opposed the edited contents the hearsay confession had been agreed. Therefore no written application had been necessary.
It was also submitted that the judge had made a ruling regarding the hearsay contained in the ABE interview in so far as he stated he would not exclude the evidence under section 78 of PACE, and therefore had ruled in favour of the Crown. In relation to the hearsay contained within the sister’s statement, the defence had verbally conceded the admission of the evidence during oral submissions.
In quashing the appellant’s conviction for indecent assault the court ruled [50-51]:
‘The Criminal Procedure Rules are not decorative. They are there for a reason. The structure and language of the rules, if complied with, should ensure that tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem. That is the point of the Rules. This court is acutely aware of the pressures upon practitioners. But in our judgment, this case represents a good example of the problems which can arise when the rules are not complied with.
It is simply not sufficient, where complex hearsay evidence is sought to be introduced, for the Crown to remark that the evidence was in a record of an ABE interview or in a witness statement and that no explicit objection has been taken by the defence upon whom such evidence has been served. The notice requirement on the Crown is not implicitly waived by defence silence, or even where, as here, the defence have made suggestions for editing the ABE interview. The purpose of the rules is to ensure that both sides give their minds properly to what can be technical and difficult issues of admissibility’.
The Appeal Court went on to highlight that it had been the procedural failure by the Crown that led to a disjointed approach as to the admissibility of the hearsay by the defence, both before and during the trial, which then placed the judge in a difficult position. Had both parties laid out their arguments in an articulated manner, the judge would have been able to address the issues properly with the likely outcome being that the evidence would have been excluded.
Although the submissions and the judgment also went to the Crown’s justification for introducing the evidence and the guidance given to the jury by the judge in summing up the case, the main learning point for practitioners and students alike focusses on the need, not only to comply with the Criminal Procedure Rules but also to ensure that complex arguments are presented clearly and cohesively.
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