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Is a Defence Statement evidence?

by Michael Oliver

D was charged with section 18 wounding with intent. The prosecution case was that he had stabbed K in the chest because K had been supplying drugs to D's girlfriend, C. K had made a full statement to the policed but refused to come to court, making it known that he no longer wished the case to go on.

All attempts by the prosecution to discover K's whereabouts were in vain. Eventually the prosecution decided to go ahead without K, relying on the evidence of K's sister, who had been a witness to the stabbing. An application to read K's evidence, pursuant to section 23 CJA 1988 was refused, as was a defence application to stay the trial as an abuse of process.

The Crown's difficulty was that without the evidence of K (who knew D) there was no evidence on the face of the papers to show that D was the man who had stabbed K, other than the admission that he was "Clover's boyfriend". Apart from this his had been a "No Comment" interview. Accordingly the Crown sought to adduce, as part of the prosecution case, the Defence Statement in which D admitted the stabbing, but stated that he was acting in self-defence. The application was opposed, not least as a breach of Article 6 protection against self-incrimination.

Allowing the prosecution application HHJ McGregor Johnston adopted the commentary in Criminal Law Week on R v Tibbs [The Times, Feb 28, 2000]: "As a matter of principle... there seems to be no reason why the prosecution should not prove a defence statement as part of their case."

The jury was discharged having failed to reach a verdict, and the matter was set down for retrial. The issue was again argued before a Recorder who followed the earlier ruling. The matter could not be heard for lack of time. It was re-listed before HHJ Behar. The Defence objections were not renewed, the trial proceeded and the defendant was acquitted.

29 January 2002

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