England and Wales High Court (Administrative Court) Decisions

1. MR S MORGAN (Instructed by Stephens & Scown, Exeter, Devon) appeared on behalf of the Applicant.

2. MISS S REEVES for MR J McGUINNESS (Instructed by CPS, Exeter, Devon) appeared on behalf of the Respondent.

3. MR JUSTICE BUTTERFIELD: Kevin Western brings this appeal by way of Case Stated against the decision of the Exeter Magistrates whereby on 21st May 1996 he was convicted of an offence contrary to Section 4(1) of the Public Order Act 1986. The appeal raises questions about the evidential status of the contents of an interview conducted with the Appellant by the Police in which the Appellant accepted his involvement in acts of violence but asserted he acted in self defence.

4. The facts fall within a short compass. In the early hours of 18th November 1995 Police Officers were called to the Cowick Street area of Exeter. There they saw two groups of youths apparently hostile to each other. Whilst the officers were attempting to disperse the youths, they heard sounds of shouts and jeers. They went to see what was happening and found two men fighting in an alleyway: one of those men was the Appellant, the second a man named Huber, who was also later charged under Section 4 of the 1986 Act.

5. The officers saw Huber holding the Appellant in a headlock, and punching the Appellant. The Appellant was punching upwards at Huber from his position held in the headlock. The men were swapping punches with each other and were of similar stature. They were asked to stop fighting by the Police Officers but ignored the request. The Police Officers did not see the fight begin, nor could they say who had struck the first blow. It took four officers to separate the two men, both of whom were arrested. The next day the Appellant was interviewed by the police in the presence of his father and a Solicitor. The fact of the interview and the content of it were adduced in evidence by the Prosecution as part of its case before the Magistrates. The Appellant was cautioned.

6. The Appellant gave a short account of what he said happened. He explained that in a night-club close to the incident, Huber had asked him for a cigarette, a request he had refused, whereupon Huber had "nutted" him and pushed him. A few minutes later Huber had come over to the Appellant again and threatened him, whereupon the Appellant had laughed at him and gone outside. Huber followed him and in the alleyway he had "whacked" the Appellant in the face. The Appellant continued:

7. The Appellant went on to say that he did hit Huber but it was in self defence, as Huber had hit him first.

8. On that evidence the Appellant was charged that on 18th November 1995 at Exeter he used towards another threatening, abusive or insulting words or behaviour with intent to cause that other person to believe that immediate unlawful violence would be used against him or another by any person, or to provoke the immediate use of unlawful violence by that person or another, or whereby that person is likely to believe that such violence will be used or it is likely that such violence would be provoked contrary to Section 4(1) of the 1986 Act.

9. At trial, the evidence of the Police Officers was not challenged by the Appellant. He did not give evidence, having been warned that if he did not do so it would be permissible for the Court to draw such inferences as appear proper from his failure to give evidence in accordance with Section 35 of the Criminal Justice and Public Order Act 1994.

10. It was contended on his behalf that the content of his interview raised the issue of self-defence, and since it was for the Prosecution to establish that the violence he threatened by his insulting words and behaviour was unlawful violence it was for the Prosecution to negative self-defence so that the Magistrates were sure it had been proved he was not acting in lawful self-defence.

11. The Magistrates were advised by their Clerk that there was an onus upon the Appellant where he wished to raise self-defence as an issue to adduce some evidence to support it and that the interview with the Police was a self-serving statement which could not be relied upon to satisfy that onus. The Magistrates were further advised that a self-serving exculpatory statement, which they concluded was the proper description of the contents of the Appellant's interview with the Police, was not admissible to prove the truth of what was asserted in that interview. The Appellant's representative did not accept this advice and sought to persuade the Magistrates that the interview did raise the issue of self-defence and that they should consider the content of the interview in deciding whether the Prosecution had established that the violence was unlawful.

12. The Magistrates preferred to follow the advice they received from their Clerk and in effect declined to consider the content of the Appellant's interview when deciding whether the Prosecution had proved its case.

13. The question posed in the Stated Case is:

14. It is submitted by Mr Morgan on behalf of the Appellant that the Magistrates were wrong in holding that the interview was a self-serving statement. The interview, it is submitted, was a "mixed" statement, containing both admissions and excuses. The Appellant admitted presence at the scene and participating in fighting. He admitted a series of acts immediately before the scene witnessed by the Police Officers which, on one construction, might suggest that he was ready and willing to fight Huber outside the nightclub. In those circumstances, submits Mr Morgan, to describe the interview as a self-serving statement is an abuse of language.

15. On behalf of the Respondent, Mr McGuinness submits that whether or not a statement is "mixed" or only self-serving depends not on the contents of the statement but on whether or not the Prosecution seeks to rely on any admissions or inculpatory parts of that statement. If the Prosecution does so rely, because without those admissions its case is defective, and the statement also contains exculpatory parts, the statement is properly to be regarded as "mixed". If not, it is not to be so regarded. Mr McGuinness submits that the Prosecution in this case were not relying upon the admissions made by the Appellant of his presence at the scene and participation in fighting: the Prosecution had ample evidence of both those matters from the Police Officers. Since the Prosecution were not relying on the admissions, the exculpatory parts of the statement could not be relied on by the Appellant and his interview can and should properly be described as self-serving. Thus the Magistrates were correct in holding as they did, and he invites us to answer the question stated for our opinion in the affirmative.

16. In jurisprudential theory, it is only the out-of-court statements of a defendant in which he or she incriminates himself or herself which are admissible as evidence of the truth of their contents as an exception to the hearsay rule. This exception is based on the assumption that what a person says against his or her own interests is likely to be true, although the reliability of this assumption has long been doubted. (See Paragraph 3.14 and the Notes thereto of the Law Commission Consultation Paper No 138 on Evidence in Criminal Proceedings) In practice, however, a court is always told what the defendant said on arrest and on interview immediately thereafter even if what he said was purely self-serving. In those circumstances what a defendant says will be evidence of his reaction when first taxed with the incriminating facts.

17. However, the law has long since moved from the legal theory so described. The locus classicus of the present situation is to be found in R v Duncan (1981) 73 Cr.App.R 359. Giving the judgment of the Court Lord Lane, Chief Justice, said at page 365:

18. It should be noted that the court was there considering whether the trial judge was right in withdrawing the issue of provocation from the jury when the only material raising that issue came from the assertions made by the accused man in interview, he not having given evidence. The court ruled that the judge was wrong so to rule, holding that all the components of the mixed statement were evidence of the facts stated, although their weight as evidence might differ widely.

19. The words used by Lord Lane have now been incorporated into the specimen directions suggested by the Judicial Studies Board in cases where a defendant's statement is partly self-serving and he does not himself give evidence.

20. The House of Lords ruled in the affirmative. Giving examples of "mixed" statements Lord Havers said, at page 278:

21. The rationale for the conclusions reached by their Lordships was expressed by Lord Havers at page 281:

22. Mr McGuinness fully accepts that the law is as I have stated. However, he emphasises that the rationale of the present approach is that it would be unfair to permit the Prosecution to rely on the admissions without a court also having regard to the explanations. To approach the consideration of admissions other than on this basis would be to enable the Prosecution, to paraphrase the familiar dictum of Turner J in R v Shippey [1988] Crim Law R 767, to have all the plums and none of the duff. Where, however, the Prosecution do not rely upon what the Defendant said in interview to go to proof of any part of the case against him then the whole of an interview should be regarded as self-serving even if it does include admissions against the interest of the Defendant. He accepts that if the Prosecution do rely upon any admission made by a Defendant then the whole of the statement must be considered by the Court as evidence of the truth of the facts contained in the statement.

23. The difficulty facing the Respondents in the present appeal is that there is no finding by the Magistrates that the Prosecution did not rely upon the admissions made by the Defendant. Indeed, it is highly likely that the Prosecution did rely upon those admissions. The material within the interview would have provided powerful ammunition for cross-examination of the Appellant had he chosen to give evidence, to demonstrate that far from acting in self-defence he was himself angry as a result of earlier confrontations with Huber and wanted to fight with him. The Prosecution chose to adduce the evidence of the interview. There is nothing within the Stated Case to suggest that the Prosecution were not relying upon the content of the interview where it contained admissions adverse to the Appellant's case. In those circumstances even assuming that a statement containing admissions and excuses only becomes a "mixed" statement once the Prosecution have decided to rely upon it the interview with the Appellant clearly fell within that definition.

24. On that narrow ground I would allow this appeal and hold that the Magistrates were wrong in concluding that the Appellant's interview was a self-serving statement. Had it been such a statement the answer to the question posed by the Magistrates would have been, as the law presently stands, in the affirmative. But that question does not in the result arise. The Magistrates should, in deciding whether the Prosecution had discharged the persuasive burden upon them to satisfy the Court that the violence used or threatened by the Appellant was unlawful, have taken into consideration the assertion by the Appellant that he was acting in lawful self-defence. Because the Appellant chose not to give evidence it may well be that the Magistrates would have attached little weight to the interview but that would be a matter for them. Since they expressly excluded any consideration of the interview in their deliberations the conviction cannot stand. In those circumstances I would quash the conviction.

25. However I wish to add that I have grave doubts about the correctness of the submission advanced on behalf of the Respondent.

26. There is no statutory requirement that a person arrested on suspicion of having committed an offence should be questioned about that offence by a police officer. Where a police officer chooses to exercise his undoubted right to question a suspect he must comply with the provisions of Code C of the Codes of Practice. The interview must begin with the caution. That caution informs a suspect that he does not have to say anything but it may harm his defence if he does not mention when questioned something which he later relies on in Court and anything he does say may be given in evidence.

27. If the test of whether or not a statement is "mixed" depends not on the contents of the statement but on whether or not the prosecution seeks to rely on any admissions contained in it then the effect of the new caution required to be administered to a suspect in effect amounts to this:

28. In my judgment it is strongly arguable that this is not the law, nor should it be. I consider that whether a statement is mixed or not should not depend upon the accident of circumstance of what other evidence is available to the prosecution, but upon an examination of the statement itself. Of course, if having given an account to the police a defendant fails to give evidence in support of it, and there is no other evidence to support that account, it is highly likely that the weight to be attached to what the defendant has said will be minimal, and an adverse inference might be drawn against the defendant in any event under the provisions of Section 35 of the Criminal Justice and Public Order Act 1994.

29. If the argument advanced by Mr McGuinness is correct, a self-serving statement will still be admissible to prove the defendant's reaction to the allegation but not as evidence of the truth of its contents. It would therefore be necessary to return to the times when juries had to be directed about the evidential effect of different parts of an accused's account. Lord Lane considered this position in Duncan (supra). He said:

30. For my part, and with great respect, I entirely agree. Further, there would be considerable practical problems if the proposition advanced applied. The Prosecution may, for example, elect at the outset not to rely upon an accused's statement. But the criminal trial process is not set in stone: a witness may fail to come up to proof so that the Crown then do need to rely upon a part of what a defendant said in interview. What then? The defence may have been conducting its case in reliance upon what the prosecution originally proposed. Further, the position would be even more complicated in trials involving more than one defendant.

31. I would venture to suggest that with the advent of Section 34 of the 1994 Act the law in this field may develop further so as to abolish the distinction between mixed statements and self serving statements save in extreme cases. The Law Commission in their Consultation Paper No 138 (supra) suggested at Paragraph 3.16 Note 35 that if adverse inferences may be drawn from a failure to put forward a defence pre-trial, it is possible that it will seen to be fair for the Crown to put in evidence whatever the accused says pre-trial, unless that was a carefully prepared exculpatory statement such as that considered by the Court in R v McCarthy (1980) 71 Crim.App.R 142. Again, in my judgment, there is a strong argument for the proposition advanced by the Law Commission. However, it is unnecessary for the determination of this appeal for this Court to reach a concluded view on these matters and for my part I expressly do not do so.

32. LORD JUSTICE SCHIEMANN: I agree that this appeal should be allowed for the reasons given by my Lord. I also share his doubts as to the correctness of Mr McGuinness' basic submission. In accordance with the judgment which has been handed down, we shall quash the conviction. The appellant was given a conditional discharge for 18 months. That was over a year ago. In the circumstances we see no substantial advantage in remitting the case for a retrial.

33. MR MORGAN: My Lords, can I raise one issue and that is whether the matter should be remitted? My Lord, that was not canvassed on the last occasion, because we did not know the result of your Lordship's determination. Miss Reeves represents the Respondent for today's proceedings. My Lords, I would say only this---

34. LORD JUSTICE SCHIEMANN: Which side are you on? Are you for the prosecution?

35. MR MORGAN: I am for the Appellant.

36. MR JUSTICE BUTTERFIELD: What was the penalty imposed?

37. MR MORGAN: A conditional discharge for 18 months. The offence is now 12 and a bit months old. He was 16 at the time and he is now 17. I ask myself really whether it is in the interests of justice to remit it.

38. LORD JUSTICE SCHIEMANN: Do you have anything to say about that?

39. MR MORGAN: I need that, my Lord.

40. LORD JUSTICE SCHIEMANN: I shall try to incorporate that with the judgment. We allow the appeal, quash the conviction but in the circumstances of the present case, let the matter lie there.

41. MR MORGAN: My Lord, can I invite the Court to make an order for costs out of Central Funds? This Appellant has been legally aided.

42. LORD JUSTICE SCHIEMANN: That is the normal order in these cases.

43. MR MORGAN: I am grateful, thank you.

44. LORD JUSTICE SCHIEMANN: I have been reminded about reporting restrictions under the Children and Young Persons Act. How old is this gentlemen now?

45. MR MORGAN: He is 17 now, but the restriction would still apply as he is a youth for the purpose of proceedings.

46. LORD JUSTICE SCHIEMANN: Is it automatic? No, it is not.

47. MR MORGAN: No, it is not automatic, but it is within your Lordships' discretion under section 39 of the Children and Young Persons Act. I anticipated that an order would have been made in the lower court. Although he was tried as an adult in the magistrates court, they would normally make an order under section 39. My Lord, clearly it is in his interest that details should not be disclosed, especially as now he does not have a conviction.

48. LORD JUSTICE SCHIEMANN: We will make the usual order in those circumstances. If it is reported at all, it will have to be reported by his initial. Thank you for reminding me.