| CRIME — Evidence — Character — Co-defendant’s bad character — Defendant on murder charge seeking to adduce evidence of co-defendant’s confession of earlier murder — Application made during trial — Judge concluding application made to “ambush” of co-defendant’s defence and excluding evidence as breaching procedural rules — Whether jurisdiction to exclude evidence — Criminal Justice Act 2003, ss 101(1)(3), 111 — Criminal Procedure Rules 2005 (SI 2005/384), r 35
R v Musone [2007] EWCA Crim 1237
CA: Moses LJ, Underhill J and Judge Stewart QC: 23 May 2007
Cases in which a breach of procedural rules would entitle a court to exclude evidence of substantial probative value would be rare and a court should be most reluctant to exclude evidence of that quality for such a breach; none the less there would be cases where the only way in which the court could ensure fairness was by doing so.
The Court of Appeal (Criminal Division) so held when dismissing an appeal by Ibrahim Musone against his conviction on 6 April 2006 at Northampton Crown Court, before Judge Wide and a jury, of murder.
MOSES LJ said, in the judgment of the court, that the appellant, his co-defendant Chaudry and the victim were serving prisoners and there had been a history of hostility between them. The prosecution case was that Chaudry had provided the knife to the appellant, who had stabbed the victim, causing his death. On the eleventh day of the trial an application had been made on the appellant’s behalf to adduce evidence that, although acquitted some 12 years previously of an offence of murder, Chaudry had admitted to the appellant that in fact he was guilty. The application having been made pursuant to s 101(1)(e) of the Criminal Justice Act 2003 the judge ruled that the evidence of the confession had substantial probative value in relation to an important matter in issue between the defendant and a co-defendant but concluded that the request to adduce that evidence at such a late stage was done with the intention of “ambushing” the co-defendant and therefore faced with the absence of any express power in s 101 to exclude the evidence, the judge purported to deploy the right of a defendant to a fair trial pursuant to art 6 of the European Convention on Human Rights. The judge held, alternatively, that he had the power to exclude the evidence because of the appellant’s failure to comply with his notice obligations to the prosecutor under r 35 of the Criminal Procedure Rules 2005 (SI 2005/384). He therefore rejected the application. On the appeal the question arose as to whether the judge had any power to prevent the appellant from adducing the evidence before the jury. He had no express power to do so under s 101; he had no power under s 78(1) of the Police and Criminal Evidence Act 1984. Their Lordships did not think that it was possible to identify a power to exclude evidence which, ex hypothesi, had substantial probative value, in reliance on art 6 and in that respect the judge had erred. The judge had no power under s 101(1)(e) to exclude evidence which reached the standard imposed by the section for admissibility on grounds of unfairness. However, s 111(2) of the 2003 Act conferred a power to make rules requiring a co-defendant to serve notice of evidence of another defendant’s bad character and s 111(4) provided that a court might “take into account any failure by a party to comply with” that requirement. In their Lordships’ judgment the judge was entitled to exclude the evidence of the confession in circumstances where he concluded that the appellant had deliberately manipulated the trial process so as to give his co-defendant no opportunity of dealing properly with the allegation.
|
