27 Sep 2022

Does an accused have the right to know what materials they will be cross examined with prior to trial?

In R v Xavier Edwards [2022] EWCA 1204, the Court of Appeal considered whether the prosecution has an obligation to disclose all its evidence prior to an accused deciding whether or not to testify at trial. In other words, this appeal concerned whether an accused has a right to know when deciding whether or not to testify what material they may be cross-examined about by the prosecutor or whether it is fair for her/him to be taken by surprise or “ambushed”.

How an inconsistent statement can be used by the prosecution

Edwards was tried for supply of drugs offences. When interviewed by the police he submitted a brief simple denial prepared statement and had answered all their questions with “no comment”. At trial he decided to testify and gave exculpatory explanations for the first time. One of them was that he was long term unemployed and had no income. When he was cross examined, he was shown an application form that he had completed in order to obtain insurance for a Mercedes car that he had been driving immediately prior to his arrest. He had declared there that he was an accountant. The form was a prior inconsistent statement adduced by the prosecutor in order to undermine the appellant’s credibility.

The form was admissible in evidence and the issue that fell for consideration was whether the trial judge should have directed the prosecution not to adduce it because it had not been served as evidence by them in advance of the trial or even cited during its case. It was contended on appeal that the judge had erred because it was unfair to the defence to have allowed the insurance form to be submitted after the prosecution had closed its case.

Why the judge’s discretion was in favour of the prosecution

The judgment of the Court in this case is another example of its tendency not to interfere with the exercise of a trial judge’s discretion in favour of the prosecution, provided no injustice is caused. The Court’s statutory function is to determine whether the conviction appealed against is unsafe and its contemporary approach is to prefer substance over form.

Here the Court was satisfied that what happened to the accused was not unjust. Firstly, because the document had been approved by him. Presumably the Court thought that was significant because it inferred that the defendant may not have been taken by surprise.

How materials can be used to disprove credibility in court

Furthermore, it had been disclosed to the defence as an item of unused material. Secondly, its omission from the prosecution’s evidence served as part of its case was not wrong because the form had been adduced not to directly prove E’s guilt, but to impugn his credibility or show that he had a propensity to lie.

Whilst the Court was justified to dismiss this appeal for these reasons, there is one aspect of its reasoning that causes concern – the obligation on the prosecution to disclose its evidence prior to trial may be satisfied by it instead serving the evidence as unused material for later possible conversion into evidence. It would have been better and fairer for the Court not to have treated the fact that the insurance form was technically available to the defence amongst unused material as a part justification for its subsequent sudden adduction as evidence.

Finally, the case is also an example of potential prejudice to the defence caused by the exercise of the accused’s right to silence during police questioning. Here the prosecution did not know in advance of trial what the appellant would contend when he chooses (as he might not have done) to give evidence in his defence. An application to admit additional evidence for the purpose of cross examination of the accused, e.g. a previously innocuous document has become suddenly lethal because of what they testified, is much more difficult for a trial judge to refuse than one made where it could be submitted by the defence that the prosecution was on notice prior to the trial.

The perils of exercising the right to silence were also evidenced in another recent Court decision which I addressed in another article ‘Exercising your right to silence: what does this mean for your defence?‘.

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