The Court of Appeal has ruled that a statement an accused man made to his solicitor was inadmissible in his criminal trial, finding it was wholly exculpatory and that fairness did not require its admission. The ruling did not affect the acquittal.
The judgment, delivered by Ms Justice Isobel Kennedy on 8 April 2024, answered in the negative a question referred by the Director of Public Prosecutions under section 34 of the Criminal Procedure Act 1967. The question was whether the trial judge had been correct in law to admit the statement.
The respondent had been tried in November 2022 on five charges arising from alleged events at a dwelling on 14 and 15 March 2020: aggravated burglary, threats to kill and damage property, production of a knife, and endangerment. The judgment says he was acquitted; the section 34 referral was made without prejudice to that verdict.
During the trial, the defence sought to introduce an unsworn statement the respondent had prepared in his own words and given to his solicitor. The trial judge admitted it, concluding that fairness permitted its use if the jury were told the circumstances in which it was made. The judge cited the respondent’s nationality and unfamiliarity with legal affairs, his solicitor’s inability to attend the interview, Covid-19-related tensions and a change of legal advisers.
The prosecution argued that the statement was inadmissible hearsay. The respondent maintained that a trial judge could admit an out-of-court statement where fairness required it, relying on the Supreme Court’s decision in People (DPP) v JD.
The Court of Appeal said the statement placed the respondent at the scene but amounted to a total denial of wrongdoing. It held that a wholly exculpatory statement did not qualify for the hearsay exception for statements against interest. It also said JD did not establish that a statement made to a solicitor was admissible: that case discussed a possible written response in an interview context, with admissibility still to be determined under the rules of evidence.
On fairness, the appeal court found the respondent had an opportunity to respond to the allegations. He had received legal advice before and during detention, provided background information in interview and chose to make no comment about the alleged events. The court concluded that fairness did not require the solicitor statement to be admitted.
The court therefore answered the referred question in the negative. Its decision determined the evidential question and left the acquittal undisturbed.