The Duty Of The Prosecution To Adduce The Defendant's Interview

The English criminal trial process is an adversarial one. A proper examination of the evidence is achieved by both the prosecution and the defence being represented by equally able advocates who can present their client's case and test that of their opponent. This partisan representation is overseen by an impartial judge, and verdicts are reached by an independent jury.

However, the duties of the parties differ. The defence advocate must represent his clients interests without restraint, save for an overriding duty to the court. Conversely, the prosecution must be conducted in the interests of justice. It must be fair. This difference between defence and prosecution is most clearly seen in the context of disclosure. The Prosecutor must disclose to the defendant material which could assist the defendant's case. There is no corresponding duty on the defendant to provide inculpatory evidence to the Crown.

But does the duty of the Prosecutor extend further? Must the Crown, as part of its own case, lead evidence that assists the defence? In particular, must the Crown lead an exculpatory interview?

In the normal course of events, a defendant's interview will be either played or read to the jury. However, is the Crown obliged to do this?

The most recent case to consider this question is Gonzales1. G was charged with common assault. His account, given in interview, was that he was present but was acting in self defence. The prosecution decided that they did not want to adduce the evidence of what was said in interview. The defence argued that the prosecution should be compelled to adduce it. It was common ground that the defendant could not adduce it as part of his case as it was a mixed statement and, to an extent, self serving. The justices ruled that there was no requirement for the prosecution to adduce such evidence. The practical consequence of this ruling was to compel the defendant, in order to raise self-defence as an issue, to give evidence.

The High Court, on hearing the appeal, mentioned several authorities addressing the adduceability of mixed statements. The court then concluded, without giving reasons, that the prosecution should have adduced the interview as part of its case. This point had been conceded by the CPS, which may be why there was little discussion of it in the course of the judgement.

The Court in Gonzales was not directed to the case of Blinkhorn2. B had given a prepared statement and subsequently made no comments in...