Wednesday, September 04, 2019

Admissibility against a defendant of co-defendant's statements, whether hearsay or not

The Government’s response to the Law Commission’s Second Review of the Evidence Act 2006 reveals an issue that deserves deep study. It concerns sections 22A and 27 of the Evidence Act.

The Government’s response includes this, quoting in italics the Commission’s recommendation, followed by the response:

Amending the Act so that the admissibility rule in section 22A (relating to co- defendants’ statements) applies to any statement made by a defendant, whether or not it is a hearsay statement (recommendation 26)

Submissions from both defence and prosecution perspectives supported this recommendation. The Law Commission concluded that there is no principled basis for limiting this section to hearsay statements.

The Law Commission discussed the issue at pp 242-245 of its Report. Included in that discussion are some observations of Palmer J, quoted on p 243, para 15.17, with which I entirely agree. The suggestion was that the problem could be solved by amending s 27 to make it applicable to all statements by a co-defendant, whether hearsay or not. To be admissible these would have to pass the criteria in s 22A (currently only applicable to hearsay statements).

Instead of adopting this suggestion, the Commission recommended, and the Government apparently agrees, that s 22A should be repealed and a new s 27AA should be inserted into the Act. This would read (as set out in Appendix 1 to the Report, proposing a Draft Evidence Amendment Bill):

27AA Admissibility of statement against co-defendant
In a criminal proceeding, a statement made by a defendant is admissible against a co-defendant if—
(a) there is reasonable evidence of a conspiracy or joint enterprise; and
(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and
(c) the statement was made in furtherance of the conspiracy or joint enterprise.

Accompanying this, and this is what made me raise both eyebrows, is a proposal to repeal s 22A (clause 7 of the draft Bill).

Section 22A applies to much more than just statements by co-defendants. Some people involved in joint enterprises are never identified or caught, but their statements, for example in the form of text messages or intercepted verbal communications, although hearsay, can have probative value on the issue whether the defendant was part of a joint enterprise to commit the relevant offence. If the criteria in s 22A are satisfied, those statements are admissible unless excluded by some other rule.

There is nothing wrong with supplementing s 22A with something like s 27AA (if the terminology defendant/co-defendant is sorted out), but I wouldn’t get rid of s 22A.