Musone v R.

On 13 April 2005 a serving prisoner, Wayne Reid, was stabbed to death in his cell at Ryehill Prison. The appellant and Bisharat Chaudry were convicted of murder on 6 April 2006 at Northampton Crown Court. In the course of his defence, this appellant sought to rely upon the hearsay provisions contained in Chapter 2 of the Criminal Justice Act 2003 (the 2003 Act) and the bad character provisions in Chapter 1 of the 2003 Act, in support of his contention that it was Chaudry who had stabbed the victim. This appeal raises significant issues both as the hearsay provisions and the bad character provisions in the context of a “cut-throat” defence, and in particular the impact of the procedural rules on the substantive provisions relating to admissibility.

There had been a history of hostility between the appellant Musone, the defendant Chaudry and the victim Reid. It is unnecessary to detail the cause of that hostility which related to two incidents, one concerning Musone and Reid and the other Chaudry and Reid. CCTV cameras on D wing, in which all three were detained, each recorded for a period of six seconds, followed by a twenty-six second interval. A camera showed Musone walking to the area of the victim Reid’s cell, followed a few seconds later by Chaudry. Twenty-six seconds later Musone was seen walking away from Reid’s cell followed quickly by a third man, Syed, who was, on the judge’s direction, acquitted of murder. Chaudry was also seen to leave the area of the victim’s cell. Reid was then seen leaving the area of his cell and turning to re-trace his steps. He approached some other inmates who were playing dominoes, but then collapsed and died.

Musone’s blood was found trailing from Reid’s cell to his own. His jacket had a spatter of blood with DNA of the same profile as that of the victim on its right lower sleeve. Chaudry’s sweatshirt was recovered from his cell without traces of blood but soaking wet; it had been cut in two. Musone’s tracksuit trousers had bloodstains on the right hip containing DNA with the same profile as that of the victim. Similar stains were found on the outside rear of Chaudry’s boxer shorts and the bottom front and rear of his vest. A black-handled butterfly knife was found secreted in the soil pipe of Chaudry’s cell, which he shared with Syed.

Medical evidence established that the victim, Reid, had been stabbed twice in the region of the heart. The appellant had a cut on the tip of the little finger of his right hand.

In interview the appellant admitted discussing an assault on Reid but he had declined the use of any “tool”. He had gone to cell 3 to punch Reid. He had punched Reid twice on the head but was then distracted by others coming from behind. He then saw blood on Reid’s chest and left the cell. Chaudry admitted that he had arrived at Reid’s cell after Musone. He claimed that there was blood already on Reid’s chest as he entered and asserted that Reid pushed past him to leave, brushing Chaudry’s hand with blood. Chaudry then wiped his hand on his jumper, returned to his cell, cut the jumper in two and soaked it in bleach. He alleged that Syed had disposed of Musone’s jacket and had hidden the knife, which belonged to Musone.

The appellant gave evidence, in the course of which he alleged that Chaudry produced a knife like the one adduced in evidence in court. He repeated his assertion that he had entered the cell first, punched Reid twice in the face and then saw Chaudry standing behind him holding what he described as a flask. He said that Reid had then pushed him and he fell down. He saw that Reid was bleeding in the chest but denied that that was a result of punching Reid. Chaudry hit Reid with the flask. The appellant then said he panicked because the deceased had been stabbed although he had not seen the knife. The deceased had approached the appellant “like a zombie” and the appellant had punched him away somewhere in the body without intending to hurt him. He left the cell and Chaudry ran out after him. The appellant denied that he was carrying anything. He described Syed as being behind him. Thus his case was that he was not involved in stabbing Reid at all. Chaudry had come into the cell behind him and used his own knife to stab Reid.

Chaudry also gave evidence. He admitted that there had been a previous discussion about fighting the deceased. He was near the deceased’s cell when he heard a thud and he took one pace inside. He saw the deceased with a red patch on his chest; Chaudry said he was shocked. The appellant was there in the cell. The deceased said he had been stabbed and then brushed against his hand, causing it to become bloodied. Chaudry panicked and left. He never saw a knife. Syed, though acquitted of murder on the judge’s direction continued to face an allegation that he had assisted Musone by disposing of his jacket. He was convicted of assisting an offender.

It is important, before turning to the grounds of the appeal, to record the prosecution case. Chaudry had provided the knife to Musone. Musone descended the stairs, as shown on CCTV, with Chaudry just behind him. Musone then entered the cell and stabbed Reid with Chaudry beside him on hand to help. Musone then left and swaggered back to his cell. Chaudry ran upstairs. Musone had handed the knife back to Chaudry who hid it in proximity to his boxer shorts where it stained them with blood. Chaudry had flushed the knife down the lavatory; Syed had hidden Musone’s jacket in a bin.

The prosecution made clear to the judge that the jury could only convict Musone if they were sure that he had stabbed Reid. It was not open to the jury to convict Musone on the basis that Chaudry had stabbed Reid and Musone was merely a participant in a joint enterprise. That had never been the prosecution’s case and the prosecution made it clear that was not a route by which the jury could convict both Musone and Chaudry. In those circumstances, although the jury could convict Chaudry alone on the basis that it was he who had stabbed Reid, if that was their conclusion, they were bound to acquit Musone. Their unanimous verdicts lead to the conclusion that Musone was convicted as having stabbed Reid and Chaudry as having entered into a joint enterprise for the purpose of stabbing Reid.

We emphasise that basis upon which the prosecution laid the case before the jury because in support of its case that Musone had stabbed Reid the prosecution sought to rely upon hearsay evidence of what used to be called a dying declaration by Reid to two prisoners, identifying Musone as the man who killed him. It is that dying declaration, admitted by the judge, which gave rise to the first two grounds of appeal.

The prosecution sought to adduce evidence from a fellow prisoner, Brown, that he had seen the deceased with his tee-shirt stained with blood walking towards him. He asked “what’s happened, mate?” to which the deceased replied “Musone’s just stabbed me”. The judge ruled that that evidence was admissible, pursuant to section 116 of the 2003 Act. This provides:-

It is clear that the conditions for admissibility under section 116 were satisfied and the appellant could only succeed if he could successfully deploy section 78(1) of the Police and Criminal Evidence Act 1984 (PACE) and establish that admission of the evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

The appellant relied, before the judge and before us, on a number of factors suggesting that Brown’s evidence was inherently weak. He was a long-standing friend of the victim; his bad criminal record suggested that he was highly unreliable. Further, his evidence was inconsistent with that of other witnesses who did not hear Reid identifying the man who stabbed him. Brown did not immediately tell prison officers, on the scene shortly after, and had refused to come to court. He had been brought in consequence of an arrest warrant.

The judge properly considered all those features but, in our judgment, rightly declined to exclude the evidence. It was, when coupled with Brown’s description of seeing the appellant leaving the cell, walking quickly, without his normal limp and with his hand holding a cloth and dripping with blood, powerful evidence. We reject the appellant’s first ground.

The prosecution sought to adduce further evidence of the victim’s dying declaration that Musone killed him from a prisoner, Patterson, who, in contrast to Brown, refused to give evidence. Patterson, like many other prisoners, had been seen by police officers in the prison within twenty-four hours of Reid’s death. He was noted, in a questionnaire, as describing the appellant, whom he called “Bushman”, running downstairs. He also described a “lock knife” with a brown handle. The questionnaire notes Patterson saying that he:-

Additional notes made by the officer questioning Patterson include the note:-

An officer then wrote out a narrative account. That account contains evidence of what Patterson said he himself saw. He described trying to calm “Bushman” and Syed, whom he called “d’dar”. He repeated that he had seen the appellant running down the stairs and thought he was “tooled up” but said he had not seen a knife. But he said that he saw the appellant coming out of Reid’s cell:-

He is recorded as saying again that when Reid was lying on the floor, dying, he repeated “I’ve been stabbed. Bushman done it.” This record is timed at 1.10 p.m. on 14 April 2005. At the end of the narrative Patterson has placed his signature beneath the words:-

Patterson made no other declaration. He did not declare that the contents of the record were true. He would not make a formal section 9 witness statement. He refused, so it was asserted on behalf of the appellant, to make a statement on no less than five occasions. Patterson persisted in his refusal to come to court and was finally arrested. When he was brought to court he refused to answer the prosecutor’s questions. He confirmed, in cross-examination, that he had said he was not going to make any statement and would not attend court.

After argument advanced by both the Crown and on behalf of the appellant, the judge ruled that Patterson’s evidence of Reid’s dying declaration should be admitted in evidence, pursuant to section 114(1)(d) and section 121(1)(c).

In ground 2 the appellant contends that the judge erred in admitting Patterson’s evidence. It is important before descending to the detail of the argument to recall the test which this court should apply in considering whether the judge was correct in admitting the evidence. This court may only interfere if it concludes that the judge’s decision was outwith the range of reasonable decisions (see paragraph 23 R v Finch [2007] EWCA Crim 36). The restrictive approach of this court to interference with a judge’s exercise of judgment is familiar in relation to the admission of evidence as to bad character under Chapter I of the 2003 Act (see R v Hanson and Others [2005] 2 Cr. App. R. 299 at paragraph 15 and R v Enwright and Grey [2006] 2 Cr. App. R. 62 at paragraph 1(viii)(b)). No argument was advanced before us, rightly, to suggest that in relation to a different chapter of the same part of the Act, this court’s approach should be different. This court’s refusal to interfere merely because another decision might have been reached stems, at least in part, from its acknowledgement that a trial judge is best placed to make an accurate assessment of the fairness of admitting evidence in the context of the trial as a whole.

The judge was required to deal with two distinct aspects of Patterson’s evidence. Firstly, there was the direct evidence he could have given if he had been willing to answer questions in the witness box. The judge rightly confined his attention to the provisions of section 114(1)(d) and section 114(2). They provide:-

The judge correctly observed that Patterson’s description of what he saw the appellant doing was of probative value in relation to who it was who stabbed Reid on the assumption that his description was true (see section 114(2)(a)). Other evidence had been given on the matter but, as the judge remarked, Patterson’s evidence was important in the context of the case as a whole (see section 114(2)(b) and (c)).

The judge took into account the circumstances in which Patterson spoke to the police and particularly the available evidence from the police officer who had recorded what Patterson said. The judge considered indications of the lack of reliability of Patterson, pursuant to section 114(2)(e), in particular his previous convictions and the discrepancies identified by the appellant. These were said to be, in particular, the inconsistency between the description of the knife given by Patterson and other witnesses and the forensic evidence of the absence of blood within the appellant’s tracksuit pocket which powerfully indicated that Patterson could not have been right in describing the appellant as putting the knife in the appellant’s left tracksuit pocket. Further, Patterson had never asserted that what he had told the police was true. The judge also considered the opportunity the defendant had for giving evidence and challenging Patterson’s description of events 114(2)(h) and (i).

The judge rightly observed that the process required by section 114(2) is not a mechanical exercise of placing a tick or cross against those factors identified in the sub-section. It is plain that the judge properly took into account those features which told against the admission of the evidence. We pause to question part of the judge’s process of reasoning by which he reached his conclusion. In dealing with the lack of reliability of Patterson, the judge said:-

Such reasoning, in our judgment, is not conclusive answer to a question of admissibility. Section 114(2)(e) requires the judge and not the jury to consider how reliable the maker of the statement appears to be. It would render that factor nugatory if the answer, as given by the judge, was merely that it was a matter for the jury. In considering admissibility, reliability is a matter for the judge. If it appears to the judge that the maker of the statement is unreliable that is a powerful indication that the statement should not be admitted in the interests of justice. The fact that that unreliability can be demonstrated to the jury, if the statement is admitted, does not seem to us to be a legitimate consideration in deciding whether to admit the statement or not. If it were, then the more the maker of the statement was obviously unreliable, the more likely it would be that the statement would be admitted. That is not an effect envisaged by section 114.

Notwithstanding that criticism of the judge’s reasoning, it is clear to us that he was entitled to reach the conclusion that, taking into account the factors he identified, it was in the interests of justice to admit Patterson’s statement so far as it concerned that which he had seen. The discrepancies which the appellant identified do not seem to us to be so striking as to dictate an alternative conclusion.

The judge continued, rightly, by giving separate consideration to Reid’s dying identification of his killer. In considering the admissibility of that declaration the judge was required to consider the exclusionary provisions of section 121(1) which provides:-

In considering that test the judge was rightly concerned to refer back to those considerations to which he had already referred under section 114(2). The value of the evidence was high. Indeed, it formed a crucial part of both the prosecution’s allegation that it was the appellant who stabbed the victim and Chaudry’s defence. It was an allegation made by Patterson very shortly after the events had occurred. In our judgment the judge was entitled to conclude that the interests of justice required Patterson’s statement to be admitted to prove the fact of the victim Reid’s earlier hearsay statement identifying the appellant as the man who stabbed him. There is nothing novel in the proposition that a dying man’s identification of the killer is of high value, as the judge observed.

We conclude that the judge was entitled to reach the conclusion he did, both as to the admissibility of Patterson’s observations and the evidence as to what the dying victim said. The judge sensibly, if we may say so, gave his reasons for his conclusion in admitting the evidence the day following the argument. It is important that a judge should give himself the opportunity clearly to identify the reasons by which he reached his conclusion as to admissibility. Maintaining the impetus of a trial will often prevent those reasons being given until after a decision is announced. So long as it is plain that the reasoning drove the judge to a particular conclusion and not vice versa, we commend that approach.

On the ninth day of the trial the appellant started to give evidence. During the course of that day leading counsel on behalf of the co-defendant Chaudry was told by Mr Harbage QC, on behalf of the appellant, that he wished to adduce evidence contained in letters written by the third defendant Syed to the appellant which would be damaging to Chaudry’s case. It appears that the submissions may have started later on the ninth day. They were completed on the tenth day and a ruling refusing the appellant permission to adduce those letters was given by the judge on that tenth day, 28 March, 2006.

We refer to that sequence of events because it is important in understanding the context in which the judge had to consider the admissibility of what was contained in those two letters written by Syed. It will be recalled that by this stage the judge had directed that the jury should acquit Syed of murder. He remained in the jury’s charge on the issue of assisting the appellant by disposing of Musone’s jacket. It is also important to record that by this stage it was known that Syed was not to give evidence on his own behalf.

The relevant part of the first letter, dated 17 November 2005, stated:-

Both Syed and Chaudry objected to the admission of the letters. Syed was obviously concerned to maintain as low a profile as possible quite apart from being exposed to the suggestion that he had admitted assisting the appellant, whilst that charge was still a live issue. The judge ruled that the letters should not be admitted. He observed the lateness of the application, in breach of Part 34 of the Criminal Procedure Rules 2005 (SI 2005 No. 384) (“the 2005 Rules”) made pursuant to section 132 of the 2003 Act. He identified the difficulty Chaudry faced if he wanted to explore the genuineness of the letters through a handwriting expert at that stage of the trial.

The judge then turned to section 114(2). He concluded that there would be unfair prejudice to both Syed and more significantly to Chaudry and said he had no hesitation in refusing the application.

During the course of his ruling the judge observed that the apparently gratuitous attempts of Syed to strengthen the appellant’s position might be to the disadvantage of the appellant himself. We accept that that was not a reason for refusing to admit the letters. An ill-advised application for admission is not a ground for refusal. But the judge was entitled to consider what he described as the surprising amount of gratuitous detail in considering the reliability of the maker of the statement. It is true, as Mr Harbage QC observed, on behalf of the appellant, that the appellant was deprived of the opportunity of producing further evidence to suggest that Chaudry alone was responsible for the killing and was prepared to seek to persuade others to lie on his behalf. But the judge was equally entitled to take the view that it was far too late for the application to be made. This is not a matter of mere procedural nicety. Section 132, which contains the source of the power to make rules for the purposes of chapter 2 of the 2003 Act , dealing with hearsay evidence, is designed, in part, to prevent ambush at trial and the proper progress of proceedings being diverted by late applications. Significantly, section 132(5) provides:-

Section 132(5) envisages circumstances where a judge refuses to dispense with the requirement to give notice or to shorten a time limit and refuses to give leave to admit the evidence. The Act thus gives power to the judge to prevent that which, in the judge’s assessment, might cause incurable unfairness either to the prosecution or to a fellow defendant. Plainly, the procedural rules should not be used to discipline one who has failed to comply with them in circumstances where unfairness to others may be cured and where the interests of justice would otherwise require the evidence to be admitted. But, there will be cases in which the judge can properly deploy section 132(5)(a), not merely as a matter of discipline but to prevent substantive unfairness which cannot be cured by an adjournment.

In the instant case the judge took the view that it was too late for Chaudry to deal with this evidence. It was not merely a matter of testing the genuineness of the letters, but also of examining the circumstances in which they came to be written. Chaudry could not challenge Syed about the writing of those letters since Syed could not be compelled to give evidence. The judge did not wait to see whether expert evidence could have been obtained to deal with the genuineness of the letters. But, as we have pointed out, the difficulties in which Chaudry had been placed were not confined to attacking the identification of the handwriting. In those circumstances the judge was entitled to take into account the very late stage at which it was sought to admit those letters and the difficulties into which that placed Chaudry.

The appellant sought to explain the late reference to the letter, by relying on the difficult circumstances which he faced following a change of prisons. But even if he had forgotten to bring the letters with him, it did not explain why he had not referred them to his legal team earlier. There is no basis for saying that the judge’s conclusion exceeded the bounds of a reasonable decision.

Although this ground is the last with which we have to deal it is the most significant. We have dealt with it last because the stage which the proceedings had reached, when the application was made, is of importance. The appellant attempted to adduce evidence of an alleged confession by Chaudry that he had been guilty of murder twelve years earlier.

The issue was not raised until the tenth day of the trial when, it will be recalled, submissions were made on behalf of the appellant concerning letters allegedly written by Syed to him. The appellant was in the middle of giving his evidence. The application was first mentioned on that tenth day and by agreement deferred during the course of Musone’s evidence. The full application was made on the eleventh day of the trial before the appellant’s evidence was completed. The evidence which the appellant sought to adduce was that, although acquitted some twelve years previously of an offence of murder, Chaudry had admitted to the appellant that in fact he was guilty. According to the appellant, he had made that admission during the course of a conversation before the killing of Reid on 13 April 2005. In other words, the confession had been made about a year before the trial. The confession could not have been made later than 13 April 2005 because the defendants had, thereafter, been separated.

Counsel for the appellant pointed out to the judge that there were aspects of the alleged confession which tended to show that it had been made. Enquiries showed that the appellant was right to the extent that Chaudry had been charged with murder although he had been acquitted. The offence involved a shotgun and Chaudry had admitted in interview that he had examined and handled a shotgun. Based on those assertions the appellant contended that the evidence of the confession was admissible pursuant to section 101(1)(e).

Section 101(1)(e) provides that evidence of a defendant’s bad character is admissible, but only if:-

The judge ruled that the evidence of the confession was of substantial probative value in relation to an important matter in issue between the appellant and Chaudry. This was disputed both on behalf of Chaudry and by the prosecution. In our view, the judge was entitled to reach that conclusion because the evidence of the confession to murder was evidence which was capable of showing that it was not the appellant who stabbed Reid but rather Chaudry. Both men had a number of previous convictions. The appellant had pleaded guilty to possession of a knife and was alleged to have used a kitchen knife during the course of a burglary. Chaudry had pleaded guilty to four counts of robbery with eight others taken into consideration, during the course of which a knife had been used. But neither had convictions for murder. If the jury accepted that Chaudry had confessed to committing murder then the judge was entitled to take the view that that was evidence which suggested that it was he who had killed Reid and not the appellant (see the approach of Lord Steyn in R v Randall [2004] 1 CR. App. R 375 at paragraph 22). Moreover, the confession contradicted the acquittal and could have been deployed by the appellant as evidence of a propensity to untruthfulness pursuant to section 104(1). We conclude that there is no basis for interfering with the judge’s conclusion that the evidence of the confession was of substantial probative value in relation to an important matter in issue, namely whether it was Chaudry rather than the appellant who had wielded the knife. It must be recalled that the prosecution had accepted that if it could not prove that the appellant had used the knife he was to be acquitted and his case was not to be left to the jury on the basis merely that he had assisted in a stabbing committed by Chaudry (see paragraphs 9 and 10). Further, the judge was bound to assume that the evidence of the confession was true. He had grave doubts about the credibility of the evidence, having regard in particular to the time at which the issue was raised, but he declined to reach the conclusion that no court or jury could reasonably find the evidence of the confession to be true, pursuant to section 109(2).

It would be wrong to adopt a different approach to that conclusion than that which the court generally maintains in relation to a judge’s assessment or judgment. If the judge was entitled to reach that conclusion, this court should not differ merely because it would be of advantage to the prosecution rather than to the defence.

Clearly section 101(e) imposes a higher requirement than that of mere relevance as demonstrated by the contrasting adjectives within section 101(1)(d) and (e). But the Explanatory Notes which accompany the Criminal Justice Bill suggest that the reference to substantial was only intended to exclude evidence of marginal or trivial value (see paragraph F12.25, Blackstone’s Criminal Practice 2007). We do not think it is necessary to reach any concluded view as to the meaning of “substantial”. The judge was entitled to take the view that the evidence of the confession was of substantial probative value, even if a higher probative quality is required than that suggested in the Explanatory Notes.

Section 101(3) has no application; there is no requirement to exclude evidence if:-

Faced with the absence of any express power to exclude the evidence contained within section 101, the judge purported to deploy the right of a defendant to a fair trial pursuant to Article 6 of the European Convention on Human Rights. He took the view that there was no excuse for the appellant raising the issue so late. He rejected what he described as the utterly feeble excuse proffered. He concluded that the request to adduce the evidence was raised with the intention of “ambushing” the co-defendant Chaudry. The circumstances of the confession could no longer properly be explored, particularly since the events which gave rise to the alleged confession took place more than 12 years before. The judge thought that the trial would involve not one murder trial but two.

The judge took the view, in the alternative, if he was wrong about the application of Article 6 that he had power to exclude the evidence because of a breach of Part 35 of the 2005 Rules. Pursuant to those rules a co-defendant, seeking to introduce evidence of a defendant’s bad character or to cross-examine for that purpose, is required to give notice not more than 14 days after the prosecutor has complied with his primary disclosure obligations under section 3 of the Criminal Procedure and Investigations Act 1996 (see rule 35.5). The court has power pursuant to rule 35.8 to allow notice to be given orally or to shorten the time limit or extend it after it has expired. The judge declined to do so.

Accordingly, the issue for this court may be crystallised. In the light of his conclusion that application to introduce the confession was made at a time intended to ambush the co-defendant Chaudry, did the judge have any power to prevent the appellant from adducing it before the jury? He had no express power to do so, under section 101. He had no power under section 78(1) PACE. The question, thus, arises whether the obligation under section 3 of the Human Rights Act 1998 to read and to give effect to primary and subordinate legislation in a way compatible with Convention rights and the prohibition in section 6 on a court, as a public authority, to act in a way which is incompatible with such rights, confers a power to exclude evidence admissible under section 101(1)(e)?

It is true that section 101(3) imposes a prohibition but says nothing about a power. But it is inconceivable that it was intended that section 101 should confer a power to exclude evidence of a substantial probative value by implication. There is no equivalent provision in this chapter relating to evidence of bad character to that which is contained in the following chapter relating to hearsay evidence in section 126. Section 126 confers a power to refuse to admit a statement on grounds which include undue waste of time, weighed against the value of the evidence. It was not argued before the judge nor before us that Chaudry’s confession fell within the definition of section 115 and thus within section 126. The reference to confessions under section 118(1)5 is likely to preclude any such argument.

We do not think that it is possible to identify a power to exclude evidence which, ex hypothesi , has substantial probative value, in reliance on Article 6. The question whether such a power exists only arises in circumstances where the court has already concluded that the evidence of the defendant’s bad character does have substantial probative value in relation to a matter of substantial importance in the context of the case as a whole. Once substantial probative value has been established it is difficult to envisage circumstances where it would be unfair to admit evidence of that quality, subject to the procedural protection contained in the Rules. That is reflected in the structure of the section itself which excludes from the scope of section 101(3) evidence of substantial probative value in relation to an important matter. In short, it is difficult to envisage room for invoking the right to a fair trial enshrined in Article 6. Once the judge concluded that the evidence was of substantial probative value, he had no power, absent the application of the rules made under section 111, to exclude the evidence on the basis that to admit it would be to infringe Chaudry’s right to a fair trial under Article 6. The only apparent control on the deployment of evidence by one defendant against another is that which is contained in section 101(1)(e). Admissibility rests solely on the court’s assessment of the probative quality of that evidence.

We conclude that the judge erred in purporting to exercise a power to exclude evidence which reached the standard imposed by section 101(1)(e) for admissibility. Admissibility under that sub-section depends solely on the quality of the evidence. The judge had no power under that section to exclude the evidence on the grounds of unfairness.

But, we emphasise, we have, hitherto, confined our attention to section 101. We have yet to consider the impact of the rules made under section 111. It seems to us that, through the operation of those rules, the rights of a co-defendant may be protected. We should first observe the contrast between the provisions of section 111 which apply to Chapter 1, relating to evidence of bad character, and the provisions of section 132 which apply only to Chapter 2, which concerns hearsay evidence. Section 111(2) confers a power to make rules requiring a co-defendant to serve notice of evidence of another defendant’s bad character. Section 111(3) confers power on the court to dispense with any requirement made under such rules. Section 111(4) provides:-

For reasons that are not apparent to us, section 132(5) (in chapter 2, cited paragraph 36) appears to envisage a more stringent sanction for a failure to comply with a requirement, by prohibiting the admission of evidence except with the court’s leave, in relation to hearsay evidence.

Notwithstanding the absence of any such specific provision within section 111, we take the view that the rules made under section 111, in relation to bad character evidence, do confer power on a court to exclude such evidence in circumstances where there has been a breach of a prescribed requirement. The appellant was under an obligation to give notice of the evidence he wished to give of the confession or of his intention to cross-examine Chaudry about it not more than 14 days after the prosecutor had complied with his primary disclosure obligation (see rule 35.5 of the 2005 Rules). The judge concluded that his failure to do so was not due to an oversight but because of a deliberate intention to ambush his co-defendant. There was no other explanation for not raising the issue earlier. In our judgment the judge was entitled to exclude that evidence 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.

We recognise that Part 35 contains no express provision for dealing with a sanction for failure to comply. It merely confers power upon the court to shorten the time limit or to extend it (see rule 35.8). But it must be recalled that section 111(6) provides:-

The power to make the rules contained in the 2005 Rules is conferred by section 69 of the Courts Act 2003. By section 69(4):-

In our view it is not possible to see how the overriding objective can be achieved if a court has no power to prevent a deliberate manipulation of the rules by refusing to admit evidence which it is sought to adduce in deliberate breach of those rules.

We emphasise that cases in which a breach of the procedural rules will entitle a court to exclude evidence of substantial probative value will be rare. A court should be most reluctant to exclude evidence of that quality by reason of a breach of the procedural code. Nonetheless, there will be cases, of which the instant appeal is an example, where the only way in which the court can ensure fairness is by excluding evidence, even when it reaches the quality described in section 101(1)(e). It should be remembered that the court was compelled to assume the truth of the evidence that Chaudry confessed to murder. Section 109 gives rise to a stark choice between either an assumption that the evidence is true or rejection of its truth on the grounds that no court or jury could reasonably find it to be true. But in reality, as the judge himself remarked in his ruling, there will be evidence which, although capable of belief, is improbable and unlikely to be believed. Whilst the judge is compelled to assume the truth of such evidence for the purposes of section 101(1)(e), he need not take so extreme a view when considering whether to prevent the unfair effect of a breach of the procedural rules by excluding the evidence. The more credible the evidence, the less likely it is that the judge will exclude it on grounds of a breach of a procedural requirement. But where, as in the instant case, the evidence is improbable, the judge is entitled to take that factor into account in deciding whether to exclude it, in circumstances where the rules have been deliberately breached.

We acknowledge that one remedy which the judge ought to consider is whether to discharge the jury so as to give the co-defendant a proper opportunity of dealing with the new allegation advanced without any notice. But in many cases, and certainly in this appeal, to discharge the jury in such circumstances would be wrong. It would be unfair to the prosecution and might be a great unfairness to a co-defendant whose case might be faring rather better than that of the defendant seeking to adduce the surprise evidence at the last minute. Indeed, to discharge the jury at that stage may be to give the defendant manipulating the rules the very thing he is seeking to achieve.

We conclude that the requirements of a fair trial for all defendants, enshrined in Article 6, are met by the proper application of the 2005 Rules, contained within Part 35 and Part 1.

It is true that the judge relied only on the rules in case, as he put it, “I am wrong about Article 6”. He referred to the breach of the Rules as being a narrowly technical point. It is not. It is through the medium of the Rules that fairness to defendants can be ensured in circumstances such as these. The judge correctly appreciated that through Part 1 of the Rules the rights of the co-defendant, enshrined in Article 6, could be recognised. We commend his approach, even though it represented his “fall-back” position.

In those circumstances we take the view that not only was the judge entitled to exclude the evidence of the confession which the appellant sought to adduce, but he was right to do so. It was plain that the appellant had tried to ambush his co-defendant. The judge was right to prevent him from doing so. In those circumstances we reject ground 4. The appeal is dismissed.