In this assignment, we must assess the admissibility of various aspects of evidence in a theoretical case, that of Andrew Farnsby in his trial for the burglary of Bill Caters home address.

Andrew Farnsby stated ‘I shall say nothing as usual.’ when they skeleton keys were found in his possession. We must first assess whether the statement made by Mr Farnsby is admissible in itself. If Mr Farnsby’s antecedents are considered not admissible as evidence, then his counsel may argue that his statement is an admission of previous convictions, and therefore should be not disclosed to the jury in any event.

Under s. 36 and s. 37 of the CJPO 1994 it is necessary for a police officer to inform the suspect of his belief (i.e. that the keys were involved in a burglary), request an explanation of the matter in question (i.e. a reason for the possession of the keys), and tell the suspect the effect of a failure or refusal (as in this case) to comply with the request. Andrew Farnsby was never required to give an explanation, and although his statement appears to be a refusal to speak, it was not in response to questioning, or following an explanation of the consequences to give reasons for his possession of the keys.

Further, ‘a request for information under the two sections would appear to be a form of questioning, and because an arrested suspect should not normally be questioned about his involvement in an offence except in interview at a police station (PACE Code C, para 11.1) the tendering in evidence of an unproductive request for information ‘on the beat’ should be the exception rather than the norm.’

Inferences in relation to silence when an object is found can only be drawn when the accused was arrested at the scene and when the belief of the officer is reasonable. We are not aware whether or not Andrew Farnsby was arrested at the scene or when he was arrested. If Andrew Farnsby was arrested a distance away from the scene, and/or a substantial time after the robbery, the belief cannot be deemed to be reasonable and therefore no inferences may be drawn.

It also worthy of note that, should the possession of the keys be deemed inadmissible as evidence, the silence upon their finding would introduce the possession of the keys to the jury in any event. Therefore, even if the silence were deemed in normal circumstances to be admissible, it should not be allowed in this situation.

Until he made his confession, Andrew Farnsby made no comment in the police station, upon the telephone advice of his solicitor.

Andrew Farnsby does not appear to rely upon any evidence, other then that he did not commit the offence alleged. It is therefore clear that no inference can be drawn in relation to his silence at the police station. s. 34 of the Criminal Justice and Public Order Act 1994 provides that:

1        ‘where, in any proceedings against a person for an offence, evidence is given that the accused –

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings….

2        (d) the judge or jury, in determining whether the accused is guilty of the offence charged,

        may draw such inferences from the failure as appear proper’

As this was not the case in the matter of Andrew Farnsby, s.34 cannot apply and no inferences can be drawn in relation to his silence at the police station.

Andrew Farnsby chose not to give evidence in court and under s. 35 of the CJPO 1994 the provision is made that ‘a careful direction will be required in all cases where the accused does not testify, in order to make the jury aware of the inferences which may be drawn.’

‘The adverse inference which it may be proper to draw under s. 35 (3) is that the accused is guilty of the offence charged’ However, in Waugh v The King [1950] AC 203 Lord Oaksey stated that ‘in the present case their lordships think that the prisoners counsel was fully justified in not calling the prisoner, and that the judge, if he made any comment on the matter at all, ought to at least have pointed out to the jury that the prisoner was not bound to give evidence and that it was for the prosecution to make out the case beyond a reasonable doubt.’

In this case, the prosecutions case was very weak and the judge attempted to ‘bolster up’ their case by making numerous comments in summing up regarding the lack of testimony from the defendant. It may be regarded that, without the evidence on the skeleton keys, the books on antique furniture, the confession made whilst unwell and the previous convictions of the defendant, this case is equally weak against the defendant.

Andrew Farnsby requested a solicitor when he first attended at the police station. He spoke at the telephone to a solicitor who advised him to say nothing. It was shortly after this that the Forensic Medical Examiner saw Andrew Farnsby in relation to his asthma.

‘The presence of the solicitor in the Police Station is designed to relieve the suspect of pressures which can induce false confessions and cause a miscarriage of justice.’

The delay in the attendance of the solicitor was the sole reason that Andrew Farnsby cancelled his request and chose to be interviewed without representation. It will be necessary for checks to be made of the custody record to ascertain whether the solicitor was contacted and failed to attend in time, or if the police intentionally prevented the solicitor from attending by not informing them that the accused was now fit for interview, thus causing Andrew to go ahead without representation.

Whilst in interview, Andrew Farnsby suffered an asthma attack, most likely to have been induced by the stress of the events of the day

It is likely that a solicitor would have insisted on the client being seen again by the Forensic Medical Examiner as soon as his condition deteriorated and therefore, if the confession was made when the client was abnormally susceptible to suggestion, it would have been prevented.

There are many issues relevant to the admissibility of the confession of Andrew Farsnby. Where the admissibility of a confession statement is to be challenged, a trial on indictment, known as a voir dire must take place. This is usually conducted in the absence of a jury at the request of the defence.

s. 76(2) of the Police and Criminal Evidence Act provides that ‘where the defence represent that a confession on which the prosecution propose to rely was, or may have been, obtained in such a way as to render it inadmissible in evidence, the court shall not allow the confession to be given in evidence except insofar as the prosecution prove to the court beyond a reasonable doubt that the confession was not so obtained.’ 

Such circumstances are defined in s. 76 as being ‘obtained:

1. by oppression of the person who made it; or
2. in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof.’

It may be argued that making a confession whilst enduring an asthma attack whilst being questioned in relation to an offence might be deemed a consequence rendering the confession unreliable.

In Houghton [1978] 68CrAppR197 Lawton LJ held that evidence would ‘would operate unfairly against an accused if it had been obtained in an oppressive manner by force or against the wishes of an accused person or by a trick or conduct of which the crown ought not to take advantage.  He stated that trial judges enjoyed a discretion to disallow such evidence.

Andrew Farnsby has one previous conviction for Burglary and two for Handling Stolen Goods. All of these previous convictions involve the stealing or handling of different types of antique furniture from different eras. We must therefore establish whether these previous convictions are admissible as evidence.

‘In general, evidence that a party or witness has been convicted of a criminal offence on some previous occasion is inadmissible in both civil and criminal cases as part of the opposing party’s own case, unless it is admissible similar fact evidence…However, a witness (other than an accused person) may be cross-examined about his previous convictions in order to impeach (discredit) him. Under the terms of the Criminal Evidence Act 1898, the accused may only be cross-examined about his previous convictions if (1) they are relevant to show that he is guilty of the offence from which he is charged (i.e. they would be admissible similar fact evidence if they were tendered as part of the prosecutions own case); (2) the accused has attempted to establish his own good character or cast imputations upon the character of the prosecutor or his witness; or (3) the accused has given evidence against any other person charged in the same proceedings. If a witness is asked about a previous conviction and denies the conviction, evidence in rebuttal may be given.’

The fact that that Mr Farnsby’s defence counsel put Terry’s previous convictions to him in cross-examination is irrelevant, as Mr Farnsby did not give evidence himself. Therefore, the only issue to be discussed in relation to the previous convictions of Andrew Farnsby is that of similar fact evidence. Similar fact evidence is ‘evidence that a party, especially the accused, has on previous occasions misconducted himself in a way similar to the misconduct being alleged against him in the proceedings before the court. The evidence frequently takes the form of a previous conviction. In general, the prosecution may not offer similar fact evidence as part of its case unless it can be shown to be relevant to an issue before the jury, for example by rebutting some defence advanced by the accused. Thus, if a person charged with fraud contends that he was honestly mistaken, the fact that he has committed similar frauds on previous occasions may be admissible. The judge may in his discretion exclude otherwise admissible similar fact evidence if he considers that its prejudicial effect is likely to outweigh its probative value’ 

In DPP v Boardman [1975]AC421 Lord Hailsham states: ‘The statement of principle is easy, because it rests simply upon the notion of degrees of relevance. Evidence is inadmissible if it does no more than to suggest that the accused is the sort of person who might commit the offence charged, but admissible if it goes further and becomes part of the proof that he did commit it.’

The test for similar fact evidence used to be a universal one of ‘striking similarity’, as can be seen in cases such as Makin v AG for New South Wales [1894]AC.57 and Sims [1946]KB.531. The House of Lords have recently conceded however that this rule of striking similarity was ‘not a standard to be reached in all cases.’ In DPP v P [1991]2.AC.447 the rule was replaced by the term ‘sufficiently special’. Lord Mackay LC stated he was ‘of the opinion that it is not appropriate to single out ‘striking similarity’ as an essential element in every case in allowing evidence of an offence against one victim to be heard in connection with an allegation against another. Obviously, in cases where the identity of the offender is in issue, evidence of character sufficiently special reasonably to identify the perpetrator is required.’

The question here would be whether the previous convictions of Andrew Farnsby, relating to the handling and burglary of antique furniture from various eras would be considered sufficiently special. It is my view that although similar in that antique furniture was involved, the detail is not specific enough, even down to the era from which the furniture originates. Antique furniture can often fetch a good price and therefore it is not a unique exercise for one man to be involved in the theft of such.

If it is established that Andrew Farnsby’s previous convictions are admissible as similar fact evidence, the judge still has a discretion to exclude it as evidence, as can be seen in the case of Noor Mohammed v The King [1949]AC.182. In this case Lord Du Parcq stated that ‘cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible.’ Lord Du Parcq was concerned that the prejudicial effect of the evidence should not outweigh its probative value.

The recent case of Z [2000]2.AC.483 however, shows that judges are choosing to stretch the boundaries of the rules of similar fact evidence. In this case, the alleged victims of charges for which the defendant had previously been acquitted gave evidence during the trial of Z as to the conduct for which previous juries had found him not guilty. The House of Lords upheld this decision. Since the issue of discretion relates to the balance of probative and prejudicial values, it is clear that judges are beginning to choose not to use such discretion, since this evidence would surely be far more prejudicial than probative.

The co-accused in this matter, Terry has given evidence against Andrew Farsnby. This type of evidence is termed Queens evidence, ‘evidence given on behalf of the prosecution by an accused person who has confessed his own guilt and who then acts as a witness against his accomplices. Such evidence is generally considered less reliable than other evidence because the witness is likely to minimise his own role and exaggerate that of his accomplices. If it is not corroborated, the judge must warn the jury of the danger of convicting on the basis of this evidence alone.’

As Terry has chosen to give evidence against Andrew Farnsby, it is likely that some kind of plea-bargaining took place between his counsel, and that of the prosecution. This is ‘an agreement between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution (for example, to drop a more serious charge against the accused) or when the judge has informally let it be known that he will minimise the sentence if the accused pleads guilty.’

It is possible that Terry’s plea bargaining involved giving evidence against Andrew Farnsby and therefore it may be necessary to view Terry’s basis of plea and to check this against any account given in interview. It may be that his sentence would be reduced if he assisted in the conviction of Andrew Farnsby. It may also be that he has lessened the role ho took in order to reduce his sentence further. The possibility is Terry was the sole party in the burglary and has given evidence against Andrew Farnsby in order to save himself.

It is possible that further evidence will be given during trial in relation to forensics, for example, fingerprint evidence or DNA left at the scene by the robber.

If such forensic evidence was not offered, we must consider why. Either the robber wore gloves, or fingerprints are likely to have been left at the scene. If Andrew Farnsby was arrested shortly after the burglary, were gloves found in his possession? This is an issue to be considered when cross-examining the examining officer.

In conclusion, we have established that the possession of skeleton keys and books on antique furniture are unlikely to be considered admissible as evidence as they are not relevant to the specific issues in this case. Were we to discover that the books were specific to the kind of furniture stolen in the burglary, it may be considered that they would in fact be relevant, however, on the facts at hand this is not the case.

In relation to Andrew Farnsby’s confession, it will necessary for a Voir Dire to be heard to assess the reliability. It may be considered that the confession is unsafe as it was made whilst the defendant was not in a condition to think rationally. His main priority would probably be to get out of the stressful situation, which was making his asthma worse.

Regarding the silence, it may be considered that an inference should be drawn in relation to the lack of testimony during the trial, however, the silence at the police station, and when the keys were found would not be admissible, and no inferences could be drawn in relation to this, mainly because Andrew Farsnby did not seek to rely on an evidence not mentioned at this time.

It is unlikely that Andrew Farnsby’s antecedents will be admissible as similar fact evidence as they relate to matters of antique furniture from various eras, rather than specifically Victorian. Antique furniture is not specific enough to be regarded as similar and the involvement in the theft of such is certainly not sufficiently special or of a striking similarity.

Therefore, the only evidence on the papers likely to admissible before the jury is that of the defendant’s silence during his trial, for which an inference will be drawn

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