R v Brophy
| Jurisdiction | England & Wales |
| Judge | Lord Diplock,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Keith of Kinkel,Lord Roskill |
| Judgment Date | 25 June 1981 |
| Judgment citation (vLex) | [1981] UKHL J0625-2 |
| Date | 25 June 1981 |
| Court | House of Lords |
[1981] UKHL J0625-2
Lord Diplock
Lord Fraser of Tullybelton
Lord Russell of Killowen
Lord Keith of Kinkel
Lord Roskill
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Fraser of Tullybelton. I agree with it and with the order which he proposes.
My Lords,
This appeal raises a question of importance to the administration of criminal justice, whether admissions made by an accused person in the course of giving evidence at a trial within a trial, or voir dire, can be used by the Crown at the substantive trial as evidence tending to prove that he is guilty of the offence charged in the indictment.
The respondent was tried by Kelly J., sitting without a jury under the Northern Ireland (Emergency Provisions) Act 1978, on an indictment containing 49 counts. There were 12 counts of murder, arising out of an explosion and fire in which 12 persons were burned to death or suffocated. There were 36 counts of causing explosions or possessing explosives or firearms on various occasions between September 1976 and February 1978. Finally there was one count, the 49th, of belonging to a proscribed organisation, namely the IRA, between specified dates in 1976 and 1978. The respondent pleaded not guilty to all the charges. There was no evidence of any kind against him except a number of statements, some written and some oral, which he had made, or was alleged by the Crown to have made, to the police after his arrest. The respondent challenged the admissibility of the statements, under section 8(2) of the Act of 1978, on the ground that he had been induced to make them by being subjected to torture or to inhuman or degrading treatment while in custody. The learned trial judge, after a voir dire, delivered a careful and exhaustive judgment holding that he was not satisfied that the statements had not been so obtained, and he excluded evidence of them from the substantive trial. The first 48 counts were therefore unsupported by any evidence, and on those counts the accused was acquitted.
The instant appeal relates only to the 49th count—of belonging to a proscribed organisation. At an early stage of his evidence in chief in the voir dire the respondent admitted in terms that he had been a member of the IRA during the greater part of the period charged in count 49. His evidence on this matter could not have been more explicit. In answer to a question from his own counsel as to whether he had joined any organisation, he replied "yes, I was a member of the IRA". In answer to the immediately following questions from his counsel he said that he had joined the IRA in September 1971 and remained a member until December 1977. When the substantive trial was resumed, the Crown called the shorthand writer who had recorded the evidence given at the voir dire to prove the evidence given by the respondent. I pause to notice that this was done, as I understand, to keep the procedure formally the same as it would have been if the judge had been sitting with a jury, but I doubt whether it can have served any practical purpose; the judge had heard the evidence given at the voir dire, and he was himself the sole judge of fact at the substantive trial. In such circumstances, unless the judge wishes to have his recollection of the evidence at the voir dire refreshed, or there is some other practical reason for proving what passed at the voir dire, I do not consider that it is necessary to go through the formal step of proving it to the judge who has already heard it.
Returning to the narrative, when the shorthand writer was called, counsel for the respondent objected to her evidence being admitted, but the judge overruled the objection, the transcript of the evidence at the voir dire was read, and the shorthand writer was not cross-examined. The judge considered that the respondent's evidence as to his membership of the IRA was not strictly relevant to the voir dire, and that it was certainly not essential to the central question that had been in dispute at that stage. On that ground he did not regard it as evidence on the question of admissibility of the accused's statements to the police, and, as it had been freely given during the respondent's examination in chief, he held that it was admissible in the substantive trial. On that evidence which was the evidence against the respondent, he was only convicted on count 49.
The Court of Appeal allowed the respondent's appeal against his conviction. They also certified three points of law of general public importance and granted leave to appeal to your Lordships' House. The questions certified by the Court of Appeal are as follows:
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"1. Whether in a criminal trial, after statements made by the accused have been excluded on the voir dire as inadmissible, the prosecution may adduce in evidence at the substantive trial admissions made by the accused in the course of the voir dire which prove or tend to prove that he is guilty of an offence charged in the indictment;
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2. Whether any distinction in this respect should be drawn between admissions elicited by cross-examination and other admissions;
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3. Whether there is any difference in this respect between a trial with a jury and a trial by a judge alone."
The decision of the Court of Appeal to allow the appeal was made after they had held that the respondent's evidence at the voir dire that he had been a member of the IRA was fully capable of being regarded as relevant to the issue for decision on the voir dire....
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