Have we missed the reintroduction of 'peine forte et dure' in the criminal courts?

The announcement on 4 April this year that new Criminal Procedure Rules will encourage courts to 'invite' defence counsel to make opening statements 'approved' by the court and delivered to juries to isolate issues in conflict between the prosecution and the defence is just part of a trend in the criminal courts, a trend which has little to do with court process and more to do with polishing the ability of the Crown to effectively present their case to a tribunal of fact.

Another such trend - more implemented by practice than by the creation of rules - is the developed use of admissions in the court process.

To begin with, a reminder of the purpose of admissions: they are designed to avoid the need of presenting the same evidence orally before the court. If the fact is not challenged, it is an efficient use of court time and that of the witness to reduce the matter to writing, which can be read to a jury or tribunal of fact.

Well, that was in the old days: today, prosecutors, with the encouragement of the court, are seeking to include in proposed admissions, facts they have already presented in evidence, either orally or read.

Often, the reason given for this is to 'assist the jury by putting facts into context.'

Matters included in these proposed admissions range from résumés of oral evidence, already given, to the reproduction of entire statements, read or unread.

It is a trend that should be deprecated; indeed, I can well imagine the judicial response if the defence applied to include a defendant's evidence in résumé form in an admission document.

As is often the case, the new approach to what comprises an 'admission' is 'prosecution friendly' and reduces a list of 'admissions' to nothing more than the salient points of a prosecution case.

The purpose of admissions is not to present an additional list of matters that have already been presented, contested or uncontested, to the tribunal of fact, but to provide a court with evidence which has not hitherto been placed before the triers of fact.

Anything to the contrary is an abuse of what the process of admissions is for and will undermine the vital purpose for which they are used.

Of course, there are other ways to provide context, and diligent scheduling of evidence - challenged or unchallenged - meets this need.

But admissions should not be used as yet another way to present the prosecution's case, and defence advocates should resist any attempt to do so.

After all, at a time when the protections afforded to defendants are being consistently weakened, they cannot be made to admit anything they do not wish to, unless I have missed the reintroduction of peine forte et dure… watch this space.

John Cooper QC is a barrister practising from 25 Bedford Row

@John_Cooper_QC

shadowofthenoose.com