Is a Defence Statement Evidence or Not?

In a case decided last year, the Court of Appeal upended the evidential status (as generally understood) of defence statements so significantly that every criminal practitioner will want to master the consequences. The case is R v Roehrig [2024] EWCA Crim 539. The case has received insufficient attention in the view of the writers of this article. So much so that the judgment is available on CrimeLine but not for example on Westlaw.

The relevant facts giving rise to the Appeal can be rehearsed shortly.

Antoine Roehrig was charged with murder. He was alleged to have stabbed the deceased during a confrontation. The moment of the stabbing itself was not captured by CCTV nor described by any witness. The defendant had, therefore, an arguable submission at half time. Roehrig’s case, expressed in his defence statement, and advanced at trial, was that he had stabbed the deceased with a knife that had been brought and then dropped by one of the deceased’s group, and that he had done so in self-defence. The prosecution relied on the admission in his defence statement that he had stabbed the deceased as part of its case. The trial judge allowed the admission to be adduced in evidence but excluded the rest of the defence statement as self-serving. The Court of Appeal dismissed the appeal and upheld the admissibility of the edited defence statement.

Key sections of the judgment

• The defence statement was admissible as a confession pursuant to s76 of PACE (given the definition of a confession per s82 of PACE) and/or as an admission by an agent under section 118(6)(a) of the Criminal Justice Act 2003. (Roehrig, para 18).

• “If a statement is admissible as a confession or an admission, then the fact that it was made in a Defence Case Statement should not ring-fence it or insulate it from being used.” (Roehrig, para 20).

• “The Crown does not have to prove this matter separately because the applicant’s admission is evidence, indeed conclusive evidence, that he stabbed the deceased.” (Roehrig, para 20).

• “There was nothing unfair in the admission of the edited Defence Case Statement: it was consistent with the applicant’s instructions and was filed with the authority and approval of the applicant.” (Roehrig, para 20).

• The judge was “plainly right” to exclude the rest of the statement as self-serving. (Roehrig, para 31).

• Practitioners will study the case for nuanced observations concerning (i) the admission of the edited defence statement surviving a s78 argument where the jury could not be said to have been misled about the defendant’s primary case of self-defence, (ii) the involvement of and impact on a co-defendant in the above considerations and (iii) the Court squaring its conclusions with previously decided cases such as Sanghera [2012] EWCA Crim 16 in which the Court had stated that a Defence Case Statement is not evidence.

As it appears to us, practitioners will want to consider the following consequences of the ruling for themselves and their clients.

Obligations on Counsel and Solicitors regarding the contents of a defence statement

• Counsel must advise that admissions in a defence statement are likely to be admissible and relied on by the prosecution, even in the absence of other evidence. Self-serving parts of a defence statement are likely to be excluded even as the adverse parts may be admitted.

• Where no positive case is expressed in the defence statement but a positive case is advanced at trial the defendant’s credibility may be damaged and the jury is likely to be directed that an adverse inference may be drawn.

• It is plain from Rochford [2010] EWCA Crim 1928 that the defence lawyers must advise the defendant that he or she should, notwithstanding the judgment in Roehrig, advance any positive case in the defence statement. They must advise the defendant that if he or she fails to advance a positive case in the defence statement but then raises a positive case at trial an adverse inference may be drawn.

• It follows that if a defendant were truthfully to say in evidence – in response to criticism that the defence statement does not advance a positive case – “my lawyers advised me not to make admissions”, not only might privilege be waived, at least on that issue, but solicitors and counsel might well be the subject of criticism for that advice.

• It further follows that if, having given instructions that advance a positive defence, the defendant declines to express that defence in the defence statement, counsel and the solicitor should record the advice they have given on the matter, ideally, endorsed by the defendant. “The lawyer’s duty is not to give the defendant advice on what to do. The lawyer’s duty is to explain the statutory obligation that he has and to explain the consequences which follow from disobedience of it.” (Rochford, para 25).