202400687 B2 - [2025] EWCA Crim 966

In C the appellant contended that a ruling by the trial judge had imposed an improper restriction on his right to prove that he had not committed offences of which he had previously been convicted. In giving the judgment of the Court, Lord Judge LCJ addressed the meaning and scope of section 74(3):

“Section 74(3) is uncomplicated and it means exactly what it says: once it is proved (whether by agreement or otherwise) that the defendant was and remains convicted of a criminal offence and assuming that evidence of that fact is admissible, the prosecution is not required, merely because the defendant denies guilt, to prove that the defendant was guilty of the offence, or to assist him to prove that he was not guilty, or indeed to call witnesses for either purpose. The evidential presumption is that the conviction truthfully reflects the fact that the defendant committed the offence. Equally, however, it is clear that the defendant cannot be prevented from seeking to demonstrate that he did not in fact commit the offence and therefore, that the jury in the current trial should disregard the conviction. If so, it follows that he should be entitled to deploy all the ordinary processes of the court for this purpose, and in particular to adduce evidence that will enable him to prove, whether by cross-examination of prosecution witnesses or calling evidence of his own that he was not guilty and that the conviction was wrong. It also follows that if the defendant does adduce evidence to demonstrate that he is not guilty of the offence, it remains open to the Crown then to call evidence to rebut the denial.”

In the following paragraphs, the Court addressed the problem to which this uncomplicated section gives rise, namely the danger of undesirable satellite litigation and the need for effective case management to ensure fairness between the prosecution, who have the benefit of the initial presumption that the defendant committed the offence, and the defendant, who is entitled to deploy “all the ordinary processes of the court” for the purpose of seeking to prove that he did not in fact commit the offence and therefore that the jury in the subsequent trial should disregard the conviction. Having acknowledged the danger of undesirable satellite litigation, the Court continued at [10]-[11]:

“10.

… That danger acknowledged, the stark principle remains that any defendant is entitled to contest his guilt in accordance with the ordinary processes of the criminal justice system, and therefore to challenge or to seek to undermine the Crown’s case against him or to advance evidence in support of his own case. That principle extends to evidential presumptions relating to his guilt of an earlier offence. To prevent him from doing so, or deny him the opportunity of adducing admissible evidence that he did not commit the earlier offence would be likely to result in an unfair trial of the present offences.

11.

… We agree that the way in which the right to challenge the conviction is exercised must be subject to proper judicial control and case management, but if what [the trial judge] was saying was that the overriding objective could nullify the exercise of a right granted by primary legislation, such an approach would be wrong.”

At [12]-[15] the Court gave guidance on how matters should be case-managed where a defendant wishes to rely on section 74 and to prove that he did not commit the offence of which he had been convicted:

“12.

… The real issue is how to arrange the mechanics of the trial process so as to ensure that while the prosecution may adduce the admissible evidence which proves the defendant’s guilt, he should continue to be able to address and refute it, even when that evidence takes the form of a previous conviction, and without at the same time turning the present trial into a re-trial of the [previous] offences.

13.

…

14.

In our judgment it is essential that the defendant should provide a more detailed defence statement in which, quite apart from setting out his case in relation to the offences with which he is presently charged, he should identify all the ingredients of the case which he will advance for the purposes of discharging the evidential burden of proving that he did not commit the earlier [previous] offences. That may enable the prosecution to prepare draft admissions of fact, and also to collate the necessary evidence. The bare assertion that the defendant did not commit these offences is inadequate.

15.

Informed by the defence statement the Crown will prepare its case. It is a broad rule of practice that the Crown should call all the evidence it intends to adduce to establish the defendant’s guilt before the end of its case. If that principle were to apply in a case like the present, it would in effect mean that the Crown would be obliged to re-present the evidence which led to the jury to convict the defendant of the [previous] offences. That would nullify the statutory provisions which enable the Crown to rely on the fact that he was convicted. It would be satellite litigation indeed. Although in the ultimate analysis it will be for the trial judge to make whatever decisions are appropriate for the proper conduct of the trial, as it seems to us, it would at the very least be open to him to consider permitting the Crown to postpone its decision whether to call any evidence to confirm the guilt of the earlier offences and the correctness of the convictions until after the close of the defendant’s case.

It will immediately be noticed that there is a potential tension between (a) the endorsement of the stark principle that the defendant is entitled to challenge correctness of an earlier conviction and (b) the sentence at the end of [14] that “the bare assertion that the defendant did not commit these offences is inadequate.” Viewed in context, and having regard to the clarity of the stark principle, the sentence at the end of [14] is to be understood as drawing the distinction between a bare assertion that the defendant did not commit the offences and the obligation described earlier in [14] that the defendant should identify all the ingredients of the case which he will advance for the purposes of discharging the evidential burden of proving that he did not commit the earlier [previous] offences. Seen in that light, the last sentence of [14] is consistent with what has gone before: the defendant should identify the ingredients of the case he will advance (so that the prosecution can address it and respond accordingly) rather than merely asserting a bare denial, which runs the risk of the prosecution being unfairly taken by surprise. If the last sentence of [14] were to be treated as a black-letter rule of law that a person cannot seek to rely upon section 74(3) where the only evidence that he can muster is his own evidence that asserts that he was wrongly convicted, that would in our judgment be irreconcilable with the fundamental and stark principle that the Court in C was at pains to endorse. It would also be contrary to the decision in Carter, to which we have referred above.

In our judgment, the combined effect of [14] and [15] of C is to emphasise the need for flexible case management to ensure that the fair balance between the prosecution and the defence that is inherent in and integral to section 74(3) is maintained. Taken in conjunction with the citation from Carter that we have set out above, there are no hard and fast rules about what evidence may or may not be adduced by a defendant: that will depend upon what properly admissible evidence is available to them. What matters is that the prosecution should be in a position to decide how to respond to the case that the defendant can advance; and that may involve the prosecution calling its evidence in advance of the defendant giving theirs (as in this case) or, as a matter of fair case management, the prosecution being permitted to postpone their decision about how to react (as contemplated by [15] of C). Depending upon the facts of the case it may be appropriate for the trial judge to offer comment on the limitations (and, by parity of reasoning, the strengths) of the evidence that the defendant has put forward: but, once properly raised, the issue will be for the jury to decide.