The Caroline Flack case analysed by a criminal barrister

What to expect from one of the biggest celebrity cases of 2020

The case of Caroline Flack throws up not only a media firestorm, but also a number of legal issues that a Highbury Corner District Judge will no doubt be wrestling with on 4 March 2020, the date she will attend for her trial.

There are two main questions that arise:

1. How do the prosecution proceed when the alleged victim reportedly doesn’t want to continue?
2. How can Flack plead ‘not guilty’ when she has apparently admitted assaulting Lewis Burton, her partner, to the police officers?

But the victim doesn’t want to ‘press charges’?

Our system is not like that of the United States, victims don’t ‘press charges’, that is a decision for the Crown Prosecution Service (CPS). In order to prosecute they must be satisfied that there is both a realistic prospect of conviction and that it is in the public interest to continue. Simply because Burton doesn’t want to continue, as has been reported, that doesn’t mean the case has to end.

There is more evidence in this case than just the oral evidence of Burton.

Firstly, it has been widely reported that he made a 999 call and stated that she was “trying to kill him” and that she had assaulted him. This, at first blush, is hearsay evidence and so not admissible. It is a statement not made in oral evidence that is evidence of any matter stated, namely evidence that an assault has taken place. The same can be said of anything that Burton said to police officers upon their arrival at the scene.

However, the CPS can seek to rely on this evidence under the hearsay provisions. Ordinarily, they could consider Section 116 of the Criminal Justice Act 2003 for where a witness is not available. This wouldn’t be met in this case — Burton is technically “available”, it seems he is just unsupportive.

The most likely application will be that this forms res gestae evidence, one of the common law provisions retained by the 2003 legislation. This allows the prosecution to rely on a statement where the maker is so overpowered by emotion the possibility of concoction can be disregarded (R v Andrews [1987]). The courts are likely to conclude that this is res gestae evidence given the apparent temporal proximity to the events taking place and considering the scene encountered by officers upon their arrival.

At this stage, the CPS may well be thinking they have evidence that they can happily rely on and not need to be concerned about Burton’s attitude to the case.

The defence argument

The CPS do face one increasingly high hurdle. This would represent an attempt to get around calling a potentially unhelpful complainant. It would appear that, at some point, Burton has made a statement to the police — that makes him a witness to proceedings. Once he is a witness, the CPS and police have powers to summons him to court and if he fails to attend, arrange for him to be arrested. This would be a rare use of this power, and arguably disproportionate, but this is a high profile case. Once brought to court, if Burton continues to refuse he can be convicted of contempt of court.

The reason this is relevant is because it demonstrates the steps available to the CPS to secure actual evidence. The case of Wills v CPS [2016] reviewed the position previously set down by the Appellate Courts. The decision in Wills confirmed that the CPS must properly explore the reasons for a witness’ not attendance before proceeding to res gestae. The court confirmed that it was essential that a complainant’s credibility be tested.

It would appear that the CPS have a long way to go at present to be able to meet the high test set out in Wills. They must be able to show that Burton’s reason for non-attendance is good enough to deprive Flack, and her legal representatives, of the right to test that evidence.

Even if this is done to a satisfactory level, the court retains a discretion to exclude evidence pursuant to Section 78 of the Police and Criminal Evidence (PACE) Act 1984. This is where the admission of evidence would have such an adverse effect on the proceedings that the court ought not to admit it. The outcome of a Section 78 argument is predicated on the proceedings as a whole, it is simply impossible to say at this stage which side of the balancing act a judge would rule.

But she’s admitted it?

The law on confessions is not straightforward, just because someone admits an offence at the scene that doesn’t mean they cannot plead not guilty.

Reports in the press suggest that she told officers that she had assaulted Burton. The first issue will be how reliable that account is, could the officers have been mistaken? Could media reports also be mistaken? This will be a consideration for Flack’s representatives.

The next challenge that could be mounted is exactly what was meant by it. There are various defences that can be put forward once an assault is accepted, was she acting in self-defence, out of necessity or (as has been suggested) is there going to be a defence of “accident”?

The most appropriate way to challenge the comment is not via a factual argument, it is via the law. Section 76 of the PACE deals specifically with confessions and the circumstances when they can be excluded. A confession is something said that is “wholly or partly adverse to the person who made it”. There would be no dispute that the things allegedly said by Flack were adverse to her case.

The test is whether these comments were made in circumstances which render the confession unreliable, or were obtained through oppression. The latter is unlikely to be relied upon, however, the former provides Flack with a possible solution. There are specific codes that the police must follow when dealing with confessions, or significant statements as they are referred to. They are required to do the following:

• Note the confession in their police notebook, as well as the time it was made;
• Ask the individual who made the comment to sign it as being correct;
• Put the comment to the individual in interview.

In addition to the above, it is important that an individual is not asked to comment prior to being cautioned. The fact that a comment is made prior to caution can be a significant factor in determining whether to exclude the evidence.

The cases of Keenan [1989] and Fulling [1987] give substantial guidance. The general rule is where there are “significant and substantial” breaches of PACE Code C, as set out above, the evidence should be excluded. Clearly, this argument will depend on the specifics of Flack’s case and the steps taken by officers.

A summary

If this were a normal case and Flack was an “ordinary” member of the public, this would be a two-hour trial in which the CPS would begrudgingly offer no evidence at 10:30am on the day of trial. However, this is not the case.

The matter has been listed for a day and a half. The court is clearly anticipating a substantial amount of legal argument. There will no doubt be lengthy representations provided to the CPS as to the prospects of success and the public interest in proceeding. Unfortunately for Flack, the domestic violence policy of the CPS has been updated and tightened over the past 18 months. This matter is unlikely to go away quietly.

There will be a number of pre-trial legal arguments. If the defence are not successful, we can most probably expect Flack to take a trip to the High Court — appealing a decision on either res gestae or Section 78 by way of case stated. I, for one, will be surprised if this case finishes in March 2020.

Rhys Rosser is a barrister specialising in criminal and regulatory law at 2 Bedford Row.