Following the lifting of the embargo placed upon the case of R v KC, we can now report that Andrew Jefferies QC successfully argued that Re H is not to be construed as an authority for the admissibility of evidence; its assistance is restricted to the disclosure of relevant evidence.
As a result of a PII application during which the trial Judge had considered the guidance in Re H, the Crown produced a “Disclosure Note”. Within the note it was asserted that the Crown had “incontrovertible” evidence that KC had said certain things at an undisclosed time and date, to undisclosed person(s) and at an undisclosed location; the details contained within that Note were inconsistent with his case at trial. The Note was disclosed to the co-defendant as being of assistance to his case against KC. Following disclosure, the trial Judge ruled that it was permissible for co-defending counsel to introduce through the officer in the case, and in due course put to KC, the summary of the “incontrovertible” information contained within that “Disclosure Note”. Should KC have sought to dispute the contents of the Note, the trial Judge indicated that he would define the word “incontrovertible” to the jury and give strong directions to them; effectively descending into the arena. KC did not therefore give evidence.
In quashing KC’s conviction, Elias LJ noted that “Re H is concerned solely with disclosure; whilst it permitted the judge to direct in what form the relevant information could be disclosed to the defendants, nothing in Re H affects the principles which determine how that evidence can then be adduced before the jury” (paragraph 21). He also warned about Judges to be alive to “usurping the constitutional function of the jury” (paragraph 26).
As no identifiable route to admissibility was available, the conviction was quashed and a re-trial ordered: R v KC  EWCA Crim 17.