England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [1999] EWCA Crim 553

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No: 9805345/Y3

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

The Strand

London WC2

Tuesday 2nd March 1999

B E F O R E :

LORD JUSTICE TUCKEY

MRS JUSTICE SMITH

and

THE RECORDER OF LEEDS

Sitting as a Judge in the Court of Appeal

Criminal Division

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R E G I N A

- v -

Arran Charlton COUGHLAN

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HG

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR A NEWMAN QC and MR K GLEDHILL appeared on behalf of the

Appellant

MR P O'BRIEN appeared on behalf of the Crown

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JUDGMENT

( As approved by the Court )

CROWN COPYRIGHT

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2nd March 1999

LORD JUSTICE TUCKEY: On 8th July 1998 in the Crown Court at Manchester before His Honour Judge Fish and a jury the appellant, Arran Charlton Coughlan, was convicted of assault occasioning actual bodily harm and sentenced to 18 months' imprisonment. That sentence was to run consecutively with other sentences which the court imposed for offences unconnected with the present offence.

He appeals against conviction with the leave of the full court. The principal point which arises is whether the judge was right to allow the statement of a witness to the alleged assault to be read under the provisions of sections 23 to 26 of the Criminal Justice Act 1988.

The prosecution's case was that the assault took place in a nightclub in Stockport on 14th March 1997 when the victim, Wayne Judson, was struck several times in the course of an incident which took place in the club and on the landing outside it. The victim gave a description of his assailant which fitted the appellant.

The appellant's case was that he was in the club but did not assault Mr Judson. He saw Mr Judson and his friend who were drunk barge past a group of people who then turned on Mr Judson and assaulted him.

Paul Armitage, who was Mr Judson's friend, was with him at the time of the alleged offence in the club. He had been living with him for some time as they worked together. Following the incident in the club, he made a statement to the police in the usual form which substantially confirmed Mr Judson's account of what had happened, both as to the incident itself and as to the identity of the assailant. This was the only evidence which the prosecution had to support Mr Judson's account of the matter.

The trial, which had previously been stood out of the list twice at the request of the prosecution, started before Judge Fish on 6th July 1998. Mr Armitage was expected to give evidence for the prosecution but the defence were told that morning for the first time that he was not available because the prosecution understood that he had gone to South Africa and did not know where he was.

The prosecution applied to read his statement under the provisions of the 1988 Act to which the defence objected. Counsel for the prosecution told the judge that they believed that Mr Armitage had gone to South Africa at about the time of the pre-trial review, which had taken place about eight months earlier.

Somewhat reluctantly, as a result of a comment which the judge made, they called the officer in the case, DC Misra, who said that he had been told by Mr Judson that the witness had gone to South Africa and had left no forwarding address. The officer was cross examined about what other enquiries he had made. He accepted that he had made none. He had not been to Mr Armitage's former place of employment and had clearly, as events turned out, not made any detailed enquiry of Mr Judson himself who revealed when he gave evidence before the jury that Mr Armitage had planned to go to South Africa if he was unsuccessful in joining the army and, perhaps more importantly, that he had a sister who lived in the Garton area of Manchester.

That this information would have enabled Mr Armitage to be found is borne out by subsequent events, since following the trial the appellant's solicitors instructed a private investigator who in no time at all discovered firstly the whereabouts of Mr Armitage's sister and the whereabouts of Mr Armitage himself who, it transpired, never went to South Africa but joined the Household Cavalry where he still was.

At the voire dire, when this matter was being investigated before the judge at the beginning of the trial, Mr Judson was not called to give evidence, although he was present within the court building because after the judge's ruling he proceeded to give his evidence in front of the jury.

The relevant statutory provisions are as follows. Section 23 says (as relevant):

"(1) ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if --

(i) the requirements of one of the paragraphs of subsection (2) below are satisfied ..."

(2) The requirements mentioned in subsection (1)(i) above are --

(b) that --

(i) the person who made the statement is outside the United Kingdom; and

(ii) it is not reasonably practicable to secure his attendance; or

(c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found."

Those are the threshold provisions which have to be satisfied before any question of reading the evidence of a witness arises. In dealing with that aspect of the matter the judge said:

"What happened in this case is that Paul Armitage had gone to South Africa. That information has been firstly given by the victim with whom Armitage formerly lived, and secondly confirmed in evidence before me.

Therefore, I have no difficulty in coming to the conclusion that he was in South Africa. The question then is: have all practicable steps been taken to have him here to give evidence? It is not practicable because nobody knows his address. No forwarding address has been left with his friend, the friend with whom he was to have supported in giving evidence in this trial. It is hard to imagine anybody to whom he would have been more keen to give a forwarding address to than such a friend."

So that was section 23(2)(b). He then said:

"I then have to go on to consider [although in fact he did not] whether or not all reasonable steps have been taken. I am of the opinion that I need to construe that within the context of this case. Certainly I am not saying that it is anything other than a serious matter for the defendant, but in the calendar of cases that appear before the criminal court which exercise its time and take up the resources of the police, it is perhaps not the most serious.

Therefore, the test of reasonableness has to be construed within that context. I think that reasonable steps have been taken. Enquiries have been made and therefore I think I can pass now to consider whether I should exercise my discretion."

Mr Newman, QC, who appears on behalf of the appellant before us today criticises the judge's approach to the 23(2)(c) test, relating it, as he does, to the seriousness of the offence which the appellant faces. We agree that this cannot be the appropriate test, although looking at the words of the section in considering whether reasonable steps have been taken, it must be open to the judge not only to consider the importance of the witness but also to consider the resources of the police. We do not think that if this criticism had stood alone that it would found a basis for a successful appeal to this court.

Continuing with the statutory provisions, section 25 says:

"(1) If, having regard to all the circumstances --

a) The crown court --

on a trial on an indictment ...

is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted."

Then section 26:

"Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared ... for the purposes --

(a) of pending or contemplated criminal proceedings ... the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard --

(i) to the contents of the statement;

(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused ...

(iii) to any other circumstances that appear to the court to be relevant."

As is clear from the language of sections 25 and 26 section 25 starts by favouring admission. Section 26 is to the contrary. So if as in this case the statement falls within section 26 its provisions should be determinative of an application of this kind; see Grafton [1995] CLR 61.

Here, it is not entirely clear which section the judge applied since he identified his task at the beginning of his ruling by reference to section 25. But that may have been a slip of the tongue. We are not persuaded that the judge exercised or proceeded to exercise his discretion under the incorrect section of the Act. There is nothing conclusive in the way in which he expressed himself which shows that the judge went wrong in this respect.

Mr Newman's primary submission, however, was that the judge should not have decided on the evidence before him that the requirements of section 23(2)(b) and/or (c) had been met. The evidence simply did not justify the judge's finding as a matter of law.

We think that this submission is well founded. The only evidence was that of the officer which was double hearsay. The Crown had not called the only source of the officer's information as they could have done. Before a court decides to allow a statement to be read under the provisions of the 1988 Act, which permit this to be done it is in our view essential that the court holds a full and proper enquiry to determine whether one or other of the threshold provisions of section 23 have been satisfied to the high standard of proof required in a criminal case. Courts should not pay lip service to these provisions. In the ordinary way a defendant is entitled to have any witness whom he chooses present in court to give oral evidence so that the witness may be cross-examined. The exception is allowed but it must only be allowed where it has been clearly established that the requirements of the Act are met.

We do not think that the full and proper enquiry which the law requires was held here. Had it been and Mr Judson had been called, it is likely that the judge would not have been satisfied that either of the requirements of section 23(2), which he relied on, had been satisfied beyond reasonable doubt. Not only would it have been unclear as to whether Mr Armitage had gone to South Africa but also it would have emerged that his whereabouts could probably be discovered by making a simple enquiry of his sister who lived in the area of the court. If the judge had not been satisfied then, of course, no question of Mr Armitage's statement being read to the jury would have arisen. This was not a matter of discretion. The statement simply could not have been read.

Had Mr Armitage's statement not been read to the jury the only evidence of what happened in the club in support of the prosecution's case would have been that of Mr Judson himself. We cannot say that in this event the appellant would still have been convicted. It must follow that this conviction is unsafe.

Accordingly we allow this appeal and quash the conviction. It is not necessary in these circumstances to consider the other points which are raised in the appellant's notice of appeal.

MR NEWMAN: My Lord, I have two applications: one is that may Mr Coughlan be discharged; the second is that he is not legal aided, may I ask for the appellant's costs out of central funds?

LORD JUSTICE TUCKEY: Yes.