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Cite as: [2000] EWCA Crim 50

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MILLETT, R v. [2000] EWCA Crim 50 (21st July, 2000)

Case No: 99/07705/W2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
MR ASSISTANT RECORDER MICHAEL LAPRELL
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 21st July 2000

B e f o r e :
LORD JUSTICE HENRY
MRS JUSTICE BRACEWELL
and
MR JUSTICE RICHARDS
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	REGINA
	- and -
	RONALD MILLETT

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Michael Bagley Esq (instructed for the Appellant)
Nicholas Courtney Esq (instructed for the Crown)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE HENRY:
1. This is the judgment of the Court. On 11th November 1999 at the Crown Court at Preston, before Mr Assistant Recorder Michael Laprell, the appellant was unanimously convicted by a jury of the burglary of 52 River Parade, Preston (Count 2) and had earlier changed his plea of not guilty to the burglary of 54 River Parade, Preston to guilty (Count 1). He received sentences of three years on each count to run concurrently, but consecutive to a recall to prison for three months for breach of early release licence. He now appeals against conviction with the leave of the Single Judge.
2. On 25th January 1999 two neighbouring houses, 52 and 54, each occupied by an elderly lady living alone, was visited by a bogus Water Board official, who occupied the ladies with the task of filling up pans with water while he went round the house, stealing money where he found it. No 54 was occupied by Miss Maybelle Wells, aged 84, and No 52 by Miss Mary Webster, aged 79. Both made statements to the police setting out how they had been duped, and what had been stolen from them. Miss Wells was confident she would recognise the man again, Miss Webster only said she might.
3. Fortunately the thief left a fingerprint behind at Miss Wells's house. On 2nd May 1999 the appellant was arrested. His fingerprints were taken, and matched the print he had left behind at 54 River Parade. On 16th June, nearly five months after the incidents, he was charged with both offences.
4. The Crown gave notice that at trial they were to apply to adduce the old ladies' witness statements into evidence without calling their authors - to introduce them as first-hand hearsay under Section 23 of the Criminal Justice Act, 1988.
5. This was resisted by the defence and a voir dire was held. Leave to adduce both ladies' statements in this way was granted. The appellant then changed his plea to guilty in relation to the burglary at No 54. That plea was put forward on the basis that he had entered the property as a sneak thief, rather than a bogus official. The Crown was not prepared to accept it on that basis, as their case was that he had gained entry posing as bogus official. The parties pragmatically proceeded by agreeing that if he was convicted of burglary at No 52 (put on the basis that he was a bogus official who had gained access to both houses) that would be the basis upon which he would be sentenced in respect of No 54 also, but if acquitted in respect of No 52, his plea of guilty as a sneak thief (and not a bogus official) at No 52 would stand as the basis for sentencing for that offence.
6. In the event, leave to give Miss Webster and Miss Wells's evidence by production of their witness statements was granted under Sections 23 and 26 of the Criminal Justice Act 1982, and the appellant was duly convicted. He chose not to give evidence at this trial.
7. The appellant had leave to argue two grounds of appeal. Logically the first ground, was that Miss Webster's witness statement was not admissible under Section 23(1) because the requirements of paragraph a) of sub-section 2) of that Section were not made out, because the Crown had not shown that Miss Webster was
"... by reason of [her] bodily or mental condition unfit to attend as a witness".
8. The Crown accepted that the burden of proving that the witness was unfit to give evidence (as there defined) lay on them, that the standard of proof was a criminal one, and that the court would have to be so satisfied before the statement was admissible.
9. The Crown sought to discharge that burden by calling Dr Lowe, Miss Webster's general practitioner. His evidence was that she had suffered since 1993 from hypertension (abnormally high blood pressure). She had suffered in 1998 a left cerebrovascular accident (a stroke) leaving her with a left hemiparesis (muscle weakness on one side of the body), compounded by a 1999 diagnosis of polymyalgic rheumatica, a muscle wasting disease. She had also suffered significant transient ischaemic attacks (an inadequate flow of blood resulting from narrowing of the arteries) which had brought on episodes of sudden transient blindness. The doctor said that given that medical history, she had made a good recovery, and drugs were controlling her blood pressure. What concerned him was the effect on her blood pressure of coming to court and giving evidence. Courts (and especially the witness box) are stressful places and:
"... if that happens to someone who has undergone a CVA, you've got the risk of probably having a transient ischaemic attack in court, or worse than that: a further stroke."
10. Such was the state of the evidence when Mr Pratt (defence counsel at the court below) cross-examined. He dealt with the question in this way:
"Q Put bluntly, I suppose it's one of those situations where it's up to the court to some extent to reduce the level of stress, isn't it? If she's treated with respect for her age and her illness and for her mobility and if she deals with people trained to deal with witnesses, she can come to court can's she?
A I would still put a prerequisite on the fact that I wouldn't be happy for her blood pressure but if that's what you want to do, that's fine.
Q I understand you ... I can understand, you're a doctor and you're treating her. The court may have a different test.
A Yes.
Q If all reasonable considerations can be taken from a medical point of view whereas you're not going to say obviously hundred per cent sure she'll be okay because you'd professionally would have to have reservations?
A Yes.
Q But on balance, she'd be fit to attend.
A Yes."
11. 11. The judge then questioned him as to the risk. Dr Lowe said it was unquantifiable, to quantify it you would have to do extensive tests. He had spoken to her about court, and she became "significantly anxious". While the mobility problems of getting her to court could be overcome
"that would not compensate for ... her risk of raising her blood pressure in the court scenario."
12. Mr Bagley took two points. First, he relied on the answer he had obtained in cross-examination in the passage quoted above, which he contended was unaffected by the judge's subsequent questions. The judge gave a reasoned judgment on this matters, and dealt with the submission in a judgment covering nearly four pages. He described the medical condition and analysed Dr Lowe's answer in cross-examination. He said:
"... I have to look at the totality of his evidence in construing what he meant by that response, and my interpretation is this, that what he meant when looked at in the context of the whole of his evidence was that he thought she probably wouldn't suffer from high blood pressure to such an extent that she had any further ischemic attack, whether it could be properly described as a stroke or otherwise and therefore yes we'd probably get away with it, to put it in colloquial terms but I do not believe that answer detracted from the overall thrust of his medical evidence in relation to this lady that there would be a risk involved despite medication and despite everyone's attempts to make the matter, make the giving of evidence as pleasant an experience as possible that her blood pressure would rise and could not be instantly controlled and would rise to such an extent that it would create a risk of a further event, a further ischemic event and obviously I have to then say, well the risk may be modest, it may be odds against he didn't quantify it, he said it was unquantifiable but let's assume that the risk is modest. Does that make her fit or unfit?
Well one has to look at what the possible consequences are even if the risk of her blood pressure rising to the extent that it causes an ischemic episode is modest and the consequences are potentially life threatening, certainly potentially personally disabling as a stroke in someone of her age very often is and apply the test which I posed when dealing with the question, the evidence of Maybelle Wells as unfitness meaning having an adverse effect on her health and an adverse effect to the extent of including a substantial risk that she suffers serious detrimental consequences then it's my judgment that the prosecution have made out their argument to the standard required that she is unfit.
She's unfit to give evidence to the same extent that many people are certified as unfit to go to work, are unfit to do it. People are certified as unfit to work because work creates a serious risk of an adverse consequence to their health.
In my view this lady is unfit to come to court and give evidence because it creates a risk of a permanent and very serious and potentially catastrophic adverse effect on her health and in my judgment that is what this section, Section 23 of the Criminal Justice Act, 1988 was intended to prevent occurring."
13. We agree with the judge's interpretation and analysis of the evidence. We also agree that, as a matter of law, a witness who runs a modest risk of potentially serious, permanent consequences may properly be found to be unfit to attend as a witness within the meaning of the statute, and that Miss Webster was properly so found here.
14. Mr Bagley concentrated his critical attention on a general one-sentence self-direction on the law (p 4A) which the judge had given in dealing with the grant of permission for Miss Wells case, in which the question of risk of giving evidence did not play a central part. That passage does not, on the face of it, deal with risk, but deals with the situation where the witness is unfit because giving evidence would have some adverse effect on her. But in the expanded passage quoted above, the judge sets out how he directed himself to deal with the question of risk. That plainly was the test he used, and was right to use. The judge properly directed himself in law and was right in the conclusion he reached.
15. We turn to the second ground of appeal. The complaint is first that no identification parade was held, and second that the statements of the two old ladies should not be admitted under Section 26.
16. Section 26 provides that witness statements such as were taken here:
"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 opinion that the statements 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 ...; and
iii) to any other circumstances that appear to the court to be relevant."
17. So far as the identification parade is concerned, one should have been held. It was a breach of the Code not to. The Crown concede that the reasons for not holding one (that the defendant was not identified by his print until five months after the incident, which is a long time for old ladies to remember faces, and, in any event, his finger print put him in one of the houses visited by the bogus official) were not adequate reasons for not holding a parade. That no parade was held was simply down to ignorance by the officer responsible. But it is hard to see how the appellant was prejudiced thereby. The witness statements of the ladies did not purport to identify the defendant. Their descriptions did not identify him. The ladies' statements gave separate accounts of being visited by the bogus official, and that official was (on the Crown's case, by inference from the timings, the fingerprint and the appellant's admission that he entered No 54) the appellant. Had an identification parade been held, there would have been the risk that one or other of the old ladies might have recognised him.
18. Mr Bagley, for the defence, also complained that the defence was handicapped by the fact that the ladies would not be present as witnesses at the trial. He painted the rather improbable scenario of counsel cross-examining the ladies to achieve what he described as a "dock exoneration" - that each, when asked whether they have ever seen the man in the dock before, would say they had never seen him before in their lives. This we regard as quite unreal. The presence in court of these witnesses would not have helped the appellant.
19. In exercising his discretion under Section 26 the judge must consider whether it is possible to controvert the statements if admitted. The answer in this case is "Yes" - the appellant had only to go into the witness-box to do that. What made the witness-box an unattractive place for him was the combination of his fingerprint and his admission. The interests of justice require that this mean offence, clearly targeting the elderly, should be tried. The judge exercised his discretion properly.
20. Accordingly, this appeal will be dismissed.