England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWIS CROWN COURT
HHJ HAYWARD
T20040060

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 November 2005

Mr Justice Jack :

Introduction

1. The primary point on this appeal was whether the admission of a written statement made by the complainant in a charge of indecent assault, who had since died, was a breach of the defendant's human rights under Article 6 of the European Convention. We dismissed the appeal, reserving our reasons which we now give.
2. On 30 November 2004 at the conclusion of his trial at the Crown Court in Lewes before his Honour Judge Hayward the appellant, Imad Al-Khawaja, was convicted of two counts of indecent assault on a female contrary to section 14(1) of the Sexual Offences Act 1956. He was later sentenced to 15 months imprisonment on the first count and to 12 months on the second count to be served consecutively. He appealed against his convictions by leave of the single judge.
3. The appellant was a consultant physician in rehabilitative medicine and practised at the Sussex Rehabilitation Centre at Brighton Hospital. His treatments included hypnotherapy. He was alleged to have assaulted two female patients who had been referred to him for treatment. The first, Susan Tampsett, had been referred to him by her general practitioner in October 2002. She suffered from multiple sclerosis and was wheelchair bound. It was alleged that the appellant assaulted her on her second visit to him on 3 June 2003. Most sadly, she committed suicide prior to the trial. There was no suggestion that this was a consequence of the alleged assault. In a pre-trial ruling given on 22 March 2004 His Honour Judge Rennie directed that her witness statement could be read in evidence at the trial pursuant to sections 23, 25 and 26 of the Criminal Justice Act 1988. This ruling lay at the heart of the appeal.
4. The submission was that the judge was wrong to have allowed the statement to be read. It was also submitted that in his summing up the trial judge did not give an adequate direction to the jury as to the consequential disadvantage to the appellant. It was said that this made the conviction on the first count unsafe, and also tainted the conviction on the second count.
5. The second count concerned a different patient, Vivienne Upton, who suffered from dystonia, an involuntary movement, in her neck. She was referred to the appellant by her consultant neurologist in October 2002. The indecent assault on her was said to have occurred on her third visit to the appellant on 12 June 2003. That was 9 days after the assault on Miss Tampsett.
6. On 9 July 2003 the appellant was arrested as a result of a complaint by Miss Upton. He declined to answer questions when interviewed by the police, saying, that, before he could answer he needed to access to medical records and to enquire as to patient confidentiality. He was given police bail until 11 September, and he then produced a written statement in answer to Miss Upton's allegations. He was then, on the same day, arrested in connection with a complaint made by Miss Tampsett. The same course followed, and on 21 November he produced a written statement in answer to her allegations. Each statement contained a complete denial.
7. The prosecution case was that the allegations of the two complainants were mutually supportive. The prosecution also relied on the strikingly similar evidence from two other women, Kirsty Koster who was a physiotherapist at Eastbourne General Hospital, and Debra Dudeney who was an unofficial patient of the appellant, in each case relating to what the appellant had allegedly done to them. Those incidents were not charged on the indictment. Miss Koster and Miss Dudeney both said in evidence that they had known that allegations had been made against the appellant before they made their statements to the police. However there was nothing to suggest that the four women knew each other or were aware of the details of the others' allegations.
8. The prosecution also called evidence of 'recent complaint' by Miss Tampsett. Basil Fish provided help around the house and garden for Miss Tampsett and her sister – who also suffered from multiple sclerosis. He had visited them on 3 June 2003, the day of the alleged assault. He knew that Miss Tampsett had been to see a doctor that day. When they were alone, she told him that she had been sexually abused. She said that the appellant had said she was a beautiful woman and that he could give her a climax. She did not refer to hypnosis. She was calm, but appeared angry.
9. Sandra Hewlett was a neighbour who did chores and shopping for Miss Tampsett. She let herself into the house at about 7 p.m. on 5 June. Miss Tampsett was on the telephone. After the call she looked upset, ashen and anxious. She said that she had been to see a hypnotist who had just been on the telephone and had suggested that he should visit her at home. She became upset and told Mrs Hewlett that the appellant had made her do things to herself, which she described.
10. We need not refer in any detail to the evidence by way of Miss Tampsett's statement or to the oral evidence of Miss Upton, Miss Koster and Miss Dubeney. It is enough to say that in each case, if their evidence was truthful, the appellant had behaved improperly while they were aware of what was happening to them but under hypnosis. On that basis, he committed serious indecent assaults on Miss Tampsett. He committed a lesser indecent assault on Miss Upton. He made improper suggestions to Miss Koster and to Miss Dubeney. We should mention that Miss Tampsett did not make her statement until 20 September 2003.

The admission of the statement.

11. At the preliminary hearing Judge Rennie approached the question whether Miss Tampsett's statement should be admitted in evidence on what we would describe as classic English domestic law lines. He was not referred to Article 6 of the European Convention, or to any of the case law concerning the Article and the admission of evidence from a person who could not be questioned on behalf of a defendant. He did not avert to it himself. The argument which we have to consider was raised for the first time in this court by Mr Joel Bennathan, who did not represent the appellant in the Crown Court.
12. At the time of Judge Rennie's ruling and the trial, the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988. They have now been replaced by the hearsay provisions contained in Chapter 2 of Part 11 of the Criminal Justice Act 2003. Those apply to all trials held on or after 4 April 2005. Section 116 of that Act applies where, among other situations, a witness in unavailable because he is dead. Subsection (4) is broadly similar to section 26 of the 1988 Act.
13. Section 23 of the 1988 Act provided for the admission of first hand documentary hearsay. So far as relevant here, it read:

"…… 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;

or

(ii) the requirements of subsection (3) below are satisfied.

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

(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

(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

(3) to (5) ……."

Subsection (3) related to persons not giving evidence through fear.

14. Section 25 provided the general principles to be followed. It stated:

"25(1) If, having regard to all the circumstances-

(a) the Crown Court

(i) on a trial on indictment;

(ii) to (iv) …….

(b) …….

(c) …….

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.

(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard-

(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) 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 or, if there is more than one, to any of them."

However, where section 26 applied, section 25 would largely be superceded in practical effect by the provisions of section 26.

15. Section 26 related to documents prepared for criminal proceedings. It provided:

"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; or

(b) of a criminal investigation,

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 in the accused or, if there is more that one, to any of them; and

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

……."

Schedule 2 to the Act is given effect to by section 28(2) to supplement the foregoing provisions. It provides in particular for the credibility of the maker of a statement to be challenged.

15. Judge Rennie ruled on the statement of Miss Tampsett in the following way. First, he recorded that it was agreed that by reason of her death the statement was eligible to be admitted in evidence under section 23. Next, he noted that the defence to each allegation was that it was untrue both as to the alleged indecent touchings and as to the indecent comments which it was alleged were also made. He observed that the appellant was very likely to feel that he had no realistic alternative to give evidence in order to defend himself on the second count relating to Miss Upton, and so the reading of the statement would not have the effect of making it very difficult for him not to give evidence, for that was already so. He also noted that collusion between the two complainants was not alleged, and so that need not be investigated by cross-examination. He referred to section 25 and its provision that he should not admit the statement if it was not in the interests of justice to do so. He then went on to section 26, reminding himself that it required him, when considering the interests of justice, to have regard to the contents of the statement; and, in summary, whether it would be possible to controvert the statement, and whether its admission would result in unfairness to the defendant, and other relevant circumstances. He observed that the statement was crucial to the prosecution's case on count 1, because without it there was no evidence of an assault. He concluded that inconsistencies which existed between Miss Tampsett's statement and what Mr Fish and Mrs Hewlitt said could be explored with Mr Fish and Mrs Hewlitt. He also referred, in the context of inconsistencies, to the evidence of a third witness, whom he identified as Pauline. Miss Tampsett's credibility could be tested by that means. He also mentioned expert evidence to be called on behalf of the Crown and on behalf of the appellant about the altered perception that can occur under hypnosis, saying that it was to the appellant's benefit that any such evidence favourable to the appellant could not be contradicted by Miss Tampsett. He found the gravity of the allegation to be a neutral circumstance. He concluded that he was satisfied and sure that, having in mind the statutory tests, it was in the interests of justice for Miss Tampsett's statement to be admitted in evidence. He ended by referring to the direction which it would be necessary for the trial judge to give at the trial to the jury concerning the statement.
16. Mr Bennathan did not criticise the judge's approach to the application of the statutory provisions as a matter of English domestic law. His submission was that consideration of the application of Article 6 and relevant Convention jurisprudence should have led to a decision not to admit Miss Tampsett's statement in evidence. Article 6(1) requires that 'in the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … .' More particularly, Article 6(3)(d) provides:

"(3) Everyone charge with a criminal offence has the following minimum rights:

(d) to examine or have examined witnesses against him and to obtain the attendance of and examination of witnesses on his behalf under the same conditions as witnesses against him."

17. Mr Bennathan submitted that it was a breach of Article 6(3)(d) for the statement to be read because Miss Tampsett could not be cross-examined: it was irrelevant that she had died. He relied on a passage from the decision of the European Court of Human Rights in Kostovski v Netherlands (1990) 12 EHRR 434 at paragraph 41:

"As a rule, these [Article 6] rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."

Kostovski had been convicted of armed robbery on the basis of the evidence of anonymous witnesses whom he had no opportunity to question, and, not knowing who they were, he could not attack their credibility.

18. Mr Bennathan also relied on paragraph 40 of the European Court's decision in Luca v Italy (2003) 36 EHHR 807, which reads:

"As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Art.6(1) and (3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6."

Luca had been convicted on the basis of statement made to the police by a fellow drug dealer who had exercised his right of silence when brought to court.

19. The conjunction of Article 6 and sections 23 to 26 of the 1988 Act in the light of decisions of the European Court has been considered by this court on a number of occasions, and in each case, so far as we are aware, it has been held that the admission of the statement did not infringe Article 6. There is, however, no decision of this court, so far as we are aware, which has considered the situation where, as here, the witness cannot be examined on behalf of the accused because the witness has died since giving the statement. We believe that there is likewise no such decision of the European Court.
20. Recently this court reviewed the European and English decisions in the case of Sellick [2005] EWCA Crim 651, [2005] 2 Cr AppR 15. We need not repeat that process. In Sellick the accused was charged with murder. The trial judge gave leave for four statements to be read, two of them on the basis that he was sure that the makers had been kept away through fear, and two of them on the basis that reasonable steps had been taken to trace them but had failed. In respect of one of the latter he held that it was highly probable that he was kept away by fear. The fourth witness was described by this court as of little importance.
21. As a preliminary to a review of the decisions of the European Court, Waller LJ giving the judgment of the court observed, first, that the jurisprudence had begun its development with cases arising under the inquisitorial process of criminal prosecution existing in many European countries, and without regard to such safeguards as are built into the English adversarial procedure. He noted that under the English procedure there was one moment only, namely at the trial itself, when a prosecution witness could be examined on behalf of a defendant, a point which had not been examined in the European cases, and which was particularly relevant in a case where the witness had been kept away by fear. He stated that it had to be borne in mind that questions whether Article 6 had been infringed were very fact sensitive. Having reviewed eight cases decided by the European Court he drew from them four propositions:

"i) The admissibility of evidence is primarily for the national law;

ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;

iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.

iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair."

22. Those conclusions are in particular assisted by a passage from the European Court's judgment in Doorson v Netherlands(1996) 22 EHRR 330, under the heading 'The Court's general approach', as follows:

"66. As the requirements of Article 6(3) are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6(1) the Court will examine the complaints under Article 6(1) and (3)(d) taken together.

67. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair."

23. The finding that the three important witnesses in Sellick were absent through fear, was an essential part of the court's reasoning, For the inducing of that fear was to be attributed to the defendants or those acting on their behalf. It could be asked why it was unfair to the defendants that the statements of the witnesses whose absence they had caused should be read. There is no equivalent factor here.
24. The important factors in the present case are the following. The witness, Miss Tampsett, could not be examined on behalf of the appellant because she had died. She was the only witness whose evidence went directly to the commission of an indecent assault on her by the appellant. If her statement had been excluded, the prosecution would have had to abandon the first count. The appellant was able to attack the accuracy of Miss Tampsett's statement by exploring the inconsistencies between it and the witnesses, Mr Fish and Mrs Hewlitt, and through the expert evidence relating to 'altered perception' under hypnosis. The relevant sections of the 1988 Act contained provisions designed to protect defendants, which were properly considered by the judge, before the statement was admitted in evidence. Lastly, the tribunal of fact, here the jury, could and should take proper account of the difficulties which the admission of a statement might provide for the appellant, which should be provided by an appropriate direction to the jury.
25. Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick we do not consider that the case law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provision in Article 6(3)(d) that a person charged shall be able to the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is 'whether the proceedings as a whole, including the way the evidence was taken, were fair – Doorson, paragraph 19. This was not a case where the witness had absented himself, whether through fear or otherwise, or had required anonymity, or had exercised a right to keep silent. The reason was death, which has a finality which brings in considerations of its own, as has been indicated at the start of this paragraph.
26. It was suggested by Mr Bennathan that one important consequence of the absence of Miss Tampsett, which made it unfair for her statement to be admitted, was that 'there were real areas that the defence would have sought to explore about the complainants' knowledge of each other's complaints.' This ignores the stance taken on behalf of the appellant both at the hearing before Judge Rennie when he ruled the statement admissible, and at the trial, not to explore the possibility of collusion between the witnesses: collusion was not suggested. Further, as we have stated, there was nothing to suggest that the women knew the details of each other's allegations.
27. We have concluded that the rights of the appellant under Article 6 were not infringed by the admission of the statement. We consider that his rights were sufficiently protected in the circumstances of his case. His trial was not unfair. We refer to the matters we have set out in paragraphs 25 , 26 and 27. That conclusion must be subject to the question whether the trial judge gave an appropriate direction to the jury as to the statement. It is well-established that such a direction must be given.

The direction to the jury

28. In McCoy 1101674/W4, 10 December 1999, unreported, this court stated:

"If a statement of a critical witness is to be read to a jury, perhaps especially in an alibi case where identification is the true issue, it must be incumbent on the trial judge to ensure that the jury realise the drawbacks which are imposed on the defence if the prosecution statement is read to them. It is not enough simply to say that counsel has not had the opportunity of cross-examining. The lay jury may not appreciate the significance of that fact. The judge must at least explain that it means that they may feel quite unable to attach anything like as much weight to the evidence in the statement, as they might if it were tested in cross-examination; and where appropriate it would be necessary, certainly desirable, for the judge also to indicate to the jury by way of illustration the sort of matters that might well be put in cross-examination in the particular case. None of that was done in this case."

The need for an appropriate direction was also emphasised in Sellick, where the direction given at the trial by Butterfield J is set out in paragraph 67 of the judgment.

29. The directions given here were as follows:

"Count 1 concerns Susan Tampsett. Her statement was, of course, read to you. As I explained at the time, normally witnesses have to come to court to give evidence, particularly if that evidence is very much in dispute, but there are circumstances or reasons when a witness's statement can be read. The death of the witness is one of those reasons. We know, tragically, that Miss Tampsett committed suicide. She had become increasingly depressed about the multiple sclerosis, the MS that she was suffering from, and the increasing disability it was causing to her.

It is very important that you bear in mind when considering her evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence tested in cross-examination by Mr Seabrook who would, undoubtedly, have had a number of questions to put to her."

and:

"So far as Count 1 is concerned, members of the jury, the alleged assault, the touching of Miss Tampsett's lips, her mouth, her breasts and her bottom for the defendant's sexual gratification, bear in mind, as I said, that this evidence was read to you. The allegation is completely denied, and as I have said, Mr Seabrook would have had a number of questions for Miss Tampsett, and you must take that into account when considering her evidence. The prosecution suggest that her evidence is supported by the evidence of Miss Upton, Miss Koster and Miss Dudeney."

30. We consider that it would have been better if the judge had stated explicitly that the appellant was potentially disadvantaged by the absence of Miss Tampsett and that in consequence of the inability to cross-examine her and of the jury to see her, her evidence should carry less weight with them. Nonetheless, in the circumstances of this case it must have been wholly clear to the jury from the directions the judge did give, that this was the purpose of his remarks. We therefore consider that the jury were given an adequate direction as to the consequences of Miss Tampsett's statement being in evidence in her absence, and that this is not a factor which might make the appellant's trial unfair and in breach of Article 6. We should also say that overall the evidence against the appellant was very strong. We were wholly unpersuaded that the verdicts were unsafe.