England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT
SOUTHWARK HIS HONOUR JUDGE McKINNON

		Royal Courts of Justice Strand, London, WC2A 2LL
		21 February 2006

Lord Justice Pill:

1. This is an appeal, with leave of the judge, against a ruling made by His Honour Judge McKinnon in the Crown Court at Southwark on 7 November 2005 under Section 31(3) of the Criminal Procedure and Investigations Act 1996 (the "1996 Act"). The ruling, given at a preparatory hearing under the 1996 Act, was to allow the prosecution to read at the trial the evidence of P, pursuant to Section 116(2)(c) of the Criminal Justice Act 2003 (the "2003 Act"). Heard with the appeal, has been an application for permission to appeal, with appeal to follow, against a ruling by Judge McKinnon on the following day, 8 November 2005, by which he refused an application on behalf of the defendants that the evidence should be excluded from the trial under Section 78 of the Police and Criminal Evidence Act 1984 (the "1984 Act").
2. The trial had been listed for hearing, Judge McKinnon presiding, on 14 November 2005. Having given permission to appeal, the judge vacated the fixture. The trial is now listed for 15 May 2006. The appeal and application for permission to appeal are made under Section 35 of the 1996 Act.
3. The defendants M, C and K are charged with conspiracy to defraud and the present appeal and application are made by C and K.
4. The prosecution case is that the defendants conspired together to defraud Ma Limited. M was indebted to the company in a very substantial sum and it is submitted that, by a series of transactions, a valuable property known as S, over which Ma had a charge, was sold at a sum very considerably below its market value. C was solicitor and K accountant to M.
5. The prosecution case is that the property was sold with knowledge that its apparent value had been significantly reduced as a result of a false lease created by C, acting on behalf of M, for the purpose of reducing the value of the property. The property was sold at auction. At the auction, K purported to act on behalf of P, a resident of South Africa and purported to purchase the property on his behalf. The prosecution allege that P had no idea about the purchase of this property on his behalf and was being used as a vehicle through which to pass the property before returning it to the effective ownership of M. It is alleged that the Power of Attorney pursuant to which K was acting was, to the knowledge of K, a forgery.
6. It is common ground that P is an important witness in the case against both defendants, but the prosecution accept and assert, of much greater significance in the case of K than in that of the other defendants.
7. DS Butterworth spoke to P on a number of occasions. She attended at the magistrates' court in Germistone, near Johannesburg, South Africa, on 18 February 2003 when a presiding officer conducted an enquiry under the South African International Co-operation in Criminal Matters Act of 1996. P indicated his willingness to travel to London and give evidence in the Crown Court, if necessary. On 4 June 2003, the officer received a fax from Mr P stating: "I have no desire to be a witness in the trial of anyone in the UK". However, when she telephoned him in August 2003, he confirmed that he was still willing to go to court in London if he really had to. He confirmed that willingness on 23 February 2004 and, much more recently, in September 2005. He said that he would travel on to Cyprus to visit his elderly father. On about 21 September 2005, the officer telephoned the witness and told him the date of the hearing, week beginning 14 November. He stated that "that week would be fine".
8. However, when, on 24 October DS Butterworth rang P in order to discuss travel arrangements, P directed that enquiries should be made to his lawyer, Mr Oldwadge. On 1 November, Mr Oldwadge telephoned the officer to say that P would not be flying to the United Kingdom, nor would he agree to giving evidence via a video-link. Mr Oldwadge was not prepared to discuss the matter further, due to client confidentiality. A condition on the grant of bail prevents the defendants from approaching the witness "directly or indirectly".
9. DS Butterworth states: "Having met Mr P on two occasions in South Africa and subsequent communication by telephone, I was very surprised by his sudden change of heart". P had family links with both appellants and a suspicion arose in the officer's mind of intimidation.
10. Thus the change of mind and consequent application to the judge came only shortly before the hearing. The prosecution rely on Section 116 of the 2003 Act. That provides:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2)The conditions are-

(a) that the relevant person is dead;

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the

statement, and the court gives leave for the statement to be given in evidence."

Sub-sections (3) and (4) apply only to Section 116 (2)(e).

11. The prosecution rely on Section 116 (2)(c). Mr Darbishire submitted, and submits to this court, that the witness cannot be required to come to the United Kingdom and has refused to come voluntarily. It was accordingly not reasonably practicable to secure his attendance. On an application of the section, it is submitted, the question of fairness did not arise (save under Section 116 (2)(e)). The section is distinguishable from Section 114 which, dealing with the admissibility of hearsay evidence, requires the court to be satisfied that it is in the interests of justice for the evidence to be admitted (Section 114(1)(d)). While Section 78 of the 1984 Act had to be kept in mind, that was a long-stop or residual power, it is submitted, which did not operate in the case of the proposed hearsay evidence.
12. The application to the judge must be seen in the context of the imminence of the trial and the understandable reluctance of both prosecution and defence to vacate the fixture. Neither side suggested steps which could be taken to encourage voluntary attendance or to devise a suitable procedure for the receipt of evidence in South Africa. Neither side suggested an adjournment. Each side was confident that its argument would succeed and that the trial could proceed as planned. When the prosecution succeeded on the Section 116 application, and the defence failed on the Section 78 application, two of the defendants sought relief in this court under the provisions of the 1996 Act.
13. In a short judgment on Section 116, the judge stated that the words reasonably practicable "aptly apply to the position". The witness now refuses to come to the United Kingdom, the prosecution cannot reasonably secure his attendance and an order is appropriate. In a longer ruling on the Section 78 application, the judge concluded:

"However, in my judgment, his absence from the trial is not a ground for finding that his evidence should not be heard by the jury. The position of P will inevitably be important in the course of the trial and the jury will want to know, and are entitled to know, in my view, what the reaction was of him when he was spoken to about the fraud and what he had to say about it. The admission of his evidence on these matters cannot, in my view, have such an adverse effect on the fairness of the proceedings that it ought to be excluded. I am quite satisfied that what P has to say about the allegations should not be kept from the jury because he cannot be cross-examined about it. His evidence should be admitted for the jury to make a judgment on whether, having regard to the whole of the evidence in the case, they can place any reliance on it, on what he had to say, or whether they should place no reliance on it at all.

It will be important in directing the jury to make it clear to them that they should exercise caution before acting on the evidence of such a witness and they will have to give careful consideration as to what weight, if any, they feel able to give his evidence."

The judge noted that the witness's refusal to attend "are for reasons that are not known". Each party of course entertains views about that.

14. For C, Mr Sinclair refers to the Human Rights Act 1998 and Article 6(3)(d) of the European Convention on Human Rights 1950.

"Everyone charged with a criminal offence has the following minimum rights: … (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him".

15. Both prosecution and defence refer to the decision of this court in R v Sellick [2005] EWCA Crim 651, a case of a person kept away through fear. The right to cross-examine is not absolute. The admissibility of a written statement, where the witness was not called, was considered and propositions stated at paragraph 50. The Strasbourg jurisprudence was analysed by the court. For reasons which will appear, it is not necessary to set out the propositions in this judgment.
16. The prosecution seek to put in evidence the file note of a telephone call lasting thirty minutes on 3 December 2002 between P and Mr AH, M's trustee in bankruptcy. They seek to produce the transcript of sworn evidence of P taken at Germistone magistrates court on 18 February 2003, an affidavit sworn for the purposes of M's insolvency proceedings, dated 18 August 2003 and a witness statement dated 23 December 2003 confirming that the transcript of the hearing at the magistrates court is accurate and that he could confirm the answers he gave on that occasion.
17. The prosecution submit that this evidence is of an unusually high quality. If there are inconsistencies between statements, these may be explored before the jury. The material provides a proper basis on which the jury can assess the consistency of the witness. None of the material was dangerous to place before the jury, it is submitted.
18. For the defendants, it is submitted that the material emanating from the witness is complex and, having considered it, the jury would have the greatest difficulty in considering its reliability and effect. The letter of request from the Crown Prosecution Service to the authorities in South Africa, which led to the enquiries in South Africa stated:

"At the present time it is not clear to the police whether Mr P was aware that any such criminal offences were being perpetrated by M and/or C or whether he was in any way assisting in their commission by his involvement in the purchase and sale of S. Accordingly officers of the Metropolitan Police carrying out this investigation wish to interview Mr P in South Africa in order to ascertain how he came to be involved in the relevant transactions and what knowledge he had about the activities in which M and/or C

were engaged."

P was being treated as a suspect. At the hearing in the magistrates court, he claimed that, during the telephone call, a record of which forms part of the material, Mr H was very rude to him. He referred to H's 'blackmailing'. The hearing at the magistrates was not a judicial proceeding and was not designed to probe or test the witness's testimony.

19. Dealing with the material would be far from straightforward, it is submitted. There were contradictions in the accounts given in the written material. Because he was a suspect, the evidence of P is comparable with that of the written statement of the coaccused, which would not normally be admissible against co-defendants.
20. The court draw attention to the decision of this court in Gonzales de Arango [1993] 96 Cr.App.R 399. At the trial, the judge ruled that an airline company's passenger name computer records were admissible and could be put before the jury. This court held, McCowan LJ presiding, that insufficient steps had been taken to discover whether the airline booking clerks whose names appeared on the computer records could come to the United Kingdom to give oral evidence. The case turned on the construction of Section 68 of the 1984 Act which included provision for admissibility of a document where the person who supplied the information is "outside the United Kingdom and it is not reasonably practicable to secure his attendance" (Section 68(2)(ii)).
21. R v Radak & Ors [1999] 1 Cr.App.R 187 was an interlocutory appeal against the decision of a judge that two written statements by a witness, who was in the United States, might be adduced in evidence without the witness attending. This court, May LJ presiding, held that it was relevant to the court's consideration under Section 26 of the Criminal Justice Act 1988 ("the 1988 Act") that the prosecution could, but had not, obtained the evidence on commission in the United States, which would have offered an opportunity for cross-examination of the witness. The court held that the statement should not be admitted. That was a case in which the prosecution knew from the outset that the witness might not attend voluntarily.
22. The defence draw attention to the presence in the 2003 Act, in the same Chapter as Section 116, of Section 126 which gives the court a general discretion to exclude evidence in criminal proceedings. That section also expressly preserves the power of a court to exclude evidence under Section 78 of the 1984 Act.
23. We accept the submission of Mr Darbishire that the expression "reasonably practicable" in Section 116 (2)(c) of the 2003 Act must in this case be judged on the basis of the steps taken, or not taken, by the party seeking to secure the attendance of the witness. That is, however, only the first stage in a ruling upon the admissibility of the statement or statements. The court must also consider whether to exercise its powers under Section 126 of the 2003 Act and Section 78 of the 1984 Act. While the court has set out the main submissions of the parties on the issue of fairness, those issues cannot in our judgment properly be resolved at this stage.
24. Whether it is fair to admit the statement or statements depends, in part, on what efforts should reasonably be made to secure the attendance of the witness or, at least, to arrange a procedure whereby the contents of the statements can be clarified and challenged. In Radak, the missing procedure contemplated was that by way of obtaining evidence on commission, though that case is distinguishable from the present one in that the prosecution knew from the outset that the witness might not attend voluntarily. For the prosecution Mr Darbishire, while seeking to uphold the rulings of the judge, says that if the court does not uphold them, the prosecution would co-operate in seeking to set up a procedure in South Africa under which the witness could be examined and cross-examined, or at least interviewed in the presence of both parties. Moreover, if an application to remove the condition of bail preventing access to the witness on behalf of the defendants were to be made, consideration would be given by the prosecution to consenting to an approach to the witness on terms.
25. We also see force in the contention on behalf of the defendants that further enquiries as to why the witness has changed his mind, and has refused to give evidence via video-link are reasonably required. The police officer who had spoken to the witness on a number of occasions, and met him in South Africa, was "very surprised" by "his sudden change of heart." Further enquires were, in our view, appropriate.
26. We understand the lack of flexibility shown by both parties, each hoping to be entirely successful, at the November hearings, having regard to the imminence of the trial and the reluctance to vacate a fixture. Further possibilities were, however, open and the fixture has been vacated in any event. That being so, orders in the prosecution's favour are premature. What further steps should be taken is for the consideration of the parties and then for case management by the trial judge. It is neither necessary nor appropriate to make a decision on either issue at this stage. Further enquiries are appropriate and only when the parties have had an opportunity to make them can rulings properly be made.
27. In those circumstances, the rulings of the judge cannot be upheld. Where required, leave to appeal is granted, and both appeals are allowed. Having regard to the submissions made to him, we can understand why the judge decided to make rulings.