England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		25th January 2006

1. THE VICE PRESIDENT: On 15th September 2005 at Maidstone Crown Court, following a trial before His Honour Judge Patience QC, this applicant was convicted of causing grievous bodily harm with intent on count 1 in the indictment. On 16th September he was sentenced at the same court, by the same judge, to three-and-a-half years detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. A co-accused called Still was acquitted. The applicant applies for leave to appeal against his conviction, and the application has been referred to the Full Court by the registrar.
2. The facts were that, on the evening of 2nd August 2004, a 16 year old called George Olliffe became involved in a fight with other youths in Paddock Wood, Kent. He fell to the ground and was repeatedly kicked in the head and face. He was taken to hospital with bruising of the head and face and a laceration to the right eyebrow. He was discharged but, two days later, readmitted and then underwent two operations to stem heavy bleeding from his nose which was, at that stage, found to have been fractured, with damage to a nasal artery. In consequence, he was in hospital for some 10 days and required a considerable blood transfusion.
3. It was the prosecution case that the group of youths had been spoiling for a fight following an earlier incident involving the victim's brother, John. That, according to the prosecution, involved the applicant and Still. It was the defence on behalf of this applicant that he was present at the fight, but his participation was limited to a brief intervention in order to break up the fight. He said he had pushed Still out of the way, after seeing him kick George Olliffe. He, the applicant, had picked Olliffe up and told him to go home. The applicant said he had not punched or kicked Olliffe and had certainly not intended him any bodily injury. Still also denied kicking Olliffe and claimed that he had only intervened in order to stop the fight.
4. There was an application made in relation to the admissibility or otherwise of hearsay evidence under section 114 of the Criminal Justice Act 2003. That came about in this way.
5. In their video recorded interviews, which constituted their evidence-in-chief, the prosecution witnesses, John Olliffe and Nandi Jones, both named the applicant as a participant in the attack after they had been told his name by someone else. In the case of Nandi Jones, the information had come from her ex-boyfriend.
6. The defence applied to exclude these references from the recorded interviews, under section 114 of the Criminal Justice Act 2003, on the basis that the evidence amounted to inadmissible hearsay.
7. The Crown argued that the evidence should be admitted under section 114(1)(d) on the ground that it was in the interests of justice for it to be admitted.
8. Before turning to the judge's ruling, it is convenient to rehearse the relevant provisions of section 114. This provides in subsection (1):

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-

(a) any provision of this Chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or.

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)-

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it."

9. The judge ruled that he had considered the factors in section 114(2) and he had also considered section 8 of the police section 78 of the Police and Criminal Evidence Act 1984, in order to ensure that admission of the evidence would not impair the fairness of the proceedings. He concluded that he was unable to form a clear view on some of the factors set out in section 114, as the circumstances in which each witness was informed of the applicant's name were not clear. He was also unable to form a view on the reliability of the informants, because he knew nothing about them. He had been told nothing more than the brief passages in the transcript of the video interviews. It was not known whether either person could be identified so as to attend court and give evidence of the circumstances in which they had named the applicant to the witnesses.
10. The judge said that, if the applicant decided to give evidence, it was clearly open to him to challenge the assertion that he participated in the fight as the kicker. There were some 11 eyewitnesses and, may be, nine others. It was clearly possible to use the evidence of the nine others to challenge and undermine the assertion that the applicant had participated as a kicker. As conceded by the defence, the evidence of two witnesses was probative of the issue of whether the applicant was shown to be the kicker.
11. It was, in his judgment, in the interests of justice for the video recorded interviews of the two witnesses to be played to the jury, without editing out their naming of the applicant. In consequence, he refused the defence application to exclude and the evidence was duly admitted before the jury.
12. At a somewhat later stage, in the course of cross-examination of John Olliffe, he said that Nandi Jones had told him the applicant's name. That is to say, that he had derived the name from double hearsay, because she, as we have already indicated, had derived the name from her boyfriend.
13. In consequence, Mr Sinclair, then as now appearing for the defence, invited the judge to reconsider his ruling on the basis that multiple hearsay was involved and that therefore there were additional requirements for admissibility by virtue of section 121 of the Act. The judge declined to reconsider his original ruling.
14. Mr Sinclair frankly admits to us that, if the judge had reconsidered his ruling, bearing in mind that the jury had already heard the evidence, he is not at all clear what his next step would have been. Frankly and realistically he said that he would probably have asked for discharge of the jury and that application would probably have been rejected.
15. It is necessary to say just a little more about the evidence in the case. John Olliffe, in his recorded interview, described an earlier incident when he had gone to Paddock Wood Railway Station with Nandi Jones and another youth. There was a group of boys and a girl sitting on a platform bench and the boys included, as the applicant himself admitted, the applicant and another boy called Maguire. Maguire had come up behind John Olliffe and pulled his trousers down and there had been an exchange of oral and physical abuse.
16. As to the material fight, on 2nd August John Olliffe described a mob of some 20 or 25 people approaching. He recognised the applicant among that group from the incident earlier at the railway station. But, he said, he had not been told his name until after the crucial fight.
17. He described the applicant as wearing a TN hat, a dark blue polo, a thick gold earring in his left ear and eyebrow piercing. He also described the applicant walking by him and saying "Don't look at me I've got enough of your brother's blood on me already."
18. In cross-examination, he described the person whom he was accusing of involvement in this matter as around 16 years old and of medium build and he said Nandi Jones had told him the applicant's name.
19. George Olliffe, in his video recorded interview, said that he believed that the applicant was there at the time that he was beaten up but he could not remember who had told him that that was so.
20. Nandi Jones described Scott Maguire asking George Olliffe if he wanted a fight and throwing a punch and George throwing one back. Then she said "Two other boys jumped up, one was the applicant." She described Scott Maguire as getting on to John Olliffe, and a couple of other boys getting him on the floor and punching and kicking him. She looked back at George and saw they had got him on the floor. She said "Stuart [the applicant] and Clinton [the co-accused] were stamping on his head and kicking and stamping on his face." She said that the applicant kept on kicking George and would not stop, and at the same time shouting that he did not care if they told the police as he was going to prison any way.
21. That last piece of evidence from Nandi Jones was of some importance, because, according to the applicant's evidence later, only the family knew at the time of these events that he was on bail for another matter. However, that is what Nandi Jones said the applicant said. According to her, he kicked George countless times and made contact with his nose. She asked him to stop. Eventually he did, but then kicked him again, before running off. When she was asked how she knew the applicant, she said that she had previously seen him round with an ex boyfriend, with whom she had broken up a long time before. She knew the applicant's name through him. She did not know where he lived. On the night he was wearing shorts, trainers, a TN hat and had a gold hooped earring. He had buck teeth, was well built and aged 15 to 16.
22. In cross-examination, she said that the applicant and his co-accused were the first two people to join in the fight; she denied that the co-accused had acted as peace-maker, trying to break the fight up.
23. A witness called Michael Bailey described the applicant as jumping into the fight and kicking George in the head and face. He described him as "Still kicking George's head as blood started coming from him face. Full swing 90-degree kicks had gone on for about 20 seconds and made George's body move backwards. His whole face was covered in blood." The applicant then stopped. He said, in cross-examination, that he had had an unobstructed view of the incident.
24. Clair Draper described the applicant as joining in the fight to help Scott and as punching George. She described the co-accused as Scott. She described George as being on the floor with the applicant, about a metre away. She said she had been mistaken in her statement when she had said that the applicant had been hitting George when he was on the floor. She had seen the co-accused kicking and stamping on George's head, while he was on the ground. At that stage, the applicant had shouted: "Stop" and the co-accused had stopped. In cross-examination, she agreed that she was friends with the applicant. She said that he was the last person to have physical contact with George when he had picked him up off the ground.
25. Stephen Fogg described the co-accused kicking George in the face and stamping on his head. He said a male whom he knew as Stuart, had pulled him off. He had seen the co-accused kicking George and the applicant not being involved in any way. On the country, he, Fogg, and the applicant had acted as peace-makers. He denied that he was seeking to protect the applicant. He had no reason to do so.
26. Daniel Griffin saw a boy on the floor, trying protect his face, while a white man aged around 18 years, 6 feet tall, of chunky build and wearing a baseball cap and blue track suit bottoms kick him several times in the head. He saw the applicant push that man away. He knew the applicant, by sight. In cross-examination he said the applicant was among a crowd but there was no physical contact between him and the victim of this incident.
27. Jodie Draper described the applicant joining in and punching George. She refreshed her memory from her statement, in which she said the applicant and the co-accused had punched the victim more than once, and the applicant had grabbed him by the scruff of the neck and warned him not to call the police or he would burn his house. She said that she could not now remember the contents of her statement. She repeated, however, that the applicant had punched George. She had not however seen him kick him.
28. Another witness described the applicant pulling George up off the ground and saying something about "stop fighting". There were other witnesses to whom it is unnecessary to refer in relation to the incident.
29. There was forensic evidence from Helen Haworth, who had examined blood found on the applicant's trainers and baseball cap. Following DNA analysis, she concluded that the chances of the blood on the trainers having come from someone unrelated to George Olliffe was one in one billion. The applicant's right trainer had between 20 to 30 blood spots on the inner aspect. She was uncertain whether they were contact stains or smeared spots. They were small in size and the smaller the size, this meant the shorter the distance the blood had travelled. She could not say how many impacts into wet blood had been caused. She found some 15 to 20 similar sized spots on the left trainer. Her conclusion was that the applicant had been near to a source of airborne blood from George Olliffe, while wearing the trainers.
30. So far as the baseball ball cap was concerned, nothing turns on what she described as a non-discript area of blood on that. She said in cross-examination that she would have expected to find more blood on the trainers if the applicant had been kicking directly into wet blood.
31. When he was interviewed, following his arrest in August, the applicant made no comment to the questions which were asked. He was re-interviewed in October, following the results of the forensic analysis and, at that stage, he advanced an account of events which he later maintained in his evidence before the jury. That evidence included an admission of presence at the earlier railway station incident. He knew the witness, Nandi, through her ex-boyfriend. So far as the incident was concerned, he had tried to pull someone away. He had pulled George away and he had gone to the ground. He had not punched or kicked George while on the floor or otherwise. He had seen the co-accused punch and kicking George, but could not see whether kicks landed. He had run over and pushed the co-accused out of the way. He said he was, on the night, wearing trainers, a TN hat and T-shirt. He had pulled George by the shoulder from behind and the spots of blood on his trainers, he said, must have come from dripping blood, blood dripping from George's nose.
32. In cross-examination, he agreed that, in interview, he had said that the co-accused had kicked and stamped on George about six times. He accepted that that account contrasted with his evidence before the jury that he had seen only one kick. His explanation was that he had been all mixed up at the time of interview. The co-accused gave evidence on his own behalf and there was evidence called of his good character.
33. The submission which is made, attractively and admirably succinctly by Mr Sinclair, on behalf of the applicant, is that the judge was wrong to admit this hearsay evidence in relation to the naming of the applicant. He puts the matter in this way. The judge, as is apparent from the terms of the ruling which we have already rehearsed, was unable to reach any conclusion in relation to four of the nine factors to which, by virtue of section 114(2), he was obliged to have regard. Mr Sinclair points out that factor (g) in subsection (2), which refers to whether oral evidence can be given and, if not, why it cannot, implies some sort of investigation by the judge. (If that is so, it does not appear that an implicit investigation by the judge is suggested by any of the other eight factors set out in the statute).
34. Mr Sinclair poses the question: can it be right to admit hearsay of this kind when it is impossible for the judge to give sufficient, or appropriate, consideration to the factors statutorily listed?
35. The second submission which Mr Sinclair makes is that it would have been open to the judge to hear oral evidence from Nandi's former boyfriend, whom she would be able to identify and, if he were to give evidence before the judge, the judge would then be in a position to assess the quality of that evidence and hence the reliability of the source of the name, so far as Nandi was concerned. Mr Sinclair, thirdly, in his oral submissions, suggested that the evidence against the applicant was not as strong as that against the co-accused and, the co-accused having been acquitted, there was a demonstrable case to be made that the case against the applicant was not open and shut. Finally, Mr Sinclair drew attention to the multiple hearsay aspect of the matter and the judge's refusal to reconsider his ruling.
36. On behalf of the Crown, Mr Johnson drew attention to the judgment of this Court in R v Zhabri [2000] EWCA Crim 3135. In paragraph 37 of the judgment of the Court given by the Lord Chief Justice, Lord Phillips, the Court's blessing was given to the admission of hearsay evidence which was apparently reliable by reason of its confirmation from other sources than the witness who was giving the hearsay evidence.
37. Mr Johnson also drew attention to the considerable body of other evidence implicating the applicant, for example the eyewitness' account of what the applicant had done, given by the Michael Bailey and the forensic evidence to which we have already referred.
38. As it seems to us, the first and crucial issue raised by this appeal is as to what is meant in section 114(2) by the words "the court must have regard to the following factors". If Mr Sinclair is correct and those words denote an obligation on a trial judge to embark on an investigation, resulting in some cases in the hearing of evidence, in order that he may reach a conclusion established by reference to each of the nine factors, it is apparent that trials are likely to be considerably elongated. Proper investigation of each of those factors, if carried out in that way, may well be a very lengthy process.
39. But do the words in the section require that course to be followed? In our judgment, they do not. They do not impose an obligation on the judge to reach a conclusion. What is required of him is the exercise of judgment, in the light of the factors identified in the subsection. What is required of him is to give consideration to those factors. There is nothing in the wording of the statute to require him to reach a specific conclusion in relation to each or any of them. He must give consideration to those identified factors and any others which he considers relevant, (as expressed in section 114(2) before the nine factors are listed). It is then his task to assess the significance of those factors, both in relation to each other and having regard to such weight as, in his judgment, they bear individually and in relation to each other. Having approached the matter in that way, he will be able, as it seems to us, in accordance with the words of the statute, to reach a proper conclusion as to whether or not the oral evidence should be admitted. That is a process which, as it seems to us, the trial judge followed in this case. He followed it in the exercise of his discretion, in a way which, in our judgment, cannot be effectively challenged.
40. So far as the multiple hearsay point is concerned, it was, as it seems to us, entirely open to the judge, in the exercise of his discretion, to decline to revisit his earlier ruling bearing in mind the jury had already heard the evidence. There was, as we have already sought briefly to indicate, a considerable body of evidence against this applicant, quite apart from the naming of him by the two witnesses to whom we have referred. There is no reason, in our judgment, for regarding this conviction as unsafe and, accordingly, despite Mr Sinclair's valiant efforts, this application is refused.