England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23 November 2007

1. LORD JUSTICE HUGHES: The issue raised in this appeal against conviction is whether the trial judge went wrong in allowing the Crown to put in under the hearsay provisions of the Criminal Justice Act 2003 an edited witness statement by a witness who had failed to attend. The charges were familiar enough. They alleged possession by the defendant of 79 ecstasy tablets and a small quantity of ketamine contained in three separate plastic envelopes at a nightclub. The charges were of possession with intent to supply of those two different classes of drug. Those charges of course included the implied alternative of simple possession.

2. The Crown's case as served was as follows. First, scientific evidence of analysis, which was not in dispute. Second, evidence of the finding of an inconsequential sum of money on the defendant. Thirdly, the evidence of a security guard at the club, which was in King's Cross. Fourthly, evidence of the police officers who were called out. There was also available evidence of interviews with the defendant conducted by the police but in those he elected to answer no questions and so those took the matter no further.

3. The security guard was a man called Chambers. His thirteen line witness statement said that as a result of something said to him by a customer (and he said what it was), he took the defendant to his office and told him that he suspected that he had drugs on him. He said that he asked the defendant either to produce them or to wait for the police. He said that the defendant initially denied having anything of the kind, but that when he (Chambers) got out his telephone to ring the police, the defendant produced the bag of pills and the other drugs and put them on the table. According to him, the defendant said that a man in a black baseball cap had asked him to look after the drugs. Chambers' witness statement said that the drugs were removed from the crotch area of the defendant's trousers or underwear.

4. As to the police officers, the evidence from them was that they arrived at the club having been sent for, saw the defendant in the company of the club staff, including Mr Chambers the security guard, and took possession of the drugs. One of the police officers asked the defendant, according to his witness statement: "Are these yours?" and he received the answer, according to him: "Yes, but I am only looking after them for a friend." That question had been asked by the police officers, wrongly, without any caution being administered to the defendant. To anticipate, the Recorder ruled that exchange inadmissible, so that evidence of an admission of possession by the defendant was not available to be put before the jury.

5. On 10th July 2006 a plea and case management hearing was conducted. At that hearing the trial was given the fixed date of Monday 15th January, six months on. The witness Mr Chambers and also the police officers were required, quite properly, by those representing the defendant to attend at the trial.

6. On the day of the trial, Mr Chambers was not at court and nobody knew where he was. The Crown applied to read his witness statement under the provisions of section 116(2)(d) of the Criminal Justice Act 2003. That provides so far as material:

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

   ...

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

   The Recorder admitted the statement, albeit in a form edited to remove from it the assertion that the drugs had been in a hidden place in the defendant's trousers and the exchange about the man in the black baseball cap.

7. The present appeal is brought on the basis that that ruling of the Recorder was wrong and that the conviction is as a result unsafe. Mr Lynn says that without the evidence of Mr Chambers the Crown was in no position to prove that the defendant was in possession of the drugs at all, before one got on to the question of intent to supply. He says that there would thus have been no case to answer.

8. The argument about this application by the Crown, of which we have a full transcript, proceeded rather more by discussion than by consecutive submissions and ruling. It is none the worse for that; that is often how cases proceed. It is perhaps the reason why in the end it was not approached sequentially, although the decisions that the Recorder made are perfectly clear. In the different circumstances of this court we are able to, and think we should, deal with the questions which arise step by step.

9. First, in order to dispose of the point, this was of course a late application and that point was made on behalf of the defendant. The answer to that is that it was late because it was unavoidably late. The application was only triggered by the non-appearance of the witness. The Recorder was right to entertain it on its merits and decide it one way or the other.

10. Next is the question whether the witness Mr Chambers was somebody who "cannot be found" within the meaning of section 116(2)(d). The answer to that, we are satisfied, is "Yes, he was." We reject any submission that there is a relevant semantic distinction between "cannot be found" and "cannot be contacted". This witness could not be found at the material time, which was the Monday morning of the trial.

11. That leads on to the question which really matters for the purposes of section 116 which is whether he could not be found "although such steps as it is reasonably practicable to take to find him have been taken." The evidence was as follows. The case had been fixed at the case management hearing for 15th January. At some point in September the witness, Mr Chambers, had been spoken to and confirmed that he was in a position to attend. It looks as if that was done by a telephone call. Quite why it was not done until September when the fixed date had been given in July we do not know. We observe in passing that that kind of passage of time has the potential to cause problems. Witnesses may move. If this is symptomatic of the usual practice, it is not good enough. It runs the real risk that a witness may not be found when if prompt contact with him had been made he would have been. It was not, however, the occasion of the problem in this case because he was contacted in September and he was able to confirm that he would attend. However, after whatever conversation there was in September, nothing had then been done until the Friday before the trial was due to start on the Monday. That is to say, the last working day. On the Friday all that happened was that the witness was telephoned on his mobile telephone. He did not answer but there was a voicemail service. A message was left on his mobile telephone. At the trial the officer in the case, who was asked to give evidence about all this, was unable to say who it was who had made the telephone call to the answering service, except that as he understood it, it would be "someone from the witness care unit of the local authority". There being no reply to whatever message was left on the mobile telephone, and there was no evidence what the message exactly said, nothing else was done whatever. On Monday morning a further attempt was made to telephone by the officer in the case himself but contact could not be established.

12. The evidence given to the Recorder was that this system was described, apparently amongst those who operate it, as a system of "overnight call warning". We do not want to speculate on precisely what that means, but if it means that it is thought to be sufficient to leave a message the night before a witness is due to attend, we desire to say as emphatically as we can that it will not do. The Recorder was in this case persuaded that such steps as were reasonably practicable to take to find the witness had been taken. For the Crown, Mr Alabi invites us to consider that there was no real reason to suppose at any time before the Monday morning of the trial that the witness was not going to come, even although on the Friday he had not been answering his mobile telephone.

13. With both of those propositions we respectfully but emphatically disagree. What happened in this case was a very long way short of what is in practice needed to get witnesses to come to court. All the experience of the criminal courts demonstrates that witnesses are not invariably organised people with settled addresses who respond promptly to letters and telephone calls and who manage their calendars with precision. They often do not much want to come to court. If they are willing they may not accord the appointment the high priority that it needs. Even if they do both of those things, it is only too foreseeable that something may intervene either to push the matter out of their minds or to cause a clash of commitments. Holidays, work, move of house, illness of self or relative and commitments within the family are just simple examples of the kind of considerations which day in, day out, lead to witnesses not according the obligation to appear at court the priority that they ought to do. We are told that in the present case it turned out that Mr Chambers had taken his wife to hospital. If he had to do that, and it may be he did, that should have been found out at the very least the previous week and then consideration could have been given to whether the trial had to go back or whether alternative arrangements could be made to get the lady to hospital, or whether the trial could start a little later in the day, or some other adjustment made to enable the process of justice to take place. All of that was simply rendered impossible by the wholly inadequate approach of those whose duty it was to keep in touch with the witness. It may very well be that, however regrettably, the police are no longer able themselves to undertake the care of prospective witnesses. That is not a matter on which it is right for us to express any view. But whoever it is who does undertake it, the need to keep in touch, to be alive to the witness's needs and commitments is not less now than it ever was; if anything it is rather greater now than it used to be. Leaving contact with the witness such as this until the last working day before the trial is not good enough and it certainly is not such steps as it is reasonably practicable to take to find him. In addition to that, once the message was not known to have been received on the Friday and there was doubt about it, we agree with Mr Lynn that reasonably practicable steps which ought to have been taken included a visit to his address and/or to his place of work or agency, or at least contact with those places, perhaps by telephone.

14. We do not doubt the general proposition which is contained in passing in R v Coughlan [1999] EWCA Crim 553 that a relevant consideration for the question of what reasonable steps are practicable is the resources of the police or whoever it is who undertakes witness care on their behalf. But nothing that we have suggested in this case would be particularly expensive in terms of resource and it is to be observed that the case to which we have been referred for that proposition is another case in which absolutely nothing had been done to keep in touch with a relevant witness.

15. For all those reasons we are perfectly satisfied that this evidence was not admissible under section 116(2)(d). That leads us on to the next question which is whether, if not, was it admissible in any event under section 114(1)(d) on the basis that it was in the interests of justice for it to be admitted. The Recorder did not directly address section 114(1)(d) but in the course of her consideration of the application she did address the factors which are relevant to admissibility under 114(1)(d) namely those which are found in section 114(2). It rather looks as if she did that because the application was dealt with on the footing that those 114(2) factors were relevant to the 116 application. In fact they are not. Section 116 says that if the various different circumstances or conditions which are there set out exist, the statement is admissible, subject only to the Court's power to exclude it under section 78 of the Police and Criminal Evidence Act, that is to say on the basis that it would render the proceedings unfair, or under section 126 of the 2003 Act on the grounds that if it were admitted it would occasion an undue waste of time insufficiently balanced by the case for admitting it.

16. That said, however, the Recorder's enquiry into the section 114(2) factors, together with her very proper concern that practical justice should properly be done to both sides in this case, led her to enquire in the course of this application what the real issue in the case was. She was absolutely right to make that enquiry. Courts are and should be increasingly concerned to identify the issues in a case and to focus the trial upon them. It is one of the underlying principles of the Criminal Procedure Rules that both the court and all parties have an obligation to do so.

17. This defendant was under a statutory obligation to lodge a defence case statement - the obligation is created by section 5 of the Criminal Procedure and Investigations Act. Such a defence case statement is required among other things to identify the matters of fact on which he takes issue with the Crown, that is to say to identify the issues - see section 6(1)(b). This defendant had lodged no defence case statement at all. No excuse, reasonable or otherwise, for that failure has ever been suggested. He had, however, at the case management hearing which we have mentioned, through counsel, said in court and on the form which was completed to record what had happened, that he would "consider" a plea to simple possession. That statement could only have been made on the defendant's instructions. Those two factors (the absence of the defence case statement and what had been said at the management hearing) led the Recorder to enquire in the course of argument from counsel what the issue was. Counsel rightly chose his words carefully. The Recorder at one point asked this question:

    "Are you now telling me that in fact he is now going to say to the jury that he was not in possession?

    Answer (from counsel): No, I am not saying that."

    A little later, counsel, again rightly and properly, told the Recorder:

    "As your Honour says, he has always accepted that he was in possession of the drugs."

    That identification of the issue, belated as it was, was proper and it was quite sufficient to demonstrate that it was in the interests of justice for Mr Chambers' witness statement to be read at least providing it was edited, as it was, to remove from it anything that was contentious. The reality was that the true issue in this case was whether an intent to supply was proved or not.

18. We ought to make clear that we do not reach that conclusion on the basis simply of what was said at the plea and case management hearing about the possibility of a plea of guilty to possession. We reach it because what had there been said was in fact entirely consistent with the defendant's case and with what the issue actually was. Whether the terms of what was said at the case management hearing were a sufficient admission of possession to be proved is, as it seems to us, a moot point. It will depend very much on exactly what is said and on the circumstances of each case and each case needs individual examination. At one end of the scale a hypothetical discussion between counsel or an enquiry of counsel for the Crown "Would the Crown accept a plea to such and such if it were offered" is clearly not an admission which could be proved against the defendant. At the other end, a plea of guilty in open court certainly is. In R v Hayes [2005] Cr.App.R 33 at 557, a letter from solicitors advancing a plea to a lesser count was also held to be admissible at least for the purposes of cross-examination to contradict contrary evidence given at the trial. Whether a suggestion of a plea at a case management hearing is or is not a provable admission or is or is not a safe basis for identifying what the issue is will vary from case to case. We do not need to explore that in the present case because of the other material which plainly identified the issue for the Recorder. Moreover, what the Recorder had properly been told once she enquired into what the issue was, was in due course confirmed in the trial. The defendant gave evidence. His case was that the drugs had indeed been in his trouser pocket. He gave an explanation for their being there. His explanation was that there had been some kind of scuffle or altercation in the club and at the end of it he had spotted a matchbox on the floor, he had picked it up to enquire of the people near him whether they had dropped it, no one claimed it so he tucked it away in his pocket and thought no more of it. That was his explanation for his possession of the drugs. If the jury accepted it, it no doubt meant that the intent to supply had not been proved. Those clearly were the defendant's instructions. That was his case. It would be quite wrong for us to assume that his case had changed when Mr Chambers' witness statement was admitted and the exchanges which we have already mentioned demonstrate otherwise.

19. All that confirms that the true issue in the case was not possession but intent to supply. That in turn means that it was plainly in the interests of justice for the uncontentious matter of possession to be proved by the Crown by the admission of the edited witness statement of Mr Chambers. To hold otherwise would not be to do justice; it would rather be to afford a defendant an escape on purely technical grounds. Mr Lynn would submit that to admit the evidence is to reverse the burden of proof in a criminal case. That submission, we are satisfied, is wrong. There is no question of relieving the Crown of the duty of proving the essential elements of the case. The question is not whether it is for the Crown to prove it, but how the Crown shall be permitted to prove it. If parts of the Crown's evidence are in dispute, it is quite likely that it will not be in the interests of justice to permit those parts to be proved by the reading of a hearsay statement when the witness cannot be cross-examined and properly challenged. But if parts of the Crown's case are not in dispute then it is plainly in the interests of justice that those parts shall be permitted to be proved by them by means of the hearsay statement as in this case.

20. We have had regard also to Mr Lynn's proper but perhaps rather faint submission that there was potential for injustice because he might have wanted to cross-examine the security guard as to what he had been told by other people in the club with a view to seeing whether that confirmed that there had been or might have been some kind of scuffle of the kind that the defendant was asserting. That was not a suggestion which was made to the Recorder and with all respect we do not regard it as realistic. Enquiry into what the security guard had been told by other people would in any event be asking a question which could only be answered by hearsay evidence. Quite apart from that in the present case any enquiry as to what the security guard had been told by others was most unlikely to be asked. If his original statement was right what he had been told by others was that the defendant had been seen putting his hand down his trousers as if to field the drugs which, according to the security guard, had been found there.

21. It follows from all those reasons that although we are satisfied that the Recorder erred in holding that such steps as were reasonably practicable to take had been taken to find Mr Chambers and thus in finding that the statement could be read under section 116(2)(d), it is plain that the statement was admissible under section 114(1)(d). In those circumstances this conviction is not arguably unsafe. For those reasons this appeal against conviction is dismissed.