England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		16 January 2009

1. LORD JUSTICE KEENE: These appeals against conviction raise issues as to the admission of a particular form of hearsay evidence at trial under the provisions of section 114(1)(d) of the Criminal Justice Act 2003 ("the 2003 Act"). There were originally other matters that were going to be pursued before this court in relation to the admission of bad character evidence in respect of the appellant Sadiq, and also an application in respect of sentence in respect of Sadiq, but both those matters have been abandoned before this court.
2. The appellants were convicted on 12 November 2007 at Reading Crown Court before HHJ Smith of attempted murder. These were convictions by a majority of 10 to 2. The trial was a retrial, there having been an earlier trial before the same judge between 15 January 2007 and 21 February 2007 at which the jury had been unable to agree upon any verdict. Upon conviction at the retrial, both appellants were sentenced to imprisonment for life, with a period of 20 years imprisonment being specified as the minimum in the case of Sadiq, and a period of 18 years specified in the case of Hussain.
3. There was no doubt that the victim, a man called Tanvir Rashid, had been shot twice by somebody on the evening of 4 June 2005. He was shot in the arm and then in the head, and there was no dispute that this was done with the necessary intent for attempted murder. There was also no issue that those responsible had been the occupants of a Ford Mondeo car at the scene. The issue was whether these two appellants were the perpetrators of the offence. Both denied being involved and both relied upon alibi evidence. Mr Rashid was shot shortly after leaving a public house called the Happy Wanderer in High Wycombe at about 11.20pm. He had only recently been released from prison, and the jury heard that he had been involved in drug dealing and other offences. As a result of the shooting, he was paralysed and unable to open his mouth. He learnt to communicate by using an alphabet board, with an intermediary working through each letter of the alphabet until she reached the letter which he wanted when he would nod, and by this method a number of video recorded statements were taken by the police. Those were reduced to written form, and that, plus part of the first video interview, became, by agreement, his evidence-in-chief at the first trial. By the time of that trial, his condition had improved to the extent that he was able himself to point to letters on the alphabet board. That was what he did when he was cross-examined at the first trial, a cross-examination which occupied a number of days via a video-link to his nursing home.
4. After that trial and before the retrial, Mr Rashid indicated that he was not prepared to give evidence again. There was some evidence of him telling his doctor that he had found the experience of giving evidence extremely harrowing and demanding, but in any event it had been made sufficiently clear by him in late summer 2007 that he was unwilling to testify at the retrial, and this led to the Crown giving notice, dated 19 August 2007, that it would seek to have the evidence given by Mr Rashid at the first trial admitted as hearsay evidence under section 114(1)(d) of the 2003 Act. That is the provision which renders hearsay evidence admissible if "the court is satisfied that it is in the interests of justice for it to be admissible".
5. The Crown sought to rely on that paragraph of section 114(1) because it acknowledged in its notice that it could not maintain that Mr Rashid was unfit to be a witness. His health had remained much as it had been at the time of the first trial. Nor was there any basis for asserting that his unwillingness to testify was through fear (see section 116(2)(e)). What the Crown proposed and what in the event happened at the retrial was that his evidence-in-chief should be presented exactly as it had been at the first trial. As for cross-examination, transcripts of the cross-examination of him at the first trial had been obtained, and it was proposed that they should be read to the jury.
6. At paragraph 9 of its notice the Crown went through the factors to which the court was obliged under section 114(2) to have regard, and set out its case on each of them. That application, which was opposed, was heard on 4 October 2007 by Judge Smith, shortly after she had questioned Mr Rashid over a video-link in the absence of the jury. He again indicated that he would not give evidence at the retrial. The judge tried to elicit the reasons for his refusal to testify but without success:

"Question: What is your reason for not doing your duty?

Answer: (Answer spelt out) I do not want to.

Question: You are not a child, Mr Rashid, you are an adult. Why do you not want to give evidence?

Answer: (Answer spelt out) I don't wish to discuss why, but I have my reasons."

7. The judge told him that he would be in contempt of court, and she ordered him to give evidence. She also gave him time to reconsider. But he remained obdurate, indicating that he would not give evidence and would not give the reasons why he would not. We are told that, immediately thereafter, the Crown invited the defence to say whether they were able to identify any other means which had been overlooked to secure the presentation of this witness's evidence, but none was forthcoming.
8. Having then heard argument on the Crown's application under section 114, the judge decided to grant it. Her ruling is relatively brief. She drew express attention to section 114(2)(a)-(i), the list of factors, and adopted the submissions made by the Crown at paragraph 9 of its skeleton argument, leading her to conclude that it was in the interests of justice for Mr Rashid's evidence to be adduced as hearsay in the form proposed.
9. Before turning to the reasons which, by way of incorporation, the judge gave for her ruling, it is necessary to deal briefly with the evidence of Mr Rashid and the other evidence in the case. He described going to the Happy Wanderer public house that evening as a result of a phone call made by him to a man called Navid, someone he had known for a number of years and who he later saw as the driver of the Mondeo. He later identified Navid as the appellant Hussain. Rashid's evidence was that the object of the meeting at the public house was for him to retrieve a mobile phone for a man called "Andy". He went outside the public house when Navid phoned him, and saw a purplish Mondeo, which he knew to be Navid's car. Navid was in the driver's seat. The appellant Sadiq was in the back and another Asian in the front passenger seat. He got next to the car, when Sadiq shot him in the arm through the open car window. He had a clear unobstructed view of the car. At a later identification parade he also identified Sadiq as the person who shot him.
10. He was cross-examined at the first trial at some length about events earlier that day. It is unnecessary to go into detail about those events, save to say that he denied having threatened Hussain with a knife or having forced Hussain to take him and others to a house where they had assaulted a man known as "Shaggy".
11. Mr Rashid's evidence, as the Crown acknowledged, was very important evidence. He was the only witness who gave direct evidence about the identity of the two men involved in the shooting. On the other hand, there was an amount of circumstantial evidence relied on by the Crown. There was evidence that the Mondeo had been sold to the appellant, Hussain, on 2 June 2005, two days before the shooting, and that Hussain had returned on 4 June itself (the day of the shooting) to collect the log book. Hussain's own evidence was that he had sold the car to two unidentified Asian men for cash earlier on the evening of 4 June.
12. There was evidence from a witness who had seen two young Asian men at about 11pm on 4 June standing by a medium-size dark red or maroon car in a road, and at the same location in that road where the Mondeo was parked and set alight about 30 minutes after the shooting. This witness saw one of the men using a mobile phone, and he identified the man subsequently as the appellant Sadiq, although he conceded in cross-examination that he could not be absolutely certain.
13. Hussain had had a mobile phone, the number of which ended in 837, which had been in his possession at about 4.30pm. That mobile phone had been called by the victim and his brother shortly before the shooting, the brother's evidence being that that was from the public house. Indeed, the brother's evidence was that he spoke with Hussain, recognising his voice. Hussain's own evidence was that that phone (the number ending in 837) had been taken from him during the afternoon by the victim himself and the victim had not returned it. At interview, Hussain had said it had been taken from him during the morning, but that was inconsistent with indisputable evidence that it was in his possession during the afternoon. There was also ample evidence of motive for Hussain, given the evidence of threats to him by the victim.
14. Sadiq at trial, as foreshadowed in his defence statement, had stated that he had been at his sister's house close to the public house in High Wycombe at the time of the shooting, having travelled down that day with a friend, Marcus Jamal, who gave him a lift. There was, however, cell site information to show that Mr Jamal's phone did not travel with Sadiq's phone. There was other expert evidence derived from the use of mobile phones which we do not propose to summarise in this judgment. There was also evidence about Sadiq's involvement in the drugs trade and about his use of a false alibi on a previous occasion.
15. Having said all that, there is no doubt that Mr Rashid's evidence was of great importance for the reason which we have given. The Crown, in making its application under section 114, described him as "the most important witness" in its case. The judge, in her ruling, referred in effect to each of the section 114(2) factors in respect of this evidence. It had, assuming its truth, she said, obvious probative value as to the guilt of these two defendants. There was a wealth of other evidence consistent with it. It had an obvious importance to the case as a whole. As to paragraph (d) of section 114(2), the circumstances in which the statement was made, the judge adopted the Crown's submission that they could not have been more formal nor better recorded, having been presented on oath in court at the first trial, cross-examined upon and recorded verbatim.
16. There was acknowledgment that Mr Rashid in a number of respects was open to challenge as to his reliability, but that had been explored in cross-examination at the first trial and was available. The evidence as to the making of the statement was obviously reliable. The reason why oral evidence was not being given was identifiable, but a verbatim account of oral evidence previously given was available. It had been challenged on that previous occasion, and the defendants were not prejudiced. Though the jury would not have the benefit of seeing the victim's demeanour under cross-examination, that would, in the unusual circumstances of this case, not have been of any real assistance to the jury because of the witness's paralysis and the laborious method of answering in cross-examination by pointing to the alphabet board. That then in essence was the judge's ruling and her reasons for it.
17. That ruling as to the interests of justice is now challenged by both appellants. The points raised cover much the same ground and we mean no disrespect to either counsel by treating the submissions made as one entity. It is contended that the judge's decision on this matter was plainly wrong and fell outside the scope of her discretion. The complainant, Mr Rashid, it is emphasised, was available and able to give evidence at the retrial, and yet gave no reason to the court for his refusal to do so. It is submitted that there ought to be a good reason identifiable before it is accepted that hearsay evidence should go before the jury when a witness makes a voluntary decision not to testify but is available to do so. That was not the case here. One simply does not know why Mr Rashid refused to testify. It may be, it is said, that he realised that his evidence at the first trial was mistaken, or even that he knew that it had been false and now had second thoughts about giving false testimony. But if the procedure adopted in the present case were approved, it would open a gateway for reluctant witnesses to refuse to testify at a retrial.
18. Secondly, it is argued that this was vital evidence highly prejudicial to the appellants. It was the only direct evidence identifying the appellants as the perpetrators. Yet, by the method adopted, they were deprived of an opportunity to cross-examine on it. That was contrary to the interests of justice, and indeed in breach of their right to a fair trial enshrined in Article 6 of the European Convention on Human Rights (see the decision in Luca v Italy [2001] Crim LR 747). It should not be assumed that Mr Rashid would necessarily have given the same evidence at the retrial.
19. Thirdly, the jury at the retrial were, as a result of the procedure adopted, deprived of the opportunity of assessing this witness's demeanour. The jury at the first trial had had that advantage and yet had been unable to agree that the appellants were guilty. It was wrong for the retrial jury to be placed in a worse position when it came to assessing the evidence. Mr Malik, on behalf of Mr Hussain, does not accept that Mr Rashid did not have a demeanour, although he acknowledges that it was a much more limited demeanour than would normally be the case with a witness. It is accepted that Mr Rashid's face was incapable of smiling, and that he could not roll his eyes. His face was, in Mr Malik's words, a blank canvas. It is said that sometimes at the first trial, however, he would pause when pointing to the alphabet board, and that might have been seen as being of significance by a jury.
20. Finally, the complainant was, in any event, a witness of very dubious reliability -- a hardened criminal, as Mr Taylor for the appellant Sadiq has put it, with a number of previous convictions, and someone who clearly was not being truthful about certain matters such as the earlier events on 4 June and the day before. That, it is submitted, made it all the more important that his identification evidence should be tested in cross-examination before the jury at the retrial.
21. We begin, as we must, by reminding ourselves of this court's limited role when considering a trial judge's ruling under section 114(1)(d). As counsel for both appellants recognise, it is well-established that this court will only interfere with such a ruling if the ruling falls outside the range of reasonable decisions at which the judge could properly have arrived, or if the judge has applied the wrong principles: see Musone [2007] 2 Crim App R 29, BAILII: [2007] EWCA Crim 1237, especially paragraph 21; Finch [2007] 1 WLR 1645 at paragraph 23; and Y [2008] 1 WLR 1683; [2008] 1 Crim App R 34.
22. The reason for such judicial restraint by this court is that the trial judge is normally in the best position to assess what is or is not in the interests of justice in the context of the trial with which he or she is dealing. We do not see that the judge here can be said to have applied the wrong principles. She made express reference to the relevant statutory tests, and it is not alleged that she failed to take those considerations into account. The issue therefore becomes whether she arrived at a decision which fell outside the range of decisions legitimately open to her.
23. The arguments advanced by the appellants on this issue are powerful ones, and the situation which arose at this retrial has caused us some concern. It is not so much the fact that the first jury, having heard the victim's testimony, were unable to agree and that the same testimony is then put in as hearsay at the retrial that forms the problem. That is a situation after all which may well arise in many other situations on a retrial that has come about because of a failure of an earlier jury to agree, and where a witness, including the principal prosecution witness, does not then give oral evidence. Thus, if such a witness has died since the original trial or become mentally incapable of testifying, or is unwilling to do so at a second trial because of fear, it may be proper for a transcript of the witness's evidence at the original trial to be admitted at the retrial, and this court has known instances of that occurring. That would be so even though the second jury would not have the advantage which the first jury had had of hearing and seeing the witness. The mere fact that the witness's evidence is vital to the Crown's case does not mean that it should be excluded: see the decision under the Criminal Justice Act 1988 provisions of Al-Khawaja [2006] 1 All ER 543, especially paragraph 26. That case also shows that such a situation does not necessarily involve any breach of Article 6 of the ECHR.
24. Rather, our concern has derived from a particular feature of the present case, namely that the main prosecution witness was able to testify but refused to do so, and gave no reason to the court for so refusing, although it is right that there was some evidence that he had told his doctor that he could not face the ordeal of giving evidence again. That, given his special personal circumstances, would be perhaps understandable. But this court simply cannot be seen as regarding it as normally in the interests of justice that an important witness's evidence should be given under the hearsay provisions of the 2003 Act when he simply refuses to testify and will not provide a good reason for his refusal when he is available and capable of giving evidence.
25. However, it seems to us that there were here some very exceptional circumstances. Above all, Mr Rashid was a witness who, in any event, was incapable of giving oral evidence in a normal way. His evidence-in-chief would, in any event, have been provided by way of the texts of his video interviews, as happened at the first trial. His cross-examination answers would, if he had given evidence at the retrial, have been provided through a wholly artificial process, using the alphabet board. The judge had seen him at the first trial over which she also presided, and was entitled to form the view, which she evidently did, that the jury would get very little assistance from what is normally described as a witness's demeanour. That was a highly relevant factor to which she properly had regard. It meant that any prejudice or disadvantage in terms of a fair trial from the absence of oral testimony was greatly reduced.
26. One of the reasons why, over the years, the courts in this country formulated a general rule excluding hearsay evidence was because the jury did not have the benefit of seeing and hearing the witness testify when seeking to judge credibility: see for example Blastland [1986] AC 41 at page 54 in the speech of Lord Bridge of Harwich. That consideration, very unusually, would have had little significance in the present case.
27. One of the other justifications for the common law hearsay rule identified by Lord Bridge in that same case was the fact that hearsay evidence had not been tested in cross-examination. Another often mentioned was that it had not been given on oath. Those drawbacks do not exist in the present case for the very obvious reason that the evidence in question had been given in a court of law on oath on a previous occasion and had been tested in cross-examination, the record of which went before the jury at retrial. That is both relevant under section 114(2)(d) and (h), and it is a factor to which the Strasbourg Court attached importance in the case to which we have referred, Luca v Italy. Moreover, Mr Rashid's character was fully before the jury, and that was bound to happen, as the judge well knew, from the first trial.
28. Mr Rashid's evidence was undoubtedly very important evidence, but it was far from being the only evidence against these appellants. As we have indicated earlier, there was powerful circumstantial evidence against them as well.
29. In addition, it must be recognised that the interests of justice under section 114(1)(d), like a fair trial as required by Article 6, bring in the public interest in crimes being tried as well as the interests of the accused. Patently if this evidence went in, it required a careful direction to the jury alerting them to the limitations of this hearsay evidence. Such a direction was given by the judge. She told the jury to examine Mr Rashid's evidence with particular care, bearing in mind the limitations, and she emphasised to them the fact that they had not had the opportunity of seeing him respond under cross-examination. The judge said that, when one saw a witness, one got a clearer picture as to his accuracy and honesty. So the jury were alerted properly to the disadvantages of having evidence only available in this hearsay form.
30. In the present case, it seems to this court that the prejudice to the appellants from the admission of this evidence in this particular form was very slight indeed, and was outweighed by the public interest in it forming part of the total evidence put before the jury. Certainly, in our judgment, it was open to the trial judge properly to form that view.
31. In those circumstances, this court is satisfied that the judge's ruling was one available to her, and that the convictions of these two appellants are safe. The appeals against conviction are therefore dismissed.
32. As I have indicated at the outset, the application in respect of sentence by Sadiq has been withdrawn.