England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13 May 2010

LORD JUSTICE PITCHFORD:

1. This is an appeal against conviction by leave of the single judge. On 23 September 2009, in the Crown Court at Leeds, before His Honour Judge Taylor and a jury, the appellant was convicted of rape.
2. The single ground of appeal concerns the admission of hearsay evidence under the interests of justice provision of section 114(1)(d) of the Criminal Justice Act 2003.
3. It is necessary to provide only a short summary of the evidence which emerged at trial. On 11 April 2009 the complainant attended a nightclub in Leeds City Centre with some of her friends. She left the nightclub at approximately 3.35am. She was alone. She had become separated from her friends and thought, at least, that she would meet her half-sister with whom she proposed to return home. She walked down Cloth Hall Street and after a time sat down on a doorstep. She was joined by the appellant. Closed-circuit television footage depicted the complainant and the appellant talking together and walking down the street. Scientific evidence later established that the complainant had consumed a very substantial quantity of alcohol. The count-back calculation gave her a proportion of alcohol in her blood in the vicinity of 220mg per 100ml of blood.
4. In circumstances the complainant was unable to explain, she ended up in a doorway. She said she was forced against a wall. She recalled that the man had grabbed her hair. At one stage she was aware that she was screaming. Shortly after these incidents, she told her half-sister that the man had banged her head against the building alongside, at which he said, "Shut up, you fucking bitch". As to the act of rape, she had a partial recollection that the appellant had forced himself upon her from behind, that he achieved penetration, that she suffered pain, but that she did not otherwise know for what length of time the ordeal continued.
5. As the sexual activity was taking place in the doorway, three young men walked past. They did not observe these events, but were engaged in consuming takeaway food. They were dimly aware of a couple apparently having sexual intercourse in a doorway. A short distance after they passed, however, each of them stopped when hearing a piercing scream which in evidence was described as the scream of someone who was terrified. They went back and gave some comfort to the complainant. As they did so, a man in a hooded top ran past them and away.
6. Later that morning the complainant was medically examined. She had no injuries. This was consistent only with non-consensual sexual intercourse, but she had in addition scratch marks to her arm. Swabs revealed trace amounts of semen. Those trace amounts were sufficient to lead to the appellant. They were not, however, admissible in proof of the offence.
7. When interviewed the appellant made no comment, save that he produced a prepared statement saying that the complainant had kissed him, that they had embraced, and that they went into a doorway and engaged in consensual sexual activity. On that occasion he had nothing to say about the complainant's screams and the reason for them, but he was later to say in evidence that she had accidentally banged her head while they were engaged in sexual activity, and that as a result he lost his nerve and ran away. He denied in evidence achieving penetration and suggested that the traces of semen found may be attributable to sexual activity that had taken place some distance of time before these events, which had been transferred by his fingers.
8. The application to which we earlier referred for the admission of hearsay evidence concerned two police officers and one of the three young men who walked past the couple. The hearsay evidence comprised statements made by Elizabeth Archer who on the night of the incident was tending a burger van close to the doorway where the incident occurred. As the trial judge described the evidence in his ruling on 16 September 2009, Elizabeth Archer was interviewed by Inspector Jessop who was making enquiries into this matter. She told him that she thought she saw a couple who were arguing. However, to Inspector Jessop she gave false details about herself. When eventually she was traced to the burger van and was interviewed, she refused to give a statement to the police and would not confirm anything that she had seen or heard. She said to the officer who visited her on that occasion, "All I saw was a man and woman in that doorway. She was on the floor and he was over her. I did not see anything else".
9. Adam Benson said that after he and his two friends had returned to assist the young woman, the woman from the burger van came over and said that she had seen what had happened but had been too scared to come across on her own. As the judge observed in his ruling, Adam Benson did not describe direct speech, but the narrative, as he understood it, which Elizabeth Archer had used.
10. The judge went on to consider each paragraph of section 114(2) of the 2003 Act in order to test whether it was in the interests of justice to admit the evidence. First, as to probative value, the learned judge came to the conclusion that its probative value was considerable. He then observed:

"I take into account what is said on behalf of the [appellant], that because it is only three statements without any more detail, that it does not have probative value and it is not valuable in understanding the other evidence in the case, but I respectfully disagree. I think it is valuable for understanding the other evidence that has been given by the three men and by the complainant herself."

As to paragraph (b), what other evidence there was available, the judge observed that there was the evidence of the three men and of the complainant and of the appellant. He continued:

"All three other accounts will be taken into account by the jury and this matter, if I allow it to be admitted, can also add to that evidence and add to the picture that has been given."

As to paragraph (c), the judge concluded that the evidence was of "substantial importance from an eyewitness who over a period of time, the minutes that this incident must have occurred" observed events and was thus able to add to the other evidence. As to paragraph (d), the circumstances in which the statement was made, the judge concluded that the account to Mr Benson was made within minutes, when events would have been extremely fresh in the witness's mind. Of reliability, in paragraph (e), the judge noted that it had been suggested that the evidence would be unbiased as between the complainant and the appellant. He took into account that the witness had given a false name and address, it being clear that she did not wish to become involved. On the other hand, he concluded, that fact did not detract from what she had said to Adam Benson or indeed to Inspector Jessop. In considering the reliability of the making of the statement under paragraph (f), he concluded that oral evidence could be given of that matter. Dealing with the amount of difficulty caused to the appellant in challenging the statement under paragraph (h), the judge accepted that there would be some difficulty. He would in due course direct the jury as to that difficulty, but nonetheless he took the view that the evidence added to the picture and provided probative value. Finally, as to any possible prejudice to the appellant, the judge concluded that the appellant could give evidence.

11. Mr Pitter, who represented the appellant at trial, has helpfully referred in his written submissions to previous decisions of the court in which the principles for exercise of the interests of justice test in section 114(2) have been developed and explained. It is unnecessary for us to consider that reasoning in detail, but it is right that we should mark the decisions to which he referred. They are: R v Musone [2007] 2 Cr App R 29, R v Adams [2008] 1 Cr App R 35, R v Z [2009] 1 Cr App R 34, R v Y [2008] 1 Cr App R 35, and R v Sadiq and Hussain [2009] EWCA Crim 712. Some of the principles extracted by Mr Pitter from these cases, and which we accept, are as follows:

(1) the court will not readily interfere with the judge's exercise of judgment under section 114(2) unless it is apparent that there has been an error of law or approach, or the decision fell outside the reasonable range;

(2) rarely will hearsay evidence be admitted when the purpose is to circumvent the requirements of section 116 of the Criminal Justice Act 2003;

(3) caution must be exercised before admitting hearsay evidence when the result would be to place a defendant at a serious disadvantage upon an issue of importance;

(4) the interests of justice test must be fully, realistically and not merely nominally met.

In short, Mr Pitter submits that the statements were capable of having a prejudicial effect upon the jury's judgment on whether the activity between the complainant and the appellant was consensual or not. It would be impossible for the jury safely to conclude what it was that Mrs Archer saw or was implying that she saw. That prejudice could only be removed by the production of the witness who would then explain the remark which she made to Mr Benson and to Inspector Jessop. Secondly, Mr Pitter submitted that the appellant was unable to challenge the evidence in any meaningful way since it was impossible to know what it was Mrs Archer was implying what she saw by the remark which she was said to have made to Mr Benson. Thirdly, the prosecution had made no attempt to summon the witness but had given up when she made clear her intention not to attend to give evidence and had enlisted the support of a solicitor in that regard. Fourthly, the evidence had no real probative value which was capable of establishing a public interest in its admission.

12. It may be that the contemporaneous reaction of an impartial bystander to events which are unfolding will provide valuable evidence on the question how those events should be interpreted. We anticipate that it was in this area that the judge was persuaded by Mr Kershaw on behalf of the prosecution that the evidence had probative value. Nevertheless, we accept Mr Pitter's submissions. With respect to the experience of the learned judge, we are sure that he attributed to the evidence an importance which it did not deserve and which gave insufficient weight to three insurmountable problems in reaching an assessment of the interests of justice. First, the jury had no basis upon which to judge what part of the evidence was reliable and what was not. What the court did know was that this witness was implacably opposed to giving assistance which, if anything, gave an indication of a lack of reliability. Secondly, the appellant was unable to deal with the evidence because there was no way of knowing exactly what it was that may have made the witness scared. The evidence in effect begged the question on the very issue to which the judge suggested that it went. Thirdly, the witness was in any event vague and the jury would inevitably have been involved in speculation as to what it was she meant or saw.
13. It is apparent to us that by the time the judge came to sum up, he too doubted the value of the hearsay evidence. By that stage Mr Benson had given evidence. He did not say that Mrs Archer had seen what happened. His evidence was: "The dog seller came over and said she was going to come across and see what was going on but was too scared to come on her own". As given, the evidence showed that Mrs Archer did not know what had happened. That was why she proposed to go over to look. Like all the witnesses, her attention would have been drawn to the complainant's piercing scream because her burger van was metres away from the doorway where this incident occurred. No doubt it was the screams which caused her to consider going to investigate. The appellant accepted that the complainant did scream because, so he said, she accidentally banged her head. It was her screams, he said, which caused him to run away. Accordingly, the issue for the jury was whether the bang on the head was an accident or an act of violence in the course of a rape. The hearsay simply could not assist on this issue.
14. If the evidence had any probative value in prospect at the time of the application which, as we have indicated, we doubt, it had none at all by the time the jury retired. Nor did the judge suggest that it did have, or might have, any probative value. He simply said this:

".... such evidence is second best evidence, because it is more difficult for you to assess. The witness gave false details to the police, and has not attended court, for reasons you have heard. Consequently, her evidence has not been tested by cross-examination, and you have not had the opportunity of observing the witness to assess her truthfulness and reliability. Bearing those matters in mind, it is for you to decide to what extent it assists you in deciding what happened that night."

Mr Pitter submitted that if this was the judge's view, then the jury needed an explicit direction from the judge to ignore the evidence as being of no assistance to the issue of consent. That would, we think, have been a wise course.

15. We have to decide not merely whether the evidence should have been admitted, but whether, having been wrongly admitted, it can realistically have had any unwelcome bearing on the outcome of the trial. In our view the only person on whom this evidence could have had the slightest prejudicial effect was Mrs Archer herself. We cannot imagine that it had any tendency to prejudice the jury towards the appellant's case because the evidence as given was entirely neutral.
16. For those reasons we conclude that there was, in fact, no unfairness resulting from the admission of the hearsay evidence. Accordingly we have no doubt that the conviction is safe and that the appeal must be dismissed.