England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Crown Court at Gloucester, (H.H.J. Tabor QC) T20117018 & 073 (Riat)
The Crown Court at Mold sitting at Chester (H.H.J Dafydd Hughes) T20117235 (Doran)
The Crown Court at Kingston (Mr Recorder Holland QC) T20117009 (Wilson)
The Crown Court at Oxford (H.H.J. Eccles QC) T20110332 (Claire)
The Crown Court at Southampton (H.H.J. Hope) T20107228 (Bennett)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11/07/2012

Lord Justice Hughes :

1. We have heard consecutively five cases which involved the admission of hearsay evidence. They provide a further opportunity for this court to consider the correct approach in English law to such cases under the decision of the Supreme Court in Horncastle & Others [2010] 2 AC 373; [2009] UKSC 14, read, as Lord Phillips explains at [13] that it must be, together with the judgment of this court in the same case (also [2010] 2 AC 373, and [2009] EWCA Crim 964).

The Strasbourg jurisprudence

2. As is well known by now, Horncastle involved, both in this court and subsequently in the Supreme Court, careful analysis of the impact on English law of the Strasbourg jurisprudence relating to Article 6(3)(d) of the European Convention on Human Rights. Since the decision of the Supreme Court there has been a further development at Strasbourg, because the ECtHR's chamber decision in Al-Khawaja & Tahery v United Kingdom has been further considered by the Grand Chamber: 26766/05, [2011] ECHR 2127. There is a thorough analysis of the relationship between Horncastle and Al Khawaja & Tahery in the judgment of this court in Ibrahim [2012] EWCA Crim 837, to which we pay grateful tribute; it would not be helpful to repeat it. For the purposes of a Crown Court in England and Wales dealing day to day with cases of this kind, five propositions are central:

i) the law is, and must be accepted to be, as stated in UK statute, viz the Criminal Justice Act 2003 ("CJA 03");

ii) if there be any difference, on close analysis, between the judgment of the Supreme Court in Horncastle and that of the ECtHR in Al-Khawaja & Tahery, the obligation of a domestic court is to follow the former: see R(RJM) v SSWP [2009] 1 AC 311 at [64] and Ibrahim at [87];

iii) there are indeed differences in the way in which principle is stated, but these may well be more of form than of substance; in particular, the importance of the hearsay evidence to the case is undoubtedly a vital consideration when deciding upon its admissibility and treatment, but there is no over-arching rule, either in the ECtHR or in English law, that a piece of hearsay evidence which is 'sole or decisive' is for that reason automatically inadmissible;

iv) therefore, both because of point (ii) and because of point (iii), the Crown Court judge need not ordinarily concern himself any further with close analysis of the relationship between the two strands of jurisprudence and need generally look no further than the statute and Horncastle; we endeavour to set out below the principal questions which must be addressed;

v) however, neither under the statute, nor under Horncastle, can hearsay simply be treated as if it were first hand evidence and automatically admissible.

Hearsay: the framework

3. As everybody knows, the CJA 03 gave effect to the report of the Law Commission, itself the product of long consultation and deliberation. The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness' interview, that person cannot be asked a single exploratory or challenging question about what is said. From the point of view of a defendant, the loss of the ability to confront one's accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interests of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe.
4. In Horncastle in this court there are a number of references to hearsay evidence which is either "demonstrably reliable" or is "capable of proper testing". The two expressions are several times used in tandem. The clearest use of the language is [57] where this court said:

"57. Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures."

The two expressions also appear elsewhere in the judgment, for example at [45], [79] and (in the context of fear cases) [86].

5. The written arguments in several of the cases now before us suggest that this language may be being understood to mean that hearsay evidence must be demonstrated to be reliable (i.e. accurate) before it can be admitted. That is plainly not what these passages from Horncastle say. The issue in both this court and the Supreme Court in Horncastle was whether English law knew an overarching general rule that hearsay which could be described as the sole or decisive evidence was not to be admitted, or would inevitably result in an unfair trial if it was. In answering 'no', this court pointed out repeatedly that any such inflexible rule would exclude hearsay which was perfectly fair because either it did not suffer from the dangers of unreliability which often may attend such evidence, or (if it did) there were sufficient tools safely to assess its reliability. This court was far from laying down any general rule that hearsay evidence has to be shown (or "demonstrated") to be reliable before it can be admitted, or before it can be left to the jury. That is to take only half of the paired expressions as if it represented a separate and universal rule. If that had been the rule adopted, the appeals under consideration in Horncastle would probably not have been dismissed. Nor can that be the rule, for it would mean that hearsay evidence has to be independently verified before it can be admitted or left to the jury. That would be to re-introduce the abolished rules for corroboration, which the Law Commission expressly, and Parliament implicitly, rejected; indeed in some cases it would render the evidence admissible only when it was unnecessary.
6. The true position is that in working through the statutory framework in a hearsay case (below), the court is concerned at several stages with both (i) the extent of risk of unreliability and (ii) the extent to which the reliability of the evidence can safely be tested and assessed. We give simple examples only, which are in no sense exhaustive. The circumstances of the making of the hearsay statement may be such as to reduce the risk of unreliability, for example if it is spontaneous: a very clear illustration is given in Horncastle in this court at [61]. The disinterest of the maker of the statement may reduce the risk of deliberate untruth. Independent dovetailing evidence may reduce the risk both of deliberate untruth and of innocent mistake: an illustration is given in Horncastle by the Supreme Court at [91]. The availability of good testing material (admissible under section 124) concerning the reliability of the witness may show that the evidence can properly be tested and assessed. So may independent supporting evidence.
7. The statutory framework provided for hearsay evidence by the CJA 03 can usefully be considered in these successive steps.

i) Is there a specific statutory justification (or 'gateway') permitting the admission of hearsay evidence (s 116-118) ?

ii) What material is there which can help to test or assess the hearsay (s 124) ?

iii) Is there a specific 'interests of justice' test at the admissibility stage ?

iv) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s 114(1)(d)) ?

v) Even if prima facie admissible, ought the evidence to be ruled inadmissible (s 78 PACE and/or s 126 CJA) ?

vi) If the evidence is admitted, then should the case subsequently be stopped under section 125 ?

8. Although there is no rule to the effect that where the hearsay evidence is the "sole or decisive" evidence in the case it can never be admitted, the importance of the evidence to the case against the accused is central to these various decisions.

Step 1: specific gateways for admission

9. It remains the default rule that hearsay is not admissible. Its admissibility must be justified under one or other of the statutory exceptions.
10. Most of the common law exceptions which are preserved by section 118 should these days give rise to relatively little debate; none arise in these cases.
11. The same ought to apply to business and similar records admissible under section 117; these also are not before us.
12. The more controversial cases are likely to be those covered by section 116(2): death, illness, absence abroad, the lost witness, and fear, or by the additional possible gateway in s 114(1)(d).
13. Note firstly that s 116(1)(b) imposes a pre-condition for admissibility: a witness whose statement falls for possible admission under section 116 must be identified: R v Mayers [2008] EWCA Crim 2989; [2009] 1 Cr App R 30. Likewise, section 123 imposes the pre-condition that the capability of the witness be proved.
14. Note secondly that s 116(5) contains a general exception: if the party which seeks the admission of the hearsay, or someone acting on his behalf, has caused the unavailability of the witness, the hearsay is not admissible.
15. The general principle underlying the preliminary gateway question in s 116 cases is clearly that the necessity for resort to second-hand evidence must be demonstrated. Illness, or, a fortiori death, may demonstrate such necessity. Absence abroad will do so only if it is not reasonably practicable to bring the witness to court, either in person or by video link. If the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing: see for example R v Adams [2008] 1 Cr App R 35 and R v Kamuhuza 173 JP 55.
16. In a case of fear, there are supplemental provisions in subsections 116(3) and 116(4). The first stipulates that 'fear' be widely construed; it includes fear for others and may include fear of financial loss. The second, however, imposes a specific secondary gateway: the court must be satisfied that it is in the interests of justice for the statement to be admitted. In deciding whether it is or is not in the interests of justice to admit it, every relevant circumstance is to be considered. In particular, the court must consider the content of the statement, and the risk of unfairness to any party which would ensue from its admission, especially as a result of difficulty challenging it. Further, the principle explained in [15] results in the specific requirement in s 116(4)(c) to consider the availability of special measures. That shows that the court should take all possible steps to enable a fearful witness to give evidence notwithstanding his apprehension. This may be impossible, but very frequently it is perfectly practicable; a degree of (properly supported) fortitude can legitimately be expected in the fight against crime. A court considering an application in respect of a witness said to be in fear should also note the observations of this court at [83]-[88] in Horncastle [2009] EWCA 964; [2010] 2 AC 373, which we append to this judgment. All these considerations illustrate in the case of fear the general principle applicable to all hearsay cases that second-hand evidence is only to be admitted if the trial will nonetheless be fair and any conviction resulting from it safe. The case of Wilson, which is before us and considered below, illustrates some of the practical considerations in a case where fear is asserted as the basis for an application to admit hearsay.

Step 2: credibility material under s 124

17. If a specific gateway for admission is passed, we suggest that a court should always at that point consider the vital linked questions of (i) the apparent reliability of the evidence and (ii) the practicability of the jury testing and assessing its reliability. Section 124 is critical at this point. It permits the challenging party not only to adduce evidence going to credibility which would have been admissible at his request if the witness had given evidence in person (s 124(2)(a)), and to put in evidence inconsistent statements by the witness (s 124(2)(c)), but also (with leave) to adduce evidence which would otherwise simply have been material put in cross examination, as to which answers going purely to credit would have been final: s 124(2)(b).
18. In our view, the judge will often not be able to make the decision as to whether the hearsay evidence be admitted unless he first considers, as well as the importance of the evidence and its apparent strengths and weaknesses, what material is available to help test and assess it. If it is the Crown which is seeking to adduce the evidence, and if the evidence is important to the case, the judge is entitled to expect that very full enquiries have been made as to the witness' credibility and all relevant material disclosed; that will not be confined simply to a check of the Police National Computer for convictions. If it is the defendant who is seeking to adduce the evidence, and the evidence is important to the case, the judge is entitled to expect that the defendant has supplied sufficient information about the witness to enable such proper checks to be made. Moreover, both counsel and the judge must keep the necessity for disclosure of section 124 material in mind throughout the trial and in the light of the way it develops.

Steps 3 & 4; any interests of justice test; s 114(1)(d) and 116(4)

19. We have already referred to the separate requirement of s 116(4) that in a 'fear' case the judge must be satisfied that the admission of the evidence is in the interests of justice, having due regard to, in particular, the contents of the statement and the difficulty in challenging it.
20. Section 114(1)(d) contains a general residual power to admit hearsay evidence which does not otherwise pass a statutory gateway, if the judge is satisfied that it is in the interests of justice for it to be admitted. If this gateway is invoked, the judge is specifically directed to have regard to the (non-exhaustive) considerations set out in s 114(2). There have been several cases on this gateway which it is not appropriate to review here. We observe only that it must not become a route by which all or any hearsay evidence is routinely admitted without proper scrutiny. That would be to subvert the express provisions which follow in ss 116-118. This court emphasised in D(E) [2010] EWCA Crim 1213 that s 114(1)(d) cannot be used routinely to avoid the statutory conditions for the admission of evidence which properly falls to be considered under ss 116-118.

Step 5: the power to refuse admission; s 78 PACE and/or s126 CJA 03.

21. Even when a statutory gateway is passed, and does not contain a specific 'interests of justice' test, section 78 Police and Criminal Evidence Act 1978 applies to evidence which the Crown wishes to adduce, and section 126 CJA 03 applies to all tendered hearsay.
22. The non-exhaustive considerations listed in s 114(2) as directly applicable to an application made under s 114(1)(d) are useful aides memoire for any judge considering the admissibility of hearsay evidence, whether under that subsection or under s 78 PACE, or otherwise.
23. Section 126 provides a free-standing jurisdiction to refuse to admit hearsay evidence. It does not apply to any other evidence tendered in a criminal case. If the evidence is tendered by the Crown, it stands in parallel to the general jurisdiction under s 78 PACE, which power is specifically preserved by s 126(2)(a) . It goes, however, further than s 78 because it applies also to evidence tendered by a defendant, which might, of course, be targeted either at refuting Crown evidence or at inculpating a co-accused.
24. The exact ambit of s 126 is not in question in any of our present cases and may need further consideration when it directly arises. The section makes specific reference in s 126(1)(b) to the possibility that hearsay evidence may be held inadmissible because it may generate undue waste of time upon satellite issues. But the jurisdiction provided by the section is not on its face limited to such a case; it explicitly extends to an assessment of the value of the evidence. The section appears under a side heading which, although not part of the enacted terms of the statute, suggests a general discretion, and such appears to have been assumed to be its effect, albeit without detailed argument to the contrary, in both Gyima [2007] EWCA Crim 429 and Atkinson [2011] EWCA Crim 1746.
25. Whichever is the statutory power under consideration, it is clear that hearsay must not simply be 'nodded through'. A focussed decision must be made whether it is to be admitted or not. This does not, for the reasons which we have given at [4]-[5], above, involve a pre-condition that the hearsay be shown independently to be accurate. But it does involve a careful assessment of (i) the importance of the evidence to the case, (ii) the risks of unreliability and (iii) whether the reliability of the absent witness can safely be tested and assessed. It follows that considerations such as the circumstances of the making of the hearsay statement, the interest or disinterest of the maker, the existence of supporting evidence, what is known about the reliability of the maker and the means of testing such reliability are all directly material at this point, as is any other relevant circumstance.

Step 6: the power to stop the case; s 125

26. Section 125 is a critical part of the apparatus provided by the CJA 03 for the management of hearsay evidence.
27. In a non-hearsay case, the jury must be left to assess the evidence. It is not for the judge to do so. The judge's power to stop the case upon a submission that there is no case to answer is limited to doing so if the necessary minimum evidence does not exist upon which a jury, properly directed, could convict the defendant. The judge does not assess the reliability of the evidence. Thirty years ago Galbraith [1981] 1 WLR 1039 disposed of the contention that the judge is entitled either to weigh up the reliability of the evidence or to decide at that stage whether or not any resulting conviction would be safe, and see the recent re-statement of that rule in R v F [2011] EWCA Crim 1844.
28. It is essential to understand that the rule is different for hearsay cases. There, the judge is required by s 125 to look to see whether the hearsay evidence is so unconvincing that any conviction would be unsafe. That means looking at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole. The passing observation in Joyce & Joyce [2005] EWCA Crim 1785, to the effect that there is no difference between this duty and an ordinary Galbraith question, was made in a case where the point did not arise, because the court held that it would have been an affront to justice not to leave that case to the jury including the hearsay evidence; moreover it cannot stand either with the terms of the statute or the analysis in Horncastle (CACD) at [74]:

"The hearsay evidence…is not to be disregarded at the stage of considering whether there is or is not a case to answer – it falls to be considered in the same way as any other evidence in accordance with the principles of Galbraith. But at the close of all the evidence the judge is required, in a case where there is a legitimate argument that the hearsay is unconvincing and important to the case, to make up his own mind, not as a fact-finder (which is the jury's function) but whether a conviction would be safe. That involves assessing the reliability of the hearsay evidence, its place in the evidence as a whole, the issues in the case as they have emerged and all the other individual circumstances of the case. The importance of the evidence to the case is made a specific consideration by the statute: see s 125(1)(b)."

29. Section 125 may be confronted either at the end of the Crown case or at any time thereafter: see s 125(1). Whether it arises, and, if it does, when, must depend on the circumstances of each individual trial. Counsel and the judge should keep the section 125 question under review throughout the trial. As the terms of the statute, and the passage cited above from Horncastle both make clear, the exercise involves an overall appraisal of the case. It may often, therefore, best be dealt with at the end of all the evidence.

Ibrahim [2012] EWCA Crim 837

30. The working of this framework is well illustrated by Ibrahim. There, this court considered a hearsay statement which had many conspicuous weaknesses. It contained accusations of rape and of a separate wounding, made by a drug addict who was working at the time as a street prostitute. The rape allegation had not been made at the time, nor for two and a half years afterwards, despite opportunity to make it on the night of the alleged offence and subsequently. Moreover, this allegation had been positively disclaimed by the witness on the night of the incident. The allegation of wounding was inconsistent in its content with a previous statement by the same witness. An explanation for not making the allegation on the first occasion was advanced which, even if not necessarily deliberately untruthful, could not be the real reason. The witness was, from her addiction, a potentially unreliable source. She had made a previous false complaint of rape against an unconnected person. There was every likelihood, if not certainty, that there had been general discussion amongst the prostitutes in the neighbourhood about the defendant and his rumoured offending. Such support as there was did not significantly help to resolve the question whether there had been a rape, nor did it provide a means of testing the reliability of the complainant.
31. In Ibrahim this court quoted part of the judgment of the Supreme Court in Horncastle at [108]. There, Lord Phillips (with whom all the judges agreed) said this:

"In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the 2003 Act, interpreted in accordance with their natural meaning. I believe that those provisions strike the right balance between the imperative a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness, who has given critical evidence in a statement that can be shown to be reliable, dies or cannot be called to give evidence for some other reason. In so concluding, I have taken careful account of the Strasbourg jurisprudence. I hope that in due course the Strasbourg court may also take account of the reasons that have led me not to apply the sole and decisive test in this case."

The emphasis is supplied by ourselves to highlight the part of Lord Phillips' judgment to which this court drew attention in Ibrahim.

32. In Ibrahim at this court, after drawing attention to the many weaknesses of the hearsay statement there in question, said this at [106]:

"...If counsel for the defence had had the benefit of …Horncastle and … of the Grand Chamber in Al-Khawaja he would have been bound to have made a submission that even though Ms W's hearsay statements satisfied the conditions in s 116(1) and (2)(a), the court should exercise its power to exclude them pursuant to s 78 of PACE. If, as we have concluded, those statements were central to the prosecutions' case…and if, as we have concluded, they are not shown to be reliable, then we think it must follow that the admission of that untested hearsay evidence would have had such an adverse effect on the proceedings that the court ought not to have admitted the statements. "

To like effect at [109] it said this:

"If an untested hearsay statement is not shown to be reliable and it is a statement that is part of the central corpus of evidence without which the case on the relevant count cannot proceed, then we think that the effect of the decisions in Horncastle and Al-Khawaja-GC is that the statement is almost bound to be unconvincing."

Once again, the emphasis is ours.

33. We respectfully agree that the hearsay statements in Ibrahim were so flawed, so central to the case, and so difficult to assess, that it was unfair for them to be left to the jury. The case is a good illustration of the use of the framework provided by the CJA 03 to ensure that a trial remains fair where hearsay evidence is tendered. However, these references at [106] and [109] to the statements not being shown to be reliable may be open to misconstruction if taken out of context. For the reasons which we have set out above at [4]-[5], it is clear that the framework of the CJA 03 does not carry the implication that a hearsay statement must be wholly verified from an independent source before it can be admissible. Nor does it mean that there has to be such independent verification before the case can properly be left to the jury. The passage quoted from the judgment of Lord Phillips was addressing the same overarching "sole and decisive" test as the passages in the CACD judgments which we have listed at [4] above. In speaking of evidence which is shown to be reliable it is clear that he was demonstrating the error of such an overarching "sole or decisive" test; he was recognising that hearsay evidence, even if sole and decisive, might be shown to be reliable in the sense that it is shown to be so to the jury, and the jury might perfectly properly accept it without any unfairness in the trial process. That that was also the view of this court in Ibrahim is demonstrated by the closely juxtaposed paragraph of the judgment, where, at [107] the court said:

"We do not accept the submission that the question of the reliability and the credibility of Ms W's evidence should have been left to the jury. It seems to us that the clear effect of the judgments of the Court of Appeal and Supreme Court is that it is a pre-condition that the untested hearsay evidence be shown to be potentially safely reliable before it is admitted… That is a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the CJA."

The emphasis is again ours. The critical word is "potentially". The job of the judge is not to look for independent complete verification. It is to ensure that the hearsay can safely be held to be reliable. That means looking, in the manner we have endeavoured to set out, at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole.

Riat

34. Riat was a karate instructor in his forties. He was charged with sexual offences against one of his girl pupils who was, as he knew, either 13 or 14 years of age at the time. She had died before the trial, and the Crown successfully applied to adduce her several detailed and video-recorded interviews as hearsay evidence. The issue in the case was whether there was any sexual relationship at all between the defendant and his pupil. His case was that there had been none. The indictment charged a total of eight offences of sexual assault or sexual activity with a child, all predicated on actual consent, and two of rape, which asserted hostile non-consensual activity. The case against the defendant was that there had been an active sexual relationship for a period of about 14 months. The jury convicted of the former, consensual offences, all but one of which were specimen counts, but acquitted of the two non-consensual (and specific) counts.
35. Mr Mason QC, for Riat, accepts of course that the statutory gateway under s 116(2)(a) was passed, but contends that the pupil's statements should have been excluded under s 78 PACE. He submits that the hearsay was central to the case, that it was evidence of multiple actions over a long period, so that there was a great deal which the complainant would, had she been present, have had to be asked about with the result that the inability to examine her was the more serious a disability, and that her evidence was not reliable because she could be shown to have lied on some occasions. He rightly makes no complaint about a conspicuously fair summing up, which went to some lengths to explain to the jury the correct approach to a witness it was not seeing questioned.
36. On the facts of this case, we are quite satisfied that the evidence was rightly both admitted and left to the jury. Our reasons are as follows.

i) Although the police interviews were recorded in the usual way some time after the event and for the purpose of intended prosecution, the central allegation, of a continuing and chiefly consensual sexual relationship between a thirteen year old and her instructor in his mid-forties, had its origins in frequent spontaneous statements which were separately proved and which were made in circumstances redolent of truth. Several of the complainant's friends gave evidence that she made no secret to them, contemporaneously with the offences, of her sexual relationship with her instructor, naming him. That suggested reliability, although it would not by itself eliminate the possibility of untruthful bragging, or conceivably fantasy. However, the first time the relationship came to the attention of anyone in any authority even more strongly suggested reliability and was not sensibly explainable away as either bragging or fantasy. The complainant had made a visit to the school nurse and confided her fear that she might be pregnant. She told the nurse in circumstantial detail about her relationship with her karate instructor, with whom she was in love. When the nurse was obliged to say that, since the girl was only 14 and the man in question thirty years her senior, she would have to report it, the complainant immediately asserted that the man in question was not her instructor after all, but a boy of 18, to whom she attributed a first name but of whom she gave no other information at all. That was a clear indicator that the original account, involving the defendant, was true and the change of story intended to avoid him getting into trouble. Thereafter the complainant, who had many troubles at home, attempted suicide and was accommodated, when recovering, in a supervised psychiatric rehabilitation unit for young people. There she told her head of house that the man in question was indeed the defendant and not the 18 year old.

ii) Quite apart from the complainant's friends giving evidence of her contemporaneous assertions of her relationship with the defendant, two of them gave evidence of it independent of the complainant. One friend had, if her evidence was truthful, accompanied the pair to the defendant's flat, seen them disappear for some time into a bedroom together, heard conversations strongly suggesting sexual activity, and received from the defendant a plain admission in cogent terms, whilst holding a knife to the her throat and in effect swearing her to secrecy. Another had seen text messages received on the complainant's telephone which were of a sexually explicit kind and which came, it appeared, from the defendant.

iii) When resident at the supervised unit, the complainant had asked permission to contact the defendant.

iv) Although there could be no questions of the complainant, the jury was able to see her, since her evidence had been video-recorded.

v) There was a great deal of material by which the evidence of the complainant could be tested and assessed.

vi) The complainant had undoubtedly lied at times. One or other of the things she told the school nurse could only be untruthful. When first interviewed by the police she adamantly denied any relationship with the defendant, and insisted that her boyfriend was the unspecific 18 year old. Then, on returning to the supervised unit, she had become anxious and asked one of the staff whether someone of her age could be guilty of perverting the course of justice, before explaining that she had lied to the police to protect the defendant. Further interviews followed, in which she asserted that the man in question was the defendant. Once again, one or other of these assertions could only be a lie.

vii) Further, when subsequently accommodated in foster care, now aged 15, the complainant had told her foster mother untruths in order to get out of the house to meet a boyfriend with whom, by then, she appears to have been in a sexual relationship.

viii) There had been a second defendant, another man of mature years and an associate of the defendant, who was also alleged by the complainant to have raped her, on a single occasion after repairing her computer. She could be shown to have sent him an appreciative message thanking him for the repair, at a time which must have been after what she later said had been rape. The judge refused to admit her hearsay accusation against this second defendant, on the ground that it was in reality the only evidence in his case and could not properly be tested. The result was that the Crown did not proceed against him, but Riat was able to deploy this apparent inconsistency as evidence pointing to the unreliability of the complainant.

ix) The allegations of rape, one of them of anal rape, as distinct from the account of a consensual sexual relationship, had emerged late and only after the police had indicated their intention to re-interview the complainant about the more recent boyfriend of much nearer her own age, with whom there had been message exchanges speaking of anal activity. She had declined to be interviewed about this boy.

x) There were extensive records relating to the complainant from the rehabilitation unit and subsequently when accommodated in foster care.

37. For all these reasons the hearsay evidence of the complainant was strongly supported and did not (unlike her evidence against the second defendant) stand as a bare, untestable allegation. It could safely be assessed by the jury. The question was whether there was a possibility that could not be excluded that there never had been any sexual relationship at all between this child and the defendant. There was ample evidence on which the jury could safely conclude that there had been such a relationship. The jury acquitted of the two counts of non-consensual activity, which did depend wholly on the unsupported evidence of the complainant. That shows that it applied itself realistically and responsibly to the assessment of her evidence. The overwhelming likelihood, on the evidence as a whole, was that the consensual, but abusive, relationship, had indeed existed, and that the complainant had done her best from time to time to avoid getting the defendant into trouble.
38. Riat's appeal against conviction must accordingly be dismissed.

Doran

39. Doran was tried for robbery and theft. The allegation was that he had cold-called a householder in his eighties and persuaded him that his porch needed painting. Having originally quoted £20, he had rendered a written demand/bill, apparently at the householder's request, but in which the debt was stated to be £2000. He was said to have extracted several payments of £200 each, one of them on an occasion when he had entered the house and pinned the householder down on his bed. A surveyor gave evidence that the work was of little if any value.
40. The complainant householder had been interviewed and the interview video-recorded. He had died before the trial. The judge admitted the video recording as hearsay on the application of the Crown.
41. When first arrested and interviewed, the defendant had denied ever visiting the house. However, that was not the issue by the time of the trial. By then his fingerprint and handwriting had been identified on the written note of debt, which also bore a date of birth which, although not quite his, was the same day and year as his. He admitted at trial that he had written this note, and further that he had made the initial visit and had done the painting. He had also returned on more than one occasion. But, he asserted, he had not been the man who robbed the householder. That, he said, had been his brother.
42. The statutory gateway under s 116(2)(a) was admittedly passed. Was the evidence of the householder properly both admitted and left to the jury ? Our clear conclusion is that it was, for the reasons which follow.

i) The jury could see the householder although he could not be asked any further questions. He was clearly, although frail, perfectly able to give a coherent account.

ii) The suggestion is made by Mr Hillson behalf of the defendant that the householder's recorded interview was unreliable because, rather than being his own account, it was contaminated by the interjections of his brother is not, on close examination, made out. The brother did intervene to add information of his own, but not in a way which either prompted the householder or in any way showed that the latter could not give a clear account of himself. He could and did, and critically on the question whether it was the same man who returned or a different one.

iii) We do not agree with the argument that the householder's failure to identify the defendant in a video identification procedure undermined his evidence; this was not an identification case because the defendant admitted that he was the painter and the writer of note. The householder did not identify him as such, but he was. The issue was whether it was or was not the same man who returned and robbed the householder. The same applies to the fact that the householder had not spotted what was said to be the defendant's plain Irish accent. In any event, these two points, if they assisted the defendant, could as well be made in the absence of the householder as they could if he gave evidence.

iv) There had been a different man, according to the householder, who came on some occasions, and he gave a description of him which would not have fitted the defendant's brother, because he was much older. The householder was, on the issue of who had robbed him, disinterested; he had no motive to say that it was the same man if it was not.

v) There was considerable independent support for the householder's account that it was the same man who returned and robbed him. The note demonstrated that the defendant expected more money than he had hitherto been paid. The lie to the police strongly suggested guilt. The defendant had a history of exactly this kind of extortion from householders; he had pleaded guilty before the trial to a recent similar offence of blackmail and in 2002 had been convicted of an almost identical robbery.

43. For those reasons, this evidence was properly admitted and left to the jury. The judge's directions appropriately reminded the jury of the constraints under which the defendant operated in the absence of the householder. The conviction is safe and the appeal must be dismissed.

Wilson

44. Wilson was charged with being one of a large group of people who assaulted Paul Lawless, occasioning him actual bodily harm, outside a public house in Deptford at about midnight on 26/27 December 2010. A second defendant called Bayne was the only other similarly charged. Lawless and two witnesses, his sister Patricia and girlfriend Sophie Taylor, all made witness statements in the early hours of the morning on 27^th December. Paul Lawless and Sophie Taylor could not identify anyone. Patricia Lawless said that she recognised Bayne as the principal assailant and Wilson as one of the others. These three were the only eye witnesses. At the trial, none of them gave evidence; indeed the only Crown witness who gave any oral evidence was the officer in the case and that was limited to the police interviews with the defendants. The Recorder admitted as hearsay evidence the witness statements of all three eye witnesses, on the grounds that they did not give oral evidence through fear (s 116(2)(e)).
45. The defendants admitted presence but denied taking part in any attack. The issue was participation. There was CCTV evidence, which demonstrated there had been a violent incident involving a large group of people, but was insufficiently clear to identify individuals. There was scientific evidence linking Bayne to the attack but none linking Wilson to it. Both defendants made no comment in interviews after their arrests.
46. The principal ground of appeal is that the judge erred in allowing the hearsay statements to be read to the jury.
47. In supplemental witness statements, all three witnesses confirmed that they were prepared to go to court and indicated that special measures had been explained to them in that it might be possible for them to give evidence behind screens.
48. In further brief statements dated the 25^th February and 16^th March, the witnesses said they wanted to withdraw their statements and did not want to go to court. They said that the assailants lived in the area and would know where they lived; they were concerned for their safety. Patricia Lawless and Sophie Taylor added that if they did attend they would seek screening; it was however clear that they did not wish to go to court at all. The witnesses made it clear that there had been no threats of any kind, and Patricia Lawless said that she had seen Bayne in the street without problem; she asserted however that she was scared that he might cause trouble.
49. Notwithstanding these withdrawal statements, the case proceeded and the defendants were arraigned at a Plea and Case Management Hearing on 15^th April. There were further court hearings on 26^th May and 7^th June prior to the trial date of 13^th June. Witness summonses were issued to secure the attendance of the witnesses on 13^th June but were not served. The witnesses did not attend. The trial was ineffective. Directions were given for the case to be mentioned on 20^th June to review the position.
50. On 20^th June the witnesses attended and gave evidence before the judge who had adjourned the trial. They explained that they had not been served with the witness summonses. They said that they had assumed that the effect of their withdrawal statements had been to bring the trial process to an end. Each confirmed the contents of the withdrawal statement and expanded upon it. After they had done so, the prosecution asked for time to consider its position. Subsequently at a hearing on 5^th July before a different judge, the prosecution indicated that it intended to proceed to trial. An order was made for a hearsay application to be served.
51. That application, served on 26^th September, was considered at the beginning of the trial two days later by a Recorder who had had no previous conduct of the proceedings. The application contained no up-to-date information beyond what had occurred on 20^th June, but of that hearing there were no transcripts. The application summarised the evidence of fear as follows:

"Paul Lawless: 'I live in the area. They do too. I know them. They know me. I still live less than a mile away. I was told by an unreliable source that I'd be injured. I do not wish to come to court and give evidence. There has been no approach to me or my family, but I base my fear on personal experience. Even if arrested, I would not give evidence.'

Patricia Lawless: 'There has been no approach, intimidation or threats. I live at my Mum's address. They know where I live. I'm afraid of what might happen after court. Others involved have not been arrested, they know who I am.'

Sophie Taylor: 'There has been no approach or intimidation. I am not prepared to come to court. Only two have been caught. I don't know who the others are. I have just found out that I am pregnant. I fear repercussions. I don't know the others. I don't know if they know who I am.' "

52. The only additional information relevant to the application that was made known to the Recorder is contained in a statement from PC Langguth dated 7^th July 2011. She had arrested Bayne for a separate theft matter on 23^rd June 2011. In an off-the-record conversation about an incident, which he said he had not reported to the police, Bayne told her that Paul Lawless had followed him to Oxford where he had assaulted him with a steering wheel lock, fracturing his jaw which necessitated reconstructive surgery in hospital. The clear inference is that this Oxford attack, if it occurred, happened prior to Paul Lawless giving evidence on 20^th June.
53. That was all the material the Recorder had. After reviewing the statute, he said this:

"…they all live in an area of Deptford where it seems there is a real culture of intimidation against those who cooperate with the Criminal Justice system. The prosecution do not rely on any material suggesting the defendants are responsible for their fear…

The court held an enquiry in June, I believe, where the three witnesses attended and re-affirmed their intention to refuse to give evidence through fear and they did that in court to a Crown Court judge with the parties present.

I therefore find on the criminal standard that I am sure that they are unavailable through fear."

54. The history of the proceedings indicates a number of areas of concern about the steps that were taken to secure the attendance of the witnesses at court and as to whether they were truly in fear.

i) First, it is apparent from the failure of the prosecution to serve the witness summonses, and from the transcripts of the evidence of the witnesses at the hearing on 20^th June, that there had been no contact with the witnesses between the time when they made their withdrawal statements in February and March and the trial date in June. The issue of the witness summonses indicates that a decision had been taken to call the witnesses despite the withdrawal statements. That decision was consistent with the history of the proceedings. The witnesses had been prepared to make statements on the night of the incident. They had confirmed in supplemental statements that they were prepared to go to court. They were aware of special measures that would have enabled them to give evidence behind screens. There had been no trouble from the defendants or anyone else prior to the making of the withdrawal statements. In their withdrawal statements, neither Patricia Lawless nor Sophie Taylor completely ruled out giving evidence behind screens. Yet, the absence of contact with the witnesses between March and June indicates that the witnesses had not been given the support that they should have been given in the intervening period before trial. To the contrary, the witnesses seem to have been left to believe that the signing of their statements would be the end of the case. If that is the impression that had been given to them it is a further indication of lack of communication with them by those who had the responsibility for the prosecution and their support. That lack of support is contrary to what we have said earlier at [16] and to the appended paragraphs [83]-[88] of Horncastle.

ii) Secondly, the hearing on 20 June was not designed to decide whether or not the fear gateway in s 116(2)(e) was passed, and no decision about this was made. Not only this, but neither was it designed to ensure that they attended the future trial date. The hearing amounted simply to an enquiry as to why they had not turned up on 13^th June. That may account for the way it was conducted by the judge. The witnesses attended voluntarily. The witnesses were all in court at the same time, listening to each other give evidence. Paul Lawless gave evidence first. Patricia Lawless and Sophie Taylor drew support from what he had said. The transcripts reflect the contents of the withdrawal statements. The judge simply assumed without argument that no cross examination by defence counsel should be permitted. The procedure of testing the claim to fear in this type of scenario is of necessity sensitive. Concern that cross examination by the defence may be inappropriate is wholly understandable – for example in some cases of alleged domestic violence it may be an avenue for worsening apprehension. However, if testing by the defence is properly refused (after consideration) then it is incumbent upon the judge to take responsibility rigorously to test the evidence of fear and to investigate all possibilities of the witnesses giving oral evidence in the proceedings. The manner in which that should be done will depend on the circumstances of the case and the witness and will necessarily involve discussions with counsel as to approach and questions to be asked. But the critical thing is that every effort has to be made to get the witness to court. Here, none of that happened. True it is that these three witnesses were informed that they could be compelled to attend the future trial date by the issue of a witness summons or warrant, but they were merely asked if they would be prepared to give evidence. It was not explained to them how important it was for them to attend and to do so. They were not encouraged to perform their public duty of giving evidence. They were not warned that it could be a contempt of court to fail to give evidence if they were called to give evidence.
Although they were all saying that they did not want to be known to have given evidence involving the defendants, in fact only Patricia Lawless gave any such, and no-one explained to her that the defendants already knew this and that anyone in court would also know if and when her statement was read as admissible hearsay. No ruling was given by the judge as to whether the witnesses should or should not give evidence, nor whether the 'fear' gateway was passed. No further witness summonses were issued prior to them leaving court.

iii) Thirdly, following the hearing on 20^th June, there is no evidence to suggest that anyone had any further contact with the witnesses. There is no information as to what effect the hearing of 20^th June had upon them. There is no way of knowing what effect a more rigorous testing of their evidence on 20^th June would have had upon them. By 5^th July, a decision had been taken to apply to proceed in their absence. Save for the additional information from PC Langguth, the hearsay hearing on 28^th September proceeded in ignorance of anything that might have occurred in the intervening period, including any change in circumstances that might have arisen.

iv) Fourthly, no steps were taken to investigate the account given by Bayne to PC Langguth. We cannot know if it was true or not, but if it was it would strongly suggest that Paul Lawless was not in fear but rather inclined to deal with his grievance outside court. No check appears to have been made to see if Bayne had been admitted to hospital and, if so, what were the details of the admission. Paul Lawless was not spoken to by the police. No further enquiry about his alleged fear took place in court to supplement his evidence of 20^th June or that of the other two witnesses. It may have been assumed on the part of the Crown that the alleged Oxford incident was either false or irrelevant, both of which conclusions would be surprising and of concern. The Recorder was apparently told of the allegation but what argument there was, and what conclusion if any he reached, are unknown. His ruling admits of the possibility that he adopted a suggestion, maybe made by the Crown, that Bayne's jaw injury had been sustained on the night of the Deptford incident: see [60] below. What if any basis for this there was we do not know; nobody appears to have said that Bayne was seen to be injured, nor that he suffered a blow such as might fracture his jaw.

v) The result of all this was that the Recorder was left to deal with the hearsay application on the morning of the trial, when further adjournment was no doubt highly undesirable. He was left to deal with it without the witnesses being in court and available if his decision had been otherwise. He appears to have been presented more or less with a common assumption that the statutory gateway was passed, even though this had not been decided on 20^th June. His observation about the culture in the relevant part of Deptford may or may not reflect what can sometimes, regrettably, be a reality, but there seems to have been no evidence of any intimidation, general or specific, there. He was not enabled to see the witnesses for himself, nor even a transcript, which would have revealed the true nature of the earlier hearing.

vi) Lastly, in the course of his ruling, the Recorder noted that the only other means by which the evidence of the witnesses could have been received would have been by compelling them to attend by way of a witness summons or warrant with a view to their statements being put to them in the witness box if they refused to give evidence and were treated as hostile. He indicated that the defence did not require that to be done; he regarded that as understandable and said that the defendant "rightly" did not suggest this to be a satisfactory alternative means for the presentation of their evidence. This is not a matter for the defendant, although his submissions must be considered; it is for the Crown and for the judge when considering whether to allow the Crown to avoid the possibility by reading hearsay statements. There will be cases where it is unsatisfactory, particularly where it may occasion real harm to a witness who is in genuine fear. However, there will be, and are, many cases where it is not unsatisfactory and it is in the interests of justice that it be done.

55. In the context of the history of the proceedings, the finding of 'fear' was not soundly based. We do not agree that it would have been inappropriate for the witnesses to have been compelled to come to court. If they had been brought, they might well have been persuaded to give evidence. If any had refused, it would not inevitably have been wrong to treat him or her as hostile. The passing of the fear gateway was not established.
56. Even if the 'fear' gateway had been established, it is submitted that the prosecution hadn't established that, having regard to S.116(4), the statements ought to be admitted in the interests of justice.
57. In the statement of Patricia Lawless, she said that a person she recognised as Bayne attacked her brother Paul from the front by punching him in the face causing him to fall to the ground, and then sitting on top of him and punching him about the head several times. Whilst they were rolling on the ground about eight males joined in the assault. At least two other people kicked Paul to the head whilst he was on the ground. She said that she recognised one as Wilson who lived around her area. He kicked Paul whilst she tried to intervene and he then stepped back and kicked him again. She did not know the third male. She tried to pull Bayne off Paul and as she did so a further man she knew to be called Ray pulled her back telling her to leave them to it. She tried to phone the police. Wilson shouted "She's phoned the fucking police." He then shouted at her to put the phone down. The incident moved into the road and Wilson kicked and punched Paul's head again. The group started to run away then Bayne returned and tried to stamp on Paul's head before departing. It was dark but there was some street lighting. It was frosty and clear. She said she had a good, unobstructed view of what happened and was present throughout. She gave descriptions of the people involved in the assault.
58. In the statement of Paul Lawless, by contrast, he said the assault started when he was approached from behind and felt an arm around his neck. He then felt a sharp pain in his right ear like a bite. The next thing he remembered was waking up in hospital. If Patricia is correct, he had in the meantime both spoken to a police officer and had been taken home.
59. In the statement of Sophie Taylor, she said she observed some of the incident but had been drinking and did not recognise anyone involved. She saw a white male attack Paul initially then other males approached and began to kick and punch him whilst he was on the ground. There were about six to ten males kicking Paul on the ground. She gave descriptions of the first three men involved in the attack. None matched the description of Wilson, nor did she describe hearing the words attributed to Wilson by Patricia Lawless.
60. The Recorder rightly considered the provisions of S.116(4). He found that collusion was unlikely because only Patricia Lawless had identified anyone. Drink was relevant, but the key witness was Patricia Lawless who stated she was not drunk, having only (she said) been sipping her drinks since about 1630 that day. Her statement appeared to be reliable. She was correct about time, location, and the nature of the attack, all of which were confirmed by the CCTV evidence. She was correct in identifying the defendants as present, as they admitted. The scientific evidence in relation to Bayne's white T-shirt and evidence in relation to Bayne's jaw were consistent with her account of him being involved. The defence could test the evidence on "Turnbull" type elements and credibility material under S.124 to seek to undermine her evidence about their participation. He concluded that it was in the interests of justice that the statements should be read.
61. This was a multi-person incident late at night outside public house premises where people had been drinking. This was not a single person incident, such as a domestic violence incident, where no "Turnbull" type issues arose. Here, the events were more complex with room for confusion as to what had actually happened. No single eye witness to the events was to be called to give oral evidence. The statements to be read of the sole eye witnesses revealed material differences in important respects. In particular, there was a vast difference between the accounts of how the assault started, and further differences in the descriptions of the assailants, both of which matters were of considerable significance. The account of Patricia Lawless may have been shown to be reliable in relation to Bayne by the independent scientific evidence. However, there was no such material supporting her evidence implicating Wilson. Also, an hour after the incident, Paul Lawless had told the police that Bayne and Ray had assaulted him. He could only have obtained the information from his sister and his failure to mention Wilson's name cast additional doubt on her account. The case was not a true Turnbull one, but it did raise questions whether Patricia Lawless had correctly identified Wilson as a participant. The defence had no opportunity to put any questions to anyone to test that proposition. The practicability of the jury testing and assessing the reliability of the evidence of these witnesses was severely diminished. The hearsay statement of Patricia Lawless in particular stood as a bare allegation against Wilson. There was a risk that its admission would result in unfairness to the defence in that it could not be sufficiently tested and assessed. We are not satisfied pursuant to S.116(4) that in the interests of justice the statements ought to have been admitted.
62. In such circumstances, it is not necessary to consider a second ground of the appeal contending that there was no case to answer. For the above reasons alone Wilson's appeal against conviction must be allowed, and his conviction quashed.

Clare

63. In respect of this case, nothing must be published which is capable of identifying the child victim of the offence.
64. The defendant was charged with a single offence of sexual assault of a child of three and a half. On a summer's day he was a visitor at the home of the child's family. He had been drinking for some of the day. There was a tent in the garden, and in the early evening he was in it with the little girl. She was wearing just a T-shirt and knickers. She came in and out of the house from time to time. Once she said to her mother that the defendant had kissed her. Mother thought nothing of that. A little later the child returned with, according to Mother, a quite different demeanour, and hid behind the door. When Mother asked what was wrong, the child asked for some cream on her private parts because she was sore. As she pulled down her knickers to show Mother, she said that the defendant, whose family name she used, had "licked me". By the time Mother had decided what to do, and had called the police, the defendant had left without saying anything by way of farewell.
65. There were attempts at medical examination that evening and again the next day which were obstructed by the child hiding behind her mother and refusing to co-operate. There were some scratches and bruises on the legs, but the complaint was not of anything which would have caused them. There was some redness of the private parts, but not such as could provide any evidence one way or the other whether the complaint was true. The child's reaction was such that the police officers concluded that there was no point in attempting even an assessment of whether an ABE interview would be possible. The child was, it follows, never a potential witness. The only evidence of what she had said in the very few words of complaint, was what her mother recounted.
66. The defendant was arrested the same evening and interviewed next day. In the course of arrest, he told one of the officers not to look at him as if he were a paedophile. According to the officers they had not said anything to suggest any enquiry into indecency with a child. At trial the defendant asserted that he had been told that he was under arrest for assault on a minor, but this was not the evidence of the police, nor had he suggested this when the topic was raised in interview.
67. In interview the defendant said that it was possible that DNA would be found on the girl's knickers. He gave an explanation. According to him, he had been lying on his side in the tent reading, when the child arrived pursued by a wasp. She came up to the side of his face and he saw that there was a sticky sweet on her knickers. In an effort both to swat the wasp and remove the sweet, he caused her to stumble into him so that his face was pressed up against her groin. This explanation he repeated at trial.
68. In the event, there was no scientific evidence of matchable DNA on the knickers. There was both a full female profile and a contribution from a male. The knickers gave a positive reaction to a chemical test for saliva, but the same result might have been attributable to urine; it was not possible to say that there was saliva present.
69. The Crown applied to adduce the child's complaint to Mother. The relevant gateway was s 114(1)(d). The Judge worked his way carefully through the s 114(2) factors. He concluded that the case did substantially depend on the girl's statement; we agree that without it there would not have been a case to answer.
70. Mr Logan, for the defendant, complains that the evidence should not have been admitted because no assessment of the ability of the little girl to be interviewed under ABE conditions had been undertaken. We agree that if this has not been done when it ought to have been, that may be a material consideration when confronting the s 78 PACE question of fairness in relation to the admission of the evidence. But we are quite satisfied that on the facts of this case the Judge's careful conclusion that the police officers had approached the question responsibly and reached a proper answer was correct. On any view, the child was near the bottom of the age range in which an ABE interview might be achievable. Her very strong reaction to any examination or enquiry was a powerful reason not to trouble her further, and more enquiry of her risked being abusive. Given her age, any ABE interview would have had to be completed very promptly.
71. If the girl's statement to Mother had stood alone, we are sure that it would nevertheless have been wrong to admit it, and (if it had been admitted) wrong to allow the case to go to the jury. Children of three and a half vary a good deal. The jury could have had no opportunity to assess her. Nor could she have been asked any questions at all; even though at her age there would have been limitations on what could properly be asked as well as on what she could be expected to remember, there would have been some which might have helped assess her evidence – for example whether there had been a wasp, or a sweet, or (perhaps) a stumble. If her one-line statement to Mother had stood alone, we do not think that the fact that there could have been no other evidence of the complaint would have justified its admission. It was not as if, for example, she had given a compelling demonstration of what happened (as occurred in the non-hearsay case of Barker [2010] EWCA Crim 4). We should have reached that conclusion without taking into account the evidence that a month or so later she had, when reluctant to visit her father on a contact day, used as an excuse the complaint that he had done to her what (the defendant) did. That latter allegation undoubtedly cast doubt on her evidence if unsupported, although it might also be explained by her having learned that such complaints would result in her being taken seriously.
72. The girl's statement to Mother, however, did not stand alone. It was powerfully supported by (i) the defendant leaving the house without a word, (ii) the remark to the officers about paedophiles and the late appearance of the asserted justification for it, and (iii) the remarkable story of the wasp and the sweet (not found in the tent as he said it would be) which the jury was plainly entitled, having heard him explain it, to reject as absurd. Given this additional material, there was, we are satisfied, sufficient support for the girl's statement to Mother which was also spontaneous, unprompted and made originally not by way of complaint but simply by way of request for cream. Moreover, given this material, there were, we are satisfied, sufficient means to test and assess what she had said. The judge's conclusion is not open to reversal by this court. His directions to the jury carefully alerted it to the inability of the defence to ask any questions of the little girl and to the dangers of attempting to judge her without seeing her.
73. It follows that the appeal must be dismissed.

Bennett

74. In this case also there must be nothing published which is capable of identifying the female victim of the offences.
75. The defendant was a community psychiatric nurse charged with the offence of sexual activity with a person with a mental disorder when having the care of her (s 38 Sexual Offences Act 2003). The Crown case was that he had had an ongoing sexual relationship with his patient for some months. There was no doubt that the complainant (aged 47) was, despite her mental disorder, capable of consenting. She had given very long interviews to the police which had been video-recorded and were available to the jury. By the time of the trial, however, she was plainly too ill to give oral evidence, and that was not in dispute. Accordingly, the gateway in s 116(2)(b) was admittedly passed. The Judge admitted her recorded interviews as hearsay on the application of the Crown.
76. In them, the complainant gave a long, garrulous, and by no means always consistent account of a continuing sexual relationship. It was apparent that by that time she had become convinced that she had been abused, or exploited, by the defendant. She gave a disparaging account of him, and asserted that although there had been a demonstrative and affectionate relationship, and he had made a number of attempts at sexual intercourse, on only one occasion had he succeeded, and then, she said, the penetration had been brief.
77. When the defendant was interviewed by the police, he was conspicuously carefully asked almost exclusively neutral questions. The interview is a model of its kind. He was at pains to deny any kind of affectionate or sexual relationship with the patient. In the initial stages he also said that she had scarcely been to his house and contended that their dealings had been entirely arms-length and professional. Bit by bit, however, it became apparent that this first response was untruthful; he had to accept, for example, that they had spent a weekend away in a hotel in Somerset where they shared a bedroom. Eventually, he was confronted with a number of affectionate messages and cards which he had sent her, including a Valentine's card, and, more explicitly, a second card in which, amongst other things said, he had thanked her for "the great sex". At this, he broke down and frankly told the police that he had lied. He went on to say that his career was ruined, as no doubt it was. He then gave them a detailed account of a sexual relationship. They had, he said, had intercourse on a number of occasions. He volunteered details of the position they had used. Subsequently he faced disciplinary proceedings in his job and made a formal signed admission of a sexual relationship.
78. The offence under s 38 Sexual Offences Act 2003 may be committed by any sexual touching, but the maximum penalty is greater if it involves penetration of vagina, anus or mouth. In this case the Crown charged two offences which both did involve penetration. Count 1 was a representative count of vaginal intercourse. Count 2 was intended to reflect a specific occasion on which the complainant had said that the defendant penetrated her with his fingers in an incident which was non-consensual. The issue at the trial was a narrow one. The defendant did not now deny that he had had a continuing affectionate and sexual relationship with the patient. But he contended that there had never been any successful penetration. He relied on the evidence of the complainant's interviews for the proposition that, despite what he had said to the police, there had only been a single occasion of attempted intercourse, which, he said, had been unsuccessful. The jury convicted of count 1 but acquitted of count 2.
79. We are quite satisfied that the decision to admit the interviews of the patient as hearsay evidence was, on the facts of this case, correct and fair. The truth was that the case could be proved against the defendant without her evidence at all, by relying on the messages and cards which he had sent her, the initial lies to the police and then the explicit confessions which, in the police interviews although not in the briefer employment admission, could not be other than confessions to penetrative sexual activity. In recanting the confession to the police, the defendant said that he was suicidal at the time he made it. Why that should lead him first (falsely) to deny any relationship and then to admit more than had occurred was not easily explained. There was ample material which enabled the reliability of the complainant to be tested. She was internally inconsistent. She could be shown to have asserted that she suffered from serious medical conditions when her doctor gave evidence that she did not. She had subsequently made another complaint against a second erstwhile boyfriend, whose virtues she had in the interviews repeatedly contrasted with what she now said were the defendant's demerits; there was a clear basis for concern that she was prone, no doubt because of her psychiatric condition, first to profess great affection and then rapidly to turn to wounded resentment. She had made non-sexual complaints against neighbours and could be shown to have threatened to set fire to some property. It is impossible that any juror could have thought her wholly reliable. Whilst we accept that the course of the trial was governed by the decision to admit the evidence, which the defendant had resisted, if anything its admission provided him with an avenue of possible defence which would scarcely have been open to him without them, namely her inconsistencies and her apparent contention that their penetrative sexual activity had been very limited. What remained to be decided was whether, coupled with his contemporaneous actions and subsequent admissions, her graphic descriptions demonstrated a sexual relationship or not, and, if they did, whether there had been the single act of hostile assault which was charged in count 2. By its verdicts the jury very plainly accepted her evidence only where shown to be correct by the defendant's own words and actions.
80. The summing up was discursive and full. It is not suggested that it did not contain ample warning to the jury of the dangers of hearsay evidence. It may be that it did not draw together the specific sequence of suggested inconsistencies on which Mr Baur, for the defendant, sought to rely, but the judge was not required to repeat counsel's speech. The defendant had, understandably, insisted on the whole four hours or so of the complainant's interviews being played to the jury in order to maximise the impact of her inconsistencies; the result was that the judge was obliged to cover a great deal of ground.
81. For these reasons, the appeal against conviction must be dismissed.
82. The defendant also appeals against sentence. The judge passed a sentence of two years, observing that it was the greatest pity that the defendant had forfeited the mitigation which would have been afforded had he stood by the admissions which he had made. He had a number of impressive testimonials to the character of the defendant, and he was well aware that his career of some 15 years or more was ruined, independently of punishment imposed by the court. He was also well aware that there was absent the additional element sometimes present of offending against a woman who could not properly consent. But the sentence of two years was, as Mr Baur realistically accepted, somewhat low in the suggested range for offences of this kind. There was the plainest breach of trust, and both the actual and potential harm to a woman of fragile psyche was considerable. If there had been an absence of consent, the offence would have been much more serious. There is no basis for saying that the sentence was either manifestly excessive or wrong in principle. We must dismiss the appeal in relation to sentence.

Appendix

Extract from Horncastle [2009] EWCA 964; [2010] 2 AC 373 (CACD), relating to fear.

THE AMBIT OF FEAR

"83. A witness who is in fear may be as effectively unavailable as a witness who is dead, ill, or overseas. In some cases, the fear will have been induced by or on behalf of the accused. Nor is it always the case of fear induced by or on behalf of the accused is limited to one of overt traceable threats. Sometimes the reputation of the accused and his associates is enough: this is one way in which gangs can maintain their hold on an area. The finding that the fear is induced by or on behalf of the accused may be an inevitable one if the enquiry be made: cui bono? Where the fear is attributable to the accused or his associates, it is an additional factor supporting the admissibility of the evidence, since otherwise a premium is put by the criminal justice system on the intimidation of witnesses.

84.The case of a witness in fear is not, however, limited to fear induced by or on behalf of the accused. It is a melancholy fact of life that in some communities or geographical areas, a citizen is intimidated by a climate of fear from being seen to give evidence. The point is well illustrated by some of the cases considered by the ECtHR. In Doorson at paragraph 71 the court said:

"Although, as the applicant has stated, there has been no suggestion that Y15 and Y16 were ever threatened by the applicant himself, the decision to maintain their anonymity cannot be regarded as unreasonable per se. Regard must be had to the fact….that drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them. Furthermore, the statements made by the witnesses concerned… show that one of them had apparently on a previous occasion suffered violence at the hands of a drug dealer against whom he had testified while the other had been threatened. In sum there was sufficient reason for maintaining the anonymity of Y15 and Y16."

85. In Kok v The Netherlands (Application 43149/98, BAILII: [2000] ECHR 706), sufficient reason for anonymity was found in the reputation of the defendant, without any evidence of actual threat and in Visser v The Netherlands (Application 26668/95) in the reputation of a co-defendant (paragraph 47).

Although in such cases consideration must first be given to whether special measures can be adopted to enable such a person to give evidence, in some instances none will suffice. For the reasons explained in R v Mayers [2008] EWCA Crim 2989 at paragraph 9, witness relocation and protection is normally incompatible with the continuation of any ordinary life, and indeed with the Article 8 rights of the witness. So it may happen that, after all possible efforts to obtain the attendance of the witness have been made, the fearful witness is indeed as unavailable as the witness who is dead, ill or overseas. S.116 of the CJA 2003 recognises this.

86. In our view, the terms of s.116, like the jurisprudence of the ECtHR, do not impose the requirement that the fear must be attributable to the defendant. It is sufficient that the witness is in fear. No doubt Parliament took into account the well known difficulties of ascertaining the source of a witness's fear. Nor does Article 6 of the ECHR require this. As we have set out, it is our view that in determining whether the requirements of Article 6(3)(d) have been met, two of the essential questions are whether there is a justifiable reason for the absence of the witness supported by evidence (see the fifth and sixth propositions that we consider can be derived from the case law of the ECtHR) and whether the evidence is demonstrably reliable or its reliability can properly be tested and assessed. On this analysis, if the witness can give evidence which should be heard by the court in the interests of justice, but is clearly too frightened to come, then it matters not whether that fear was brought about by or on behalf of the defendant – there is a justifiable reason for the absence. The task of the court is to be sure that there are sufficient counterbalancing measures in place (including measures that permit a proper assessment of the reliability of that evidence fairly to take place) and to permit a conviction to be based on it only if it is sufficiently reliable given its importance in the case. The provisions of the CJA 2003 require all this to be done.

87. It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the CJA 2003. The witness must be given all possible support, but also made to understand the importance of the citizen's duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the CJA 2003 based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all.

88. It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis: that is a matter for practical policing and not for us. But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read, or indeed given any indication whatsoever that this is likely. The most that he can be told is that witnesses are expected to be seen at court, that any departure from that principle is exceptional, and that the decision whether to depart from it is one for the Judge and not for the police. In the case before us of Marquis and Graham, as we set out at paragraphs 127 and 132, the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the CJA 2003 requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe."