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)
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE DOBBS DBE
MR JUSTICE GLOBE
| Riat, Doran, Wilson, Clare and Bennett
|- and -
Mr H.C. Hills (instructed by Messrs Humphrys & Co ) for the Appellant Doran
Mr O. Weetch for the Appellant Wilson
Mr G. Logan (instructed by Messrs Reeds) for the Appellant Clare
Mr C. Baur for the Appellant Bennett
Mr A. Kent QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 27th and 28th June 2012
Crown Copyright ©
Lord Justice Hughes :
The Strasbourg jurisprudence
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  1 AC 311 at  and Ibrahim at ;
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
"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 ,  and (in the context of fear cases) .
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 ?
Step 1: specific gateways for admission
Step 2: credibility material under s 124
Steps 3 & 4; any interests of justice test; s 114(1)(d) and 116(4)
Step 5: the power to refuse admission; s 78 PACE and/or s126 CJA 03.
Step 6: the power to stop the case; s 125
"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)."
Ibrahim  EWCA Crim 837
"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.
"...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  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.
"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.
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.
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.
"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.' "
"…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."
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 20th 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  and to the appended paragraphs - 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 13th 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 20th 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 20th June had upon them. There is no way of knowing what effect a more rigorous testing of their evidence on 20th June would have had upon them. By 5th 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 28th 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 20th 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  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 20th 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.
Extract from Horncastle  EWCA 964;  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:  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  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."