England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday 8th March 2013

1. LORD JUSTICE DAVIS: The appellant is now aged 19. After a relatively lengthy trial before His Honour Judge Dawson and a jury at the Crown Court at Woolwich he was, on 10th February 2012, convicted by a majority verdict of an offence of violent disorder. In due course he was sentenced to a community sentence. There were a number of co-accused. Some were convicted, one was acquitted and in respect of two the jury were unable to reach a verdict. This appellant appeals by leave of the single judge against his conviction.
2. The background facts by way of overview can be summarised in this way. There was a large fight between two groups or very probably gangs of youths which took place in Artillery Square in Woolwich, South East London on 22nd March 2011. The background to this fight was most probably a stabbing that had taken place earlier that day. The prosecution case in essence was that the fight was between two gangs, one referred to as the Woolwich Boys and the other referred to as "Ferria" or "T block". Weapons were used during the incident, including bottles, belts and at least one knife. The appellant and all the co-accused were said by the prosecution to be members of the Woolwich gang and it was said that none of those present were simply onlookers or innocent bystanders.
3. At the time of trial only one of the identities of the opposing T block gang was known and he was the only one arrested. In terms of convenient trial management the prosecution had divided all those who were charged into two groups - those who were over 18 at the time of the charge, who were constituted under indictment A, and those (including the appellant) who were under 18 at the time who were constituted under indictment B.
4. The prosecution evidence came from three particular main sources. First, quite detailed CCTV footage. Second, eye-witness accounts from independent bystanders. Finally, the hearsay evidence of a 14-year-old youth, who may be called RK, who had been with the Woolwich Boys group at the time and was present throughout.
5. In a nutshell, the defence case was that the appellant was part of the group by chance and was unaware of any planned violence and had taken no part in any fighting or disorder. The issue for the jury was thus whether they were sure the appellant had been party to the violent disorder which undoubtedly had occurred. It may be noted that the appellant made no comment when interviewed and he gave no evidence at trial.
6. The trial of the older defendants had been due to take place at Woolwich Crown Court in August 2011. That trial included the one person from the Woolwich gang who had been arrested called T and he indeed was accused as stabbing another young person there called N, who was also on that particular indictment. RK, the 14-year-old, had given an ABE interview in respect of the incident. That ABE interview included answers which in effect, if accepted, incriminated TP in the alleged stabbing. In the event, in spite of every effort and including summons issued, RK refused to give evidence at that first trial. His mother was to give evidence that he was in fear of TP and his associates, and that was confirmed by police evidence.
7. Following legal argument at that first trial, Judge Murphy, who had conduct of that particular trial, ruled that the video recording of RK's ABE interview could be admitted under the provisions of section 116(2) of the Criminal Justice Act 2003 against the other defendants on indictment A, but not TP himself (the alleged stabber). Following this ruling, the Crown took the view that it had no other sufficient evidence as against TP and in due course no evidence was offered against him and he was acquitted. Furthermore, the Crown then took the view that one of the other accused, N, who had been a victim of the stabbing should not further be pursued and the case against him was dropped. That left only one other defendant, O, on that particular indictment. In the event, a few days thereafter, it proved impossible to pursue the case against O on that particular occasion for various administrative reasons and subsequently it was decided that he be added as a defendant instead to indictment B.
8. Shortly after the ruling given by Judge Murphy, the Crown decided, on the advice of counsel, that RK should be interviewed again to see if further evidence might be obtained from him. This took place on Sunday 28th August 2011, just a day or so after the ruling of Judge Murphy.
9. The ABE interview was of course transcribed as well as recorded in the usual way and this court has seen a copy of that transcript, as indeed this court has seen a copy of the transcript of the first ABE interview of RK.
10. In the course of that second ABE interview, RK, whose answers tended to be very much on the short side, answered questions about the incident in question. Among other things he was asked this:

"Did you see anyone with any kind of weapons?

A. Bottles.

Q. Who did you see with bottles?

A. Nearly everyone."

He then was asked further questions about what he had seen. He was stating that he had not himself been involved and further on in the interview he was asked this:

"When the fight started, you are saying that you are not involved?

A. Yeah.

Q. Where are you?

A. I am at the back of the group, just standing and ran back."

Then he is asked about the numbers of people involved and he gives his answers, and then a little further on there is this question:

"So there is about 23 people in total, 15 in your group and about eight in T's group and how many people are fighting?

A. Everyone.

Q. So there is over 20 people fighting?

A. Yeah.

Q. And what are you doing at this time?

A. Nothing. I was just at the back."

It should be added, as was really common ground, the first ABE interview had effectively focused in terms of its questioning on the stabbing incident and had not focused so much on the circumstances of the general violent disorder.

By the time of the second trial it was necessary to call DC Lund who had been involved in obtaining the ABE interviews. It had been made clear and properly disclosed to the defence that assurances had been given to RK and his mother prior to the second ABE interview to the effect that RK would not be called to give evidence at any further trial.

The evidence was adduced before His Honour Judge Dawson at the outset of the trial on a voir dire. Something of the flavour of that evidence can be given by certain extracts from the questions and answers of DC Lund. Reading from page 22 of that transcript, the question ended:

"He came reluctantly on the premise that he was not to give evidence in court?

A. Yes.

Q. You explain that there had been several phone calls to the mother and she had wanted reassurances that the purpose of the new ABE was not to give evidence in court?

A. That would be right.

Q. After the ABE you mentioned that because the evidence he had given was of great value, as far as you were concerned, you said it would be great if he would come to court. He said he would not.

A. Yes.

Q. And you said here that you did not discuss special measures with him on that occasion but you had previously discussed it with him?

A. Yes."

And then a little further on, he was again asked some questions. He agreed that the first ABE interview had really dealt with the stabbing itself and then it was confirmed that DC Lund had given the assurance that RK would not be forced to come to court, that being stated both before and after the second ABE. Then reading from the foot of page 24 of the transcript counsel asked:

"When you confirmed that he had been given an assurance that he would not be forced to court, as you have said to the learned judge, that was in relation to the O trial and the trial that is still to come?

A. Yes. He said he would only attend the second ABE if there was assurance that he wouldn't give any evidence at all.

Q. He said that before the interview, as we know. Then after the interview, when you knew what it was that he said, you revisited the question and he still said no.

A. That's right, yes."

Then a little later on different counsel asked him more questions, including these reading from page 33:

"I am only asking to help us with your answers please. What were you hoping would be achieved by asking RK further questions?

A. We were hoping for a bit more because the initial ABE focused primarily on the stabbing. We were hoping for more insight to what led up to that conflict happening on Artillery Square.

Q. Can you help us with a couple of things that flow from that. Firstly this, why were those questions not asked at some time before the first trial?

A. I have difficulty knowing the answer to that. The ABE was conducted by officers before I got involved in the case and that it wasn't really considered until August."

11. At the actual trial itself, Judge Dawson ruled that the first and also second ABE interview could be admitted into evidence, he exercising his powers under section 116(2) of the Criminal Justice Act 2003 for that purpose. The Crown proceeded to call evidence from a number of independent witnesses. One of them, a man called Harris, who had seen the fighting going on, said at one stage that he saw all the boys fighting and that no one appeared to be simply a bystander. There was also other eye-witness evidence and also there was detailed examination of the CCTV evidence. As indicated, this appellant did not give evidence himself although a number of his co-accused did.
12. The principal challenge before us on this appeal is as to whether the judge's ruling that the second ABE interview of RK could be adduced before the jury without RK attending to give oral evidence could be sustained in the light of the assurance that had been given to RK by the police that he would not be called to give evidence. Subject to one particular point, it is accepted that thereafter the summing-up itself was balanced and fair, properly putting all relevant issues before the jury.
13. It is to be emphasised that there is no challenge to the judge's finding for the purposes of section 116(2)(e) of the Criminal Justice Act 2003, the provisions of which it is not necessary to set out here, that RK would not give oral evidence through fear. The judge had the evidence of DC Lund to that effect. He also had the unchallenged witness statement of the mother to that effect. He plainly was entitled to accept that evidence and find that RK was not present through fear. We add that there is no suggestion that the fear was occasioned by this particular appellant.
14. That being accepted, the challenge necessarily is based on the judge's ruling that it was in the interests of justice that the second ABE interview be admitted by reference to section 116(2) and 116(4) of the Criminal Justice Act 2003.
15. The general approach to be adopted by the courts with regard to the admission of hearsay evidence has of course been the subject of a number of recent authoritative decisions. Reference in this regard may be made to Horncastle [2009] UKSC 14, Ibrahim [2009] EWCA Crim 837, Riat [2012] EWCA Crim. and now also in the context specifically of a fear case, Adeojo [2013] EWCA Crim 41.
16. It is clear that the power to admit hearsay evidence on the footing that it is generally speaking in the interests of justice to do so, must not be used as a device to let in such evidence without appropriate caution and scrutiny. In a case falling within section 116(2)(e) of the 2003 Act, regard must be had to the matters set out in section 116(4). Clearly in that respect the court will consider amongst other things the importance of the evidence to the case, the risk of its unreliability and the question of whether the reliability of the evidence can be sufficiently assessed by a jury. In short, the potential prejudice to a defendant facing evidence which he is not able to test by cross-examination requires sufficient counter-balancing factors if its admission is to be justified. Indeed one can see from the Parliamentary scheme itself, as set out in the provisions of sections 114 to sections 126 of the 2003 Act an appreciation of the need for such countervailing factors.
17. The central question and whether or not the proposed evidence is potentially sole or decisive evidence in the case remains whether the reliability of the evidence is capable, if allowed to be adduced, of safely being assessed and, if thought proper, accepted by a jury.
18. In the present appeal these general principles were not in dispute before us. Each of Mr Bishop QC on behalf of the appellant and Mr Kent QC on behalf of the respondent accepted as much. What is at the heart of Mr Bishop's complaint here are the assurances given by the police to RK at the time of the second ABE interview to the effect that he would not be required to give oral evidence at any second trial. In this regard Mr Bishop drew our attention to the comments of a constitution of this court in the case of Horncastle (when it was in the Court of Appeal) [2009] EWCA Crim 964. These comments are contained in a passage which were not the subject of any criticism by the Supreme Court when the case went to that level of judicial decision making.
19. The passages to which Mr Bishop made particular reference are contained in the judgment of Thomas LJ, giving the judgment of the court at paragraphs 87 and 88. Amongst other things this is said:

"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..."

Relying on those remarks, it was therefore said by Mr Bishop that the assurances here should not have been given and that they may have operated to taint the reliability of the answers of RK in the second ABE interview. Furthermore, he submitted the assessment of the interests of justice and of the reliability of the evidence of RK contained in a second ABE interview also required consideration of these further factors, albeit accepting that these further factors did not of themselves vitiate the judge's ruling. The further factors he relied upon were these. First, there was evidence to suggest that RK, who had undoubtedly himself been present, may himself have participated in the offence of violent disorder. This therefore may have affected his evidence through his being concerned to deflect attention away from himself onto others, or as indicating a reason as to why he would wish to present himself in a good light to the police. Second, the answers as given in the second ABE interview had contained no statement of truth. Third, the second ABE interview had only come about because the prosecution had failed to ask sufficient questions at the first ABE interview where, as was common ground, no prior assurances had been given. Fourth, it is said that the second ABE interview was itself not thorough and that proper follow-up questions were failed to be put. It included leading questions. The answers that were retracted were terse and conic and overall it was not such an interview as to give a jury a proper base for assessing RK's reliability. Fifth, it is said that there were inconsistencies between the second ABE interview and the first ABE interview. It is said that these factors are important context in assessing the significance of the assurance provided to RK at the time of the second ABE interview, as well as being important in the overall assessment of the reliability of the answers given.

20. The difficulty for Mr Bishop, as we see it, is that in deciding that it was in the interests of justice that the second ABE interview be adduced before the jury, the judge had all these points well in mind. He explained his reasoning in a very full ruling given at the outset of the trial.
21. As it seems to us, the first point to be borne in mind are the circumstances in which the assurances came to be given at the time of the second ABE interview. RK, as we have said, had volunteered without any assurance offered to him his answers in his first ABE interview. It was not altogether unreasonable that that first ABE interview had focused essentially on the circumstances of the stabbing which he said he had witnessed. But by the time of the first trial, RK was adamant that through fear he would not attend to give oral evidence. That was supported by evidence of his mother and of the police, and that was endorsed by the finding of the then trial judge, Judge Murphy. So by the time of the second ABE interview this was not simply the view taken unilaterally by the police that this was a witness who would not give evidence through fear; the police had the finding of a Crown Court Judge to that effect and furthermore RK's mother and RK himself was repeating after the first trial that he was not prepared to come along and give evidence any trial.
22. It was in such circumstances that the second interview took place, counsel for the Crown having advised the police at that stage to have a second interview with RK, this being at a time when O was still on the indictment and at that stage there might have been a trial on the first indictment relating to O. Mr Bishop very fairly accepts that in this case there can be no question of any trickery or bad faith or anything of the kind in the police giving the assurances that they did to RK and his mother at this stage. So the actual giving of the assurances does have to be put in the particular context which occurred here. Moreover, as the Court of Appeal had stated in Horncastle, the giving of an assurance of such a kind does not of itself mean that the evidence thereby obtained will necessarily be excluded at any subsequent trial. What the court was careful to say was that if such an assurance was given the impact of the evidence would be diminished and that a disadvantage to the accused may (emphasis added) not will, result in it not being given at all. So all therefore depends on the circumstances of the particular case. There is certainly no rule of law that hearsay evidence obtained after an assurance that the witness will not be required to attend a trial to give evidence or that his evidence will be read can never thereafter be adduced.
23. The judge was clearly obliged to and did have regard to the fact that an assurance of this kind was given in assessing whether the evidence of the second ABE interview was such that it could safely be left to the jury, that it was in the interests of justice that it be adduced and that the jury could safely conclude that it was reliable. The judge expressly had regard to the comments of the Court of Appeal in Horncastle. He also had regard to the point that RK might be seeking to protect himself in circumstances where he might have been a defendant or otherwise had some explaining to do. He considered that the jury could well understand those points and in any event RK was, and doubtless would have known, hardly by then at risk of prosecution himself by the time of the second ABE interview.
24. The judge expressly held that the indication given to RK by the police did not make the evidence inherently unreliable. He noted that no overtures of assurance had been made or given to RK at the time of the first ABE interview and thereafter it was indeed plain, as a matter of fact, that RK was indeed too frightened to give evidence at a trial. In the course of his ruling, the judge said this (page 21E):

"In a situation where a witness is being approached for the first time possibly to give evidence, it would be contrary to public policy to promise that that witness would not be called or have his evidence tested.

However, this case is rather far from that situation. Here, a first ABE of RK had been taken. No overtures had been made at that time. A first trial had been scheduled. Huge efforts had been made to get the young boy to court, indeed down to a witness summons being issued. Witness care had been involved in ongoing contact and discussions. The police had been in discussion with him and his family. The boy and his family had made it very clear that they were frightened and they would not give evidence.

In this context, the request that a further statement be taken with the assurance that he would not be required to give evidence was, in my view, understandable and I find perfectly acceptable in law ...

The reassurance goes to the question of reliability but I find that, having looked at both ABEs, nothing indicates on the face of the documents and indeed nothing was argued that there was a great change of approach by the witness RK in the two ABEs or a difference in the ways he was pointing to involvement in the offences or anything of that sort."

Given the factual background recited by the judge, it is understandable, using that word advisedly, why the judge found in terms that it was "understandable" that the assurance had been given. What is altogether a little more difficult to understand is the judge's subsequent comment that this was "perfectly acceptable in law." There is nothing in law which justifies the giving of an assurance in those circumstances. The general prohibition enunciated by Thomas LJ in the case of Horncastle is stated without any qualification at all. That is "it is of especial importance that assurances are never given to potential witnesses". Mr Kent did not seek to go against that and therefore it is not necessary for present purposes to consider whether in very exceptional or unusual circumstances it may be legitimate for the prosecution to give an assurance of this kind to a perspective witness.

25. The fact is the judge did not end his ruling by assessing that the giving of the assurance was acceptable in law and therefore it was in the interests of justice for this evidence to be admitted. On the contrary, he went on carefully to consider the whole issue of reliability. One matter he perfectly properly considered was the issue of whether or not the answers of RK in the second ABE interview could be said to be the sole and decisive evidence in the case. His clear conclusion, plainly justified, was that that could not be said. There was the evidence of the other eyewitnesses, there was the evidence taken from the CCTV. On the one view indeed the evidence of RK may not have been that important, although of course it had the potential to be of importance. Moreover, it is to be borne in mind that Mr Harris, one of the independent witnesses, had himself answered in effect that all of those involved in the fight were indeed in the fight and none were hanging back as bystanders. As Mr Kent pointed out, as a matter of hindsight it can indeed be seen that RK's evidence had not been the sole or decisive evidence, if only because one of the accused was acquitted and the jury could not agree with regard to two others.
26. At a later stage in his ruling, the judge having referred to the fact that there was other evidence available, said this reading from page 24:

"RK's evidence cannot of course be tested by cross-examination, but the Crown's evidence generally can be tested and indeed the evidence of RK can be tested by illuminating inconsistencies, calling defence evidence, etc. Indeed as I have indicated a number of inconsistencies have been brought to my attention already which can be quite properly put before a jury."

As to the methodology of the second ABE interview, the judge took the view that there was no difference in substance to many other ABE interviews and the jury could observe from themselves what the video interview recorded and the manner in which the answers were given.

27. As the judge had noted, a potentially important counter-balancing factor against the disadvantage to the defence arising out of their not being able to cross-examine RK was the ability of the defence to make comment in their closing speeches on all these matters relating to RK's answers. Further, there was of course, as the judge also noted, the obligation of the judge himself to give appropriate instruction to the jury in his summing-up. When he came to his summing-up, he did so at considerable length, in the fullest terms, highlighting the potential disadvantage to the defence in not being able to cross-examine RK, stressing the variety potential weaknesses in the reliability of RK's evidence as asserted by the defence and including reference to the fact of the assurance that had been given and stressing the need for caution.
28. Overall, in our view, there can be no criticism of the judge's ruling and the conclusion which he reached, which in our view was an exercise of his discretion properly open to him and it was a proper evaluation that it was appropriate in the interests of justice that the second ABE interview of RK be adduced. We add that it is also clear from other remarks made by the judge that he was well aware of the further safety provisions contained in section 125 of the 2003 Act.
29. This then leads to the second ground of appeal advanced by Mr Bishop. Mr Bishop acknowledged the fullness and the fairness of the judge's direction to the jury in his summing-up as to the status of RK's evidence as uncross-examined hearsay. But he made one particular complaint. The second ABE interview had not of course been given after the administration of any oath. Mr Bishop says that that was a potential weakness which should have been highlighted to the jury by the judge, but he entirely failed to make any reference to the point. Mr Bishop drew attention to the observation of Lord Bingham in the case of Grant v Regina [2007] AC 1 at page 15, where amongst other things Lord Bingham said with regard to hearsay statements:

"It is necessary to remind the jury, however obvious it may be to them, that such a statement has not been verified on oath, nor the author tested by cross-examination."

30. In our judgment, there is no substance to this particular point in this particular case. RK was 14 at the time and would not in fact have been required to take the oath in the sense of swearing on a holy bible or affirming had he given evidence. But leaving that aside, in his first ABE interview which was before the jury, RK had, as is conventional been asked at some length about his appreciation of the difference between truth and lies. He had then specifically been asked in terms: "You understand that you must tell the truth?" and he acknowledged that. Although this was not repeated in the second ABE interview it was clear that this understanding would have carried through. Although there was no formal oath as such, RK would clearly have understood the importance of the questions and answers that were being given at this particular stage. Moreover, it would of course have in fact been obvious to the jury that no oath had been administered to RK at the second ABE interview.
31. This point in our view has no validity. As Mr Kent said, taken in context any omission of the judge in this regard was inconsequential.
32. Overall therefore, we are entirely satisfied that the trial was fair and the judge's ruling was justified, given the circumstances of the case, as to the admission of RK's second ABE interview. The judge's summing-up was conspicuously full, thorough and well-balanced. The conviction is not unsafe and we dismiss the appeal.