England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		25th February 2014

1. LADY JUSTICE SHARP: On 13th January 2013 in the Crown Court at Bournemouth, Joby Barney was convicted after a trial of one count of burglary, contrary to section 9(1)(2) of the Theft Act 1968. On 3rd February 2013 he was sentenced to 3 years' imprisonment, consecutive to a sentence of 2 years' imprisonment for an offence of fraud, of which he had been separately convicted with Lisa-Jayne Robottom on 20th December 2011 at an earlier trial. He appeals against his conviction with leave of the single judge on essentially two grounds. First, that the judge erred in refusing to exclude the hearsay identification evidence of Mrs Daphne Huggett, the victim of the burglary, who had died by the time of the trial. Secondly, that the judge erred in permitting the prosecution to call evidence of three of the appellant's previous convictions as evidence of bad character.
2. On 27th October 2010 Mrs Huggett, then a 76-year-old lady, was the victim of a distraction burglary when she was alone in her bungalow at Bournemouth. At some time between 11.00 and 11.30 am she was targeted by two burglars, a man and a woman. The man, wearing a high visibility jacket, knocked at her door and said he was an employee of an electricity company who had been assigned to check on her electricity supply. They had a conversation for a few minutes on her doorstep. When she said she was alone he whistled up his female accomplice. Mrs Huggett then allowed them in. The woman remained with Mrs Huggett while the man went into Mrs Huggett's bedroom on the pretext of carrying out some repair work. He then stole her jewellery including her wedding ring. The burglars were with Mrs Huggett for about half-an-hour in total.
3. Within minutes of their departure she discovered what had happened. The police were called and she gave them a description of the male burglar which they noted down. She said he was a "white male, late forties approximately 5' 7", red cheeks, rugged look, quite big built, didn't have a lot of hair, almost bald (fair) colour with stubble." The same day she made a statement giving a full account of the incident and referring to her first description of the male. She said the incident lasted no more than half an hour. She was in touching distance of the burglars and the visibility was good as the day was dry and sunny.
4. Two days later, on 29th October, an E-Fit of the male burglar was compiled using Mrs Huggett's description. The notes made from information provided by her and used by the E-Fit operative included the following. There was bright sun outside and no lights inside. She was touched by the man. They had shaken hands on the doorstep, a matter which was relevant to proximity. She used glasses for everyday use and these were worn at the time. Her sight was described as "clear as anything", though she thought she might have the early stages of a cataract. The man's face was described as very round, with pale skin and stubble. His hair was fair, semi-bald, receding and closely cropped. She said there was something about his teeth, "missing or broken?", possibly a front tooth with a gold filling. We interpolate that in his evidence at the trial the appellant was to say that in November 2010 he had two missing front teeth. Mrs Huggett said the male had a country/rural twang to his voice and she thought she would recognise both burglars again, particularly the male.
5. In November 2010, on the basis of the E-Fit picture and the appellant's antecedent history, he was arrested at his home. While police were there, Miss Robottom arrived and she was also arrested. Though his defence at trial was to be one of mistaken identity, the appellant made no comment in interview.
6. On 9th December 2010 a VIPER identity procedure was carried out. The appellant's image was number 8 out of 10 images. After viewing the images Mrs Huggett said: "To my mind it was number 8 if I could move his hair." When shown number 8 and asked to confirm if number 8 was the person she was referring to, she replied: "Hmm". The identification procedure was video taped but the audio recording was not working. This information was then incorporated into a standard form statement which Mrs Huggett signed immediately after the procedure. In her statement she said she identified the person shown at number 8 as the man who came into her property although his hair at the time was pushed back.
7. Two issues of admissibility arose for determination. The first, which was dealt with before the trial, related to the identification evidence. Mrs Huggett had unfortunately died in March 2011. In those circumstances her statements became admissible as hearsay evidence pursuant to section 116(2)(a) of the Criminal Justice Act 2003, subject to the residual discretion to exclude pursuant to section 78 of the Police and Criminal Evidence Act 1984. The judge was invited to exercise such a discretion to exclude Mrs Huggett's identification of the appellant, but he refused to do so. The second issue of admissibility, which was dealt with at the trial itself, concerned the prosecution's application to admit three of the appellant's previous convictions under section 101(1)(d) of the Criminal Justice Act 2003. Two were burglaries committed in 1995, the third was the appellant's fraud conviction on 20th December 2011. This conviction related to conduct which postdated the burglary committed against Mrs Huggett. The application was opposed. The judge ruled the convictions should be admitted as evidence of propensity.
8. The agreed facts relating to these convictions later read to the jury were as follows:

"(i) Burglary

On the 20th March 2005 Joby Barney visited Leslie Claxton offering to carry out gardening services. Barney was shown into the garden to give an estimate for removing a tree. Mr Claxton left Barney unattended in the rear garden when he went to investigate a noise at the front of the house. Whilst the householder was away Barney entered the rear of the house and stole items from the kitchen including a wallet and its contents.

(ii) On the 29th May 2005 Joby Barney visited Mary Alice Locke an 85 year old lady for whom his partner was a cleaner. He offered to tidy her garden and cut down some bushes for £345 in cash. He and another male began work in the garden. Barney came into the house asking to use the bathroom claiming to have been bitten on the hand by a rat and whilst inside the house unattended he stole £70 in cash from a cupboard in the bedroom, and £20 in cash in a wallet for the dressing table.

9. On the 20th December 2011 Joby Barney was convicted of an offence of Fraud committed on the 20th February 2011:

(iii) Fraud.

On the 20th February 2011 Barney and a female went to 60 Guest Avenue the home of Mr Café (73 years of age) and Mrs Café (68 years of age) claiming that their neighbour had reported sewage leaking into their gardens from the Cafes' property. Barney entered the house examined a toilet and boiler and asked for £1160 in cash to complete the work. Barney obtained the cash and left the premises. No sewage was leaking and no work was carried out by Barney. He did not go back to the address."

We should add Miss Robottom was the appellant's co-defendant at the trial for fraud and she was convicted with him of that offence.

9. Mr Wainwright, who did not appear below, submits that the judge was wrong to permit the evidence of identification to be admitted. He says the judge gave either no or insufficient consideration to the risks of reliability, as to whether the reliability of the evidence of the absent witness could be safely tested and assessed, and that he failed to carry out a properly focused assessment of the importance of the evidence to the case in accordance with the approach which this court has said should be followed in the case of R v Riat & Ors [2012] EWCA Crim 1509. He submits the unfairness was compounded by the way the evidence was summed up to the jury and by the fact that the jury were permitted to retire with the descriptive notes accompanying the E-Fit and written record of the VIPER procedure, albeit this was done with counsel's consent.
10. In his written grounds of appeal Mr Wainwright submitted that the judge should not have permitted the appellant's two previous convictions for burglary committed in 2005 to be placed before jury in circumstances where these were only two offences and having regard to the number of years that had passed since their commission. He was, it seems, unaware of the appellant's conviction for fraud in December 2011 and in the light of that conviction he now puts his submission in relation to the appellant's previous convictions slightly differently. He submits that this was a case in which having regard to the evidence of identification and the criticisms he makes of that, the evidence of the previous convictions should not have been admitted because their affect was to bolster what would otherwise have been a fatally weak case.
11. We deal first with the hearsay evidence of identification. There is no doubt that this evidence could properly be described as decisive evidence in the case. The circumstances in which such hearsay evidence should be admitted has been considered in a series of cases, to some of which we have been referred by Mr Wainwright and by Mr Heptonstall who appears for the Crown. These include R v Cole and Keet [2007] EWCA Crim 1924, R v Horncastle [2009] EWCA 964, Al-Khawaja v United Kingdom [2012] 54 EHRR R v Ibrahim [2012] EWCA 837, R v Riat and R v Friel [2012] EWCA Crim 2871.
12. The relevant statutory framework is to be found in sections 114, 116 and 124 to 126 inclusive of the Criminal Justice Act 2003 and in section 78 of the Police and Criminal Evidence Act. There is no need to repeat those provisions here.
13. In Ibrahim, decided after the Grand Chamber's decision in Al-Khawaja, it was said that the core principle to be deduced when considering the impact of loss of right to cross-examine on the ultimate fairness of a trial, where the untested hearsay evidence is "critical" is that whether the trial is fair depends on three principal factors: good reason to admit the evidence; whether the evidence can be shown to be reliable, and the extent to which counterbalancing measures exist and have been properly applied.
14. In Riat the Vice-President (Hughes LJ), giving the judgment of the court, said this at paragraph 5 to 7:

"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.

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.

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?"

At paragraph 30 the court considered the weaknesses in the hearsay evidence under consideration in Ibrahim and went on to say this at paragraph 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."

In Friel, this court commenting on the analysis in Riat, said this:

"In our judgment, what this field least requires unless necessary for the decision in the case is a yet further extended discussion of authority. We are grateful for the learning already devoted to questions of this nature. For our part we think a further in-depth discussion of authority would be unnecessary, both, with respect, because of the decision in Riat and because of the view we take of the facts of this matter.

Turning first to Riat, we derive the following from this most helpful authority.

(1) Five central propositions, as Hughes LJ giving the judgment of the court put it at [2]:

'(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 ... the obligation of a domestic court is to follow the former ... ;

(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.'

(2) As is therefore abundantly clear from Riat, there is no rule which provides that if hearsay evidence is the sole and decisive evidence in the case it is therefore automatically inadmissible. That said, as Riat makes clear (passim), the question of whether hearsay evidence is central is of obvious importance in considering its admissibility.

(3) At [7] of Riat, Hughes LJ summarised the statutory framework provided for hearsay evidence by the Act which, as he said, could 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?'

(4) Hughes LJ made it plain that hearsay evidence of whatever description is not akin to first-hand evidence and is not to be nodded through - see especially at [25].

(5) Hughes LJ disposed of a submission that before hearsay evidence could be admitted, it had to be 'demonstrated to be reliable (ie accurate) before it can be admitted.' See, at [5]. Instead, as Hughes LJ underlined at [33], the relevant test was that the hearsay evidence had to be shown to be potentially safely reliable. That is a different test and necessarily different for otherwise, not least, a new requirement of admissibility would have been constructed and, indeed, a requirement of corroboration might have been resurrected.

The only other reference that it is necessary for us to make to learning on the topic is the characteristically learned case note on Ibrahim (supra) written by Professor Ormerod at [2012] Crim.L.R 793, especially at pages 796 to 798. Professor Ormerod drew particular attention to the 'counterbalancing measures' to guard against a miscarriage of justice when hearsay evidence is admitted. In practice, counter-balancing measures translated to the question of whether the safeguards in the statutory criteria for admissibility were met; whether there was evidence that could be adduced to challenging the missing witness's credibility under section 124; whether the discretion as to exclude the evidence were considered, and whether an adequate jury warning is given. As Professor Ormerod underlined, the discretion under section 78 of PACE applied, but there was also the discretion contained in section 126 of the Act.

The second observation of Professor Ormerod to which we would draw attention was his emphasis on the distinction between the role of judge and jury with regard to the admissibility of the evidence. It was not for the judge to decide whether the hearsay evidence was reliable. Rather, it was for the judge to assess whether the evidence lacked sufficient reliability to be safely left to the jury. That was a point of course amplified in the decision of this court in Riat."

15. Against that background we turn to the facts of this case. This was not a fleeting glimpse case or anything like. Mrs Huggett had seen the male burglar in daylight at close proximity for an extended period of time. They had chatted on her doorstep and then inside her house. Her first description of him was given to the police and recorded by them almost immediately afterwards. There is no suggestion that she was infirm in either mind or body. The description accorded with the information she gave to the E-Fit operative 2 days later, to which she added more detail. Her identification of the appellant as the male burglar shortly afterwards, a matter confirmed by her in the PROMAT statement was not in our judgment equivocal.
16. The judge heard evidence from the officer who had conducted the identification procedures, and obviously recognised the central importance of the identification. But he said that it was for the jury to determine its weight and value having been given the appropriate warnings.
17. Whether the admission of such evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (the section 78 test) is a fact sensitive issue and on the facts we are not persuaded the judge was wrong to admit it. It is true that without the benefit of the guidance in Riat and Friel, cases which postdated this one, the judge did not engage in the focused step by step analysis which both cases identify. However, Mrs Huggett's unfortunate death meant there was good reason to admit the evidence. Her previous descriptions of the appellant, given immediately after the incident and for the purposes of compiling the E-Fit picture provided a means for the jury to assess her reliability of her ultimate identification of the appellant at the VIPER procedure. The jury were given full and clear directions of law in writing on the material issues and it is not suggested those directions were either wrong or inadequate. The appellant also had a history of similar offending, including an offence committed after this one, of which he had only recently been convicted; a matter capable of providing independent support for the reliability of the evidence - see Riat at paragraph 42(5). We shall turn to that evidence in any event shortly.
18. In the circumstances, we think the judge was entitled to conclude that the evidence could properly be admitted. We do not think the result would have been different had he conducted an examination of the factors in section 114(2). In that respect this case bears some similarities to that of Cole and we refer to that court's analysis at paragraphs 39 to 40.
19. We are not persuaded there is anything in the complaints that the summing-up was otherwise unbalanced or unfair. It was convenient for the VIPER identification documents to be before the jury which was no doubt why they were in the jury bundle by consent. We do not consider such documents fall into the same category as ABE transcripts, the use of which is carefully circumscribed - see R v Sardar [2012] EWCA Crim 134.
20. We have already referred to the appellant's history of offending. The prosecution asked, as we have said, for the evidence to be admitted pursuant to the gateway provided by section 101(1)(d) of the Criminal Justice Act 2003 on the ground that it was relevant to an important matter in issue between the prosecution and the defence, namely whether the appellant had a propensity to commit offences of the kind with which he was charged - see section 103(1)(a). Given the nature of the offence charged and the underlining facts relating to the previous convictions the judge was entitled, in our view, to conclude that the statutory conditions for admissibility were met; that is that the convictions were capable of establishing a propensity to commit the offences with which he was charged and that the propensity made it more likely that he had committed those offences.
21. He was also entitled, in our view, to conclude that it was not unjust to rely on the earlier convictions which, as we have said, were followed by one in 2011 and that the proceedings would not be unfair if the convictions were admitted following the approach of R v Hanson [2005] 2 Cr App R 21. There were, as the judge said, similarities in the nature of the underlying conduct which involved preying on elderly people and using subterfuge to gain their trust and then entry to their homes. He was satisfied that the identification evidence was sufficiently strong, so it would not be unfair to admit the previous convictions, a view we consider he was entitled to take. We do not think this is a case where the convictions were used to support an otherwise dangerously weak case and it follows we do not agree that the judge erred in admitting this evidence, whether it was considered on its own or in the context of the admission of the hearsay identification evidence. In the result, we are satisfied that the appellant's conviction is safe and his appeal against conviction is dismissed.
22. We should record our gratitude to Mr Wainwright who advocated the case of the appellant succinctly but in the event we remain unpersuaded by the submissions he advanced.