England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		3rd July 2015

1. LADY JUSTICE MACUR: This is an appeal against conviction brought with the leave of the single judge.
2. On 26th February 2015 this appellant was convicted of two counts of assault occasioning actual bodily harm. He was sentenced to two years' imprisonment on each count concurrent and a restraining order was made pursuant to section 5 of the Protection from Harassment Act 1997 for a period of three years.
3. The nature of the offence was in the context of domestic violence. The complainant was the appellant's long-term partner. They had two young children together. One of those children at the time of the alleged offending was aged ten weeks old, the other barely 12 months. It appears that late at night on 22nd June 2014 an argument had commenced between the two. This soon transgressed to physical violence, even on the admission of the appellant, who was to allege subsequently that he had been called upon to defend himself against the complainant, who was jealous and had thought him to be unfaithful to her.
4. There was independent evidence that the complainant had sustained a number of injuries. They were significant. She had widespread and diffuse bruises, including to her back. There were scratches, welts which she said had been caused by being whipped by a cable charging the baby alarm, and a burn which blistered. That burn was accepted to have been caused by a cigarette lighter, since on the case of the appellant, the complainant was approaching him with a cigarette lighter and he turned it against her in his own defence whereby she suffered the burns.
5. The complainant made a statement to the police detailing the injuries that she had suffered and making her accusations against the appellant. It was clear that she stated that he had beat her and burnt her. She returned to the police station just short of a month later and told officers that she no longer supported the prosecution, but she confirmed that the allegations that she had made were an accurate account of the events of the evening in question.
6. The appellant had been arrested. His response in interview was dismissive. He was not in any sense co-operative but suggested that the complainant's account was a complete exaggeration of the situation. Significantly, he accepted he was present at the time that at least some of the injuries were inflicted.
7. For a time the appellant was remanded in custody, and during the course of his remand it appears that the complainant sent a letter of reconciliation to him, indicating her continuing affection for him and her wish that he should return home. Subsequently he was bailed, but a condition of his bail was that he should not have contact with her, and consequently neither did he have contact with his two young children. There is no evidence, we make clear, that directly supports any suggestion that he personally was in breach of those conditions.
8. However, on the day of the trial he attended, she did not. The court was informed that the complainant had been seen some three days before. She had indicated her intention to attend and give evidence at trial, despite the other indications to the contrary: those indications being, in short, first, the letter that she had written to this appellant, secondly, the statement that she had prepared saying that she no longer wished to support the prosecution and, third, the fact that she and her father had apparently visited a local police station on several occasions confirming the fact that she did not wish to support the prosecution.
9. Miss Wolfe, who appears on behalf of the respondent and was prosecution trial counsel, informs the court that the police officers who had visited the complainant on the Sunday before trial due to start the following Wednesday had expressed "concern for her welfare". However, it is clear that, despite that concern, they had taken no pro-active steps to involve social services, nor it appears had they attended at the place of the complainant's residence on the morning of the trial to ensure that she attended or otherwise to provide practical means of support.
10. The appellant attended court with members of his own family and also with the complainant's father. Through his counsel, Miss Pattison, who appears before us today, the court was informed that the complainant had departed her residence with her two young children and their whereabouts were unknown. The police had not checked this fact, as I have indicated before, and quite clearly the judge was justified in indicating some cynicism about that state of affairs.
11. The prosecution wished to continue to trial. Consequently, an application was made to adduce the evidence of the complainant before the jury pursuant to section 114 of the Criminal Justice Act; that is, on the basis that the admission of what would be her hearsay evidence was in the interests of justice.
12. The judge was not asked to consider an application pursuant to section 116 of the Act, he at no time considered the requirement to do so, and neither Miss Pattison nor Miss Wolfe do anything other than to accept that they failed to bring the judge's attention to this particular provision of the Act, which may at least have given rise to further investigations being made.
13. As it is, the judge considered the application upon the information provided by both counsel, not all of which coincided, and without seeking to hear evidence from police officers who were advising Miss Wolfe or members of the complainant's family who had attended at court who were advising Miss Pattison. On the basis of those representations, the judge was to conduct a balancing exercise as to the admissibility of the hearsay evidence of the complainant. In doing so, he addressed the issues found in section 114(2) from (a) to (i). He reminds himself that these are not exhaustive indications as to the merits and justification for admitting the evidence, but in doing so specifically said this:

"'Whether oral evidence of the matter statement can be given, and if not why it cannot'. That is [subsection] '(g)'. I do not need to deal with that."

In fact, the judge did need to deal with this issue. It is quite clear to us that if he did so he would have necessarily articulated the reasons why he considered that the complainant was not present in court and was not able to give evidence in accordance with her statement before the jury, and which in turn would have informed an application for the admission of hearsay evidence pursuant to section 116 of the Act. That is, to say if he was satisfied that the complainant could not be located and the reason for her not being located was, as it subsequently transpired could have been the case, a deliberate attempt to prevent her from doing so by or on behalf of the appellant, whether the appellant had been personally responsible instigating that situation or not.

14. We have expressed our concern during the course of discussion with both counsel, that no adequate consideration was given when dealing with an application of this nature, whether made pursuant to section 114 or pursuant to section 116, to the evidence necessary to establish the pertinent gateway. The rationale behind the safeguards which surround such an application make clear that the court must take sufficient care and exercise all due diligence in investigating the circumstances of the application. We therefore questioned Miss Wolfe as to why evidence was not called before the court, why it was that there was no up to date information that could be provided since the enquiries made by police officers the previous Sunday, three days before, despite their obvious concern as to the welfare of the complainant and her young children.
15. Miss Wolfe had informed the judge that the complainant belonged to the travelling community and that there was difficulty of access to the site. When invited by the judge, rhetorically, that perhaps he should consider the issue of a warrant since a witness summons had already been served and apparently ignored, Miss Wolfe was to raise two matters which she said should dissuade him from doing so. First, she said there was the difficulty in locating the complainant. The information then before the court was that she had disappeared with her two young children. Secondly, she asked, if the warrant is served, what happens then?
16. As regards that second point, we are unable to contemplate anything other than a pragmatic approach to ensure that the warrant was executed at a time when the court was sitting to enable this particular complainant to be brought to court. To do so would have given her some protection physically, but also have provided her with an appropriate response to any suggestion by members of her community that she had acted incorrectly or inappropriately in co-operating with the trial process against her partner. However, that solution was not contemplated and the judge was persuaded not to embark upon that course.
17. As it transpired, during the course of the following evening, after the judge had acceded to the application on behalf of the prosecution to adduce the evidence of the complainant before the jury, social services rang the police to inform them of their concern as to the welfare of the complainant. The complainant had actually phoned them in distress. She indicated that she was going away for a few days. There is no suggestion in either that information or the information before the court that this particular witness would be unavailable in the long term.
18. There are many practical measures that could have been adopted in our view to ensure, first of all, that this complainant was located in a timely fashion, that her attendance at court was ensured, to protect her welfare and the welfare of her children and, importantly, to ensure the rights of this appellant, however fanciful his defence, to cross-examine the complainant on the matters that she alleged against him. The fact that to embark upon those measures would have meant a delay in the commencement of the trial or would otherwise have imposed upon the police officers concerned the necessity to track down the complainant does not provide, in our opinion, a sufficient basis upon which the prosecution could legitimately have made this 'hearsay' application to the court.
19. We stress that there will be many cases of domestic violence where it may become inevitable and absolutely necessary for a court to ensure justice is done and to admit the statement of the complainant. In such cases it often will be the case that the complainant is the only witness, but this in itself is not a good reason necessarily to refuse such applications. What we do stress equally, however, is that if such an application is to be made, it should be properly based, it should be properly evidenced, and the court has a responsibility to properly investigate the matter. We regret that in this case that investigation does not appear to have taken place. We cannot be satisfied from the transcript of the ruling that the judge did take into account appropriately all matters concerning this complainant's absence, nor take all necessary steps as would ensure her welfare and the fairness of the trial by obtaining her attendance.
20. Miss Wolfe, in the respondent's notice filed in this appeal, first deals with the distinction drawn on behalf of the appellant to the application that should have been made, it is said, pursuant to section 116 as opposed to 114.
21. We have indicated that this is not the issue in this appeal. An investigation into the facts pursuant to section 114(2)(g) or in pursuance of any of the gateways under section 116 would have soon revealed that there were steps open to the court that should have been weighed in the balance before reaching the conclusion here.
22. Miss Wolfe's secondary position is that, regardless of the deficient procedure, we can be sure that this conviction is safe.
23. We have referred to the somewhat fanciful nature of the defence, but it is nevertheless the right of this defendant, if no reason to admit hearsay evidence is found to exist, to have his case put to the complainant and to be present when his case is put. He was deprived of that opportunity. He was convicted. There can be no complaint that the summing-up was other than careful and well-structured, but we are so concerned as to the fairness of the procedure adopted prior to trial that we come to the conclusion that the lack of due process leads us to conclude that it would be wrong to uphold this conviction. We cannot be sure on the basis of the facts contained within the ruling that all due regard was had to the particular circumstances of this case. In those circumstances, the trial should never have commenced on the day it did, and when it did commence it should have ensured all due regard to the Article 6 rights of this appellant.
24. For the reasons we have given, and on the very fact-specific nature of the circumstances, we intend to allow the appeal and will now seek the further submissions of the Crown and defence as to whether or not a retrial is proposed.
25. MISS WOLFE: My Lady, the only application on behalf of the Crown is to request that this be remitted back to the Crown Court in order for the Crown Court to consider a restraining order on acquittal, and the court has the power to do that under section 5 of the Protection from Harassment Act.
26. LADY JUSTICE MACUR: So you do not seek a re-trial?
27. MISS WOLFE: No, my Lady, we do not see a re-trial.
28. LADY JUSTICE MACUR: Miss Pattison?
29. MISS PATTISON: My Lady, I do not suppose I can make any objection to the matter being remitted to the Crown Court to consider a restraining order.
30. LADY JUSTICE MACUR: Thank you, we will retire.
(The Bench retired for a short time)
31. LADY JUSTICE MACUR: The Crown having indicated that they do not seek a re-trial in this matter, we grant their invitation to remit the matter to the Crown Court for a consideration of the imposition of a restraining order after acquittal. The case should be listed within the next seven days, there is an issue of protection obviously.
32. Anything further?
33. MISS WOLFE: No, thank you, my Lady.
34. MISS PATTISON: No, thank you, my Lady.
35. LADY JUSTICE MACUR: Thank you very much.