England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SNARESBROOK
HIS HONOUR JUDGE PETERS QC
T20158010

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2016

Lord Justice Fulford:

Introduction

1. Given it is alleged sexual offences have been committed against the complainant, no matter relating to her shall during her lifetime be included in any publication if it is likely to lead members of the public to identify her as the victim of these offences. This prohibition applies unless waived or lifted in accordance with Section 1 of the Sexual Offences (Amendment) Act 1992.
2. This case concerns the approach the court should take when the hearsay account of a prosecution witness is introduced who i) retracted the allegations he or she made against the defendant in a series of letters that were – all save one – available at trial, ii) was outside the jurisdiction at the time of trial and iii) refused to attend court to give evidence.
3. On 3 July 2015 in the Crown Court at Snaresbrook before Judge Peters Q.C. and a jury, the appellant was convicted unanimously of one count of kidnapping (count 1), two counts of rape (counts 2 and 3) and one count of false imprisonment (count 4). On 6 July 2015, he received concurrent sentences as follows: 7 years' imprisonment on count 1, 14 years' imprisonment on counts 2 and 3, and 7 years' imprisonment on count 4.
4. H, the appellant's co-accused (and a friend), was acquitted by the jury of aiding and abetting rape and false imprisonment. The jury were unable to agree a verdict on H in respect of the count of kidnapping. A re-trial has been ordered in his case to follow the appellant's appeal.
5. Before this court the appellant appeals against conviction by leave of the single judge, who granted leave on two grounds of appeal.

The Facts

6. The appellant and the complainant married in 1980. They were extremely devout members of the Hasidic Orthodox Jewish sect in London. In 2008 they divorced in accordance with English law and separated. However, they remained married in accordance with Jewish religious law. The appellant refused to grant the complainant a get, a divorce decree in accordance with Jewish observance. They became embroiled in an exceptionally bitter custody dispute in relation to their youngest daughter, A (aged 14 years).
7. On Wednesday 15 October 2014, the eve of the Eighth Day of Solemn Assembly (Succot, a Jewish festival), the appellant met the complainant by arrangement at his warehouse in London. The complainant intended to collect their baby granddaughter, for whom the appellant was the designated sole carer. The prosecution's case can be summarised in the following way. It was suggested the appellant quickly incapacitated her in what was said to have been a planned attack, assisted by H. He was wearing latex gloves and sprayed Mace gas into her face; her mouth was taped; her hands were tied together with cable ties and a belt; her legs were secured; and a sack was placed over her head. She was then walked up a flight of steps into the appellant's office, then through a concealed magnetic flap into a further upper room before being taken down a narrow and precarious ladder into a room described later by the complainant as a "dungeon".
8. The complainant's clothes were cut off with a pair of scissors. The appellant removed his clothing which he passed to H. The appellant then had vaginal intercourse with the complainant before placing his penis into her mouth and ejaculating.
9. Thereafter, the appellant told her to clean herself, which she did in a rather rudimentary shower whilst her hands and feet remained tied together. The appellant also showered and dressed. He said he would return in 15 minutes. He switched the light off and closed the trapdoor as he left. He did not return.
10. The complainant managed to remove the cable ties. She climbed up the ladder into the upper room, but was unable to open the magnetic flap. She used her mobile to dial the 999-emergency number. The call lasted 22 minutes. She told the operator she had been raped. A recording of this telephone call was played to the jury. Police Constables Preston and Payne went to the warehouse. They found it was locked with the shutters down. They heard screams for help from behind a false wall, which was held in place by the magnetic strips. It took a significant length of time to locate the complainant and it was difficult to open the various doors. Eventually, they prised open a locked door to get into the upper room. It was necessary to create a small opening, leading into the "dungeon" where the complainant was held. She was in a very distressed state and was crying. She was naked except for a dressing gown. The police officers testified she was "very distressed and disorientated". She still had cable ties around her wrists as well as a belt, and had considerable bruising and abrasions. There was loud music playing on repeat.
11. The complainant provided the police with an outline of what had happened consistent with the 999 call. A week later, on 22 October 2014, she was interviewed in accordance with the ABE procedure. The recording of the interview was played to the jury.
12. Against that rehearsal of the facts as relied on by Crown, it is useful to summarise the main planks of the prosecution's case against the appellant. It was contended that the complainant did not consent. In support of this assertion, the prosecution relied on various pieces of evidence. These included, the initial allegations contained in the 999 call and the first complaint to the police officers who attended at the scene, along with the contents of the ABE interview and the complainant's extensive injuries, in that she was bruised from head to toe, particularly where her arms and legs had been restrained. The location of these events was somewhat dire, a hidden room smelling strongly of cat urine and containing a dirty mattress. The complainant's clothing, including her underwear, had been cut from her body in a way that made them unwearable. It was suggested this was consistent with these events having taken place against her will. The complainant's DNA was found on parcel tape in the upstairs rear office. The tape matched a roll recovered from the main part of the warehouse where she had been attacked. It was said this was inconsistent with the suggestion that the idea for a bondage play sex session had been formulated in the downstairs hidden room, which was the appellant's case. There was very loud music playing on a "loop" when the police arrived which would have drowned out cries for help had the complainant been unable to free herself. The police waited outside the appellant's home address for 20 minutes before knocking at the door. During this period, the appellant took no steps to leave.
13. The appellant, a man of previous good character, was interviewed following his arrest. He declined to answer any of the questions put to him.
14. In evidence, he suggested the "dungeon" had been misnamed or misdescribed, in that it was a "safe room", which H was constructing because he feared anti-Semitic or terrorist persecution.
15. He maintained that he and the complainant frequently engaged in bondage and rough sexual activities of a diverse nature when they were living together and before the civil divorce, and that they had continued occasionally to have sexual intercourse of that kind after they separated.
16. The appellant denied there had been a plan to attack her. He testified that they argued when she arrived at the warehouse. She tried to spray him with the can of mace which she historically carried for self-protection. He took it from her, with some of the spray landing on her accidentally. She then fell over and he and H assisted her to the upstairs office where there was a bed. He suggested that H then left.
17. His case was that the two of them then became reconciled, to the extent that he invited her to the safe room for intimate contact. He maintained that what then occurred downstairs was with her full consent. She asked him to bind her and treat her roughly as they had often done previously, something which gave her pleasure. He had tried to penetrate her vagina but had been unable to achieve an erection. He had then put his penis into her mouth and ejaculated. Both acts were done with her agreement.
18. His case was that he had then rushed off home, first, to attend to the baby, and, second, because his son was expecting him to cook supper for the festival of Succot. He gave evidence that he had shown the complainant how to untie herself and how to leave the premises. Although he had promised to return to give her a lift back to her own home, he had been detained at home and was somewhat late in returning. He would have returned for her as promised if the police had not arrived and arrested him.
19. The complainant failed to attend to give evidence, and during the trial several letters were received from her. They amounted to retractions. It is to be stressed that the prosecution never suggested the appellant was in any way responsible for the retraction letters, and particularly it was not suggested that he had solicited them from prison. It is necessary to describe the brief history of this correspondence.

The history to the proceedings

20. The trial was originally listed to commence on 23 March 2015. On 17 March 2015, the complainant attended Holborn Police Station and watched her ABE interview. On 20 March 2015, she confirmed to the SOIT ("Sexual Offences Investigative Techniques") officer that she was going to attend the trial.
21. On the morning of 23 March 2015, the complainant's son handed a letter to prosecution counsel in which she stated, inter alia:

"I am very sorry to tell you that I can't stand this trial, as this is causing total stress to me and my family and is breaking us apart thinking about the entire situation and what had happened to me with my X, I'm confused as at 1 point during what happened I felt that I will not resist it and as I'm thinking more about it I feel it effect (sic) my health and don't want to discuss it any more. Due to all this I have no option but to go away and can't ever stand in front of any 1 being asked private questions. Sorry for the inconvenience and I'm sure you understand me".

22. She did not attend at court.
23. The case was adjourned for enquiries. It was discovered that on 22 March the complainant had travelled to Venice with her daughter on an open ticket purchased on 17 March by one of her sons in Israel.
24. The trial was adjourned to 15 June 2015.
25. On 7 May 2015 the complainant telephoned DC Knott, the officer in the case. She said she was in Israel. Immediately after the telephone call, the officer wrote a statement which contained the following:

"(The complainant) was very apologetic and I then asked her where she was and if she was okay as my first concern was for her welfare. She told me that she was fine and well and she was happy. She said that she was in Israel with her son (sic) Y and Z. […] I then asked her why it had taken so long to call me and she said she couldn't explain and that she was sorry to have left how she did. I asked if she was coming to the UK as the case was still in the courts and she said she did not want to. (The complainant) went onto to say that she had gone on a holiday kindly arranged by her son. I responded saying that this was conveniently timed by her son, for the day before the trial, but she said that he had wanted to do something nice for her and H. I asked why she had not told us she was leaving the UK and she said that she knew that we would try to stop her and she did not want to hurt the children. She said that everything that happened was true and I asked if she hoped that the fact she had left the country meant the case was closed She said she understood that the case may still go ahead and we did not need her to which I said there was a possibility it may go ahead but that I wanted her to come back to the UK and give evidence. She said that couldn't (sic) because of her children and everything was good with them at the moment. (The complainant) then said that she would send a statement through an Israeli solicitor […]"

26. In a letter emailed to DC Knott, dated 14 May 2015, the complainant set out:

"[…] I went to Venice for a few days with my daughter for a short break. My daughter then went to the USA for Passover and I went to Israel to be with my children there. I have been here ever since. All the travel arrangements were made by myself and my children in Israel.

As I mentioned in our telephone conversation, I left the UK of my own free will, and I was not pressed to do so by any other party. Even (the appellant) did not know. I did so because I came to the conclusion that I do not wish to proceed with the matter further. I fear that to do so will lead to the breakup of my family. If the case goes to trial, the real victims will be my children As I have mentioned above, I am currently in Israel with my children, and I have no intention of returning to the UK for now as I am now occupied with studying, and assisting the elderly. In any case, you told me that the trial will go on without me.

The reason I failed to mention my plans was that I feared you may try to prevent me from leaving.

Regarding the sex allegations, it is true that (the appellant) may have thought I consented, in the heat of the moment he could easily have thought so.

[…]"

27. Thereafter, DC Caroline Stone unsuccessfully tried to contact the complainant many times on her UK mobile phone and by text messages.
28. At trial the prosecution applied, first, to have the 999 call admitted as hearsay evidence. The appellant argued that he could not have a fair trial in the absence of the ability to cross-examine the complainant, both as to her initial allegations and the reasons for her subsequent retractions.
29. In his ruling on 15 June 2015 as to the admissibility of the 999 call, the judge directed himself that the common law of admissibility as regards res gestae evidence had been preserved by section 118 of the Criminal Justice Act 2003 which includes the following:

"(1) The following rules of law are preserved.

[…]

Res Gestae

4. Any rule of law under which in criminal proceedings a statement is admissible as evidence of any stated if –

(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded,

(b) the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement, or

(c) the statement relates to a physical sensation or a mental state (such as intention or emotion)."

30. The judge reminded himself particularly that the circumstances in which the evidence was given must enable the court to disregard the possibility of concoction or distortion because the individual was so emotionally overpowered by the events. Having carefully reviewed all the relevant evidence, the judge concluded that the criteria for admissibility were met. The 999 call had been made whilst the kidnapping and the false imprisonment offences were allegedly taking place. Further, the judge did not feel that it was a case in which the prejudice outweighed the probative value, such as to mean the evidence should be excluded pursuant to section 78 of PACE 1984. The judge further indicated that, subject to any issues as to admissibility, the letters from the complainant could be put before the jury (as happened during the trial).
31. On 16 June 2015, the judge ruled on the prosecution's application to introduce the ABE interview. The judge addressed the relevant statutory provisions and certain of the leading authorities (including Riat [2012] EWCA Crim 1509; [2013] 1 CrAppR 2), and he decided that the ABE interview should be admitted under sections 114 and 116 of the Criminal Justice Act 2003. By section 114, evidence of hearsay can be admitted, inter alia, under any statutory provision within the relevant chapter of the Act, including section 116, which latter provision permits a statement to be introduced if the oral evidence from the relevant individual would have been admissible and he or she is outside the United Kingdom, and it is not reasonably practicable to secure his or her attendance (section 116 (1) and (2) (d)). The judge concluded that the complainant was outside the UK and that it was not reasonably practicable to secure her attendance, the police having made every effort to do so. Relevant to the practicability of securing her presence at trial, he concluded that she was a reluctant witness who had changed her mind "on the evidence that has come before me fairly and squarely for the sake of the children" and that in the result, there was nothing to be gained by sending officers to Israel or attempting to set up a video link because the witness would not cooperate.
32. The judge considered a subsidiary route of admissibility, namely whether he should allow this hearsay evidence to be introduced as being in the interests of justice (section 114 (1) (d)), and he analysed, in this context, the factors set out in section 114 (2) (a) – (i). Addressing section 78 Police and Criminal Evidence Act 1984, he decided that the appellant would receive a fair trial, particularly given the main issue was whether the complainant consented. It was open to the appellant to give evidence; he could comment on the disadvantages consequent on the absence of the complainant not being present; and the jury would be directed appropriately on these issues.
33. In a third letter emailed to the officer from solicitors in Israel (the covering letter bears the date 17 June 2015) the complainant suggested:

"[…] As I have told you, I do not wish to be involved. Nevertheless, I understand the trial is proceeding. I therefore need to clarify certain matters.

I asked (the appellant) to take me down to a private room. Once there, we discussed various things. Afterwards, he offered me sex. As I told you before I gave him to understand that I consented.

As I have told you previously, our marital sex relationship was rather different from that of most other Orthodox couples. After we finished, he was in a rush to leave. He showed me how to leave the room. When I was ready to leave, he showed me my bag with the phone in it. He told me he would return soon. However, I was unable to work out how to leave, and I got frustrated. I felt lost. So I panicked and dialled 999. I was angry with him for not returning, and I was also angry with him because he refused to grant me a get.

I should also say that during our separation we met up on several occasions and were intimate and had a friendly relationship."

34. On 18 June 2015, following the arrival of this third letter, the appellant invited the judge to revise his rulings. It was accepted that the third letter was genuine, in the sense that it came from the complainant. The judge summarised that the crucial issue was whether the 999 call and the ABE interview were, at least potentially, reliable, and he concluded that in any event this was evidence that the jury could safely consider. The judge, having considered all the circumstances and history of the case, said that he would maintain his earlier rulings which were unaffected by this most recent letter from the complainant.
35. In a fourth letter emailed to DC Knott from a firm of solicitors in Israel (bearing the date of 22 June 2015), the complainant said:

"[…] I am trying to settle into a new life and do not wish to be disturbed.

I have been to see a Rabbi and discussed the matter with him. He stated that failure to correct various points in my previous allegations – as I have already mentioned in my previous letters to you – would be a grievous sin on my part and would dog me for the rest of my days.

I can only restate what I stated previously. I was angry with my husband because he did not return as promised and also because he was delaying my GET, and finally because of the custody dispute over A. Though he told me at the time he was taking the baby home, and would then return, I panicked because I had a fear that I may be stuck in the building, even over Yom Tov. This fear turned out to be completely unfounded. Moreover, my husband had already given me back my phone. I therefore panicked and called the police.

Because of the issues mentioned above, I was overwhelmed and so I over reacted. I can get angry and when I do get annoyed I tend to lose my cool rather drastically, hence I over-react. I can be very good at acting and making a scene.

Since then, I felt I could not stop pressing ahead with my accusations given that I was receiving so much police attention. Even when I felt I must be correct or rectify my previous allegations, I felt incapable of retracting for fear that I could get in trouble. Accordingly, I gave the police an inaccurate impression of how things occurred.

I wanted to back off, as I was ashamed of my conduct. I believed that if I told the police I'm being subjected to pressure from my husband and children the police would take the hint and leave me alone. But unfortunately, the opposite happened. So I decided to leave the jurisdiction on my own accord. I was not bullied or pressured into doing so by my children or any other party I was prompted by own conscience.

As I said I have no wish to be involved in this matter. I can only request, one last time, not to be disturbed any more about the whole matter."

36. At the conclusion of the prosecution's evidence, the appellant made an application pursuant to section 125 Criminal Justice Act 2003 to stop the case on the basis the case against him was based wholly or partly on the hearsay evidence of the complainant (by this time the court was in possession of the fourth letter dated 22 June 2015, the contents of which are rehearsed above). This provision enables a judge to stop a trial when the case against the accused is based, wholly or in part, on hearsay evidence that is so unconvincing that, considering its importance to the case against the defendant, his conviction would be unsafe.
37. The Judge refused the application. He had reviewed all the evidence. He bore in mind that in addition to the hearsay evidence (the 999 call and the ABE interview), the Crown was able to rely on the police officers' initial accounts, the complainant's injuries, the tape on which was found her DNA and the state of her clothing. In his judgment this provided a proper basis for the jury to assess the strengths and weaknesses of the case overall.
38. In a fifth and final letter dated 1 July 2015 the complainant stated:

"I heard that (the appellant) is being accused of injuries he caused me. I would like to make a point clear besides for the tying up signs/injuries caused between me and (the appellant), all other injuries were caused by myself whilst I tried to escape through the trap door thinking that I would be stuck thee for Yom Tov and from browses (sic) caused by the raw cement flooring. Furthermore some bruises were old bruises.

I feel this already getting ridicules (sic) that I need to express again and again that want this case to be closed already and would feel terrible if (the appellant) gets convicted based on the things I've said when I was questioned by you. I asked my son (L) as well to tell this to the judge. I myself couldn't return to the UK to tell this to the court myself I was advised I could be punished for wasting your time. Please finally believe me what I'm saying is the truth. As mentioned previously I may feel ashamed of this situation by my Rabbi told me that I will not forgive myself if I do not admit the truth. (The appellant) and the other man will wrongly punish (sic) for things they didn't do."

39. Following his conviction, the appellant received a letter from the complainant. The letter, partly in English and partly in Hebrew, was posted on 10^th May 2016 in Jerusalem. It included the following:

"I would like to ask for forgiveness for everything I've done to you […] please Release the "GET" in your own interest. If not I'm there for the trial […] don't play with fire, don't be foolish […] You can have a victory but stay right and stay dead […]"

40. The Crown accepted that this letter ought to be considered on the appeal; we admitted it, and have borne its contents in mind.

The Appeal

41. Before this court, Mr Goldberg QC argues, first, the judge erred in admitting the hearsay evidence of the complainant, namely the 999 call and her ABE interview, in circumstances when the complainant had chosen not to attend the trial. Second, it is suggested, the judge erred in failing to stop the case thereafter under section 125 of the Criminal Justice Act 2003. In summary, it is contended that this evidence should not have been admitted because the jury was left to deal with two entirely irreconcilable accounts.
42. It is highlighted that the complainant deceived the police. The trial was due to begin on 23 March 2015, and on 17 March 2015 she watched the recording of the ABE interview, the same day that her air ticket was purchased. 3 days later, on 20 March 2015, she spoke with SOIT officer confirming she would attend to give evidence and on 22 March 2015 she flew to Venice. Thereafter, the retraction letters started to arrive, as summarised above. The trial, it is submitted, was inevitably unfair because the jury only saw the appellant being cross-examined on his account (extending over 2 ½ days), whereas the complainant's account, which needed to be set against the circumstances of her departure from the country and the ensuing letters, was left untested.
43. It is argued, additionally, that the prosecution, in effect, treated the complainant as a hostile witness without following the requirements of section 3 Criminal Procedure Act 1865 (Lord Denman's Act), which provides:

"How far witness may be discredited by the party producing.

A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement."

44. Mr Goldberg suggests the jury could not properly assess the reliability of this witness who had markedly changed her account, and it is argued that it was impossible for the jury to distinguish safely between her original and her later accounts, without cross examination. The jury could not safely accept the account given in the 999 call and the ABE interview without seeing her questioned about the statements she made, having deceived the police and having left the country.
45. Finally, it is argued the judge should have given the jury bespoke directions that set out with care the approach they should take to evidence of this kind. The judge, it is said, failed to give the jury sufficient assistance during the summing up.
46. The prosecution suggests the admission of the evidence was a reasonable exercise of the judge's discretion, the judge having undertaken a thorough review of the evidence, the legislation and the authorities on at least five occasions during the proceedings. It is submitted the judge's directions to the jury were entirely sufficient.

Discussion

47. There is no rule under the Criminal Justice Act 2003, or otherwise, that the hearsay evidence of a witness can only be introduced if the account provided by the relevant individual is consistent and does not include contradictory statements on material issues. Instead, admissibility depends on the circumstances of the case and the precise factors the judge needs to bear in mind when deciding whether to permit the evidence to be given. For instance, if the application is to introduce the evidence "in the interests of justice" under section 114 (1) (d) of the Criminal Justice Act 2003, the judge must consider the factors set out in section 114 (2) of the Act:

"(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;

(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);

(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;

(d) the circumstances in which the statement was made;

(e) how reliable the maker of the statement appears to be;

(f) how reliable the evidence of the making of the statement appears to be;

(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;

(h) the amount of difficulty involved in challenging the statement;

(i) the extent to which that difficulty would be likely to prejudice the party facing it."

48. When deciding, as in the instant case, whether to exclude the evidence under section 78 Police and Criminal Evidence Act 1984, factors such as (a) – (i) in the preceding paragraph will frequently need to be borne in mind. In R v Cole; R v Keet [2007] EWCA Crim 1924; [2008] 1 Cr.App.R the Lord Chief Justice observed:

"6. Section 126(2) preserves the power of the Court to exclude evidence under s.78 of the Police and Criminal Evidence Act 1984 (PACE). That section provides:

"In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

7. It seems to us that this test is unlikely to produce a different result from that of "the interests of justice" in s.114(1)(d). In either event the court can and must ensure that the requirements of a fair trial, as laid down by Art.6 of the European Convention on Human Rights, are observed.

[…]

21. There are many reasons why it may be impossible to call a witness. […] Where the witness is dead, or cannot be called for some other reason, the question of whether the admission of a statement from that witness will impair the fairness of the trial will depend on the facts of the particular case. Factors that will be likely to be of concern to the court are identified in s.114(2) of the Act."

(See also R v Gian and Mohd-Yusoff [2009] EWCA Crim 2553)

49. It is always for the judge to determine whether it would be unfair or against the interests of justice to allow the prosecution to rely on the evidence of a witness who has provided contradictory hearsay evidence, but in this case the complainant gave an early, clear, consistent and arguably powerful account in the 999 telephone call and in her ABE interview. It would have been open to the jury to convict on that evidence, standing alone and without being tested in cross examination. In our judgment, the later retractions and exculpatory statements did not render it impermissible for the jury to conclude that they were sure this initial account was correct. In this context, it is worth stressing the extraordinary nature of the encounter, the disgusting condition of the room to which the complainant was taken by the two men, the DNA on the tape, the cut clothing, her injuries, the fact that she was left in darkness with loud music playing on repeat in a room from which she was unable to escape and to which the appellant did not return, and what the jury may have concluded was the genuine nature of her original account, even if it was untested by cross examination.
50. The jury was well placed to evaluate the contradictions that emerged in the account of the complainant, including the explanations that were suggested for them, such as the perceived need to protect her family which was a theme in the retraction letters. Accordingly, the judge was correct in deciding to allow the prosecution to introduce the evidence and in refusing the application to withdraw the case from the jury at the end of the prosecution's case.
51. Lord Denman's Act does not apply in these circumstances. Section 3 Criminal Procedure Act 1865 applies to the approach that is to be taken when a witness who is being questioned in court departs from the account he or she gave in an earlier statement. The leave of the judge is required before the earlier account can be put to the witness in questioning. Self-evidently that procedure has no application when the witness does not testify during the trial and a hearsay account is introduced.
52. We accept, however, that in a case such as this, when a witness who does not testify in person has provided two contradictory accounts on material issues, which have been introduced during the trial, the judge must give a precisely formulated warning to the jury on the need for care, given the inconsistencies, before they convict – if only in part – on the basis of that evidence. Therefore, this applies regardless of whether there is other evidence that supports the prosecution case. The precise terms of the direction will necessarily depend on all the circumstances but it is likely that the jury ought to be told that if a witness has given seemingly inconsistent accounts on material issues which have not been tested by questioning, they will need to approach the evidence with caution. It will be for the jury to consider whether the contradictions are significant (if they are insignificant, the jury should ignore them). The strength and the nature of the warning will be tailored to meet the facts of the case and the circumstances of the witness, and it may include such features as the importance of the issues about which the witness has provided differing accounts, the factors that are relevant to quality of the witness's evidence, the content of the evidence, the extent to which the evidence has changed or developed and the reason or reasons that are suggested for the inconsistencies. It may well be desirable to direct the jury that they must consider whether the witness is someone who should be treated as creditworthy at all before going on to consider what parts of the witness's evidence they can accept (see R v Maw [1994] Crim.L.R. 842).
53. In this case, the judge gave the jury two general directions relevant to this issue. First, he reminded them on several occasions that the appellant had not had an opportunity to cross examine the complainant or put his case to her, and that they had not seen her demeanour under questioning. Second, he directed the jury to consider the evidence of the 999 telephone call, the ABE interview and the letters, and to decide where the truth lay. For the reasons set out above, those directions were insufficient, given the difficult task that confronted the jury of having to resolve two completely contradictory accounts from the complainant, on whose evidence a conviction of the appellant depended (albeit the version given in the 999 telephone call and the ABE interview was supported by other evidence).
54. There was no discussion before speeches or the summing up as to the directions the judge was proposing to give the jury on these issues. In a case such as this, that ought to have happened, particularly given the unusual nature of the situation confronting the court. The most convenient means of doing this is for the judge to provide counsel before closing speeches with a written or typed draft of the relevant proposed direction. This is the best means of ensuring that the judge has proper assistance from the advocates as to the approach that he or she should take, and it helps ensure that the jury do not receive contradictory or inadequate explanations on the law. We note that only one legal issue was possibly raised before speeches – albeit there is some uncertainty as to whether or when this occurred – was whether there needed to be a direction on corroboration.

Conclusion

55. For the reasons set out above, we quash the conviction on the four counts because of the inadequate directions to the jury which render the verdicts of the jury unsafe.
56. The prosecution seeks a retrial, and we have received submissions on this issue. As set out above, this appellant can properly be tried on the basis of the hearsay account of the complainant and it is important in this regard to have in mind that the convictions have been quashed solely because of the directions to the jury. Mr Goldberg suggests that it would be oppressive for the appellant to stand trial again, bearing in mind the attitude of the complainant and the fact that these allegations relate to events in October 2014. We disagree. There are no factors which render it unfair for the appellant to face a second trial; the delay between the incident and the retrial will not be exceptionally great; and in all the circumstances it is in the interests of justice for the appellant to be retried.
57. We adjourn the issue of bail to the court below.