Abstract
Keywords
The prosecution appealed against the decision of the trial judge to exclude a series of hearsay statements made by two witnesses who had died before the trial, a decision which was treated as a terminating ruling. It was agreed that the two witnesses had been attacked in their home by a group of people with knives. The witnesses had identified those attackers as the appellants. Both witnesses had extensive criminal records and both had changed their accounts of how the attackers came to be in their flat. Initially they said the defendants had burst in and attacked them but later they said that they had allowed the defendants to use their flat to deal drugs. The judge ruled that in light of these factors the witnesses’ reliability could not ‘be safely assessed’ (at [20]), or alternatively that the statements should be excluded under the Police and Criminal Evidence Act 1984 s.78 or the Criminal Justice Act 2003 s.126.
Held, Allowing the Appeal
The critical flaw in the judge's decision was his failure to take properly into account the fact that the contents of the statements of the two witnesses were largely agreed by the defence and were supported in most respects by very strong independent supporting or dovetailing evidence. The flaws in the witness statements were not necessarily fatal to the reliability of the disputed parts of the statements, but were matters which enabled that reliability to be tested and assessed.
It was difficult to follow the judge's reasoning where he ruled that if he was wrong in holding that there was insufficient material by which to assess the reliability of the statements, he would exclude the evidence for ‘similar reasons’ under PACE 1984 s.78 or Criminal Justice Act 2003 s.126. If he was wrong to exclude the evidence on the first ground, he had not explained how the same reasons could justify exclusion on the alternative grounds.
There had been inadequate prosecution disclosure concerning the circumstances in which the witness statements were made and the details of the witnesses’ previous convictions. This did not appear to have been a major factor in the judge's decision but the Court of Appeal stressed its importance in the giving guidance for future cases (see below).
The judge's decision was wrong and was not a reasonable decision for him to make. The hearsay evidence was admissible. The trial would be resumed under a different judge, who would need to consider, after all the evidence had been heard, whether to stop the trial under s.125 of the 2003 Act on the ground that the hearsay evidence was so unconvincing that a conviction would be unsafe. The Court said nothing about what the result of considering that question would be.
It was possible that the judge had fallen into error because he had followed the list of six steps set out in Riat [2012] EWCA Crim 1509 (at [7]). In light of this, the Court (at [31]) reformulated those steps, adding a new step 1 requiring the judge to consider the adequacy of disclosure, and expanding the guidance at steps 3 and 7 (corresponding to steps (ii) and (vi) of the Riat guidance).
Full details of the facts and Court's ‘case specific reasoning’ on the evidence cannot be published until after the conclusion of the trial.
Commentary
The steps numbered (i) to (vi) in Riat are set out very succinctly, but they are introduced by four paragraphs explaining the principles on which they are based, and followed by a further 22 paragraphs of more detailed explanation (where the steps are identified by Arabic rather than Roman numerals). They encapsulate a process by which hearsay admissibility decisions can be made within the statutory framework of the Criminal Justice Act (CJA) 2003 while also complying with ECHR article 6 as interpreted by the ECtHR Grand Chamber in Al-Khawaja v UK (2012) 54 EHRR 23.
The first step is to identify which, if any, of the statutory ‘gateways’ under CJA 2003 is available. The second step is to consider what material is available to test the credibility of the hearsay deponent, and to admit any such material to which s 124 applies. This then forms part of the material to be considered at either step (iii), (iv) or (v), which are alternative statutory bases for considering the ‘interests of justice’ and the fairness of admitting the hearsay. Which one of those three steps is appropriate will depend on the statutory ‘gateway’ that is being used. If it is s 116(2)(e)–the witness does not give evidence through fear –then the ‘interests of justice’ test under s 116(4) will be applied at step (iii). Similarly (although Riat does not expressly mention it), the interests of justice must be considered before admitting multiple hearsay under s 121(1)(c). If none of the gateways in ss 116-8 is available, the judge will consider at step (iv) whether to admit the evidence in the interests of justice under s 114(1)(d), taking account of the factors set out in s 114(2). If, as in BOB, the applicable gateway is one where there is no explicit ‘interests of justice’ test–in this case s 116(2)(a), that the witness is dead – the crucial step is (v), where the effect of admitting the evidence on the fairness of the trial has to be considered under the Police and Criminal Evidence Act (PACE) 1984, s.78. Finally, if when all the relevant evidence has been heard the hearsay evidence appears so unconvincing that the jury cannot safely rely on it, then if the prosecution depends wholly or partly on the disputed statement the judge must either direct an acquittal or order a retrial (s.125).
In BOB the trial judge had mistakenly treated step (ii) as a test for the admissibility of the hearsay statements, rather than a preliminary step concerned with marshalling the evidence by which the reliability of the hearsay statements could be assessed. He excluded the statements on the basis that the material he had considered at that stage did not establish that the hearsay was safely reliable. He then appears to have realised that this might be a mistake and (in a passage that is not so incomprehensible as the Court of Appeal found it) applied the correct test under PACE s.78, step (v) in the Riat sequence. This did not, unfortunately, cure his more serious mistake, which was to consider too narrow a range of undermining or supportive material, disregarding the extent to which the later hearsay statements were supported by what the defendants themselves admitted.
Although step (ii) in the original Riat list does appear to be concerned solely with CJA s 124, the Court in BOB reformulates the list to stress the importance of taking account of all the undermining and supporting evidence available. To this end, it adds (at [31]) a new step 1 (Arabic rather than Roman numerals are used in BOB) requiring the judge to ensure that all relevant material has been disclosed. Then step 3 (formerly (ii)) is reformulated as follows: [W]hat material is there which can help to test or assess the hearsay? This may be undermining evidence admitted under s.124, or other inconsistent evidence and it may also be independent dovetailing or supporting evidence. The court is required to make a judgment on the basis of all the evidence, having regard to the issues in the case and the importance of the hearsay to those issues.
Finally, at step 7 the Court expands the Riat guidance on s.125 and the direction to the jury if the hearsay evidence is left to them, treating these as such closely related questions that they should be considered together, usually at the conclusion of the evidence. In any case ‘where the prosecution seeks to prove an important and disputed fact by relying on hearsay, the judge is required to give a careful and tailored direction to assist the jury in deciding whether they can safely rely on the hearsay or not.’ If it is not possible to identify any way in which the jury could safely decide to rely on the hearsay, for example because other evidence does not support the hearsay in the way that was anticipated when the hearsay was admitted, the judge must stop the case under s 125.
The Court of Appeal had the opportunity in BOB to provide judges, advocates and law students with a thread to guide them through the labyrinthine hearsay provisions of CJA 2003. While it has achieved some clarity about the need to assess the hearsay in the context of other evidence, the clarity of the (now) seven steps, particularly step 3, still leaves much to be desired.
