Cole & Anor v R

The Registrar has referred to this Court two applications for permission to appeal against conviction to be heard together. In each case the trial judge acceded to applications by the Crown to adduce hearsay evidence pursuant to section 116 of the Criminal Justice Act 2003. In each case that evidence was critical in relation to at least one of the counts on which the defendant was convicted. The applications raise an issue of principle and we gave permission to appeal at the outset of the hearings. Before turning to the facts of the individual cases we propose to make some general observations.

Before 1988 it was a general rule, subject to some exceptions, that hearsay evidence was not admissible in a criminal trial. The following explanation for this rule was proffered by Lord Bridge in R v Blastland [1985] 2 All ER 1095 at 1099:

“Hearsay evidence is not excluded because it has no logical probative value…The rationale of excluding it as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any weight, can properly be given to a statement by a person whom the jury have not seen or heard and who has not been subject to any test of reliability by cross-examination…The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve.”

This statement is relevant to a situation such as that before the court where the maker of the statement has not given evidence, but the rule against hearsay also excluded evidence of statements made by those who were called as witnesses. In neither situation was the rule satisfactory. It often excluded the most probative evidence. Significant inroads were made into the rule by sections 23 and 24 of the Criminal Justice Act 1988. Chapter 2 of Part II of the Criminal Justice Act 2003 has reformed the law, making changes recommended by the Law Commission aimed at ensuring, subject to suitable safeguards, that relevant evidence is admitted when this is in the interests of justice. Subsection (1)(d) of section 114 gives the court a discretion to admit hearsay evidence when it is satisfied that ‘it is in the interests of justice for it to be admissible’. Subsection (2) provides:

“(2)

In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant) –

(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.”

Section 116 deals with cases where a witness is unavailable. It provides:

(1)

In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if-

(a)

oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b)

the person who made the statement (the relevant person) is identified to the court’s satisfaction, and

(c)

any of the five conditions mentioned in subsection (2) is satisfied.

(2)

The conditions are-

(a)

that the relevant person is dead;

(b)

that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c)

that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d)

that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e)

that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement and the court gives leave for the statement to be given in evidence.”

In the case of (e), but not in the other cases, subsection (4) provides that the court can only admit the evidence if satisfied, having regard to specified criteria, that it is in the interests of justice to do so.

Section 121 deals with multiple hearsay. It provides:

“(1)

A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless –

(a)

either of the statements is admissible under section 117, 119 or 120,

(b)

all parties to the proceedings so agree, or

(c)

the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require that later statement to be admissible for that purpose.

(2)

In this section “hearsay statement” means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.”

Section 126(2) preserves the power of the Court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1978 (‘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.”

It seems to us that this test is unlikely to produced a different result from that of ‘the interests of justice’ in section 114 (1)(d). In either event the court can and must ensure that the requirements of a fair trial, as laid down by Article 6 of the European Convention of Human Rights (‘ECHR’), are observed. Because the provisions of the 2003 Act leave the court free to comply with the requirements of Article 6 there is no question of the hearsay provisions of the Act being incompatible with the Convention – see R v Xhabri [2005] EWCA Crim 3135; [2006] 1 Cr App R 26 at paragraph 42.

Article 6.1 of the ECHR provides that in the determination of any criminal charge against him, everyone is entitled to a fair hearing. Article 6.3 provides:

“Everyone charged with a criminal offence has the following minimum rights: ...

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.

Mr Robert Bryan, who has appeared for the appellant Keet, has argued that Article 6.3 was infringed by the admission of the hearsay evidence in his case, having particular regard to the fact, that in respect of three of the four counts that Keet faced, the prosecution’s case was essentially founded on the hearsay evidence.

Mr Bryan relied on the decision of the Strasbourg Court in Luca v Italy (2003) EHRR 46. The procedure in that case had been governed by the Italian Code of Criminal Procedure. That Code permitted the statements made by a person accused in connected proceedings to be adduced in evidence against the defendant although this witness exercised his right of silence and declined to give oral evidence. The Court held that Article 6.1 and 6.3 had been violated. It stated:

“The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair.

The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, Art. 6(1) and (3)(d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage.

As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Art. 6(1) and (3)(d). The corollary of that, however, is that where a conviction is based soley or to a decisive degree on depositions that have been made by a person whom the accused has no opportunity to examine or to have examined, whether during the investigation or at the trial the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Art.6.”

If this decision were treated as precluding the admission of hearsay evidence in any circumstance where the source of the evidence had died or was, for some other reason, no longer available to be cross-examined it would necessarily result in defendants avoiding conviction where their guilt was not in doubt. It does not seem to us that the requirements of a fair trial require this consequence. Nor does it follow from the decision in Luca. In that case the witness was still available but, under the applicable code of procedure could not be cross-examined.

Looking at Article 6 without reference to authority, it is concerned with ensuring that there is a fair trial. Article 6.3 is premised on it being possible for witnesses to be called by the prosecution or by the defendant. It does not deal with the position where, for one reason or another, this is simply not possible. Nor does Luca hold that statements made by a witness who has since died, or whom it is otherwise impossible to call to give evidence, cannot be received.

Furthermore, Luca was a case where the evidence in question was the main evidence against the accused. It cannot be treated as authority for the proposition that in all circumstances hearsay evidence cannot be adduced unless the defendant is able, or has had the opportunity, to examine the maker.

Is hearsay evidence of a witness who cannot be cross-examined precluded when it is the sole, or the decisive, evidence against a defendant? The wording of the Strasbourg Court in the passage from Luca that we have cited above might suggest so. But Mr Bryan accepted that there was a line of domestic authority that establishes, so far as this court is concerned, that this is not the case.

In R v KM [2003] EWCA Crim 357, after lengthy consideration of both domestic and Strasbourg authority, the court reached the following conclusion at paragraph 60:

“…we would not subscribe to any formulation of the approach to be adopted which states without qualification that a conviction based solely or mainly on the impugned statement of an absent witness necessarily violates the right to a fair trial under Article 6.”

On the facts of that case, however, the court held that the evidence in question should not have been admitted.

In R v Sellick [2005] EWCA Crim 651; [2005] 2 Cr App R 15 four statements had been admitted in evidence at a murder trial pursuant to sections 23 and 26 of the Criminal Justice Act 1988. The judge held that he was satisfied that two of the witnesses had been kept away through fear and the other two could not be traced. The defendants appealed on the ground that their right to a fair trial under Article 6.1 and 6.3 had been violated. Once again this court considered the Strasbourg jurisprudence at length. It concluded that the authorities supported the following propositions:

“i)

The admissibility of evidence is primarily for the national law;

ii)

Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;

iii)

It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read, and the procedures to counterbalance any handicap to the defence, will all be relevant to the issue, whether, where statements have been read, the trial was fair.

iv)

The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”

The court went on to consider, having particular regard to Luca, whether there was a fifth proposition that ‘where the defendant had had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant’. It reached the conclusion that, at least where witnesses were kept away through fear, such a proposition could not prevail:

“In our view having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant’s Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be ‘got at’ the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg.”

R v Al-Khawaja [2006] 1 Cr App R 184 the appellant was charged with two counts of indecent assault. By the time of the trial one of the complainants had died. Her statement was admitted under section 23 of the 1988 Act. On appeal it was argued that this violated Article 6.3 (d) of the ECHR. Dismissing the appeal, this court said this at paragraph 26:

“Where a witness who is the sole witness of a crime has made a statement to be used in its prosecution and has since died, there may be a strong public interest in the admission of the statement in evidence so that the prosecution may proceed. That was the case here. That public interest must not be allowed to override the requirement that the defendant have a fair trial. Like the court in Sellick we do not consider that the case law of the European Court of Human Rights requires the conclusion that in such circumstances the trial will be unfair. The provisions in Art.6(3)(d) that a person charged shall be able to have the witnesses against him examined is one specific aspect of a fair trial: but if the opportunity is not provided, the question is “whether the proceedings as a whole, including the way the evidence was taken, were fair. Doorson v The Netherlands (1996) 22 EHRR 330.”

Finally the Privy Council has recently commented on Article 6 in the present context in an appeal from the Court of Appeal of Jamaica. In Grant v The Queen [2007] 1 AC 1 the issue was whether section 31D of the Evidence Act was compatible with section 20(6)(d) of the Constitution. Section 31D permitted the statement of a witness who was not called to give evidence to be read in specified circumstances. Section 20(6)(d) was in similar terms to Article 6.3(d). Giving the advice of the Committee, Lord Bingham of Cornhill at paragraph 17 referred to the relevant Strasbourg authority and commented:

“The Strasbourg court has been astute to avoid treating the specific rights set out in article 6 as laying down rules from which no derogation or deviation is possible in any circumstances. What matters is the fairness of the proceedings as a whole.”

He continued:

“Just as section 13 of the Constitution recognises that individual rights cannot be enjoyed without regard to the rights of others, so the Strasbourg court has recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, and has described the search for that balance as inherent in the whole Convention…Thus the rights of the individual must be safeguarded, but the interests of the community must also be respected.”

After referring to the case of a witness kept away through fear, Lord Bingham commented:

“Where a witness is unavailable to give evidence in person because he is dead, or too ill to attend, or abroad, or cannot be traced, the argument for admitting hearsay evidence is less irresistible, but there may still be a compelling argument for admitting it, provided always that its admission does not place the defendant at an unfair disadvantage.”

Once one moves away, as both the Strasbourg and our domestic jurisprudence clearly have, from the proposition that there is an absolute rule that evidence of a statement cannot be adduced in evidence unless the defendant has an opportunity to examine the maker, it seems to us that there can be only one governing criterion. Is the admission of the evidence compatible with a fair trial? It is that question alone with which Article 6 is concerned.

There are many reasons why it may be impossible to call a witness. Where the defendant is himself responsible for that fact, he is in no position to complain that he has been denied a fair trial if a statement from that witness is admitted. 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 be depend on the facts of the particular case. Factors that will be likely to be of concern to the court are identified in section 114(2) of the Act.

In accordance with these conclusions, we shall proceed to consider the individual appeals on the basis that Article 6 imposes no absolute embargo on the admission of the hearsay evidence adduced by the prosecution in either case.

On 19 April 2007, in the Crown Court at Winchester before Mr Recorder Vaitilingham, the appellant was convicted of attempting to obtain property by deception, which was Count 3 and damaging property, which was Count 4. He was acquitted of Counts 1 and 2, each of which charged him with obtaining property by deception. The deception alleged in each case was that a sum charged was a reasonable price for the work to which it related when in fact it was excessive. The appellant was sentenced to perform 240 hours unpaid work in respect of Count 3 and 60 hours unpaid work, to be performed concurrently in respect of count 4. He pleaded guilty to failing to answer bail, in respect of which he was fined £500. He appeals against conviction in relation to Count 3 but not Count 4.

The following part of the prosecution case was based upon Mrs Soper’s witness statement. On 22 April 2002 Mrs Soper, who was 82 years old, lived with her husband, who was aged 85, at 7 Everley Close in Whitehill, Bordon. At about 10 am the appellant and another man drove up in a red van. The appellant said that they worked for Angles Roofing Limited and offered to remove a coating of moss on the roof of Mr and Mrs Soper’s house. They themselves had already been concerned about this moss and they agreed to the offer.

The men got ladders off the roof of the van and set about removing the moss. At the end of the first day they asked for £500 by way of payment. The Sopers kept substantial sums in cash in the house and Mrs Soper gave the men the £500 that they had requested. This payment was the subject matter of Count 1. The following day the men returned and completed the task of removing the moss. They asked for and were given a further £480 in cash. This payment was the subject matter of Count 2. They said that there was further work to be done in the form of ridge tiles that were loose and needed re-cementing.

The men returned the next day to attend to this work. They then said that the roof was leaking. They returned the following day with wooden battens. At one point one of the men put a plastic sheet on the roof in case it rained.

At the end of the week the men said that further work was required at the rear that would cost £6,000. This was the subject matter of Count 3. Mrs Soper said that she would have to get this from the bank. However she told her daughter of these events and her daughter got angry, saying that her mother had been conned. She drove her mother to the police station, where she reported what had occurred.

The police attended on Monday 29^th April, when the appellant and another man arrived in the red van. The police arrested both of them. Subsequent inspection of the roof disclosed that a tile had been lifted and a piece of roofing felt cut out. This formed the subject matter of Count 4. It was the prosecution case that this was damage deliberately effected so as to justify the further work.

Corroboration of Mrs Soper’s evidence was to be provided by an elderly neighbour called Mrs Rapley. In her witness statement she said that Mrs Soper had told her that one of the men had come down from the loft with a wet piece of wadding and said that water had got into the loft. Mrs Soper told her that the men were asking for £6,000.

The appellant was interviewed by the police on a number of occasions, the first being 29 April 220. He accepted that he had been paid £500, but said that this had been payment for 4 days spent removing moss. He found a hole in the felt and said that he would return on Monday (29 April) to attend to this and to some cementing work. He quoted £60 for this work, not £6,000. He denied cutting the felt but said that his assistant might have trimmed it up.

The trial was fixed for 25 March 2003, but then adjourned to 28 May 2003 because Mrs Rapley was not well. The trial did not, however, take place on that day because the appellant had absconded. Had he not done so it is very doubtful whether the prosecution would have been able to proceed. Both Mrs Soper and Mrs Rapley had, on 27 May, made it plain that they felt too frail to give evidence. The prosecution intended to seek to adduce the evidence of each pursuant to section 23 of the Criminal Justice Act 1988, but it was neither likely that these applications would succeed nor that, if they did not succeed, it would have been possible to prevail on either of the ladies to change her mind.

The appellant was arrested on 28 October 2006. By this time Mrs Soper was suffering from dementia. It is accepted on behalf of the claimant both that she was no longer fit to give evidence and that, in April 2003, she had the capacity to make the statement that she did. Mrs Rapley was not fit to give evidence and no application was made to read her witness statement.

The prosecution was granted permission to adduce in evidence the witness statement of Mrs Soper. They called a roofer who had been retained by the police in 2002. He gave evidence of lifting a protruding tile and finding that a hole had been cut in the felt underneath. He denigrated the work alleged to have been done by the claimant and said that it should have cost about £100. The prosecution called two other experts who also denigrated the work alleged to have been done.

The defence called an expert on moss in support of the appellant’s case that he had cleared off all the moss and applied fungicide. The defendant gave evidence himself. This accorded with the statements made to the police. He said that he had only been paid £500 and this was for 4 days work. He agreed that it would have been extortionate to extract a further £480. Mrs Soper must have misunderstood the additional sum that he had asked for – this was £60, not £6,000.

So far as the cut felt was concerned, the appellant had said in his Defence Case Statement that a leak became apparent after the jet washing started. He gave evidence that he had gone into the loft to inspect, saw some dampness and felt that was perishing, worn and hanging down. He had described this to his assistant who must have lifted off the tiles and found the hole in the felt.

There are two grounds of appeal:

In his skeleton argument Mr Bryan submitted, as he had before the judge, that to admit a statement of a witness who could not be called when that statement was the sole or decisive evidence on a count was contrary to Article 6.3, relying, in particular, on Luca. The judge had rejected this argument, holding that ‘everything turns on the facts of the particular case’. For the reasons that we have given, the judge was right to do so. In oral argument, Mr Bryan departed from this extreme case. He submitted, however, that on the facts of this case it was unfair to admit Mrs Soper’s statement. It was, he observed, the only evidence in relation to the first three counts. It was unfair that the appellant should be denied the chance of cross-examining the only witness

Whenever the statement of a prosecution witness who cannot be called is read, the defendant will be denied the chance of cross-examination. This, of itself, does not make the trial process unfair. The judge will direct the jury in relation to the weight to be accorded to a statement that has not been given orally or tested in cross-examination and, if the defendant calls or gives oral evidence, that evidence, if it withstands cross-examination, is likely to carry more weight than the statement relied on by the prosecution.

Section 114 lists factors relevant to the interests of justice that the court must consider when admitting evidence under that section. It does not state expressly which way each individual factor is intended to cut. We consider the inference is that the more important and the more reliable the statement appears to be, the stronger the case for its admission. Taking each factor in turn in the context of the present case:

It is thus our view that the relevant factors weighed strongly in favour of the admission of Mrs Soper’s evidence in this case. There is one further, and cogent point that was made by the Recorder that we would endorse:

“Offences of this type, or offences of the type here alleged, are deliberately aimed at those who are elderly and vulnerable, and it is inevitable in some case at least that a witness will be unable to attend court…Section 116 and its predecessors …provide an important weapon in the prosecution armoury in just such cases. ”

For these reasons we have concluded that the judge was right to admit Mrs Soper’s statement and, accordingly, we reject the first ground of appeal

Mr Bryan submitted that the acquittals on Counts 1 and 2 could not be reconciled with the conviction on Count 3 and that accordingly that conviction was not safe and should be quashed.

This court will quash a conviction on the ground that the guilty verdict was inconsistent with an acquittal on another count where, but only where, this leads to the conclusion that the guilty verdict is unsafe. It will not always do so, for in some cases there can be rational explanations for the apparent inconsistency. Archbold 2007 edition comments at paragraph 7-70:

“The mere fact that the different counts all depended on the evidence of the same witness, whose evidence was uncorroborated, and whose credibility was in issue, could not render different verdicts on the different counts inconsistent for this purpose.”

Mr Bryan recognised the validity of this general proposition, but he submitted that the present was an exceptional case where it did not apply. Counts 1, 2 and 3 all turned on the witness statement of Mrs Soper. If the jury had believed what she said in relation to counts 1 and 2 they must have convicted the appellant on those counts. The appellant had himself accepted that, had he demanded and received a total of £980 for the work done on the roof this would have been grossly excessive. It followed that the jury could not have been satisfied that her statement was accurate in respect of Counts 1 and 2. They should not then have relied upon it, as they must have done, in respect of Count 3.

We do not agree. The Recorder, at the beginning of his summing-up directed the jury:

“You know that there are four charges, and you must consider each of them separately of course. So your verdicts can be the same on all four, or they can be different.”

At the end of the summing-up Mr Butt for the prosecution suggested that the Recorder had omitted this direction, so he again directed the jury to give separate consideration to each count. In a case such as this, where the counts add up to a course of conduct, such a direction can be over favourable to the defendant. We suspect that it may have been in this case.

When considered in isolation, Counts 1 and 2 turned on a straight conflict of evidence between Mrs Soper’s statement and the appellant’s oral evidence. The Recorder gave the jury an impeccable direction as to the limited weight to be attached to Mrs Soper’s statement. If the jury considered Counts 1 and 2 on their own, without considering the implications of the appellant’s subsequent conduct, it is easy to accept that they may not have felt sure that Mrs Soper’s account was accurate.

There was, in logic, a much closer connection between Counts 3 and 4 than there was between those counts and Counts 1 and 2. The Recorder directed the jury:

“Did he, if he cut through the roof, have a lawful excuse for doing so? Now, you may think that if he was cutting through the felt simply to make it easier to replace what was already damage, there is no question is there, he was clearly acting lawfully. But if you are sure that he cut through that felt really as a way of dishonestly obtaining money from Mrs Soper by pretending there was a problem with her roof, then of course he did not have any lawful excuse for doing it, and he would be guilty of that charge.”

The jury convicted the appellant on count 4 on the basis of evidence other than that of Mrs Soper and there is no appeal against that conviction. That conviction lends strong support to Mrs Soper’s evidence in relation to Count 3. We see no basis for concluding that the conviction on Count 3 was unsafe

For these reasons, Mr Keet’s appeal against conviction is dismissed.

On 12 December 2006, in the Crown Court at Basildon before Her Honour Judge Taylor, the appellant was convicted of three counts of assault occasioning actual bodily harm. He was sentenced to 30 months imprisonment on each count, to run concurrently.

In the early hours of 3 January 2004 the appellant’s girlfriend, Katy Smith, committed suicide by hanging herself in the bathroom of his flat. Police and ambulance men were called. They noticed that the body of the deceased bore black eyes and other injuries. A post mortem examination demonstrated that these could not have been the result of her suicide. By the time that the appellant came to stand trial, nearly three years later, the case advanced against him by the prosecution was as follows.

In relation to count 1, the prosecution case was based on the evidence of a woman called Tara Whittred, a friend of the deceased who had lodged with her and who was to give evidence of witnessing the appellant assault her on three separate occasions.

In relation to count 2, there were no eye witnesses of the alleged assaults. The prosecution case depended largely on statements alleged to have been made by the deceased to her brother and to three friends about the treatment that she had received from the appellant. The brother was called Martin Smith. The friends were Tara Whittred, Kerrian Miller and Sharon Tracey. So far as Sharon Tracey was concerned she spoke of an occasion when she saw the deceased get out of a car of which the appellant was the driver’ crying and upset. She then lifted her top to show Sharon Tracey bruises on her belly. She also had a black eye. This would be real, not hearsay, evidence if given orally by Sharon Tracey. It was, however, accompanied by hearsay evidence, for the deceased indicated to Sharon Tracey that the appellant had caused the injuries and, in answer to a question, said that the appellant had acted in a similar way before.

So far as count 3 was concerned, the prosecution case was based on the inferences to be drawn from the injuries found on the body of the deceased, on the fact that she had been in the company of the appellant in the period before she committed suicide, and on what was alleged to be suspicious behaviour on the part of the appellant when the police and the paramedics attended the scene of the suicide. It is obvious, however, that the case advanced by the prosecution in relation to the first two counts had a significant bearing on the inferences that the prosecution submitted should be drawn in relation to the third count.

The appellant was originally charged on 3 January 2004 with assault causing actual bodily harm. In May 2004, after a police investigation, he was charged with manslaughter. In June 2004 that charge was dropped and he was told that no further action would be taken. However in January 2005 a summons was issued charging the appellant with what were to become counts 1 and 3.

Committal papers were served on the appellant that included statements of the witnesses whom the prosecution intended to call. These made it plain that it was intended that the hearsay evidence to which we have referred would be given by the relevant witnesses. The case was committed to the Crown Court on 10 June 2005. Under Part 34 of the Criminal Procedure Rules 2005 the prosecution were required to give notice of intention to adduce hearsay evidence not more than 14 days after the committal, although the court had power to vary this period.

There were then no less than eleven pre-trial hearings. The effective plea and case management hearing was held on 15 December 2005. The prosecution filled in the standard form questionnaire indicating that they intended to call the hearsay witnesses. They also ticked the appropriate box to indicate that it was their intention to adduce hearsay evidence. However it was not until 21 November 2006 that an application to adduce hearsay evidence was served. This listed seven witnesses that the prosecution wished to call to give hearsay evidence. These included Martin Smith, Kerrian Miller and Sharon Tracy. At the same time the prosecution applied to add the further charge that became Count 2.

The judge dealt with these applications on 5 December 2006, which was the first day of the trial. She admitted the hearsay evidence to be given by Martin Smith, Kerrian Miller and Sharon Tracey, albeit that the application was 17 months out of time. She gave permission to add Count 2. On the following day she acceded to an application, that was made without notice, to admit hearsay evidence to be given by Tara Whittred in relation to Count 2.

On 8 December a further application was made to read the evidence of Sharon Tracey (by then McNeil). She was on the point of giving birth and was suffering from complications. It was impossible for her to come to court. The judge granted this application. This had the effect of admitting in evidence multiple hearsay to the extent that her statement itself contained hearsay.

On 11 December 2006, at the close of the prosecution case, the judge rejected a submission that there was no case to answer on Counts 2 and 3.

We will summarise the evidence given at the trial on the basis of the judge’s summing up, which has not been criticised. This will give sufficient indication of the evidence in the various witness statements that were the subject of the hearsay applications.

Tara Whittred gave evidence that she first met the deceased when Tara was having a relationship with the deceased’s brother, Martin Smith. They became friends. In April 2002, Tara moved into the deceased’s two bedroom flat in Neville Shaw in Basildon. The deceased had one room, which she shared with her daughter, Ayesha, then aged 3, and Tara had the other bedroom. Tara lived there until September 2002, when she moved out. During all of that time Tara had also worked with the deceased at McDonalds from April to August 2002 and then at Basildon Hospital until March 2003.

While Tara lived at the flat the appellant lived elsewhere, but he would often stay at the flat overnight. Whist Tara was living with the deceased, she witnessed three occasions when the appellant was physically violent to the deceased. She was not able to remember the order in which they occurred.

On one occasion, she was in the living room, playing with Ayesha, when she heard, from the deceased’s bedroom, the appellant’s angry voice and the deceased saying: “no, no”. She left Ayesha and went towards the bedroom to find the deceased cowering by the door and the appellant throwing ferocious and violent punches at the deceased’s face, which the deceased was blocking with her arms. The deceased was scared and screaming and the applicant had an angry look on his face. Tara pulled the appellant away from the deceased and tried to help her up but the appellant then pushed her away. Ayesha came into the room and the appellant took the child out of the flat.

On another occasion, Tara had been listening to music when she heard the appellant arguing with the deceased in the hallway. She went out and took Ayesha into the other room. As she was doing this, the appellant pushed the deceased hard into the doorframe. The deceased began to cry. The deceased asked the appellant to leave but he refused to do so. When he finally left, the deceased showed Tara red marks and bruising to the top of her thighs, which she said had occurred during the argument with the appellant.

On the third occasion, the deceased found a text on the appellant’s mobile from another girl. An argument ensued between the appellant and the deceased. During the argument, the applicant punched the deceased in the stomach. The deceased doubled over and was upset and crying. The applicant then left.

The following grounds of appeal are advanced on behalf of the appellant:

Mr House rightly submitted that the conduct of the prosecution in failing to make the hearsay application until it was 17 months out of time was lamentable. He contended that judge erred in permitting the application to be made so long out of time. When considering whether to exercise his discretion to extend time the judge said that she would have regard to the interests of justice, having particular regard to any prejudice caused to the appellant by the delay. As to this she found that there was none as the defence was served with the witness statements that contained the hearsay, and dealt with the hearsay in the Defence Case Statement. She decided that, having regard to all the circumstances of the case, the interests of justice lay in allowing the application to be made out of time.

Before us Mr House did not challenge the judge’s finding that the delay had caused no prejudice to the appellant. In these circumstances he faced an uphill task in seeking to persuade us that the judge had erred in principle in the exercise of her discretion. He argued that the only appropriate response where the prosecution’s shortcomings were as serious as in this case was to refuse to extend time. Were such an approach not adopted the prosecution would have no incentive to improve in the future.

The conduct of this prosecution has been lamentable, not merely in respect of the delay in serving notice of intention to adduce hearsay evidence. The number of pre-trial hearings suggests a serious failure to get a grip of this case. We do not consider, however, that this required the judge to shut out the hearsay evidence. This is no ordinary case of causing actual bodily harm. This is a case of persistent physical abuse that only ended when the miserable victim took her own life. There was a strong public interest in prosecuting the perpetrator of her injuries. The exercise of the judge’s discretion was a proper one, and this ground of appeal is rejected.

Mr House took no independent point on the admission of the double hearsay evidence in Sharon Tracey’s statement. He accepted that the single hearsay was admissible under section 116 of the Act but submitted that it should have been excluded under section 78 of PACE in the interests of a fair trial. His principle point was that the only way that the appellant could controvert the hearsay evidence was by giving evidence, a task for which he was mentally ill-equipped. A similar submission was made to the judge.

The judge held that it did not follow that if the evidence was admitted the appellant would have to go into the witness box to rebut it because his case could be put by cross-examination. That was not a realistic finding. Those who gave evidence of what the deceased had told them could, of course, be cross-examined as to what she had said. This was not, however, likely to be a fruitful task for counsel who would be unlikely to have any material to assist in such cross-examination. The reality is that the only way that the appellant would be able to rebut the hearsay evidence itself was by giving evidence himself that it was untrue. If he did not do so, the jury would be likely to draw the conclusion that this was because he could not deny the truth of the evidence

The facts of this case are very different from those of Keet. If each statement is considered in isolation it is both less cogent and less significant than the evidence of Mrs Soper. The statements are lacking in detail and in precision as to date. When the factors in section 114 are considered in respect of an individual statement, the case for admission is weaker than it is in Keet. But the correct approach is not to consider each statement on its own, but to consider it in its context. Each statement is part of a wider picture. That picture is coherent and compelling. It is of a relationship between the deceased and the appellant that was punctuated by physical violence on his part. Count 1 is supported by the direct evidence of Tara Whittred. Count 3 is founded on circumstantial evidence. Each of those counts lends support to the hearsay evidence on which Count 2 is based and that evidence lends support to Counts 1 and 3. It was in the interests of justice that the hearsay evidence should go before the jury so that they would have the full picture painted by the evidence, subject always to the ability of the appellant to testify in his own defence. He had had a close relationship with the deceased and, if he was not the author of her injuries, he could be expected to be in a position to give some explanation as to how they had been incurred, subject always to the question of his mental capacity.

As to that there was conflicting evidence, obtained in the context of a possible issue as to the appellant’s fitness to plead. Those acting for the appellant put before the judge the report of a Dr Robert Halsey, who is not a physician but a chartered consultant in clinical and forensic neuro-psychology. He expressed the view, after conducting intelligence tests, that the appellant’s

“significantly low level of intellectual functioning and his extremely poor verbal comprehension abilities’ raised ‘concerns about the reliability of any evidence he might provide in his own defence and the overall desirability of him providing testimony in court.”

The appellant was also examined by Dr Abou-El-Fadi, on instructions from the prosecution. He is a Bachelor of Medicine and Surgery and a Fellow of the Royal College of Psychiatrists. He is a consultant psychiatrist approved under section 12 of the Mental Health Act 1983. He recorded:

“The defendant was able to articulate a reasonable well thought defensive argument about the allegations against him. Regardless of the correctness, truthfulness or otherwise of his argument it was rationally and logically considered, which indicates a reasonable degree of verbal comprehension and verbal ability to communicate his ideas and thoughts. For example he considered that the allegations against him were motivated by his ex-girlfriend’s family’s desire to deprive him of his custody of his daughter. He considered that the witnesses’ statements were contradictory. Moreover he considered that the self-harm behaviour of the alleged victim was related to previous violent and unhappy relationships, which is a valid argument regardless of whether it is acceptable. He also argued that she had a skin condition which may in his opinion explain the bruises on her face; again this is a considered argument not withstanding the possible inaccuracy of it. I therefore found that this defendant was able to exercise rationally articulated argument in his own defence which can then be examined and judged accordingly.”

Dr Abou-El-Fadi’s conclusion was as follows:

“It is therefore my considered opinion that the defendant is fit to plead and fit to stand trial. He understands the charges against him, he would be able to instruct counsel and formulate his own rationally considered defensive argument. He would be able to follow evidence in court. He is actually contemplating his own court case regarding access to his daughter. He would be able to challenge a juror if that becomes necessary.”

The judge considered this evidence and plainly concluded that the appellant would be able to give coherent evidence if he chose to do so. Having read Dr Abou-El-Hadi’s account of his discussions with the appellant it seems to us that he was well aware of the issues that he faced and able to meet them coherently. In the event he chose not to give evidence.

Mr House has not satisfied us that the judge was wrong to consider that the admission of the hearsay evidence was in the interests of justice and consistent with a fair trial. Accordingly the second ground of appeal is rejected.

Mr House submitted to the judge that Count 2 should not be permitted to go to the jury as it was based exclusively on hearsay evidence. The judge concluded that on a proper direction as to the approach to be taken when dealing with hearsay evidence, the jury could properly convict in relation to Count 2. Mr House submitted to us that the judge was wrong. We agree with the judge. The hearsay evidence was supported by the evidence of Tara Whittred as to what she had seen and by the evidence that related to both Count 1 and Count 3. There was a case fit to go to the jury on Count 2.

So far as Count 3 was concerned, Mr House submitted to the judge and to us that it was not safe to leave that count to the jury as the case against the appellant was purely circumstantial. The judge decided that the jury, after a proper direction, could properly infer that the injuries found on the deceased after her suicide, had been caused by the appellant. Here again, we agree with the judge. Having regard to the evidence relating to Counts 1 and 2 and to the fact that the deceased was in the appellant’s flat with him in the period leading up to her suicide, there was a strong inference that he was responsible for her recent injuries, even if one disregards his strange behaviour after her death. Count 3 was properly left to the jury.

For these reasons Mr Cole’s appeal against conviction is dismissed.