S, R. v

LORD JUSTICE LATHAM: This court is concerned today with an application for leave to appeal from a preliminary ruling by His Honour Judge Robbins of 26th January 2007 in a trial of this appellant which should have by now commenced. The ruling related to the admissibility of a document dated 19th November 2006 which had been prepared by counsel for the prosecution and which set out material essentially distilled from the transcripts of a previous trial of this appellant.

In order to understand the way in which that ruling became necessary, we must look at the background facts of the present trial and of the previous trial to which we have referred.

We grant leave to the applicant to appeal.

The trial is a trial essentially based on an allegation that this appellant dishonestly sought to obtain money from the complainant, an Australian citizen, by way of an advance fee fraud. The way in which it is alleged by the prosecution that that fraud operated was that the complainant was in need of substantial funds and the appellant represented that he could obtain such funds for him. Putting it shortly, however, before such funds could be made available, certain documents would be required and certain bonds would be necessary for a fee in order to secure the availability of the loan. Again putting it shortly, the prosecution case was that as far as one of the documents was concerned relating to a bond, that requirement of the loan could not conceivably be met by a person in the position of a borrower such as the complainant. The money therefore paid to the appellant by way of advance fees for the proposed documents and bond was never money which was going to be able to be put towards a properly completed transaction, to the dishonest knowledge of the appellant. In other words, he knew that he would be earning money and that the complainant in this case would never obtain any benefit from the proposed transaction.

The position of the prosecution is that they can establish the dishonest nature of the appellant's activities by reference to his conviction in 2003 of a conspiracy to carry out an identical type of fraud involving a very large number of people. He was, after conviction, sentenced to six and a half years' imprisonment. The events surrounding the transaction with the complainant in fact occurred during the course of that trial. The prosecution case is, putting it colloquially, "he was at it again".

The documentation which supported the transfer of this case to the Crown Court was accompanied by a statement of evidence, in which it was stated that the prosecution intended to rely upon the material relating to the previous conviction and the conviction itself as evidence in the current trial. Delivered on transfer, together with the documentation relating to the transaction involving the complainant, were the transcripts of the evidence given by this appellant at the trial at which he was convicted and the transcripts of his police interviews in relation to the conspiracy charge.

It was accordingly plain that the prosecution were intending to rely on the appellant's bad character as part of the material at this trial. The basis upon which his character was to be put before the jury was essentially to prove propensity and credit, but equally the prosecution were seeking to put before the jury the conviction and the facts supporting the conviction as similar fact evidence.

There was a preparatory hearing at which the question of the admissibility of the conviction itself and the background material was considered. The judge ruled that both the conviction and the supporting circumstances were admissible. There was no application for leave to appeal against that ruling in the first instance. Somewhat late in the day, this court has been served with an application for leave to appeal against that ruling, but there is no basis upon which that ruling can in any way be impugned. It is quite clear that the facts of the previous conspiracy were in fact capable of amounting to similar fact evidence as alleged by the prosecution, and the appropriate gateways to the conviction's admissibility were clearly met for the purposes of Part 2 of the Criminal Justice Act 2003.

The issue of admissibility having been determined, the prosecution then turned its attention to the question of how that material could in fact be proved. There would of course be no difficulty about proving the conviction. As far as the circumstances giving rise to the conspiracy charge were concerned, however, the prosecution served a notice dated 2nd November 2006 giving notice of its intention to adduce the bad character evidence, and attached to that document, apart from the arguments in support of the application that the bad character was admissible, was a schedule including a passage dealing with the proposal that material which was hearsay should be admitted in order that the prosecution could establish the details of the conspiracy count.

At the time that that document was drafted, the prosecution expressed some uncertainty about the detail of any hearsay application which would ultimately have to be made because it was not at that stage in a position to know what precise issues would be in dispute between the parties.

Reference was made in that document to this court's judgment in the case of R v Hanson, Gilmore and Pickstone, and in particular passages in paragraph 17 of that judgment, in which this court discussed what should be the appropriate procedure when details of convictions were sought to be put before the court. This court there indicated that where the Crown needs and proposes to rely on the circumstances of previous convictions, the circumstances and the manner in which they are to be proved must be set out in the application, and we have indicated the way the prosecution dealt with that obligation in the present case. It also underlined the fact that there was an obligation of frankness on the defendant. This court then said:

That hope and expectation has, however, not borne fruit in the present case, because when discussions took place between counsel it became apparent that there was an immovable objection on the part of the defendant's counsel at that stage to engage in the process of agreement. The explanation that we have had today is that it was thought, on the defendant's part, that they were operating from a significant disadvantage. Mr Solley QC, leading counsel for the appellant, had not been his counsel at the previous trial and was not in a position, he said, to know the details of the evidence which had been placed before that trial and considered that he was entitled to have disclosure to him of the underlying material relating to that trial before he should be put in a position to come to any decisions as to what should be agreed or not.

Mr Latham QC, for the prosecution, has made it plain that at that stage all that the prosecution realistically intended to obtain agreement about was agreement relating to material which could be gleaned from the evidence given by the appellant himself and the interviews that he gave to the police in relation to the conspiracy. As Mr Latham points out, those pieces of evidence were readily capable of being proved in the course of the trial if it was necessary to do so. They were both pieces of evidence which were clearly admissible and relevant. He could have anticipated no difficulty in being able to put that material in full before the trial. However, and one can readily understand his view, bearing in mind the fact that the appellant's evidence at the previous trial went over a period of at least four days, he considered it was more appropriate if the essence of the evidence and the essence of what he admitted in interviews was reduced to some manageable document which could be put before the jury and in an agreed form.

That hope on the part of Mr Latham not being realised for the reason that Mr Solley has given to this court, Mr Latham then produced his own document dated 19th November 2006, which set out in short, numbered paragraphs, firstly, what the prosecution case was in the conspiracy trial; secondly, facts which were clearly admitted by the appellant which the prosecution sought to rely on for the purposes of the present trial; and, finally, the way in which the issues in the conspiracy trial were left to the jury by the trial judge. That redacted document -- in other words, not the base material from which the document had been formed -- was clearly a hearsay document. The question then arose as to whether that document could be put before the jury, and it was the judge's ruling in that respect with which we are concerned today.

In the course of his ruling, the judge concluded that the document was admissible under section 114(1)(d) of the Criminal Justice Act 2003 as being a document which should be admitted in the interests of justice. He dealt with the issue in short form and it is unfortunate that he failed to deal with the matters set out in subsection (2) of that section which are required before a statement under section 114(1)(d) can be admitted. However clear it may be to a judge that the document in question should be admitted in the interests of justice, it is nonetheless incumbent upon him to consider the matters set out in subsection (2), and in particular, in the present context, the provisions requiring the judge to consider under (h) the amount of difficulty involved in challenging a statement or (i) the extent to which that difficulty will be likely to prejudice the party facing it. The fact of the matter in the present case is that, had he applied his mind to those two issues, the answer was inevitable.

Mr Solley has sought to persuade us that there are difficulties posed to him by the content of the statement. They essentially relate to the basis upon which he originally declined to enter into any sensible negotiations as to an agreed document after the hearing of 3rd November 2006. He says that he cannot properly deal with any of the matters set out in the statement prepared by Mr Latham until such time as he has been able to have a view of all of the documentation relied upon in the previous trial.

We waited during the course of Mr Solley's submissions to hear from him what particular difficulties or prejudice he would in fact face in dealing with any particular assertion contained in that document. We waited in vain. He was unable to point to any statement within the document which could cause any difficulty for him at all. Accordingly, there is no reason, in our judgment, for this court to feel that the order made by the judge was other than correct, even though he did not, on the face of the judgment at least, deal expressly with the requirements of subsection (2).

It is clearly in the interests of justice that this document should go before the jury. The underlying material, namely the evidence of the appellant and his interviews to the police, could be put without difficulty, as we have said, before the jury in unredacted form. We see no reason why the jury should be encumbered with any more of the material contained within those pieces of evidence than is necessary for a sensible understanding of the way in which the prosecution puts its case in relation to the charges that the appellant faces in the present trial and such material from those documents as the appellant himself considers could assist his defence. In those circumstances, we do not consider that there is any basis upon which this appeal could succeed and we accordingly dismiss it.

LORD JUSTICE LATHAM: You would like a representation order, would you not, Mr Solley?

MR SOLLEY: My Lord, it would be useful, yes. The solicitor's representative is here at the appropriate level.

LORD JUSTICE LATHAM: Could I just say that as far as the representation order is concerned, was there any justification for it being other than you, Mr Solley?

MR SOLLEY: Other than I? Certainly a justification for my learned junior to be here, in that he was the one person to whom the finger was pointed that he knows about the trial before in case any issue arose.

LORD JUSTICE LATHAM: Yes, I can see that.

MR SOLLEY: As far as the solicitor is concerned --

LORD JUSTICE LATHAM: We understand that you are probably covered by the legal aid order and I am making an unnecessary intervention.

MR SOLLEY: But the solicitor's representative may not be. I think originally the form came that there was not legal aid for the solicitor. There are reasons why it was felt appropriate.

LORD JUSTICE LATHAM: Why should the solicitor be here?

MR SOLLEY: There has been a history to this case in terms of what is said and what is not said downstairs, and that extra ingredient of the independent note has proved to be of use given the special circumstances of this case.

LORD JUSTICE LATHAM: It may or may not be the case that we have any power to make a representation order, but if a representation order is required for the hearing today for the attendance of a solicitor, we do not consider that that was a necessary expense incurred for the purposes of this hearing.

There are, as I understand it, no reporting restrictions in place at the moment; is that right -- there are reporting restrictions.

MR LATHAM: If there are not reporting restrictions, there should probably be. Given there is a trial to follow, one would hope on Monday morning, there should be. I wonder whether this is an interim application which could be dealt with by way of anonymity in the form of just giving an initial to the case and therefore the judgment.

LORD JUSTICE LATHAM: Yes.

MR SOLLEY: Yes, I do not disagree with that.

LORD JUSTICE LATHAM: Anonymity will be given. There are only two names that are relevant, your client's name, and that will be anonymised, and the complainant in the current trial, whom we will call "the complainant".