Z, R. v

This is another case in which the Court of Appeal has to consider what are probably unintended and unanticipated consequences of the hearsay provisions of the Criminal Justice Act 2003.

On 19 February 2008 at the Crown Court at Lewes before His Honour Judge Tain and a jury the Appellant was convicted of one count of indecent assault (count 1) and four counts of rape (counts 2-5) contrary to the Sexual Offences Act 1956. On 7April before the same judge he was sentenced to a total of 14 years’ imprisonment. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, he was required to comply with the provisions of Part 2 of the Act (Notification to the police) indefinitely.

He appeals against his conviction with leave of the single judge, restricted to the decision of the trial judge to admit hearsay bad character evidence.

The detailed facts of the case are not material to the issues raised on this appeal. This is an historic rape case. The complainant gave evidence that between 1985 and 1989, when she was aged between 9 and 13, the Appellant, a frequent visitor to her family home, regularly raped her. The counts in the indictment were sample counts to reflect the rapes and indecent assaults that he was alleged to have committed.

There was additional evidence called by the prosecution, broadly supportive of the complainant’s, and in one case directly supportive.

The Appellant’s case was that he had never raped or indecently assaulted the complainant.

At the beginning of the trial, the prosecution applied to adduce hearsay evidence of the Appellant’s bad character. For present purposes, it is sufficient to refer to the evidence concerning a lady to whom we shall refer as D and that concerning the Appellant’s former wife, to whom we shall refer as Mrs Z. D had alleged that she had been sexually abused and raped by the Appellant when she was young. Mrs Z had alleged that he had raped her. D was unwilling to give evidence, and had explained why to the prosecution. Mrs Z was dead. The prosecution relied on sections 101, 114 and 116 of the Criminal Justice Act 2003. The defence objected to the admission of this evidence.

Ruling that the prosecution would be permitted to adduce this evidence, the judge said:

As a result of this ruling, a doctor gave evidence that in 1993 Dhad made an allegation of repeated sexual abuse, falling short of rape, when she was a young girl. She had named the appellant as the perpetrator. In addition, the officer in the case testified that during the investigation into these matters police spoke to D, who said that the appellant had raped her or had sexual intercourse with her on three occasions. She had not wished to make a formal complaint about these allegations. The officer in the case also gave evidence that the police had been called to the home address of Mrs Z on 5August 1994. The Appellant had been visiting and a siege situation had developed involving him and his daughter. Ultimately the Appellant was sedated by his doctor. Mrs Z subsequently made an allegation of rape against the Appellant. Her statement had been recorded contemporaneously in social services' records. She had not wanted to make a formal complaint of rape to the police, and her allegation was never pursued. Mrs Z had died some years before the trial.

The Appellant gave evidence denying the allegations made by the complainant and those made by D and his former wife, and he called witnesses.

In his summing up, the judge referred to the hearsay evidence concerning D and Mrs Z and said:

The judge then gave a full conventional hearsay direction, concluding:

Before this Court, Miss Ascherson on behalf of the Appellant repeated the submissions she had made to the judge when objecting to the admission of this hearsay evidence. She submitted that its importance and prejudicial effect were such as to require the allegations to be included as counts in the indictment; at the very least the evidence relating to D should have been given by her in person, so that the Appellant could have challenged it; otherwise, it should have been excluded. The difficulties of the Appellant in challenging allegations relating to events long past were compounded by the difficulties of challenging hearsay evidence. She relied on what Toulson LJ had said in McKenzie [2008] EWCA Crim 758 at paragraph 25:

For the prosecution, Miss Etherton submitted that section 114(1)(d) permitted the hearsay evidence of bad character to be admitted. This provision was intended to permit hearsay evidence to be adduced in cases other than those falling within section 116. D had refused to give evidence for good reasons that the Court should understand: she wanted to put her abuse at the hands of the Appellant behind her; she did not want to relive her experiences. Miss Etherton submitted that it was unnecessary for the bad character allegations to be charged in the indictment, but accepted that it was necessary for the prosecution to prove them so that the jury were sure that they were true. This hearsay evidence was credible and of high quality and the jury could have been sure that it was true: D’s allegations, in particular, had not been made in order to vilify the Appellant, but in private, to a doctor, who had a contemporaneous record of what she had told him. The evidence of the allegations made by Mrs Z had been properly admitted in order to rebut the impression sought to be made by the Appellant that he was a family man and a kind and sympathetic partner and father. The summing up, read as a whole, made it clear to the jury that they could take the hearsay allegations into account only if they were sure that they were true. The trial had been fair and the Appellant's conviction was safe.

It is convenient to consider first the evidence of the allegations made by D, since those were potentially far more damaging to the defence than the allegation of rape made by Mrs Z.

If D had given live evidence, there could have been no complaint as to its admission. Her evidence was clearly relevant to establish propensity and to correct the impression given by the Appellant of a good family man. The problems that have arisen in this case arise more from the admission of the allegations made by D (and, as we shall see that made by Mrs Z) as hearsay evidence.

In relation to the evidence concerning D, the only applicable provision on which the prosecution could and did rely was section 114(1)(d) of the Criminal Justice Act 2003. The section is as follows:

It can be seen that subsection (1) comprehensively restricts the circumstances in which hearsay evidence may be admitted in criminal proceedings to those set out in its four paragraphs. Paragraph (d) is the only paragraph having positive substantive effect: the other paragraphs of subsection (1) simply refer to other provisions or rules of law permitting such evidence to be admitted. Paragraph (d) is unhelpfully drafted. It has been referred to as creating a residual power or as a safety valve; considered in isolation, it might be given a wide or a narrow application.

However, section 114(1)(d) must be construed and applied in its statutory context. In particular, in a case such as the present, where the evidence in question is of a statement making an allegation of misconduct, it must be read together with section 116. That section is narrowly drawn. It is headed “Cases where a witness is unavailable”, which would not include the case of D. The conditions for the admission of hearsay under section 116(1) are set out in subsection (2):

In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare [2006] EWCA Crim 2512 at paragraph 30:

Section 114(2) contains a list of matters which it is mandatory for the court to take into account when deciding whether to admit hearsay evidence under subsection (1). Since these considerations are mandatory, the judge should, when giving his ruling on an application under subsection (1)(d), make it clear that he has taken them into account. This does not mean that he must refer to and express a conclusion on each of them. In Taylor[2006] EWCA Crim 260, Rose LJ said:

In R v Y [2008] EWCA Crim 10, Hughes LJ said:

When he gave his ruling permitting the admission of the hearsay evidence of the allegations of D and Mrs Z, HH Judge Tain did not make it clear that he had taken into account the matters listed in section 114(2). His error, in our judgment, was to treat the prosecution’s application as “fairly conventional” and “straightforward”. An application to adduce undisputed evidence of misconduct, such as admitted convictions for relevant crimes, would indeed be fairly conventional. An application to call as witnesses the victims of the defendant’s misconduct as evidence of his bad character might be straightforward. But in our judgment an application to adduce in evidence hearsay evidence of disputed serious misconduct as bad character evidence was most certainly not conventional, and it should not have been treated as straightforward.

If the judge had considered the matters listed in section 114(2), he would have had to consider in particular paragraphs (a), (g), (h) and (i). As to (a), this evidence was of very considerable importance; if accepted by the jury, it would undermine the defence and point powerfully to a conviction. This made the other factors even more significant, and in particular (g). It is important to note that paragraph (g) refers to the inability of the witness to give evidence, not her reluctance or unwillingness, understandable though her attitude may be. That is consistent with the restrictions in section 116. Cases must be rare indeed in which such significant potentially prejudicial evidence as that of D should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant, to testify, and her reluctance is not due to fear (i.e., the condition in section 116(2)(e) is not satisfied).

The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1)(d). It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made. The Court will be more willing to interfere with his decision if he has not taken into account, or has not shown that he took into account, relevant matters listed in subsection (2). This is such a case. In our judgment, the judge clearly erred in admitting hearsay evidence of D’s allegations. In the present case, the reluctance or apparent but untested unwillingness of D to testify did not justify its admission. This was a case in which the restrictions on hearsay in section 116 were being circumvented. As we indicated in the preceding paragraph of our judgment, the effect of the admission of this evidence was potentially very damaging; and it was very difficult for the Appellant to deal with it other than by a simple denial. We need not consider what the position would have been if D had been served with a witness summons and refused to attend or to testify: that did not happen.

Furthermore, the judge did not make it clear in his summing up that the jury had to be sure that H’s allegations were true before they could take them into account. The references to "unproven allegations" and to "complaints" may well have led the jury to believe that they could take these allegations into account without first determining whether they were sure that they were true. Moreover, in many cases it may well be difficult for a jury to be sure of the truth of allegations supported only by hearsay evidence. In our judgment, therefore, the error made by the judge in allowing the evidence of H's allegations to be admitted in evidence by hearsay was compounded by the lack of an appropriate and clear direction requiring the jury to be sure that those allegations were true before taking them into account.

We are also troubled by the admission of the hearsay evidence concerning Mrs Z. Leaving aside the question whether it should have been admitted under sections 98 to 112, and focusing solely on its admission as hearsay, it satisfied the condition in section 116(2)(a). However, section 116(4), and in particular paragraph (b), fell to be considered. Moreover, since it was sought to admit it as evidence of bad character, it had to be sufficiently cogent for a reasonable jury to be able to be sure of its truth. Thus, if the judge was minded to admit the evidence under section 101, he had then to consider whether the jury would reasonably be able to be sure of its truth. When he gave his ruling, he did not state whether he considered that they would be able to do so. In any event, however, as we have already stated, the judge in his summing up did not make it clear to the jury that this evidence could be taken into account only if they were sure of the truth of Mrs Z’s allegation.

Although, as we have mentioned, there was evidence other than that of the complainant that might have been viewed by the jury as supporting the prosecution case, Miss Etherton, wisely in our view, did not submit that the convictions could be regarded as safe if we concluded that the hearsay evidence of D’s allegations should not have been admitted, or if the direction to the jury as to D’s and Mrs Z’s evidence was defective.

It follows that the convictions were unsafe and must be quashed.

In these circumstances, it is unnecessary to consider the Appellant’s contentions under Article 6 of the Convention.