EED v R

This appeal against conviction raises in stark form the question whether it is in the interests of justice, within the meaning of Section 114(1)(d) Criminal Justice Act 2003 to admit in evidence the hearsay statement of a witness who has been warned but has failed to attend to give evidence for reasons personal to herself, and not sufficient to engage the Section 116 gateways.

On 21^st February 2008 after a trial at the Aylesbury Crown Court before His Honour, Deputy Judge Maher and a jury, the appellant, ED, was convicted upon the following counts in the indictment:

The appellant received a sentence of 12 years imprisonment upon Count 1 and lesser sentences on the other counts were ordered to run concurrently.

The appellant was married to A. She was the eldest of the four sisters. At the time of trial A was aged 40 and her younger sisters MT, RT, and LT were, aged 27, 27, and 29 respectively. MT and RT were twins. At the end of May 2007 the appellant’s 12 year old son was admitted to hospital with injuries believed to be consistent with a parental beating. LT gave evidence that this incident made her think about a sexual assault which she asserted had been committed by the appellant upon her while she was staying at the home of the appellant and her sister. She decided to tell her mother and contacted her sister RT. She also telephoned an old school friend, to whom we shall refer to as ML. She had, she said, made a complaint to ML about the appellant while still a young girl. All four sisters gave statements to the police. MT, RT, and LT gave accounts of sexual offences committed by the appellant against them between about 1989 and 1995 while they were in their early teenage years.

The appellant’s case at trial was that none of the allegations made was true. His wife A wanted him out of their home and out of her life. In about May 2007 she had offered the appellant £50,000 to leave the former matrimonial home and when that failed she enlisted her sisters to concoct false allegations of sexual impropriety by the appellant towards them. It is not necessary for present purposes to descend to the detail of the evidence. We are told by Mr Malik QC who represented the prosecution below that notwithstanding the allegations made in cross-examination, they gave their evidence in a straightforward manner. LT was the third and last of the complainants to be called to give evidence. The defendant’s case had been put to MT and RT in cross-examination. The prosecution wished to adduce evidence which supported the complainants’ insistence that they were motivated only to tell the truth and not to give false evidence at their sister A’s bidding.

Counsel for the prosecution had in his possession two statements from the witness ML to whom LT had turned for help in 2007. The first was dated 10 July 2007. In it ML said that during May 2007 a mutual friend of herself and her old school friend, LT, had telephoned her to inform her that she had passed ML’s telephone number on to LT because LT wished to make contact to discuss something which she had told ML many years before. LT then telephoned ML and asked whether she could remember when they were young and added “you know what I am going to say don’t you?” ML knew that the subject would be a conversation between the two girls when they had been on a bike ride at the age of about 11 or 12 years. LT asked ML if she minded a police officer making contact with her. ML asked if the subject was the bike ride. LT said it was. Shortly afterwards ML was contacted by the police. In her statement ML described the conversation. She and LT were on a bike ride together in High Wycombe. LT had recently spent a holiday with ML and her family. LT said “I have got something to tell you, it’s a secret. I don’t know what to do, E’s touched me” (meaning the appellant). ML told her that she should tell her mother but LT responded that she was worried as “he’s married to my sister”. According to ML she asked LT where E had touched her and she said “He put his hand up my skirt”. In fact the account given by LT at trial was that there was only one indecent assault and it occurred under the duvet on a sofa she was sharing with the appellant.

It seemed at first to the judge that the prosecution was seeking to introduce evidence of a contemporaneous complaint made by LT. There were, however, difficulties with such an application made under Section 120(7) Criminal Justice Act 2003 and it quickly became apparent that the real object of the application was to seek the admission of ML’s evidence to rebut the defence allegation of recent fabrication. The object was not to prove the truth of the complaint but to prove that the complaint was made. If such a complaint was made, it tended to undermine the defendant’s case that at the material time his relationship with LT was entirely innocent and normal, and that only after the dispute between himself and his wife did LT’s false allegations against him see the light of day.

However, the prosecution did not attempt to produce ML in person to give evidence. On 7 February 2008 ML had made a second statement in which she said this:

Mr Malik QC informed us that despite the lack of contact between the witness and the witness care officer, the trial had been fixed for many months. It follows that there was no excuse for the failure to notify the witness only on 22 January 2008 that she might be required to give evidence at a trial commencing less than a month later. As we understand it, the object of Witness Care is to ensure that witnesses are kept informed of progress of the case in which they made be required. That function failed on the present occasion. In the circumstances, Mr Malik took the personal decision that a witness order should not be served upon the witness. She was six months pregnant and a very important family occasion would be disrupted. An application to adduce the evidence of the witness on health grounds was prepared under section 116 Criminal Justice Act 2003, but Mr Malik chose not to make the application appreciating the unlikelihood of its success. Thus, he invited the judge to admit the evidence of ML in the interests of justice under Section 114(1)(d). The application was resisted by Mr Samut, counsel for the appellant at his trial. His objection was that he, Mr Samut, should be in a position, either to challenge the making of the complaint or to make to the witness the same allegation of conspiracy or collusion which the appellant was making towards the complainants.

The judge, in giving his ruling, rehearsed the background as we have described it. He confirmed that the evidence could not be admitted under section 116(2) and turned to section 114(1)(d) at page 6H of the transcript for 19 February 2008:

During the lunch adjournment, the judge examined the section further and at 4.07 pm added an addendum to his ruling in which he said:

The judge went on to inform counsel that he had reminded himself of two ‘hearsay’ cases, Adams (2007) EWCA Crim 3025 and Sak (2007) EWHC 2886 (Admin) summarised in Issue 1 dated 8 February 2008 of Archbold News. He noted the reference to the unlikelihood that the prosecution would be permitted to take advantage of its own failures by seeking the admission of hearsay evidence under section 114(1)(d) and observed that there were not the many failures there identified in the current case, so he was thrown back on the interests of justice test. Having “gone up and down the check list”, the judge saw no reason why the jury should not be aware of the content of the statement in order to help them with the issue that had been thrown up in the case.

Mr Samut prepared the original grounds of appeal for which leave was refused by the single judge. Counsel who now represents EED in the appeal, Mr Francis Lloyd, argues that ML’s evidence should not have been admitted. It was axiomatic, he said, that the trial must be fair. The wrongful omission of evidence which cannot be challenged is unfair. The judge failed, he submits, properly to analyse the requirements of section 114(2) and, in particular, failed to pay any significant attention to the question raised under section 114(2)(g) “whether oral evidence of the matter stated can be given and, if not, why it cannot”. In fact the judge at the commencement of his analysis identified the problem “as ML is not available to give oral evidence before this jury”. The true position was that ML was manifestly available to give evidence but the prosecution had made a decision not to call her. In these circumstances, and, given the importance of the issue whether a roughly contemporaneous complaint was made to ML, it was simply unfair to the appellant to admit the evidence.

Mr Lloyd relies upon the decision and reasoning of this court in Z [2009] EWCA Crim 20, a constitution of the court over which Stanley Burnton LJ presided. In Z the defendant was also charged with offences of rape and indecent assault under the Sexual Offences Act 1956, the offences being allegedly committed between 1985 and 1989 when the complainant was aged between 9 and 13 years. The prosecution successfully applied to adduce the evidence of a doctor that in 1993 D complained to him that she had been sexually abused by the defendant when she was a young girl. D herself declined to give evidence since she wanted to put those events behind her. In giving his ruling, the judge treated the application as “routine and straightforward”. This, the court held, was an error. Stanley Burnton LJ recognised that had D given live evidence, there could have been no complaint. The evidence went to establish propensity and tended to correct the defendant’s portrayal of himself as a good family man.

However, the court held, there was a lacuna in the judge’s reasoning. Stanley Burnton LJ continued:

However section 114(1)(d) must be construed and applied in its statutory contact. 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 sub-section (2) ... none of these applied to D.

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:

The Lord Justice noted that the trial judge had not sought to test his decision against the criteria set out in section 114(2). At paragraph 25 he continued:

This decision is important because it reinforces the court’s view that it should not countenance the use of section 114(1)(d) to circumvent the requirements of other gateways to admissibility higher up the section 114(1) hierarchy. It is not permissible to nod through hearsay evidence merely because it is convenient to the party seeking its admission and the evidence is of value upon an important issue in the trial. We note, however, that neither the court in Z, nor the court on any other occasion brought to our attention, has ruled that in no circumstances will hearsay evidence be excluded on this ground when otherwise there would be cogent reasons for admitting the evidence in the interests of justice. On the contrary, the terms of section 114(2)(g) read in context with the other paragraphs of section 114(2) suggest that it is contemplated that there may be occasions when evidence, which cannot be given orally for reasons other than those provided for by section 116, may be admitted.

For example, in L (2008) EWCA Crim 973, (2008) 2 Cr App R18, the court over which Lord Phillips CJ, as he then was, presided, considered an appeal against conviction for rape by the accused of his daughter in her own flat. The trial judge had admitted under section 114(1)(d) the statement of the defendant’s wife which tended to rebut the defendant’s explanation as to why his semen was found on a towel in his daughter’s flat. The court was not convinced but was prepared to assume that the defendant’s wife was not a compellable witness by reason of section 80 Police and Criminal Evidence Act 1984. However, the court distinguished between compelling a wife to give evidence and permitting another witness to give evidence of a voluntary statement made by the wife in the past. Section 80 did not act as a bar to the production of the wife’s statement provided that the hearsay passed the interests of justice test set out in section 114(2). As a matter of fact the wife refused to give evidence. The court proceeded to examine each of paragraphs (a) - (i) of section 114(2) and concluded that the judge had been right to rule that the admission of the wife’s statement was both fair and in the interests of justice.

In Adams (2007) EWCA Crim 3025 the court approved the admission of the evidence of a witness under section 114(1)(d) when the witness had failed to appear at court notwithstanding that the prosecution was at fault for failing to ensure his attendance. The evidence was of a technical nature in that it established the defendant’s unlawful possession of ecstasy tablets in a nightclub, technical because, as the recorder elicited from the defence, possession was not to be an issue in the trial.

Finally, in Musone [2007] EWCA Crim 1237, the court over which Moses LJ presided, approved the admission of hearsay evidence under section 114(1)(d) in the following circumstances. A serving prisoner was stabbed to death in his cell. The appellant admitted that he had punched the victim twice but maintained that another man had stabbed him, which explained the incriminating presence of the victim’s blood in the vicinity of the appellant’s cell and on his hand. As the victim lay dying, he uttered, according to the statement of a fellow prisoner, Patterson, “Bushman. Bushman done it” (meaning the appellant). Patterson refused to make a statement under section 9 Magistrates Courts Act 1980 and refused to come to court. He was arrested and at the appellant’s trial for murder he was brought to court but refused to answer questions. The judge ruled that Patterson’s informal statement which constituted double hearsay was admissible under section 114(1)(d) and section 121(1) of the Act. Having considered the trial judge’s examination of the section 114(2) criteria, his decision to admit the evidence was approved. The judge’s analysis had included the reliability and value of the evidence together with the fact that other evidence implicating the appellant was available.

Each of these decisions demonstrates, in our view, how limited are the circumstances in which the evidence of an available but reluctant witness may be admitted in the interest of justice. In L and Musone there was a refusal by the witness to give evidence notwithstanding the best efforts of the prosecution. In Adams the evidence did not go to the heart of the dispute between prosecution and defence which was whether the appellant was in possession with intent to supply. We are aware of other circumstances in which evidence has been admitted under section 114(1)(d) when its purpose has been to fill a continuity gap or similar. However, as Lord Phillips reminded us in Horncastle and Others (2009) UK SC14 at paras 15-26 and 53, it is our common law tradition that the defendant is entitled to examine the witnesses against him and only in strictly circumscribed circumstances will a hearsay statement be admitted in the interest of justice. The trial judge is the gatekeeper responsible for the fairness of the trial (see paragraph 38 of Horncastle), and the examination of the factors set out in section 114(2) and any other relevant factors must be performed with caution when the object is to fill a gap caused by the non-attendance of a live witness on grounds which do not fall within section 116.

Having examined the judge’s ruling, it seems to us clear that he was right to conclude that the evidence had significant probative value upon an issue of some importance in the trial. Other evidence was available upon the same issue from the complainant herself. The prosecution was in a position to prove the circumstances in which LT’s complaint was made to ML by means of the live evidence of LT herself. It would, as the judge remarked, have been somewhat far fetched to assert that LT was preparing the ground for a false allegation which would not be made until many years later. There was, it is true, no means by which the appellant could make an effective challenge to ML’s evidence that a complaint had been made, but, in the nature of the evidence, neither was he in a position to make an effective challenge to the complainant herself. The reason for this disadvantage was not the absence of ML but the appellant’s own lack of personal knowledge as to what may have passed between them. The judge rightly observed that for the reason given there was limited prejudice to the appellant since any challenge he mounted must be circumscribed by his own lack of knowledge. Furthermore, the admission of the statement enabled the appellant to make extensive use of the inconsistency of account between the two witnesses in an attempt to undermine its truthfulness.

However, the learned judge, in our view, made the mistake of assuming that because the witness was not present she was unavailable through no fault of the prosecution. There was no analysis of an important factor which was why, under paragraph (g), the appellant was not in a position to challenge the witness who was making the assertion. While he was in a position to cross-examine the complainant herself, all that was available by way of challenge to the absent witness was comment. In our view, this hearsay evidence should not have been admitted under section 114(1)(d). The interests of justice were better served by the exclusion of the hearsay evidence.

It is necessary, however, to examine the question whether the admission of the statement, in the end, had such an adverse effect upon the fairness of the trial that it called into question the safety of the verdicts. Mr Lloyd accepted that if, as was inevitable, Mr Samut had put his client’s case to LT, she would have responded with the exclamation, “But I complained about it at the time”. Since this would have been an admissible rebuttal of an allegation of recent fabrication, LT would have been permitted to give circumstantial detail of the making of her complaint to her school friend ML. The greater the circumstantial detail she was able to give the more difficult for the appellant became his ability to challenge it. The less impressive his challenge the more likely it would be that the jury would accept the evidence of LT and reject the challenge by the appellant. In the event, the jury were aware of the evidence of a witness who was not before them, for reasons about which they were told not to speculate, that while a complaint was made in the circumstances related by LT, it was a complaint about an assault which was, on the face of it, quite different from that now alleged in LT’s evidence. It seems to us that as the evidence emerged, the appellant was in hardly a worse position than he would have been if the statement had not been admitted. On the contrary, he was now in a position to construct an argument, without having to put that argument to the witness that the reason why the statements differed, was because there had indeed been collaboration between LT and ML as alleged.

It may even have been that, faced with LT’s evidence of complaint, Mr Samut would have found himself applying for the admission of the same hearsay evidence in order to provide the appellant with the grounds for an argument to this effect. However, we are simply not in a position to make any assumption what strategy trial counsel would have adopted on instructions from the appellant if faced with the dilemma.

We have considered the state of the evidence as it appeared before the summing up. The underlying accusation put forward by the appellant was that A had engineered a conspiracy between the four women. That allegation had been put fair and square to all of them. We have considered the question whether it is a reasonable possibility that, despite the inconsistency between LT and ML, the jury may have been influenced by the hearsay to reject the defence rather than by a judgement that each of the witnesses was telling the truth. It seems to this court that the jury must have founded their decision, not upon a discrete consideration of ML’s statement, but upon a judgment of the reliability of all three complainants and their sister. We have considered how these matters were left to the jury by the trial judge in his summing up. During the course of his summing up, the learned judge made the following observations to the jury:

Having reminded the jury of the evidence of MT the judge continued:

As to the evidence of LT and ML, the judge pointed out to the jury that, as to the occasion on which the alleged complaint was made, the oral evidence and the statement were as one but the account of the complaint was different. He pointed out to the jury that the allegation made by the appellant was that LT had invited ML to support a false story. If that was the case “it makes one’s blood runs cold”. The jury was warned that the defence had not had the chance to challenge ML. It had not had the chance to see her. It had not had the chance to observe her as she gave her evidence. These were obvious disadvantages. If the defence had had the opportunity it would have been put to ML that she had come to prop up LT’s story. The judge directed the jury that if it thought LT was, or may have been lying, her evidence disappeared. If, on the other hand, it thought she was telling the truth, then it would need to consider the differences between the complaints described:

The judge pointed out that if indeed LT, as she said, had had nothing very much to do with her friend for a number of years it might be surprising, and a risk, if she was then to make the proposition suggested on behalf of the appellant. He made clear that he had made a comment but it was a matter for the jury to debate and decide. Having reminded the jury of the evidence of all three complainants and the defendant’s wife, the judge continued:

In the course of his summing up the judge remarked that although the allegation of recent fabrication was made to each of the witnesses, it was unsupported by any detail. When he gave evidence, the appellant said only that he was on good terms with the complainants. They were welcome visitors at his house. There had been difficulties in his marriage, but he and his wife had attempted a reconciliation. Things went dramatically wrong and his wife offered him £50,000 to leave the house. It was his view the evidence given in court was all made up by the sisters to help A.

We observe that the disputed hearsay evidence would not have been admitted, except on the application of the defence to prove a previous inconsistent statement, unless the appellant had chosen to make an accusation of conspiracy. We are satisfied that a consideration of the issue of the truthfulness of the hearsay evidence was largely subsumed in the jury’s principal task of which it was reminded by the judge time and again, namely to judge the truthfulness of the complainants themselves. It is clear from the verdicts of the jury that they believed all four women. We consider it most improbable, in the light of the use Mr Samut was able to make of the inconsistent statement of ML, that the statement had any material effect upon that decision. It is much more probable that the jury convicted the appellant in spite, rather than because, of its contents. The account given by the appellant was barely support for the allegations put to the witnesses in cross-examination and it seems to us overwhelmingly probable that the jury simply believed the complainants and disbelieved the appellant. It follows that in the result, while we are satisfied that the statement should not have been admitted in evidence under section 114(1)(d) in the first place, it did not have such a prejudicial effect upon the nature and conduct of the defence that the safety of the verdicts was affected. Accordingly the appeal is dismissed.