Fox, R. v

LORD JUSTICE MAURICE KAY: We shall allow the appeal. Does any issue as to a retrial arise?

MR REDMOND: My Lord, no.

LORD JUSTICE MAURICE KAY: Thank you.

On 9th September in the Birmingham Crown Court this appellant was convicted of an offence of robbery for which he was sentenced to three years' imprisonment. He now has leave to appeal against that conviction.

The facts were uncomplicated. On 4th March 2009 the complainant, James McLean, who gave evidence via a video link, said that having collected his benefit money and done some shopping he was walking home with a friend called Dean. He was about 500 to 600 yards from his home when the appellant rode up to him on a mountain bike. At that point Dean appears to have left the scene. McLean says that the appellant forcibly searched him, threatened him, punched him with force to the right-hand side of his face in the area of his right temple, in the middle and at the bottom. The appellant then removed the complainant's money from his pocket without his consent. A police officer who came to the scene saw the complainant and noticed some red marks and swelling to the bottom of his cheek.

The other evidence upon which the prosecution relied at trial, and which is central to the present appeal, was a transcript of a 999 call which had been made by an unidentified member of the public. When we say "unidentified", we mean unidentified to the defence and to the court. In fact the caller had given personal details to the police but had requested that they be not divulged and the police and prosecution were faithful to that request.

The call in question lasted some two minutes. The following passages are apparent from the transcript:

The account of the appellant initially in interview and later in a slightly modified form in evidence before the jury was that he and the complainant were known to each other, they had visited each other's flats in the past and had taken drugs together. His case was that the complainant and Dean were waiting at a bus stop in order to buy drugs. When the complainant saw the appellant he asked if he could get some drugs for him. The appellant said that he would. The complainant give him £20. There was then an argument between the two men regarding the arrangements before they separated. The appellant said that he then proceeded to buy £10 worth of drugs for the complainant (in the form of a small quantity of cocaine) but that he had spent the remainder on drugs and alcohol for himself. Plainly the jury rejected that account.

The ground of appeal we have to consider relates to the ruling of the judge whereby he admitted the transcript of the anonymous phone call as hearsay evidence. The application had been made to him by reference to section 114(1)(d) of the Criminal Justice Act 2003. Section 114(1) provides:

At trial counsel made their rival submissions by reference to that checklist and in due course the judge ruled that in his view it was in the interests of justice to admit the evidence.

Neither at trial, nor in the skeleton arguments prepared for this hearing, was any reference made to the Criminal Evidence (Witness Anonymity) Act 2008 or the decision of this court in R v Mayers [2009] 1 Cr.App.R 30, [2008] EWCA Crim. 2989. Having formed the provisional view that that Act and that authority were central to our considerations, we drew them to the attention of counsel when we came into court this morning and they have had time to consider the implications of both. When they returned to court Mr Redmond on behalf of the prosecution conceded that the application and therefore the ruling by reference to section 114(1)(d) had been inappropriate and that in all the circumstances he could not advance any argument in resistance to this appeal. We are entirely satisfied that that was a wise concession.

Although the 2008 Act was primarily concerned with anonymity orders in relation to witnesses who are called to give live evidence, its implications clearly go more widely than that. Section 1 creates new rules which apply to witness anonymity in criminal proceedings and section 1(2) abolishes the previous common law rules. In one of the cases considered by the court in Mayers (the case of R v V, P and R) careful consideration was given to the relationship between the new statutory code for anonymous witnesses and the hearsay provisions of the 2003 Act. Prosecuting counsel had advanced ingenious arguments by reference first to section 116 and then to section 114 of the Criminal Justice Act 2003. The argument pursuant to section 116, which is headed "Cases where a witness is unavailable", fell at the first hurdle by reference to the terms of that provision, not least because it requires the person who made the statement to be "identified to the court's satisfaction" - see section 116(1)(b). The argument by reference to section 114(1)(d) is effectively the argument and the only argument which Mr Redmond might have advanced here, had it not been rejected in Mayers. Essentially, Mayers decided at paragraph 113 that there is no basis at common law or under the 2003 Act or the 2008 Act upon which anonymous hearsay evidence can be admitted. The evidence of the 999 call in the present case was indisputably anonymous hearsay evidence. In our judgment there was not a basis for its admission. To admit it would be to drive a coach and four through the scheme of the 2008 Act, as explained in Mayers.

Accordingly, we have come to the conclusion that this ground of appeal must succeed. We have considered whether it might be said that notwithstanding the erroneous admission of the evidence the conviction is safe. However, we simply cannot come to that conclusion. It was plainly important evidence so far as the prosecution was concerned. The complainant had limitations as a witness, as Mr Redmond candidly concedes. The transcript of the 999 call was therefore bound to be perceived as important evidence; indeed it is difficult to over-estimate its importance having regard to the fact that pursuant to a later ruling the judge permitted the jury to have a transcript of the telephone call with them in retirement. True it is that he gave the jury a strong warning about the need to be cautious about it in view of the absence and anonymity of the caller, but in all the circumstances it seems to us that it was and must have remained important evidence.

For all these reasons, this appeal is allowed and the conviction is quashed.