Friel, R. v

LORD JUSTICE GROSS: At the outset we would like to acknowledge with thanks the assistance we received both in writing and orally from Mr Bruce (counsel for the appellant) and Mr Elmer (counsel for the respondent). It is much appreciated.

On 8th October 2010 in the Crown Court at Cambridge before His Honour Judge Bate, the appellant, now aged 27, was convicted of robbery. On 10th June 2011 before the same judge he was sentenced to seven years' imprisonment, less time in custody on remand. There was a co-accused, one Crowley; as to Crowley, the jury were unable to reach a verdict and were subsequently discharged. On a retrial he was acquitted of the same offence.

The appellant appeals against conviction, leave having been granted by another constitution of the full court sitting on 3rd October 2012 in a judgment to which we shall refer. The grounds of appeal before us are two. First, the judge erred in refusing to exclude the hearsay evidence of Andrea Lenaghan and/or the multiple hearsay evidence of Graham Wood via Miss Lenaghan. Second, the judge erred in permitting the prosecution to adduce evidence of the appellant's bad character.

The facts of the matter can, with respect, be taken essentially from the judgment given by the constitution of this court which previously heard the matter. Giving that judgment, His Honour Judge Rook QC put the matter this way:

The cases of the prosecution and defence before the judge and jury may be elaborated upon very briefly. The prosecution case was that the appellant, as part of a joint enterprise with Crowley, robbed Graham Wood of ten bags of heroin. The prosecution contended that the appellant's previous convictions demonstrated a continuing propensity to steal and use unlawful violence. The injuries sustained by Graham Wood, as revealed by the post mortem examination, were consistent with the account given by Andrea Lenaghan. The appellant and Crowley were initially arrested on suspicion of murder. The appellant stated in police interview that he had gone to the house with the intention of buying and then stealing drugs. In interview he admitted stealing a small quantity of drugs and had mentioned that the drugs were kept a Kinder egg. As already observed, the prosecution maintained that this was a true account of events as it would have been too great a coincidence that the "fabricated account" the appellant gave in interview had the same details as those given by Andrea Lenaghan.

The defence case was that the appellant had telephoned one Vargo, who lived at the same house as Wood and Lenaghan, under the pretence of wishing to purchase heroin in order to locate his whereabouts. The reason for this on the defence case was that Crowley had wanted to urge Vargo to stop supplying the appellant with drugs. Vargo had told him that he was not present at the house but when the appellant relayed this to Crowley he had not believed him, so they had gone there in any event. Once they entered the property Crowley became angry with Wood and shouted at him, believing him to be Vargo. Crowley had hold of Wood by the face. The appellant pulled Crowley away from Wood and they left the scene. The appellant denied having any physical contact with Lenaghan or Wood and denied seeing or taking any drugs from the premises. The appellant maintained that the version of events initially given in police interview in which he confessed to robbery was a false account. He had been arrested on suspicion of murder and had concocted a false story of a robbery to distance himself and Crowley from the murder. They had written a "script" of the false burglary story. They would not have needed a script if that story was the truth.

Crowley for his part had stated that he had been assisting the appellant to become and remain drug-free. When he then discovered that the appellant had taken more heroin he had become angry and told the appellant he wanted to meet the drug dealer, thought to be Vargo, to "rough him up and give him a slap". As again already foreshadowed, the issue for the jury was whether or not a theft of heroin from the property took place and whether or not Mr Wood was grievously harmed in its commission. It is not without significance that there was no dispute that the appellant and Crowley attended the premises that evening.

It is only necessary to refer and very briefly to some further evidence. In her first interview Miss Lenaghan described opening the door when she heard pounding on it and immediately thereafter she was struck in the face and pushed back into a second room or onto the floor. A doctor who examined Miss Lenaghan later the same day after her first interview noted bruises to the bridge of her nose and an injury to the white of her eye consistent to being struck with an object.

Vargo gave evidence. He recalled first meeting the appellant at the property some weeks before 12th March 2010 when the appellant had visited the property in order to purchase heroin. On 11th March at around 11 pm he left the property to go and stay with his girlfriend. When he left, Wood and Lenaghan remained at the property. They each kept their own supply of heroin. Earlier Wood showed him that he had ten bags of heroin concealed in a Kinder egg. Later that evening, Vargo received a telephone call from the appellant who was hoping to buy drugs. He told the appellant he was at his girlfriend's house and would not have any drugs available until the morning.

At around 4 am on 12th March 2010, that is later the same night, he received a telephone call from the appellant's mobile telephone. He heard the appellant's voice and then another voice said: "That begging bitch and that old twat have both had a slap and you're next." The caller spoke of putting a gun to his [that is Vargo's] head. It is fair to say this:

In cross-examination, Vargo agreed he had not mentioned to the police the presence of ten wraps of heroin until his second police interview some weeks after the incident. He also stated that Lenaghan told him that Wood had been robbed but he had also not mentioned that to the police. He had not disclosed this information as he feared he may be culpable for the supply of drugs.

We turn to the rival cases. The thrust of Mr Bruce's submissions before us was as follows. Dealing first with the hearsay point, he focused on Miss Lenaghan's two interviews, the first being on that same day, 12th March 2010, and the second on 26th April 2010. As Mr Bruce put it, the accounts were riddled with inconsistencies. In her first interview, Miss Lenaghan had not described a robbery. In her second interview Mr Bruce submitted that she had not described a robbery in terms. Miss Lenaghan had a motive to distance herself from the events of the night. As became clear at least from her second interview and subsequently from the post mortem, Mr Wood had taken heroin that morning, heroin which most probably caused his death. Miss Lenaghan and Mr Wood had had a "breakfast" of heroin on that morning of 12th March. In her first interview there had been a number of changes in Miss Lenaghan's account of who had inflicted violence on Mr Wood before she ultimately settled on the appellant as distinct from Mr Crowley. There was therefore an account in that first interview of violence but a changing account. There was however inconsistency as to the consumption of heroin and there was no or certainly no clear account of any robbery.

Turning to the second interview, some weeks later, this was the first time that Miss Lenaghan had mentioned the breakfast, so-called, of heroin. Moreover, it was only here at pages 10 and 27 that mention was made of the Kinder egg containing heroin. It was nowhere apparent throughout the second interview what Miss Lenaghan had herself seen as distinct from what she had assumed. All in all, Mr Bruce's submission was that the interviews were simply too vague and ambiguous to provide an account of a robbery. The hearsay evidence both first and second hand should have been excluded. They were, upon analysis, the central corpus of the evidence relied on by the prosecution against the appellant.

So far as concerned the bad character point, Mr Bruce drew attention to the previous convictions of the appellant helpfully listed in his skeleton argument. These in reverse chronological order included a burglary in 2005, causing grievous bodily harm in 2003, affray in 2002, theft in 2001, assault on a constable in 2000, theft in 2000, common assault in 1999, racially aggravated actual bodily harm in 1998, another affray in 1998 and wounding in 1997. Mr Bruce's concise submission was that this was a paradigm example of a weak case. Alternatively, it was unfair for the prosecution to be allowed to bolster its case by adducing bad character evidence. The prosecution had cast the net too wide. The convictions were too old and/or too dissimilar to support a relevant propensity and that evidence should have been excluded. Mr Bruce relied on the bad character point, in particular if he succeeded on the hearsay point; but, perhaps putting a generous interpretation on the grant of leave, he sought to advance the bad character point in any event.

For the Crown, Mr Elmer, taking hearsay first, highlighted that the hearsay evidence of Miss Lenaghan and the multiple hearsay in respect of what Mr Wood had told her accorded substantially with the appellant's own detailed confession in his police interview. Mr Elmer's submission was that the hearsay evidence was indeed not "central" evidence, as that concept has been discussed in the authorities to which we shall come. There was indeed much other evidence upon which the prosecution could and did rely, quite apart from anything said by Mr Lenaghan or Mr Wood. Even if, however, the hearsay evidence was central in the sense that that concept is used, nonetheless there were sufficient checks and balances and a sufficient level of reliability to justify the judge's decision to permit that evidence to be adduced. It was, Mr Elmer submitted, irrelevant that Miss Lenaghan had not described a robbery in terms, if indeed she had not done so. Her account clearly supported a case that the appellant had been present with an acquisitive intent. In a fast-moving and no doubt frightening incident of the nature of the events of that evening, it was not at all surprising that she was to an extent inconsistent as to what she had seen or what she had understood from what Mr Wood had told her. The judge had been right to permit the hearsay evidence to be adduced.

Turning to the bad character evidence, Mr Elmer's submission was that the judge's ruling had been impeccable. The bad character evidence supported the relevant propensity. There had been no error on the part of the judge in law or logic in ruling as he did. In any event, this had not been a weak case which had been improperly bolstered by the prosecution through the introduction of bad character evidence.

We deal first with the hearsay point.

As is hornbook law, the basic rule at common law that hearsay evidence was inadmissible in criminal. That position remains the "default" rule but the Criminal Justice Act 2003 ("the Act") has broadened the categories of admissible hearsay evidence - see Riat [2012] EWCA Crim. 1509, [2013] 1 Cr.App.R 2 at [3].

The relevant statutory provisions for present purposes are as follows, all taken from the Act, except where otherwise stated.

(2)In such a case—

The judge gave a reserved and written ruling on the introduction of hearsay evidence, if we may say so prepared meticulously. The judge recounted the position adopted by the prosecution and the defence. He made it plain that the interviews contained both first-hand and multiple hearsay. He recorded the now appellant's submission that Miss Lenaghan's accounts were of limited probative value, inconsistent and ambiguous. The judge considered the section 114 factors and concluded that the portions of Andrea Lenaghan's interviews which constituted double hearsay passed the threshold of admissibility under section 121(1)(c) of the Act. The judge further considered that the admission of her first-hand hearsay would not render the trial unfair.

So far as concerned the factors set out in section 114(2) of the Act, the judge dealt with them this way:

When it came to the summing-up, the judge gave the jury careful and full directions on the hearsay evidence - see pages 14 and following. The judge took the jury through the first interview with Miss Lenaghan on the day in question. He recorded that Miss Lenaghan had been found in the City Centre. He explained the video recording of the interview onto a DVD, as was the case with the second interview. He reminded the jury of Miss Lenaghan's death and accordingly that all she had said was therefore hearsay. He distinguished for the jury between the first-hand and the second-hand hearsay, outlining for the jury the four short portions of her interviews which came from what Mr Wood had told her. He then emphasised for the jury the inherent limitations in hearsay evidence. He pointed out that the evidence could not be tested under cross-examination. Inconsistencies could not be put and explained. He said, in our view fairly, that thanks to modern technology those obvious disadvantages were tempered by the availability of the DVDs which, as he put it, meant that:

Finally, he underlined that as with all the evidence, it was not to be considered in isolation and he flagged for later consideration in the summing-up the extent to which the accounts of Lenaghan and, through her, Wood accorded or conflicted with other independent strands of evidence.

What the judge could not know was that this field would become even better travelled by authority. Thanks to the industry of counsel, we have been referred to a number of authorities subsequent to the trial of this matter. Thus we have Horncastle [2009] EWCA Crim. 964; [2010] 2 AC 373; Al-Khawaja v United Kingdom [2012] 54 EHRR 23, ECtHR (Grand Chamber); Ibrahim [2012] EWCA Crim. 837; [2012] 2 Cr.App.R 32; and, finally for our purposes, Riat (supra).

In our judgment, what this field least requires unless necessary for the decision in the case is a yet further extended discussion of authority. We are grateful for the learning already devoted to questions of this nature. For our part we think a further in-depth discussion of authority would be unnecessary, both, with respect, because of the decision in Riat and because of the view we take of the facts of this matter.

Turning first to Riat, we derive the following from this most helpful authority.

The only other reference that it is necessary for us to make to learning on the topic is the characteristically learned case note on Ibrahim (supra) written by Professor Ormerod at [2012] Crim.L.R 793, especially at pages 796 to 798. Professor Ormerod drew particular attention to the "counterbalancing measures" to guard against a miscarriage of justice when hearsay evidence is admitted. In practice, counter-balancing measures translated to the question of whether the safeguards in the statutory criteria for admissibility were met; whether there was evidence that could be adduced to challenging the missing witness's credibility under section 124; whether the discretion as to exclude the evidence were considered, and whether an adequate jury warning is given. As Professor Ormerod underlined, the discretion under section 78 of PACE applied, but there was also the discretion contained in section 126 of the Act.

The second observation of Professor Ormerod to which we would draw attention was his emphasis on the distinction between the role of judge and jury with regard to the admissibility of the evidence. It was not for the judge to decide whether the hearsay evidence was reliable. Rather, it was for the judge to assess whether the evidence lacked sufficient reliability to be safely left to the jury. That was a point of course amplified in the decision of this court in Riat.

It is plain to us, therefore, that hearsay of any description is not to be nodded through or adduced as a matter of routine. There is no inflexible rule against admissibility of central (or sole and decisive) hearsay evidence, but, on a spectrum, the more central the hearsay evidence is, the greater the care required. Sometimes hearsay will be inadmissible or even if admissible the trial may need to be halted. But it is also necessary to keep in mind the public interest in securing the conviction of the guilty, as indeed it is always imperative to have regard to the acquittal of the innocent and the avoidance of miscarriages of justice.

We turn against this background to the facts of this case. For our part, with respect to Mr Bruce's submissions, we are amply satisfied that the judge's ruling was correct. The judge approached the matter with conspicuous care, as we have already underlined. He of course expressed his ruling in terminology which is not precisely the same as those in the more recent authorities, but we discern no injustice whatever in the manner in which he applied the law. It is true that Miss Lenaghan was a heroin addict and, as such, fall into "a category of the potentially very unreliable [witness]" - Ibrahim (supra) at paragraph 102. The judge recognised that feature and patently had regard to it. However, it is unfeasible to limit admissible evidence to that given by "good citizens"; sometimes admissible and reliable evidence in the last analysis is forthcoming from those who are not. There were undoubtedly inconsistencies in the evidence of Miss Lenaghan, and understandably Mr Bruce emphasised those to us today. However, given the form in which her evidence had been transcribed, what she had said was beyond dispute. Her demeanour was for the jury to evaluate. They could listen to her and see her give that evidence. In any event, the jury had been clearly warned by the judge in his directions as to the inconsistencies in her evidence.

Again, with respect to Mr Bruce, it seems to us that the interviews looked at individually and more especially cumulatively, did present an account from which a jury could safely conclude there had been a robbery on the night - and committed by the appellant. It is not surprising that Miss Lenaghan's account was not word perfect; the events were fast moving and indeed very frightening. It is also not remotely surprising that Miss Lenaghan did not put the matter in terms of the offence of robbery as a lawyer would, but the sense of what she said is in our judgment amply sufficient for that material to have been left to the jury.

Matters of course do not rest there. It is common ground that the appellant was at the property on the night. It was therefore for the jury to assess for what purpose he was there. In this regard it is of the first importance that the second interview of Miss Lenaghan describing the theft of the bags of heroin from the Kinder egg in the context of the violence committed that night accords with the appellant's "confession" in his police interview. For our part, the notion that this confession was simply made up by the appellant is at best fanciful.

There were indeed other and significant overlaps between Miss Lenaghan's evidence and the evidence given by the appellant, and for that matter his co-defendant, in their interviews. It is unnecessary for us to lengthen the judgment by reading out those matters, but if we may say so they were extremely helpfully summarised by Mr Elmer in a single page document running to 16 points now annexed to his skeleton. We take those points as read without setting them out here.

Still further, the account given by Miss Lenaghan in particular of the television set being thrown at or on Mr Wood is consistent with the account of the injuries received by Mr Wood, as is likewise Miss Lenaghan's account of the violence inflicted upon her with the injuries she sustained as assessed by a doctor shortly afterwards.

Finally, and significantly in our judgment, there was the phone call and indeed a further text made later in the morning from the appellant's mobile telephone threatening Mr Vargo. We have already recorded what was said in the telephone conversation and do not need to repeat it here. Acknowledging the appellant's denial that he spoke, it is nonetheless beyond contradiction that the call was made from his telephone and at a time when he and Crowley were together. There is not and cannot be any sensible explanation for the reference to the assault on Wood and Lenaghan open to the appellant in the light of the evidence of what was said in that telephone call.

In the circumstances, we are not persuaded that the evidence was "central", but if it was "central" we think the judge was right to admit it. It plainly did not stand alone. There was an obvious gateway for admissibility under section 116(2)(a). The judge had regard to the need for safeguards under the later sections of the Act to which we have referred. He dealt in terms with the need for the evidence in question to satisfy the higher requirement contained in section 121(1)(c), multiple hearsay. We think he was right in the conclusion to which he came for the reasons which he gave. There was in our judgment no call for him either to exclude the evidence or to stop the case. This ground of appeal therefore fails and in our judgment that conclusion is sufficient to dispose of the appeal; in substance however, in deference to Mr Bruce's submissions on the bad character point, we will deal with it, albeit very briefly indeed.

The Crown had applied to adduce the evidence of the appellant's previous convictions under section 101(1)(d) of the Act, a section so well known that it is unnecessary to set it out here. The judge ruled carefully on the matter before admitting the evidence. In a nutshell, he said this. The two factual issues for the jury were whether or not a theft occurred and whether or not Graham Wood came to grievous harm. The Crown sought to show that the appellant had a continuing propensity to steal and use violence. The judge considered the potential probative value of the evidence to be substantial and there was no danger of disproportionate prejudice. As the judge put it in reviewing the appellant's position, since attaining the age of 14 the appellant, at the time of trial aged 25, had been convicted of assaults, thefts, affray, grievous bodily harm and burglary. In the judge's judgment the 1998 to 2005 serious convictions were capable of establishing both of the relevant propensities. When it came to the summing-up, the judge again gave the jury careful directions which we need not set out here: summing-up, pages 24 and following.

For our part, we are not at all minded to interfere. We think the judge was right to admit the evidence of bad character a fortiori if the hearsay evidence was properly admissible. In our judgment this ground of appeal must also fail and accordingly we dismiss the appeal.