Lobban, R. v [2004] EWCA Crim 1099

Case No 2002/05484/D1[2004] EWCA Crim 1099
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
Venue Royal Courts of JusticeDate Friday 7 th May 2004
Strand,
London, WC2A 2LL
Before
LORD JUSTICE KEENEMR JUSTICE FULFORDHIS HONOUR JUDGE ZUCKER QC(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
Between
REGINACrownOMAR NICHOLAS LOBBANDefendant
Miss Kate Bex for AppellantMr Tim Devlin for Crown
JudgmentMr Justice Fulford :Introduction
[1]On 22 August 2002 at the Crown Court at Snaresbrook, before His Honour Judge Kennedy and a jury, the appellant was convicted on a retrial of possessing a class A drug with intent to supply. He was sentenced to six years imprisonment. On 2 October 2003 the Full Court granted leave to appeal as regards four grounds advanced on behalf of the appellant, three of which are linked to the decision made by His Honour Judge Reynolds on 28 May 2002 during the first trial, granting the prosecution’s application for the statement of a witness called Heather Moore to be read under the provisions of section 23 of the Criminal Justice Act 1988. This issue was not reopened during the retrial, counsel having concluded that there were no new facts or arguments such as to justify rearguing the matter. Accordingly this ruling of Judge Reynolds was “adopted” for the purposes of the retrial. The fourth ground of appeal relates to the trial judge’s directions to the jury as to the finding of the appellant’s fingerprints.

History

[2]Before setting out and analysing the grounds of appeal in respect of which leave has been granted, it is necessary to consider the history to this case in a little detail. On 5 September 2000 police officers executed a warrant at 5 Campion House London N.16, the home of the appellant’s girlfriend. They found a holdall containing £5,094.37 and we observe at the outset that in due course the appellant accepted that the bag and the money both belonged to him. His case in this regard was that he ran what is called a “partner” scheme and this was money he held as the scheme’s “banker”. He called a number of witnesses who both confirmed the existence of the scheme and gave evidence that the applicant ran it. The police officers also searched two vehicles that were parked at the rear of the flat, one of which was the appellant’s red Vauxhall Corsa. The other was a white Ford Fiesta that belonged either to the witness Heather Moore or her partner Carl Dwyer. In the Fiesta the police found 71 wraps of cocaine in the ashtray and a key to that car, that was on a separate ring, was found attached to the appellant’s key ring. Part of the ashtray of the Fiesta was described by a police identification officer as “hanging by the lead to the cigarette lighter from the centre of the dashboard”, and two fingerprints that matched the appellant were found on the ashtray insert. There was a third print in the same general area that did not match any of those involved in this case. We shall return to this evidence in greater detail hereafter, because, as we have indicated, the fourth ground of appeal is founded on the way the judge left the issue to the jury.[3]A roll of clingfilm found in the flat was compared to three pieces of clingfilm used as wrapping for the cocaine and one of the pieces was considered to be a good fit with the end of the roll, such that it “provided very strong support for the proposition that it was the last torn from the roll”.[4]A number of undated photographs were found in the flat that showed the appellant and another man called Noel Edwards, who were both arrested during the search, posing with a large quantity of cash that was laid out on a table in this flat. It was the prosecution’s case that the photographs clearly showed that along with the money on the table, there were rocks of crack cocaine, a set of digital scales and a roll of clingfilm.[5]By way of historical detail, it is to be noted that the prosecution’s case as regards the drugs which, it was suggested, could be seen in the photographs changed over time. At the first trial count 2 of the indictment - that of being knowingly concerned in the supply of crack cocaine - was advanced on the basis that the drugs on the table were not the same drugs as those found in the Fiesta motorcar. However at the second trial the prosecution accepted that the drugs found in the vehicle may have been the same as those revealed in the photographs, and count 2 was advanced as an alternative to count 1, that of possessing a class A drug with intent to supply.[6]The appellant answered questions when interviewed, and stated that he had no knowledge of the drugs in the car, which he said belonged to Heather Moore’s partner, Carl Dwyer, rather than Ms Moore. Of some significance for this appeal is the appellant’s claim that Dwyer had arrived at 5 Campion House the previous night, and that he left the vehicle outside when he went to a “rave” in Dalston. The appellant did not give evidence during the trial, and relied to a significant extent on the answers he had given in interview.[7]Noel Edwards made no comment when interviewed and eventually the case against him was discontinued.[8]Turning to the witness Heather Moore, she set out in a statement made two days after the raid at 5 Campion House and the appellant’s arrest, dated 7 September 2000, that the appellant arrived at 5 Campion House and arranged with Carl Dwyer to borrow the Fiesta motorcar, which she owned and had lent him on previous occasions. He then drove away in that vehicle. She spent the early part of the evening with Carl Dwyer, but he went out, returning during the early hours of the morning. She indicated in this statement that she was willing to give evidence. Accordingly, from an early stage there was a critical clash between the accounts of the appellant and Ms Moore: the inevitable consequence of the appellant’s answers when interviewed was to tend to suggest that Ms Moore’s partner, Carl Dwyer, was likely to be the person primarily responsible for these drugs, whilst Ms Moore advanced that identical suggestion against the appellant. It followed, therefore, that it was impossible to view Ms Moore’s account as necessarily coming from a disinterested source: to the contrary, on the appellant’s case she was simply protecting her partner.[9]At a pleas and directions hearing held on 21 January 2002 the trial was fixed to commence on 3 April 2002; however on that day it was adjourned because of late service by the Crown Prosecution Service of relevant records held by the Forensic Science Service. It is observed by counsel for the appellant that nothing was said on that day indicating any unwillingness on the part of Heather Moore to attend as a witness, and the case was re-fixed for 27 May 2002.[10]Thereafter, on the adjourned date, Heather Moore failed to attend at court, and on the following day, 28 May 2002, a further statement was served from this witness in which she stated “I strongly fear that if I do give evidence he (the appellant) or his associates will come after me and harm me, my husband and my children.”[11]On the basis of that assertion, the prosecution applied to read the evidence of Ms Moore pursuant to the provisions of section 23, the provisions of which we set out later in this judgment. The judge observed that this statement provided an insufficient basis to justify granting the application and he indicated that if the witness was brought to court, the matter could be further explored through questioning.[12]When Ms Moore attended later that day, the prosecution applied for the hearing into the reasons for her reluctance to give evidence to be conducted either in the appellant’s absence or with the witness screened from the appellant. During an adjournment that originally occurred so that enquiries could be made into the feasibility of installing screens, a hearing took place in the judge’s room in the absence of both the accused and the shorthand writer. We immediately indicate that, sympathetic though we are to the judge because of the difficulties inherent in the problem he had to deal with, we deprecate the use of this procedure. Whilst it is critical that there must be freedom of access between the advocates and the judge, hearings in the judge’s room should only occur when the circumstances really justify this course of action. In the context of judicial indications of sentence, the Lord Chief Justice in Practice Direction (Criminal Proceedings: Consolidation) [2002] 3 All ER 904, para. 45.3 dealt with this issue as follows:
“There must be freedom of access between advocate and judge. Any discussion must, however, be between the judge and the advocates on both sides. If counsel is instructed by a solicitor who is in court, he too should be allowed to attend the discussion. This freedom of access is important because there may be matters calling for communication or discussion of such a nature that the advocate cannot, in his client’s interest, mention them in open court, eg the advocate, by way of mitigation, may wish to tell the judge that the accused has not long to live because he is suffering maybe from cancer of which he is and should remain ignorant. Again, the advocates on both sides may wish to discuss with the judge whether it would be proper, in a particular case, for the prosecution to accept a plea to a lesser offence. It is imperative that, so far as possible, justice must be administered in open court. Advocates should, therefore, only ask to see the judge when it is felt to be really necessary. The judge must be careful only to treat such communications as private where, in fairness to the accused, this is necessary.”
[13]To that clear recent direction needs to be added certain observations of this court in R v Smith [1990] 1 WLR 1311: “If nothing else, this appeal demonstrates yet again the problem inherent in out-of-court discussions between counsel and the trial judge in criminal cases. Of course, on the authority of the well known case of Reg. v. Turner (1970) 54 Cr.App.R. 352, in some circumstances it is permissible for counsel to see the judge in his room to ascertain his reaction to possible sentencing options open to him. But that should never occur, as has been said on almost innumerable occasions in this court, in the absence of a shorthand notetaker or, alternatively, in the absence of some recording device. In this case there was neither a shorthand writer present nor a recording device. What has happened here is something that from time to time does happen, namely there has arisen a dispute (not to put too fine a point on it) between the judge's account of what was said and the account that has been produced for perusal by this court in the form of affidavit evidence from both defending and prosecuting counsel. The dispute comes before this court when it is ill-equipped to resolve conflicts of recollection between counsel and the judge, and where in seeking to do justice, this court runs the real risk of not achieving it. Instead, a thoroughly unsatisfactory state of affairs is created where either the defendant has a genuine sense of grievance or the prosecution has not properly ventilated its case, or both disquieting consequences ensue. We find it disturbing that despite frequent observations made in this court discouraging unnecessary visits to the judge's room, they appear to continue up and down the country. In the hope - we hope it is not a vain one - that some notice will now be taken of what we are about to say, we remind those who have responsibility in these matters of the words of Mustill L.J. in Reg. v. Harper-Taylor and Bakker 19 February 1988. The Lord Justice said this when dealing with a case not dissimilar to the present, in the sense that there had been a prolonged discussion, ranging over a wide field in the judge's room: "Since we regard the discussion in the judge's room as the source of all the subsequent entanglements, some general observations on the practice of meeting the judge in his private room may be appropriate. A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this court stated in Reg. v. Turner (1970) 54 Cr.App.R. 352, 360, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interests of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. "Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. “The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or not) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a mis-statement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority." "Since we regard the discussion in the judge's room as the source of all the subsequent entanglements, some general observations on the practice of meeting the judge in his private room may be appropriate. A first principle of criminal law is that justice is done in public, for all to see and hear. By this standard a meeting in the judge's room is anomalous: the essence, and indeed the purpose, being that neither the defendant nor the jury nor the public are there to hear what is going on. Undeniably, there are circumstances where the public must be excluded. Equally, the jury cannot always be kept in court throughout. The withdrawal of the proceedings into private, without even the defendant being there, is another matter. It is true, as this court stated in Reg. v. Turner (1970) 54 Cr.App.R. 352, 360, that there must be freedom of access between counsel and the judge when there are matters calling for communications or discussions of such a nature that counsel cannot in the interests of his client mention them in open court. Criminal trials are so various that a list of situations where an approach to the judge is permissible would only mislead; but it must be clear that communications should never take place unless there is no alternative. "Apart from the question of principle, seeing the judge in private creates risks of more than one kind, as the present case has shown. The need to solve an immediate practical problem may combine with the more relaxed atmosphere of the private room to blur the formal outlines of the trial. Again, if the object of withdrawing the case from open court is to maintain a degree of confidence, as it plainly must be, there is room for misunderstanding about how far the confidence is to extend; and, in particular, there is a risk that counsel and solicitors for the other parties may hear something said to the judge which they would rather not hear, putting them into a state of conflict between their duties to their clients, and their obligation to maintain the confidentiality of the private room. “The absence of the defendant is also a potential source of trouble. He has to learn what the judge has said at second hand, and may afterwards complain (rightly or not) that he was not given an accurate account. Equally, he cannot hear what his counsel has said to the judge, and hence cannot intervene to correct a mis-statement or an excess of authority: a factor which may not only be a source of unfairness to the defendant, but which may also deprive the prosecution of the opportunity to contend that admissions made in open court in the presence of the client and not repudiated by him may be taken to have been made with his authority."[14]We would not seek to improve on that exposition of the general principle or the reasons why the course adopted here was inappropriate. When this hearing took place, the court was in the process of investigating and determining an important procedural issue, and there was no good reason for it to be held in the judge’s room, in the absence of the defendant and the shorthand writer. This court has been dependent on counsels’ recollection which, however scrupulously set out, has been subject to the inevitable fallibilities of memory, and in the result there has been a lack of clarity over what was said by those present. We are told that during the discussion counsel repeated her objection to the proposed exclusion of the appellant and to the judge’s suggestion that he alone was to question Ms Moore about her suggested fear. There is no record of whether any reasons were set out by the judge for the latter proposed course of action, and in that regard we note that there is no evidence before this court suggestive of a disinclination on the part of this witness to answer questions put by counsel.[15]Notwithstanding objections from the appellant’s counsel, when the court reconvened the appellant was excluded from the court and Miss Bex was prevented from asking any questions. Ms Moore gave evidence, but not on oath or by way of affirmation, and her answers to the judge included the following: “The reason being I have a family, I have a son of 8, a daughter of 18 that frequents the area … and I have got an elder daughter, 27, so really it is not all about me, it is about my family.” (Transcript p. 4 A.) “If (the appellant) wants to know where I live he will find out where I live, at this moment not even the police know where I live and that is the way I want to keep it.” “Because, at the end of the day, someone is standing up against, instead of sitting down and being quiet and there could be repercussions, I don’t know and I don’t really want to take that chance.” (Transcript p. 4 E.)[16]When asked by the judge if she had any reason to believe he would be violent towards either herself or her family, she said: “I’ve had words with him in the past and to me he’s just a little, well, I won’t even say what I actually think but I think if someone crosses him to a point where there is no return something will happen to that person or them around them and at the end of the day I’m not prepared to do that.” (Transcript p. 4 G.)[17]She was asked if she had ever received any threats from Mr Lobban. Her reply was: “I’ve actually smacked him once literally …. I’ve actually had to hit him once when he interfered with my daughter, my middle daughter, put him in his place basically, he’s got no respect for nobody or anything.” (Transcript p. 5 B.)[18]In answer to a question as to why she was in fear of her life, she said: “Because it might not be him, he could get somebody else, while he was on remand the letter came out that, well he didn’t threaten me he threatened my partner, and where my partner is concerned I’m there.” (Transcript p. 5 D.)[19]Ms Moore said this letter came from the appellant although she did not know what Carl Dwyer had done with it; further the only basis she had for saying that he was violent was that she had “read a few stories in the papers” (T p. 5 G) about the appellant, one of which concerned an incident in Finsbury Park, which the witness described as follows: “something to do with a car and another occupant in the car” (T p. 6 A). When asked if he had ever been violent to her, she said “No, I wouldn’t give him a chance but as I said it is not about me it’s about my children” (T p. 6 B).[20]The judge asked her what she thought would happen if she did give evidence, and she replied: “What would happen, normal scenario it wouldn’t be him, it wouldn’t be him, it would be somebody else, nine times out of ten they already know where I work and its just a case of following me one day to find out where I actually live, I don’t normally take the same route two days on the trot anyway but its just a matter of time.” (Transcript p. 6 D.)[21]She went on to say that she was worried that her son would be smacked or “whatever” and she was concerned he might bump into her daughter.[22]It is to be observed that the appellant, a Jamaican national, was at the time of his trial 22 years-old and he had only two previous convictions relating to the use of a false passport, and accordingly he had no convictions for violence in this country. Moreover, six weeks earlier he had been admitted to bail when the custody time limits expired, and thereafter he lived in London without causing any suggestion to be made that he had tried to contact this witness, directly or indirectly.[23]As regards criminal convictions and by way of relevant background detail, it is to be noted that Ms Moore has previous convictions for dishonesty, for which she received two sentences of imprisonment in the 1970s. Her partner, Carl Dwyer, has 5 convictions for a total of 22 separate offences, all gained during the currency of his relationship with Ms Moore and they included possessing cocaine.[24]The ruling of

the judge was in the following terms:

“This is a renewed application on behalf of the Crown to read the statement of Mrs Moore under section 23 of the Criminal Justice Act. I required the witness to be brought to Court and I asked her questions, not on oath, to deal with the issue of whether she was refusing to give evidence as a result of fear or for some other reason. I am quite satisfied that she is refusing to give evidence and that no inducements or protection which the court could afford would persuade her otherwise. I therefore have to ask myself whether that is on the basis of fear for herself or her family or for some other reason. I have been addressed forcefully on the basis that really what she said does not go far enough because objectively there have been no incidents which would give rise to her sense of apprehension at this stage but equally I have to ask myself whether there is any other reason that can be suggested as to why she declines to give evidence, quite clearly it is not because she has changed her mind or anything of that sort and although the background which she fleshed out somewhat in what she said to me does not indicate incidents of violence towards her she was saying that her principle concern was in relation to her son who was aged 8 and her daughter aged 18, she said that they do not know where she lives at the moment but someone could follow her to where she lives. Her son plays out and something would happen to him, or something might happen to her daughter. Having heard what she has said I am driven to the conclusion that her refusal to give evidence is not for any other reason other than she is fearful for herself or her family. It was suggested that the fear had to be well founded in the sense that there had to be objective threats or something of that sort, I do not accept that contention, the proper test, it seems to me is to whether her fear is genuine and I come to the conclusion that it is. It therefore is capable of coming within section 23 (3) (b) and I must look at the matters in section 25 (2). Quite clearly this is a document which is authentic, quite clearly it supplies evidence which is not otherwise readily available, it is relevant and then the key matter, I have to consider whether there is any risk having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not intend to give oral evidence in the proceedings that its admission or exclusion will result in unfairness to the accused or if there is more than one any one of them. The statement as it stands is of some importance but the real complaint is essentially that she is not a person who will be cross-examined, not so much about what she says in her statement but about other matters which will assist the defendant, it is claimed. As I understand what has been said to me, it is not suggested that what is said in the statement is necessarily wrong but that she will be able to provide further matters in cross-examination which might be of assistance to the defendant. That is not a matter which I am at present directly concerned with, I am concerned with whether the statement as it stands, subject to any editing that may be argued about later on, should be read to the jury, and in my judgment, having heard her and having come to my conclusion in relation to the reason for her refusal to give evidence I rule that the statement can be read to the jury.”
[25]An important factual mistake made by the judge during this ruling was the suggestion that the content of Ms Moore’s statement was not significantly in dispute. To the contrary, the appellant – as set out in his interview - did not accept that he had gone to Ms Moore’s house in order to borrow the car; this clearly related to a key aspect of the prosecution’s case, namely the allegation that during a highly material time the appellant had been in control of the Fiesta motorcar. At the conclusion of the ruling, the appellant’s counsel pointed out the mistake to the judge, who declined to alter his decision.

The Grounds of Appeal

[26]Against that background, the four ground of appeal advanced by the appellant are as follows: i) The irregularity as regards the procedure adopted by Judge Reynolds for deciding whether or not to admit the statement of Ms Moore; ii) The judge misdirected himself as regards the relevant test to be applied when exercising his discretion in that he applied the provisions of section 25 rather than section 26 of the Criminal Justice Act 1988; iii) The failure by Judge Kennedy in the summing up at the retrial to give the jury a proper direction on how they should approach Ms Moore’s statement; and iv) The failure by the judge to correct his summary of the evidence to the jury relating to the fingerprints.

The procedure

[27]We have already expressed our views as to the undesirability of holding hearings in the judge’s room, particularly when the defendant and the shorthand writer are not present. In our judgment it may be no coincidence that it was during that informal discussion the judge made, in our view, three important errors as regards procedure. The first was to order the removal of the defendant from the court during the evidence of Ms Moore. The second was to deny the appellant’s counsel the opportunity of cross-examining Ms Moore during the voir-dire in circumstances when the judge should have taken appropriate steps to identify whether this course was necessary. The third was that once a court, on a proper analysis, decides to disallow cross-examination, it should ensure that the procedure adopted thereafter is fair: that did not happen in the instant case.[28]The right of a defendant to be present during all the stages of the proceedings against him, save with his consent or in exceptional circumstances – such as during public interest immunity hearings - is enshrined both in our domestic law and in the jurisprudence of the European Court of Human Rights, because the right to a fair trial implies the right of an accused to be present. In Ekbatani v Sweden 13 E.H.R.R 504 at para. 25 the European Court of Human Rights observed: “…..it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present at the trial hearing”.[29]This fundamental norm is so firmly established in our domestic law that we need not rehearse its underlying basis in law at any length. It is sufficient for these purposes to refer to R v Jones (Anthony) [2003] 1 A.C. 1, a decision of the House of Lords in which Lord Bingham during his speech confirmed that: “For very many years the law of England and Wales has recognised the right of a defendant to attend his trial and, in trials on indictment, has imposed an obligation on him to do so. The presence of the defendant has been treated as a very important feature of an effective jury trial.” [6][30]The devices that have been created to accommodate the legitimate anxieties of frightened witnesses, such as the use of screens or television links, have all preserved that right of the accused to be present during the trial process that may ultimately lead to his conviction. Although it is self-evidently necessary that every proper step should be taken to reassure and protect witnesses, this fundamental right of a defendant should not be infringed save in exceptional circumstances, which on any view these undoubtedly were not. As far as the exigencies of this case were concerned, the use of a television link or screens would have protected the witness whilst preserving the rights of the appellant.[31]Undesirable though it was to conduct the hearing in the judge’s room in this way, if this had constituted the sole ingredient of this ground of appeal we would not have concluded that the conviction was unsafe for this reason alone, not least because this procedure did not form part of the proceedings before the jury, and because the appellant’s interests were well protected by his counsel.[32]However, the second and third errors as regards procedure identified above give rise to far greater concern on our part. In the grounds of appeal, Miss Bex has identified 7 areas of questioning that she would have wished to develop with Ms Moore, as follows:
“(i) why she originally told the police that she was willing to attend court; (ii) when she first became afraid; (iii) why she had not communicated her unwillingness to give evidence to the police when she was warned months earlier of the original trial date in April; (iv) why she was afraid now and had not been when she made her statement; (v) why she had not reported to the police receipt of the letter she alleges was sent to her but thrown away; (vi) why she was supporting an application that her statement be read, putting Mr Lobban in a worse position than if she was called and therefore only likely aggravate any antagonism he felt towards her and her family; (vii) why she was not afraid that he would be violent to her or her family if her evidence was read, only if she was called.”
[33]In our judgment each of those matters, explored properly, could have elicited important, indeed potentially determinative, answers as regards the exercise of the judge’s discretion, particularly since the fears held by the witness, although clearly expressed, were based on somewhat insubstantial foundations. Even on her account, she had never been threatened directly by the appellant or subjected to violence at his hands; her suggestion that a newspaper article revealed that the appellant was a violent man seems in the circumstances to be improbable; the letter directed at Dwyer, as the evidence stood, begged as many questions as it answered, not least as to its true subject matter; and the involvement of Dwyer with cocaine and his possible use of the Fiesta motorcar that evening raised other critical questions as to why Ms Moore may have preferred not to be cross-examined by counsel on behalf of the appellant.[34]Turning to the law, section 23 of the Criminal Justice Act 1988 renders a witness statement, such as that made by Ms Moore, admissible in criminal proceedings as evidence of any fact of which direct oral evidence by its maker would have been admissible if:
"(ii) the requirements of subsection (3) below are satisfied."
Subsection (3) of section 23 is in these terms:
"The requirements mentioned in (1)(ii) above are -- (a) that the statement was made to a police officer or some other person charged with the duty of investigating offences or charging offenders; and (b) that the person who made it does not give oral evidence through fear or because he is kept out of the way."
[35]Section 25 sets out the general principles to be followed by the court when exercising its discretion under section 23, and section 26 sets out particular criteria that apply when the document has been prepared for the purposes of criminal proceedings or investigations. We shall consider one critical difference between sections 25 and 26 hereafter, in the context of the second ground of appeal.[36]As regards procedure, the authorities in this area indicate the following propositions: first, it is necessary for the requirements of section 23 (3) of the Criminal Justice Act 1988 to be proved by admissible evidence: R v Belmarsh Magistrates ex parte Gilligan [1998] I Cr App R 14, and in order to satisfy the requirements of section 23, it is necessary for the court to hear oral evidence as to fear. This is frequently given, for obvious reasons, not by the witness concerned but by a police officer, as was the case in R v Acton Justices ex parte Mcmullen and others (1991) 92 Cr App R 98. Second, when a witness gives evidence under s. 23 (3) (b), he should be sworn so that the reasons are properly before the judge: R v Jennings and Miles [1995] Crim LR 810 (although we note the decision of R v James Greer [1998] Crim LR 572 in which this Court found that the requirements of the section were met by evidence not taken under oath or by way of affirmation; however, the point does not appear to have been argued by the appellant in that case). Third, where the defence on proper grounds can point to the necessity for them to be able to cross examine the witness or witnesses called to give evidence about the reason for the inability of a particular witness to attend to give evidence, then, subject to the caveat we set out hereafter, they should be given such an opportunity: R v Wood & Fitzsimmons [1998] Crim LR 213 and R v Elliot and others [2003] EWCA Crim 1695. As this court observed in R v Wood& Fitzsimmons:
“The fact-finding process formed an integral part of (the) trial and the defence were entitled to cross-examine witnesses relied on by the Crown to establish the necessary facts.”
[37]An issue that has been debated by some of the commentators is whether the right to cross-examine in these circumstances extends to the witness who is the maker of the statement in issue and who, although not to be called before the jury, is called on the voir dire: see the commentary to R v Wood & Fitzimmons. This is likely only to be relevant in “fear” cases. In our judgment, bearing in mind the terms of the section and the authorities in this area, and in particular R v James Greer, the clear answer is that the relevant witness can be called to give evidence in relation to whether or not he is in fear. He would then be potentially liable to cross-examination, and to this possibility we now turn our attention.[38]It is trite to observe that cases vary infinitely, and what is necessary to ensure fairness will differ from situation to situation. One constant is that whenever dealing with witnesses who may genuinely be frightened the court must act with sensitivity and care whilst simultaneously ensuring that the defendant’s right to a fair trial is not eroded. When the relevant witness is called to give evidence of his fear, in our view the normal course of events will be for counsel on both sides to conduct the questioning in the usual way. However, there may be cases in which the court concludes, having heard submissions and having carefully considered the matter, that this is not an appropriate course. For instance, some vulnerable witnesses may insist, for reasons which the judge feels he should act on, that they are only prepared to be questioned by the judge. In those circumstances it may be appropriate to depart from the usual course, but reasonable steps, such as have been identified with the assistance of counsel, then should be taken to protect the interests of both the prosecution and the defence. The most obvious of these is that counsel should be asked to identify the questions and issues they respectively wish to have explored with the witness during the voir dire. Thereafter, it will be for the judge to determine what questions should be asked, but the identification of the relevant issues in this way will significantly help to ensure the proceedings are fair. Additionally, it may be necessary, as we have already indicated, to separate the accused from the witness by means of screens or a television link.[39]In the present case none of these steps were taken. Because of the procedure adopted, no proper basis was established to justify refusing counsel the opportunity to cross-examine and the questions that were asked did not cover many of the areas relevant to the exercise of the judge’s discretion. In our judgment it is critical that once the necessity for asking questions has been made out, the judge should ensure that the relevant issues are explored either by the court or through counsel.[40]Accordingly, as regards the procedure adopted in this case we consider this ground of appeal is made out.

The test

[41]As already set out, the learned Judge applied section 25 during his ruling rather than section 26. The respective sections are as follows:
“25. Principles to be followed by court (1) If, having regard to all the circumstances - (a) the Crown Court - (i) on a trial on indictment; ……………….. is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted. (2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard - (a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic; (b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available; (c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and (d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them. 26. Statements in documents that appear to have been prepared for purposes of criminal proceedings or investigations Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, otherwise than in accordance with section 3 of the Criminal Justice (International Co-operation) Act 1990 or an order under paragraph 6 of Schedule 13 to this Act or under section 30 or 31 below, for the purposes - (a) of pending or contemplated criminal proceedings; or (b) of a criminal investigation, the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard - (i) to the contents of the statement; (ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and (iii) to any other circumstances that appear to the court to be relevant.”
If, having regard to all the circumstances - the Crown Court - of pending or contemplated criminal proceedings; or to any other circumstances that appear to the court to be relevant.”

of pending or contemplated criminal proceedings; or

[42]Because Ms Moore’s statement had been prepared for the purposes of pending or contemplated criminal proceedings, section 26 of the Criminal Justice Act 1988 was the section relevant to the exercise of the judge’s discretion. Accordingly, the judge applied the wrong test during his ruling, and we note that during submissions when he referred to the exercise of his discretion under section 25, counsel on both sides failed to correct him. The two sections apply significantly different criteria. Section 25 provides that a statement shall be admitted unless the court is of the opinion that it is in the interests of justice that it should not, whereas section 26 provides that leave to admit a statement made for the purposes covered by the section shall not be granted unless the court is of the opinion it ought to be admitted in the interests of justice. Self-evidently this difference between the sections is of potential importance: R v Jennings and Miles.[43]In this case, as we have already observed, the judge misunderstood the critical extent to which the appellant disputed the evidence of Ms Moore, which in turn supplied a key ingredient in what was essentially a circumstantial prosecution case. Accordingly in our judgment if he had applied the correct test with a complete understanding of the significance of the challenges to her account, he may have exercised his discretion in favour of excluding the statement. In those circumstances, this ground of appeal is made out. The lack of a direction to the jury[44]Although the terms of the direction will need to be tailored to the facts of the particular case, there is no doubt as to the need for there to be a clear indication to the jury of the limitations of evidence that is not agreed and that has not been subjected to cross examination. In particular the jury should be warned that they would have had a clearer idea of whether the evidence is honest and accurate if they had seen the witness in the witness box and, further, because it had not been subjected to cross examination they were denied the opportunity of seeing how the evidence survived the challenge; they should be told to take this into account when deciding what weight to attach to this evidence: R v Samuel and others 1992 Crim L R 189; R v Hardwick [2001] 3 Archbold News 2 [2001] EWCA Crim 369; R v McCoy [2000] 6 Archbold News 2 and R v Denton [2001] 1 Cr.App.R. 16; [2001] Crim LR 225.[45]In this case the trial judge gave no direction to the jury on this subject, notwithstanding the request by the appellant’s counsel that he should do so, save to say that the statement was not accepted by the appellant. In our judgment that constituted a serious deficiency in the summing up, particularly given the significance of Ms Moore’s evidence.

The failure to give the jury directions on other aspects of the evidence

[46]This ground of appeal relates to the direction the learned judge gave the jury as regards the position of the appellant’s fingerprints in the Fiesta motorcar. We can deal with this issue briefly. The appellant’s fingerprints were found on the outside surface of the right side of the black ashtray insert and on the outside sloping lower surface of the ashtray itself. When the judge reminded the jury of the statement of the officer who found the prints he accurately summarised that evidence: SU 14 D. Complaint is made that earlier at SU 11 A, when dealing with circumstantial evidence, the judge referred to the fingerprints having been found “both inside and outside the ashtray”. In our judgment even if that summary may have involved a slightly incorrect description of their location, it was wholly rectified by the later full rehearsal of the evidence on this subject when the judge reminded the jury of the officer’s evidence. In those circumstances, we consider that there is no complaint of significance that can be founded on the directions the judge gave to the jury in this regard. Accordingly, this ground of appeal fails. The failure to refer to the defence[47]Although the appellant did not give evidence at trial, in his defence he relied substantially on the answers he gave to the police when interviewed. The account he set out at that stage, as summarised at [6], included the following matters: i) he had no knowledge of the drugs in the car, which he said belonged to the Heather Moore’s partner, Carl Dwyer, rather than Ms Moore; ii) Dwyer had arrived at 5 Campion House the previous night, and that he left the vehicle outside when he went to a “rave” in Dalston.[48]Accordingly, the appellant not only denied the offence with which he was charged, but he set out in interview an account as to the relevant events that was wholly consistent with his suggested innocence. That account had a strong tendency to point the finger of blame at Carl Dwyer. However, during the summing up the judge did not refer to the appellant’s defence, save as follows when directing the jury as to the issue of whether the appellant intended to supply the drugs (SU p. 16 D):
“That those drugs would have been supplied to others is not, you may think, disputed. The defence put the Crown to proof that this defendant intended to carry out such supply. By his plea his contention is that he did not so intend. He need prove nothing. It is of that intention of that possession that the Crown must make you sure in relation to Count 1.”
[49]Later,

the judge dealt with the appellant’s interview shortly (SU p.20 B):

“The defendant was arrested and was taken to the police station for interview. You will no doubt wish to study that interview with care. I have already told you how it is to be approached in the absence of evidence to you from the defendant personally.”
[50]Finally, the judge summarised the evidence of the witnesses called to deal with the “partner scheme” (see [2]).[51]At no stage did the judge summarise the critical elements of the defence, or the main arguments developed in support of it. It was incumbent on the judge to set out, at least in summary form, the main points made by the defendant in interview and by his counsel during the trial: R v Badjan 50 Cr App R 141 and R v Akhtar [2000] 1 Archbold News 2. What the appellant said about his and Dwyer’s movements, and who had driven the car, were critical matters that the jury should have been reminded of during the summing up because they went to the heart of the issue that the jury had to decide, namely who was responsible for these drugs. We note, therefore, that the defence advanced by the appellant went substantially further than simply putting the prosecution to proof, as suggested by the judge.[52]Although this failure by the judge to refer to the defence was not included in the grounds of appeal initially argued before this court, we consider that it also renders the conviction unsafe. Conclusions[53]As we have indicated, Ms Moore’s evidence was of considerable importance. The errors as regards the introduction of her statement (grounds 1 and 2) and the failure to give the jury proper directions as to how they should approach that evidence (ground 3) have led us to conclude that the verdict in this case is unsafe: if those errors had not occurred the outcome of this trial could have been different. Further, the failure by the judge to refer to the defence also renders the conviction unsafe. Accordingly this appeal against conviction is allowed and the conviction is quashed. For the reasons already expressed by the court when we gave our decision at the conclusion of the submissions, and in particular because the appellant has now served the greater part of the sentence imposed on him, we do not consider that it would be in the interests of justice to order a retrial.[54]Although Judge Zucker was not able to be present when this judgment was handed down, it has been seen and approved by all members of the court.