Xhabri, R v [2005] EWCA Crim 3135

[2005] EWCA Crim 3135Case No 2005/03435 C1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HHJ REYNOLDS QC
T2005 7039
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 7 December 2005
Before
THE LORD CHIEF JUSTICE OF ENGLAND AND WALESMRS JUSTICE RAFFERTYMR JUSTICE MACKAY
Between
RRespondentXHABRIAppellant
R OFFENBACH for AppellantR J LIVINGSTON for RespondentHearing Hearing dates : 2 November 2005
JudgmentLORD PHILLIPS, CJ :
[1]On 24 May 2005 in the Crown Court at Snaresbrook, after a 12 day trial, the Appellant was convicted of the following offences: Count 1: false imprisonment; Counts 2 and 3: rape; Count 4: threats to kill; Count 5: control of prostitution for gain. On the first Count he was sentenced to 12 years imprisonment. On the 2nd and 3rd Counts he was sentenced to 12 years imprisonment concurrent. On each of the 4th and 5th Counts he was sentenced to 5 years imprisonment concurrent. His application for permission to appeal against conviction was referred to a full court by the Registrar. This case raises questions as to the application of the novel provisions in relation to hearsay introduced by the Criminal Justice Act 2003. For this reason, we gave permission to appeal at the beginning of the hearing. The Facts[2]The Complainant in this case is a young woman from Latvia. At the time to which this appeal relates she was 17 years old. There was little dispute as to what she did in the period covered by the charges. What was critically in issue was why she acted as she did.[3]In May 2004 Mr ‘L’, ‘L’’s father, came to live in England. He found a flat in Newham, East London. On 25 July 2004, L came to England to live with him. Mrs ‘L’, ‘L’’s mother, remained in Latvia. ‘L’ met and made friends with a young Lithuanian woman called Egla. Egla lived at a house in Walton Road, Ilford. Early in September ‘L’ moved out of her father’s flat and went to live in this house. The Appellant lived in the same house. From the outset ‘L’ shared a bedroom with him. On the second day that she was there ‘L’ and the Appellant had sexual intercourse. Thereafter they had sexual intercourse on frequent occasions.[4]While living at Walton Road, ‘L’ worked as a prostitute in brothels described as saunas. Either the Appellant or an associate of his would drive her to and collect her from the sauna.[5]On one occasion ‘L’ left the sauna where she had been working at Kings Cross and took a train to York where she stayed with a Latvian friend for 5 days. She then returned to Ilford and continued working in saunas as before.[6]Early in November the Appellant and ‘L’ moved from Walton Road, Ilford to Strone Road, Forest Gate.[7]On the night of 11/12 November ‘L’ was working in the sauna at Kings Cross. The Appellant collected her by car in the morning and took her back to Strone Road. There they had sexual intercourse. He then left, locking her in the bedroom. The house was then raided by the police who broke down her bedroom door and took her away with them.[8]We now come to contentious areas of facts. Our summary of these is taken from the witness statements, for this was the material before the judge when he made the rulings which are the subject of this appeal. We do not believe that they differ significantly from the evidence subsequently given at the trial. Duress or consent?[9]It was ‘L’’s evidence that she acted in the manner we have described as a result of duress. The Appellant is an Albanian. There were other Albanians living in the house at Walton Road. On the second night that she was there the Appellant raped her. Equally when she and the Appellant had sexual intercourse on subsequent occasions, this was because the Appellant forced her to submit to him against her will. The Appellant forced her to work as a prostitute by threats of physical violence against her and her father. Initially she was too frightened to run away. Another Latvian girl called Aija was brought to the house at Walton Rod and also made to work in the saunas and went to York. She made contact with ‘L’ and arranged for ‘L’ to run away to York to join her, which she did, having escaped from the sauna at Kings Cross. There was a foreigner called Iris living in the same house in York as Aija. He knew the Appellant and must have informed the Appellant of ‘L’’s whereabouts, for after 5 days the Appellant appeared in a car and took ‘L’ by force back to London. Thereafter she was forced to continue working in the saunas as before.[10]The Appellant made a defence case statement in which he denied that he had detained ‘L’ against her will, raped her and forced her to act as a prostitute. It was his case that they began a consensual sexual relationship and that she then moved in with him at her instigation due to problems she was experiencing with her father. He knew that she was acting as a prostitute for some, if not all, of the time he knew that her but that occupation was of her own choosing and not through any force or influence exerted by him. The evidence under challenge[11]On 4 May 2005, before the trial began, the defence sought to exclude some of the evidence that the prosecution proposed to put before the jury. We shall refer to that evidence in a little more detail in due course. Suffice it to say that, for the most part, it related to communications alleged to have been made by ‘L’, directly or indirectly, with her mother, her father, Olga, a friend who lived in the same building as her father, and the police. The defence did not seek to prevent ‘L’ giving evidence of communications that she had made. They objected, however, to the recipients of those communications giving evidence of what they had been told. The prosecution submitted that this evidence was admissible under provisions of the 2003 Act. We shall now set out the relevant provisions. Hearsay Provisions of the Criminal Justice Act 2003[12]Section 118 abolishes the common law rules governing the admissibility of hearsay evidence in criminal proceedings, subject to certain exceptions which are not relevant in this case. Section 114 provides:
“Admissibility of hearsay evidence (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if- …(d) the court is satisfied that it is in the interests of justice for it to be admissible. (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant): (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it.” …(d) the court is satisfied that it is in the interests of justice for it to be admissible. (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; (d) the circumstances in which the statement was made; (e) how reliable the maker of the statement appears to be; (f) how reliable the evidence of the making of the statement appears to be; (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; (h) the amount of difficulty involved in challenging the statement; (i) the extent to which that difficulty would be likely to prejudice the party facing it.”
[13]Section 120 provides:
“Other previous statements of witnesses (1) This section applies where a person (the witness) is called to give evidence in criminal proceedings. (2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible. … (4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if- (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. (5) The first condition is that the statement identifies or describes a person, object or place. (6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings. (7) The third condition is that- (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, (d) the complaint was made as soon as could reasonably be expected after the alleged conduct, (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter.” (a) any of the following three conditions is satisfied, and (b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth. (a) the witness claims to be a person against whom an offence has been committed, (b) the offence is one to which the proceedings relate, (c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence, (d) the complaint was made as soon as could reasonably be expected after the alleged conduct, (e) the complaint was not made as a result of a threat or a promise, and (f) before the statement is adduced the witness gives oral evidence in connection with its subject matter.”
[14]Section 121 provides: “Additional requirement for admissibility of multiple hearsay(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless- (a) either of the statements is admissible under section 117, 119 or 120, (b) all parties to the proceedings so agree, or (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.(2) In this section "hearsay statement" means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.” (a) either of the statements is admissible under section 117, 119 or 120, (b) all parties to the proceedings so agree, or (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.[15]Section 126 provides: “Court's general discretion to exclude evidence(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if- (a) the statement was made otherwise than in oral evidence in the proceedings, and (b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.(2) Nothing in this Chapter prejudices- (a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or (b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).” (a) the statement was made otherwise than in oral evidence in the proceedings, and (b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence. (a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or (b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise).” ‘L’’s Evidence[16]‘L’ stated that initially the Appellant dictated a reassuring letter for her to send to her father. She did not have access to a telephone but the Appellant twice made her telephone her mother on his mobile phone in order to reassure her, stating that she was working as a cleaner.[17]After she had been working as a prostitute for about 3 weeks the Appellant told her to go and see her father, tell him that she was all right and working in a restaurant and give him £400, which he handed to her. She was driven to her father’s home by three associates of the Appellant. She was told that if she did not come out after 15 minutes there would be trouble. The door was answered by Olga. She gave Olga a bag containing the money. She told Olga that she was being held by men who would not let her go; that she was scared and that they were watching for her outside. They were Albanians. She did not want to tell her father what was happening because she was frightened as to what might happen to all of them.[18]On a few occasions when working in the sauna at Kings Cross she managed to borrow a mobile phone and telephone her mother.[19]She told the security guard, Max, at the Kings Cross sauna about her circumstances. He said that he would go to the police and tell them what was happening. She gave him her father’s name and address and the address at which she was being held in Walton Road. He told her that he had gone to the police with the sauna’s receptionist, a short haired black woman.[20]Between 3 and 4 in the morning of 12 November ‘L’ persuaded a Ukrainian woman who worked at the Kings Cross sauna to lend her her mobile. She telephoned her mother and gave her mother the number of this mobile telephone. Her mother said that she would pass this on to her father and that he would phone her. She had been unaware that her father had a mobile telephone. Her father then telephoned her. She gave her father the address in Strone Road where she was living and told her father that she would be at that address between 11am and 4pm on that day. Her father told her not to worry: they were going to release her. The evidence to which objection was made Mrs ‘L’’s evidence[21]Mrs ‘L’ stated that initially ‘L’ telephoned her and explained that she had moved out from her father’s flat because she wanted to live independently and she was earning well, working in a private hotel. After that there was a long silence. On 18 October 2004 ‘L’ phoned saying that she was in a lot of trouble, that she had been kidnapped by some Albanians, could not do anything without the help of the police and was being watched and guarded. After this she phoned a few more times. On 20 October her daughter dictated an address which she wrote down: “King kross” “Caledonian Road No1”.[22]Towards the evening of 2 November 2004 ‘L’ phoned again and dictated an address, which she wrote down as “IOFORT “next to father”” “VV” “Alton Road 173” “7984590605”. She said that the telephone connection was unstable and she could only hear half of what was said. In a subsequent conversation she told ‘L’ that she had phoned ‘L’’s father who had gone to the police but the police could not find the address that had been given.[23]On 11 November 2004 during the night ‘L’ phoned and gave her the number of a mobile phone which ‘L’ had begged the guard to lend her. She immediately telephoned her husband’s mobile phone and gave him that number. The next day, her husband phoned her and informed her that ‘L’ was with him and everything was fine. Mr ‘L’’s Evidence[24]Mr ‘L’ said that between the 4 and 7 October his neighbour called Olga, who rented the room opposite his, brought him a note from ‘L’ saying that she was working a lot and studying and was passing on money for her mother. The note was accompanied by £400.[25]On 13 October, two young men came to his flat. They said that ‘L’ had disappeared; that ‘L’ lived with them and that on 12 October she had gone to work but had not come home. They said they were Albanians and asked him where ‘L’ worked. He said that he did not know. On 17 October the 2 men came again. They asked if ‘L’ had come back and he said no.[26]On 19/20 October his wife telephoned him and said ‘L’ had phoned her saying that armed people were guarding her. If they found she was talking on the telephone they would kill her. They were Albanians. The name of the street was 1 Caledonian Road, Kings Cross. He must not contact the police because everything was very dangerous. Despite this he went to the police station at Romford Road on 23 October to report what he had been told. After that he spoke to his wife many times. She said that they had kidnapped ‘L’, would not let her sleep or get dressed and they were always threatening that they would kill her. His wife spoke of a subsequent phone call when ‘L’ said that she was being kept by a gang of Albanians at 173 Alton Road, Ilford. At 5am on the morning of 12 November his wife called him and said that ‘L’ had managed to pass on another address in Strone Road which she gave him. She also gave him a mobile number for ‘L’. He telephoned ‘L’ on this number and she said that from 11am to 4pm she would be at the address in Strone Road. She was very scared and said that the Albanians were very cunning and if they saw people in police uniforms at this address they would kill her straightaway. He passed this information on to the police. Olga’s Evidence[27]Olga stated on the 2 or 3 October ‘L’ came to their house. Her father was asleep. ‘L’ told her that she was living with several Albanians in the house who would not let her go anywhere and accompanied her everywhere. One of them got her job in a massaging salon. They controlled all her telephone calls, beat her and always threatened her that if she didn’t listen to them they would kill her father. She stayed with them because she was scared for her father and her own life. She handed over a bag for her father. The Police Evidence[28]PC Brandon was based at Islington Police Station. He stated that on 22 October a man and woman came in. The woman was black and the man was eastern European. They said they had information about the sex trafficking trade. In particular they gave ‘L’’s name and an address in Walton Road. They said that she was kept in a house and prevented from leaving. They said that she was in fear of her life and had made attempts to leave and that she did not want to involve the police because she feared for her life. They gave the address of two saunas where she worked and the address where her father lived. The Judge’s Ruling[29]The Prosecution sought to adduce the evidence of Mr and Mrs ‘L’ and Olga pursuant to section 114 and 120 of the 2003 Act. They sought to adduce the evidence of PC Brandon under section 121. The Defence objected that is was unfair to admit this evidence, relying on the provisions of section 126.[30]The judge ruled that the evidence of the first three witnesses came “four square within section 120 and that each of the conditions in subsections (5), (6) and (7) clearly applied to it”. Alternatively the evidence was admissible under section 114. It was highly probative. It was supported by the evidence of ‘L’ herself. It was extremely important. The statements containing the hearsay evidence had been made in the normal way to police officers and, in the case of Mrs ‘L’, in accordance with normal protocol for statements taken abroad. There was no reason to doubt the reliability of those who had made the statements in question.[31]So far as the evidence of PC Brandon was concerned, this had caused the judge greater concerns. He had no doubt that the officer had recorded what he had been told contemporaneously. The two informants were not identified but they seemed to have given an accurate account of what they had been told. The evidence was admissible under either subsection (1)(a) or subsection (1)(c) to section 121 and should go before the jury. Submissions made to us[32]Mr Offenbach, who appeared for the Appellant, submitted that the evidence challenged did not fall within the provisions of section 120(4). He accepted though that it fell within the discretion afforded to the judge by section 114(d) but submitted that its admission was not in the interests of justice and that it should have been excluded pursuant to section 126. So far as the evidence of the visit of the two the unnamed men to Mr ‘L’ was concerned, these men had not been identified and were not available for cross-examination. The same was true of the two informants whose information formed the subject matter of PC Brandon’s statement.[33]Mr Offenbach further submitted that the relevant provisions of the 2003 Act were incompatible with the Human Rights Act 1998. Alternatively he submitted that the judge’s ruling was in breach of the requirements of that Act. Our Conclusions[34]As we observed earlier, the Defence made no objection to ‘L’ giving evidence of the various communications that she made to her mother, her father, Olga and to the security guard, Max, at the Kings Cross sauna. Prior to the 2003 Act there might have been some debate as to whether, and on what basis, such evidence could be admitted. Plainly it was in the interests of justice that such evidence should be admitted, not merely as evidence of how ‘L’ was reacting but as evidence of the truth of the statements that she was making as to her predicament. The jury would obviously wish to know whether she had sought to communicate with the outside world and in what terms. What of the evidence of those who received ‘L’’s communications?[35]Mr ‘L’’s evidence, Mrs ‘L’’s evidence and Olga’s evidence adduced in the form of hearsay the statements made to them by ‘L’ during the time when she alleged she was effectively imprisoned by the Appellant. The issue is whether these statements by ‘L’ were properly admitted as evidence. Contrary to the view expressed by the judge, we do not consider that section 120(5) or (6) was applicable. We do, however, consider that the six requirements of section 120(7) were, or were likely to be, satisfied:(a) ‘L’ claimed to be a person against whom an offence had been committed.(b) The offence was one to which the proceedings related.(c) The complaint was about conduct which would, if proved, constitute part of the offence.(d) The complaint was made as soon as could reasonably be expected after the alleged conduct. The complaints were, in fact, made while the alleged conduct was continuing.(e) The complaint was not made as a result of a threat or promise.(f) ‘L’ was expected to give evidence before the material evidence relating to her previous statements was adduced.[36]Even if section 120 was not satisfied, the evidence in question plainly fell within the judge’s discretion under section 114(d), always provided that admission of the evidence was in the interests of justice. We can see no basis upon which it could be suggested that the admission of this evidence was not in the interests of justice. It was probably not clear at the time that the judge made his ruling whether the Defence case would be that ‘L’ never made the alleged statements or whether it would be that, when making them, she was lying. If the former, then there was every reason why the jury should hear evidence from those to whom ‘L’ made the statements. If the latter, the introduction of the evidence could not unfairly prejudice the Defendant.[37]As we understand it the only argument raised by Mr Offenbach against the admission of this evidence was that it was unreliable. We see no merit in this argument. Mrs ‘L’’s evidence was supported by her husband, to whom she passed on what she had heard. No point was taken that this part of Mr ‘L’’s evidence was double hearsay. Had such a point been taken, we think that the judge could properly have held this evidence admissible under section 121(1)(c). The evidence was of substantial value and, according as it did with the evidence of Mrs ‘L’ and the evidence of ‘L’, apparently reliable. For these reasons we reject the contention that this evidence should not have been admitted. We shall deal with the additional arguments advanced before us based on the Human Rights Act in due course.[38]We turn to the evidence given by Mr ‘L’ of the two visits by the two Albanian men. In so far as this evidence was the effect that the two men were trying to ascertain the whereabouts of ‘L’, it was evidence of fact rather than hearsay. In so far, however, as it was evidence that the two men had stated that ‘L’ had disappeared it was hearsay. This was a significant part of the story in that it fitted in with ‘L’’s evidence of her escape to York. We consider that is was properly admitted under section 114. The evidence of PC Brandon[39]This was double hearsay because, for the most part, the two witnesses who came to give information to PC Brandon were reporting what ‘L’ had told them. Section 121 applied to this evidence. The earlier hearsay statement, that is the statement by ‘L’, was admissible under section 120(4) for the reasons that we have given when dealing with the other statements that she made. Thus the judge was correct to hold that section 121(1)(a) was satisfied. We think that the judge was also correct to rule that section 121(1)(c) was satisfied. This evidence was, as Mr Offenbach frankly accepted, very damaging to the Appellant. The value of the evidence was, in our judgment, so high that the interests of justice required PC Brandon’s statement to be admitted.[40]Mr Offenbach argued that admitting this evidence was unfair because the two witnesses who had conveyed the information to PC Brandon were not available for cross-examination. We see nothing in this point. We think that Mr Offenbach would have been in some difficulty in finding any question that it was safe to put to them. Furthermore all that they were doing was relaying information provided by ‘L’, who was available for cross-examination.[41]For these reasons we reject the contention that this evidence should not have been admitted. The Human Rights Act[42]Mr Offenbach’s arguments in relation to incompatibility, or non-compliance, with the Human Rights Convention were founded on the following provision of Article 6 of the Convention: 3. Everyone charged with a criminal offence has the following minimum rights: … (d) to examine or have examined witnesses against him… Mr Offenbach submitted that because section 114 permitted the court to adduce in evidence a hearsay statement by a witness who was not available for cross-examination, that section was incompatible with Article 6 of the Convention. There is no merit in that argument. The discretion granted by section 114 is not restricted to the admission of a hearsay statement the maker of which is not available for cross-examination. To the extent that Article 6 would be infringed by admitting such evidence, the court has a power to exclude the evidence under section 126 and a duty so to do by virtue of the Human Rights Act. There can thus be no question of section 114 being incompatible with the Convention.[43]As to the contention that the judge, by admitting the hearsay evidence, infringed Article 6, there is no merit in this either. Article 6(3)(d) is one of the provisions designed to secure “equality of arms”. The hearsay provisions of the 2003 Act apply equally to prosecution and defence, so there is no inherent inequality of arms arising out of those provisions.[44]Article 6(3)(d) does not give a defendant an absolute right to examine every witness whose testimony is adduced against him. The touchstone is whether fairness of the trial requires this. In the present case almost all the hearsay evidence derived directly, or indirectly, from ‘L’. She was available for examination. This satisfied the requirements of Article 6(3)(d).[45]For all these reasons this appeal is dismissed.

Cited in 4 later judgments