Horncastle & Ors v R. [2009] EWCA Crim 964

[2009] EWCA Crim 964Case No 2008/1011/C22008/3683/D1, 2008/4330/D1, 2008/6206/D3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/05/2009
Before
LORD JUSTICE THOMASLORD JUSTICE HUGHES (VICE-PRESIDENT OF THE CACD)MR JUSTICE PENRY-DAVEYMR JUSTICE IRWINMR JUSTICE WYN WILLIAMS
Between
(1) Michael Christopher Horncastle and David Lee BlackmoreAppellantsReginaRespondent
Mr J Gibson for Appellant (Horncastle)Miss J Reaney for Appellant (Blackmore)Mr J H Beck for Appellant (Marquis)Mr S Smith QC for Appellant (Graham)Mr K Hadrill for Appellant (Carter)Mr Duncan Penny, Mr T Parry-Jones, Mr S Lowne, Mr B Evans and Mr L Mably for RespondentHearing Hearing date: 24 March 2009
Judgment

INTRODUCTION

[1]This is the judgment of the court to which we have all contributed.[2]These three cases have in common the proper approach to evidence which is not given first hand by a witness – hearsay evidence. In the first (Horncastle and Blackmore), the witness was dead, but had made a full written statement before he died. In the second (Marquis and Graham), the witness, who again had made detailed statements, refused to attend because she was frightened for her safety, indeed for her life, if she did. In the third (Carter), what was sought to be introduced as evidence was the product of business records in a large public company. Those are only some of the commonly occurring instances where the law must decide how to deal with evidence not given first hand by a witness. In each of the cases, the admission and use of the evidence was governed by the provisions of s.114-136 of the Criminal Justice Act 2003 (CJA 2003) which enacted a code recommended by the Law Commission in their 1997 Report Evidence in Criminal Proceedings: Hearsay and Related Topics (LC 245).[3]On 20 January 2009, the European Court of Human Rights (ECtHR), sitting as a Chamber, handed down its decision in Al-Khawaja and Tahery v UK [2009] ECHR 26766/05. In Al-Khawaja the statement of evidence of a deceased witness was admitted under s.23 of the Criminal Justice Act 1988 and in Tahery the statement of evidence of a witness too fearful to attend trial was admitted under s.116 of the CJA 2003. In each case this court held that the statements were admissible and that the convictions were safe. It was common ground before the ECtHR that the court should consider each conviction as being based on the evidence of the deceased or frightened witness solely or to a decisive degree. The court held that there had been a breach of Article 6 of the European Convention on Human Rights (ECHR) in each case, as the conviction had been based to a sole or decisive degree on the statements which the appellants had had no opportunity of challenging. On 16 April 2009, the United Kingdom Government requested that the decision be referred to the Grand Chamber.[4]The principal argument raised in these appeals is that, in consequence of that decision, the admission of hearsay evidence meant that the convictions involved an infringement of the right to a fair trial under Article 6, and in particular a breach of Article 6(3)(d), as the convictions were based solely or to a decisive degree on the hearsay admitted as evidence. In consequence, it is said, the convictions are unsafe and ought to be quashed.[5]It is necessary first to set out the scheme of the CJA 2003 under which the statements were admitted in two of the appeals and about which there was argument in the third.

HEARSAY: THE SCHEME OF THE CJA 2003

(i) The evolution of the hearsay rule

[6]Systems of criminal law evolve rules for dealing with evidence which is not given orally by someone speaking from personal knowledge. The solutions adopted vary for a number of reasons, not least because of different concepts of the trial process. The process for the determination of allegations of criminal offences in England and Wales has over the centuries evolved to depend upon a single trial at which the whole of the evidence (on either side) is ventilated and tested before independent, usually lay, finders of fact – a jury for serious cases and magistrates for the less serious ones.[7]The law in England and Wales has in consequence always insisted that it is ordinarily essential that evidence of the truth of a matter be given in person by a witness who speaks from his own observation or knowledge. It uses the legal expression ‘hearsay’ to describe evidence which is not so given, but rather is given second hand, whether related by a person to whom the absent witness has spoken, contained in a written statement of the absent witness, given in the form of a document or record created by him, or otherwise.[8]The obvious potential weakness of hearsay evidence is that the fact finder never sees the person who gives the evidence which he must evaluate, and the parties cannot ask supplementary or testing questions which are likely to help judge the truthfulness and accuracy of the evidence, when those attributes are in doubt. Conversely, if the person cannot be brought to court, an exclusionary rule will deprive the fact finder of evidence which may well help him to arrive at the correct answer in the case, and in many instances will eliminate evidence of whose truthfulness and/or accuracy there is little room for real doubt.[9]The default rule of the criminal law of England and Wales has always been that hearsay is inadmissible. Unmodified, however, such a blanket rule created many examples of injustice so that it was always subject to many exceptions, some recognised by the courts as developments of the common law, and others created by statute. In consequence the law of hearsay in England and Wales became complex and not always internally consistent. At times it was found to risk adjectival procedural rules triumphing over substantive justice, whether to the injury of a defendant, of a victim or other witness, or of the public. It was subjected over many years to intensive analysis and discussion. (ii). The Report of the Law Commission[10]The Royal Commission on Criminal Justice recommended in 1993 that reform must be considered. That task was entrusted to the Law Commission which reported in 1997 after several years of wide consultation with judges, practitioners, academic lawyers and other experts based on its Consultation Paper published in 1995. Its report (LC 245) ran to 256 pages. It carefully considered the implications of the ECHR, though at that time it did not have the force of law under domestic legislation. With limited modifications, its detailed recommendations were adopted by Parliament which passed a new comprehensive statutory code relating to all issues of hearsay in criminal proceedings in the form of Part 11, Chapter 2 of the CJA 2003. This code was thus informed by experience accumulated over generations and represents the product of concentrated consideration by experts of how the balance should be struck between the many competing interests affected. It also represents democratically enacted legislation substantially endorsing the conclusions of the expert consideration. (iii). The scheme of the statutory code[11]Hearsay is not made generally admissible by this statutory code. The scheme of the code is as follows: i) It preserves certain specified common law categories of admissible evidence (s.114(1)(b) and 118). ii) It makes specific provision for a limited number of categories of hearsay where there is special reason to make it admissible, (s.114(1)(a) and (c), 116-117, 119-120 and 127-129). iii) It provides for a limited residual power to admit hearsay if the interests of justice require it (s.114(1)(d) and 114(2)). iv) It establishes special stipulations to which hearsay evidence is subject (ss.121-126).[12]Among the provisions of Part 11, Chapter 2 of the CJA 2003 in the second group are the following: i) by s.116(1) and (2)(a) the statement of a witness who is unavailable because he is dead is, subject to conditions, made admissible; similar provisions apply to a witness who is medically unfit, absent overseas and cannot be brought to the UK, or cannot despite all practicable efforts be found; ii) by s.116(1) and (2)(e) the statement of a witness who is unavailable because he does not give evidence through fear is, subject to conditions, made admissible; iii) by s.117 the contents of business records maintained by those who can be expected to have had personal knowledge of the matters recorded are, subject to conditions, made admissible.[13]In relation to a witness who is unavailable because he is dead (or unavailable for medical reasons or because he is abroad or missing), the conditions for admissibility are as follows: i) the evidence must be such as would be admissible if the witness were present to give it orally (s.116(1)(a)); and ii) the witness must be identified to the satisfaction of the court (s.116(1)(b).[14]Those same conditions apply also to the case of a witness who does not give evidence through fear. In that case an important additional condition must be satisfied. The court must be persuaded to admit the evidence and it must do so only when satisfied that it ought to be admitted in the interests of justice. In deciding whether or not this is so, the court must have regard to all relevant circumstances, but in particular to: a) the contents of the statement; b) any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement in the absence of the maker); c) the possibility of alternative special measures for the protection of the witness, such as screens or video-transmitted evidence.[15]The statements of witnesses who are dead, ill, missing, or absent through fear are examples of hearsay made admissible because the evidence is otherwise unavailable. Other categories of hearsay are made admissible because, in the ordinary way, they are likely to be reliable. Business records are made admissible (by s.117 or, where a machine is involved, s.129) because, in the ordinary way, they are compiled by persons who are disinterested and, in the ordinary course of events, such statements are likely to be accurate; they are therefore admissible as evidence because prima facie they are reliable. So, to be admissible, it must be demonstrated that they are the product of information gathered by someone with personal knowledge of the matters recorded, and that anyone through whose hands they have passed has acted in the course of trade business, profession or office (s.117(2)), and the court is not to admit them if there is doubt about their reliability (s.117(6) and (7) and 129(1)). If the record was compiled for the purpose of the criminal proceedings, rather than simply in the usual course of business, there is an additional requirement that the source of the information be absent or will have no recollection of the material (s.117(5): that is designed to ensure that if he can attend to give first-hand evidence he does so. S.127 (preparatory work done by the assistants to experts) is a further example of hearsay evidence which is prima facie reliable and which is admissible for either party; its admission is hedged with a similar safeguard providing for non-admission if the interests of justice point against it. S.128 (confessions by co-accused) is another example of hearsay made admissible (at the suit of the defendant) in the interests of fairness to the accused and because a confession is prima facie, in the absence of reason to the contrary, likely to be true; the CJA 2003 preserves a balance between the competing interests of co-accused by providing for exclusion unless it be shown that the confession was not obtained by oppression or anything else likely to render it unreliable.[16]It follows that both in the case of unavailable witnesses, and in the case of apparently reliable hearsay, the CJA 2003 contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be. The CJA 2003 goes on, in the fourth group of its provisions, to lay down special stipulations applicable to all hearsay, designed to further the same end. They are as follows: i) S.124 makes special provision for the admissibility of any material which it is contended challenges the credibility of an absent witness. The opposing party is enabled to put in evidence anything which he could have put in if the witness had been present, but he may also put in material which, if the witness had been present, could only have been asked of him in cross-examination in circumstances where his answers would have been final; this puts the challenger to that extent in a better position than if the witness is present, and is designed to help to counterbalance the absence of cross-examination of the witness in person. In most cases also, in addition to the statutory rules, a defendant who is faced with hearsay evidence will be entitled to ask the court to call upon the Crown to investigate the credibility of any absent witness and to disclose anything capable of challenging it. That exercise will ordinarily require the Crown to go considerably beyond what would otherwise be the duty simply to disclose what is already in its possession and capable of undermining its case; it will require active investigation of the bona fides, associates and credibility of the witness, so as to provide the defendant with, in addition to anything he already knows, everything capable of being found which can be used to test the reliability of the absentee. ii) By s.125 the judge is required to stop any case depending wholly or partly on hearsay evidence if that evidence is unconvincing to the point where conviction would, in the judge’s opinion, be unsafe; this is an important exception to the usual rule of the law of England and Wales that the assessment of the weight of evidence is exclusively for the jury (see R v Galbraith (1971) 73 Cr App R 124). iii) S.126 preserves the general power of the judge (which existed at common law and is enshrined in s.78 Police and Criminal Evidence Act 1984) to exclude any evidence relied upon by the Crown (but not by a defendant) if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted; the section adds a further obligation upon the judge to exclude hearsay evidence if its admission would generate satellite disputes which would cause an undue waste of time such as to outweigh the case for admitting it. (iv). The rejection of the requirement that essential evidence had to be supported[17]The Law Commission had provisionally canvassed the possibility that hearsay should be subject to a general rule that it could not be capable of proving an essential element of an offence unless supported by other (direct) evidence. It concluded as a result of the lengthy consultation process that such a rule would be wrong. Its conclusion was that such a provision would re-introduce into the law of England and Wales the highly technical and unsatisfactory features of the rules of corroboration, only recently repealed, and would lead to convictions being impossible even when the hearsay evidence of a single element of the offence was to all intents and purposes indisputable. The safeguards which are contained in ss.124-126 (above) were, the Commission concluded, the principled route to ensuring that the trial of any accused remains fair, whilst enabling the jury to assess the weight of hearsay, as it must the weight of all other evidence. The Law Commission concluded at paragraph 5.40:
“We are satisfied that such safeguards, and in particular the duty on the court to acquit or direct an acquittal if the case depended wholly or substantially on unconvincing hearsay evidence such that a conviction would be unsafe,would provide adequate protection for the accused.”
That conclusion was plainly shared by Parliament; the specific safeguard was enacted in s.125 to which we have referred at paragraph 16.ii) above.

ARTICLE 6 of the ECHR

[18]Articles 6(1) and 6(3)(d) of the ECHR provide as follows: “(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ….. (3) Everyone charged with a criminal offence has the following minimum rights: ….

(i) The provisions of the Human Rights Act 1998

[19]These provisions of the ECHR are among those which, like most of the remainder of it, have been given specific effect in the law of the United Kingdom by means of the Human Rights Act 1998. By s.6 it is unlawful for a public authority, which includes a court, to act in a manner incompatible with the rights specifically set out in Schedule 1 to the Act. The only exception is when primary legislation makes it impossible for a court to act otherwise. That is extremely rare, partly because Parliament takes steps to ensure, before legislating, that its statutes will not infringe Convention Rights and also because by s.3 of the 1998 Act, a statute is to be read, wherever possible, in a manner compatible with such rights. An example of the noticeably positive manner in which this obligation is regarded is R v A [2001] UKHL 25, [2001] Cr App R 21.[20]It follows that under the law of the United Kingdom, the courts must adjudicate where necessary upon the effect and meaning of any Convention Right. In doing so, a court must by s.2(1) of the Human Rights Act 1998 “take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights”. The obligation under that statute to take such a judgment into account means that this court is not bound by a judgment of the ECtHR as a matter of precedent and must accept the responsibility of deciding the effect of Convention Rights when the question arises. A United Kingdom court ought clearly to be heavily influenced by judgments of the ECtHR, in the interests of achieving so far as possible consistent interpretation of the ECHR throughout the signatory nations. In R (Alconbury) v Secretary of State for the Environment [2001] UKHL 23, [2003] 2 AC 295, the House of Lords was concerned with whether the Secretary of State’s powers to ‘call in’ planning applications for his own decision infringed Article 6. The House held that the rules for affording interested parties a hearing together with supervision, via judicial review, by an independent court sufficed to comply with that Article. In arriving at that conclusion, Lord Slynn said (at paragraph 26):
“Your Lordships have been referred to many decisions of the European Court of Human Rights on art 6 of the convention. Although the 1998 Act does not provide that a national court is bound by these decisions it is obliged to take account of them so far as they are relevant. In the absence of some special circumstances it seems to me that the court should follow any clear and constant jurisprudence of the European Court of Human Rights.”
Similar remarks appear in a number of other cases – see for example Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323 at paragraph 20, in the context of the possible engagement of articles other than Article 3 in ‘foreign’ immigration cases. We are bound to follow these statements of approach.[21]It may, however, sometimes happen that some divergence of view as to the application of the ECHR is unavoidable. In Brown v Stott [2003] 1 AC 681, the House of Lords was concerned with the principle against self-incrimination in the context of a requirement laid upon the keeper of a motor vehicle to identify the driver at the time of an alleged traffic offence. Both Lord Steyn (at 711) and Lord Hope (at 720) were constrained to express the view that the decision of the ECtHR in Saunders v UK (2001) 10 BHRC 384, presented a number of difficulties upon the crucial question of whether the right against self-incrimination was absolute.[22]In addressing the question of compatibility with the ECHR, it is important to note that here, unlike in other cases such as Alconbury, the relevant statutory provisions enacted by Parliament are a statutory code which represented a considered Parliamentary resolution of the proper balance to be achieved between competing interests in the light of Convention Rights. (ii). The contentions of the appellants as to the application of the ECHR[23]If the consequence of Article 6(3)(d) is that the admission of sole or decisive hearsay evidence is an infringement of the Convention Rights of a defendant (irrespective of whether that witness cannot be brought to court, and irrespective of whether the evidence is seriously open to doubt or not) then counsel for the appellants submitted that the court could ensure compatibility with the ECHR by one of two methods: i) The court might decline to admit hearsay evidence in every such case through the exercise of its discretion in each case to do so. The court would have to rely on its powers under s.78 Police and Criminal Evidence Act 1984, and would have to hold that the admission of such evidence would have such an adverse effect on the fairness of the trial that it ought not to be permitted, despite the plain Parliamentary enactment of the rule that such evidence “is admissible”. ii) S.116 of the CJA 2003 would have to be construed as if it contained, at its end, a proviso containing words such as the following: “but such evidence shall not be admissible if the conviction of the accused would be founded upon it as the sole or decisive evidence”.[24]Both methods would involve this court in substantially re-writing the Code enacted by Parliament in the CJA 2003, by introducing a qualification to the admissibility of the evidence which Parliament self-evidently considered but rejected.[25]Before considering whether it is necessary for us to do so, we must consider what Article 6(3)(d) requires. (iii). The issue[26]In the present appeals the critical question is to what extent the specific rights set out in Article 6(3), and specifically that in 6(3)(d), are absolute, or can be qualified provided the overriding principle that a criminal trial must be fair to the accused and his rights respected is observed – a principle which the law of England and Wales has long recognised in the context of an adversarial and oral procedure and for which it has evolved detailed rules of evidence and procedure to that end.[27]Article 6 requires that the trial shall be fair. Article 6(3)(d) is not simply an example of a right to a fair trial but has a content of its own. The interests of others, victims, witnesses and the public amongst them must also be recognised, thought they cannot detract from the requirement of the overall fairness of the trial (see paragraph 37 below). This follows also from the ECHR, for the Article 2, 3 and 8 rights of victims and witnesses are, as those Articles are nowadays understood, undoubtedly engaged in decisions upon the trial process. A simple example is that of the witness who would be likely to expose himself to death or serious violence, at the hands of whomsoever, if he were to give evidence.[28]The question with which we are confronted is whether Article 6 requires the line as to the admissibility of hearsay (against a defendant) to be drawn at the point at which such evidence is to be classified as the “sole or decisive” evidence or whether the ECHR permits it to be drawn in the manner enacted by Parliament in the CJA 2003.[29]We will first consider the case law of the ECtHR to see the extent to which it supports the appellants’ contention that hearsay evidence cannot be relied on where a conviction depends on such evidence to a sole or decisive degree. (iv). The case law of the ECtHR prior to the decision in Al-Khawaja.[30]In the oral argument before us, there was little discussion of the ECtHR case law. We requested written submissions in relation to the case law and in particular to cases where Article 6 (3)(d) had been considered prior to the decision in Al-Khawaja. We are grateful for those submissions.[31]The cases fall into two broad categories – those where the witness was anonymous and those where he was identified but absent and not available for cross examination by or on behalf of the defendant. In some cases the witness was both absent and anonymous. The considerations applying to the two categories are not identical (see Paragraphs 48-51 below), but a number of propositions can be derived from the cases irrespective of which category is concerned.[32]The undoubted starting point of all the cases is that the admissibility of evidence is a matter for the national court. The primary role of the ECtHR is to determine whether, overall, the trial was fair. Statements to that effect are to be found in virtually all the cases where Article 6(3)(d) has been considered.[33]The second general proposition is that the ordinary rule must be that witnesses are examined in court – often described as the right of confrontation. As we have said, the law of England and Wales has always recognised that as a vital principle; it is the reason for the rule that hearsay is inadmissible unless there is specific provision for it.[34]An early statement of these first two proposition can be found in Kostovski v The Netherlands (1989) 12 EHRR 434 at paragraph 39:
“39. It has to be recalled that the admissibility of evidence is primarily a matter for regulation by national law. Again, as a general rule it is for the national courts to assess the evidence before them. In the light of these principles the Court sees its task in the present case as being not to express a view as to whether the statements in question were correctly admitted and assessed but rather to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair.”
The same words are oft repeated subsequently.[35]The third general proposition is that, however sources of evidence may be classified in national law, the Court considers the expression “witness” to have an autonomous meaning for the purposes of Article 6. The expression will include persons who have given information to the police if this information is relied upon in the trial process: see, amongst many other cases, Kostovski at paragraph 40 and Windisch v Austria (1990) 13 EHRR 281 at paragraph 23. As appears from what we have said, the law of England and Wales conforms to this principle. Indeed, the law of England and Wales also classifies as hearsay evidence requiring special justification for admissibility material which may not be so classified by the ECtHR, such as business or other records and spontaneous utterances (Andrews v DPP [1987] AC 281 at 295B and 300H).[36]Fourth, the cases recognise that there may be circumstances justifying a departure from the second proposition. There is thus no absolute or unqualified right to the confrontation of every witness. A classic statement of this fourth proposition follows closely after the passage cited above in Kostovski, at paragraph 41:
“41. In principle all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument. This does not mean, however, that in order to be used as evidence statements of witnesses should always be made at a public hearing in court: to use as evidence such statements obtained at the pre-trial stage is not in itself inconsistent with paragraphs (3)(d) and (1) of Article 6, provided that the rights of the defence have been respected.” “Statements obtained at the pre-trial stage” may be obtained either by the police or, where the national system provides for such a person, by an investigating judge. The early case of Unterpertinger v Austria (1986) 13 EHRR 175 was concerned with statements made only to police officers which were read out at the trial. The court said of them, at paragraph 31: “In itself the reading out of statements in this way cannot be regarded as being inconsistent with Article 6(1) and 3(d) of the Convention, but the use made of them as evidence must nevertheless comply with the right of the defence which it is the object and purpose of Article 6 to protect.”
Kostovski itself contained examples of both forms of statement; both witnesses made statements to the police, and one of them was also examined by an investigating judge, although not by or on behalf of the defendant. The cases generally appear to make no distinction between a statement to the police and one to an investigating judge. “In itself the reading out of statements in this way cannot be regarded as being inconsistent with Article 6(1) and 3(d) of the Convention, but the use made of them as evidence must nevertheless comply with the right of the defence which it is the object and purpose of Article 6 to protect.”[37]Fifth, in departing from the right to confrontation described in the second proposition, the Convention rights of witnesses under Articles 2, 3 and 8 are engaged and material. The court has repeatedly said that Contracting States “should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled.” (Doorson v The Netherlands (1996) 22 EHRR 330 at paragraph 70, and other cases). Examples of reasons which have been found in principle acceptable to the Court are: i) death: Farrantelli v Italy (1997) 23 EHRR 288; ii) illness: Trivedi v UK (1997) 89 ADR 136; iii) fear of reprisals, whether from the defendant personally or more generally: Doorson at paragraph 71, Kok v The Netherlands (Application 43149/98), Visser v The Netherlands (Application 26668/95) at paragraph 47, Krasniki v Czech Republic (Application 51277/99) at paragraph 80-81; iv) missing witness: Artner v Austria (Application 39/1991/291/362); v) vulnerable witness such as a child: SN v Sweden (2004) 39 EHRR 13. It will be seen that these categories, which are not exhaustive, are closely matched in the CJA 2003.[38]Sixth, where such a course is under consideration it must not be adopted without careful thought and analysis of(a) the circumstances in which the statements which are to be relied upon were made and(b) the reasons for the witness not being called and made available for examination. The departure from the right must then be justified. In a number of the cases an infringement of Article 6(1) with (3)(d) was found substantially on the basis that such examination had not been undertaken, let alone departure justified. Van Mechelen v The Netherlands (1997) 25 EHRR 647 was such a case. The witnesses were police officers, not operating undercover but normally. There was no proper consideration of why they should be anonymous, and no reason why they should be. The Court held at paragraph 60 that there had been no explanation of why anonymity was thought necessary or why less far reaching measures had not been considered. Visser v The Netherlands was a further example: the reputation of the co-accused was capable of being a justification for non-confrontation, but there was no indication how the judge had evaluated the risk to the witness or the sufficiency of reasons for anonymity, especially given that the events spoken of were six years previously: see paragraph 47. Krasniki v Czech Republic is similar: see paragraph 81. In Birutis v Lithuania (Applications 47698/99 & 48115/99) the court had also proceeded in reliance on the statements of large numbers of anonymous witnesses who were not questioned by anyone at court. The court said at paragraph 34:
“…Nor did the courts avail themselves of the statutory opportunity (Articles 156-1 and 317-1 of the Code of Criminal Procedure) to examine, of their own motion, the manner and circumstances in which the anonymous statements had been obtained……The court’s failure to question anonymous witnesses and to conduct a scrutiny of the manner and circumstances in which the anonymous statements had been obtained was unacceptable from the point of view of the first and second applicants’ defence rights and their right to a fair trial under Article 6(1) and (3)(d) of the Convention.”
[39]Seventh where evidence is relied upon which is not given orally by the witness who is available to be examined by the defendant, the rights of the defence must be respected: see the proposition in Kostovski at paragraph 41, which we have cited at paragraph 36 above. This seventh proposition is frequently expressed in the cases as the requirement for counterbalancing measures sufficient to compensate for the restrictions placed upon the defence.[40]In some cases such counterbalancing measures have been found in the process in which a witness is examined not by or on behalf of the defendant but by an investigating judge at an earlier stage, as Article 6(3)(d) implicitly recognises: see for example Doorson. But the cases also show that at least where the evidence in question is only a part of the evidence relied upon for the conviction, there need be no counterbalancing measures. There were none in Farrantelli, where the evidence in question was what had been said by an accomplice who implicated the defendant but died before there was any examination of him by anyone other than the police. There was no breach of Article 6 having regard to the other evidence, albeit much less significant than that of the accomplice, namely evidence of the defendant’s involvement in the purchase of some gas cylinders later used in the offence, together with cross allegations made amongst the co-defendants and an absence of alibi (see paragraph 53). Nor were there any counterbalancing measures in Artner where in a case of alleged loan fraud the complainant was missing but his statement was admitted. It was principally the other evidence, in this case similar fact evidence and the documents, together with the fact that the defendant had contributed to the absence of confrontation, that prevented any breach of Article 6 (see paragraph 17).[41]However, what is important for the present cases is a further proposition adopted in Al-Khawaja that if the evidence is the sole or decisive evidence there will necessarily be a breach of Article 6 and Article 6(3)(d) if the defendant is denied the right to confront the witness, at least unless the case is one of fear. It is instructive to see how it has come about that this further proposition relating to sole or decisive nature of the evidence has come to be articulated in the cases.[42]In the cases prior to Al-Khawaja, where complaint was made that a witness or witnesses had been absent or anonymous the Court naturally looked to see whether there was other evidence also before the trial court. That was clearly because the Court was, consistently with the first proposition above, primarily looking at the overall fairness of the trial. If there was no other evidence that was clearly a factor in the decision that the trial was not fair. It does not, however, follow that in the cases where a breach was held to exist, there were not other grounds for saying that the trial was unfair, irrespective of the fact that the evidence was “sole or decisive”. i) In Unterpertinger the allegation was of domestic violence. The complainant wife and her daughter declined to give evidence, relying on a rule equivalent to spousal exemption, and their statements were used instead of oral evidence. But the national courts had refused to allow the defendant to call evidence going to the credibility of the absent witnesses. It is scarcely surprising that the trial process was held to be unfair. ii) In a great many of the cases the witness was anonymous, and sometimes also absent, and it was held that there was simply no proper opportunity to test the evidence. In Kostovski the court was concerned with assertions emanating from witnesses who were not simply absent but also anonymous. They were police informants. Their identity was not even known to the court, let alone to the defendant, and except that one had been heard in private by an examining magistrate neither was asked any questions by anyone other than the police. It followed that there was also no scope for any material bearing on the credibility of the witnesses to be considered. iii) In Windisch v Austria (1990) 13 EHRR 281 the witnesses were strangers who said that they could identify the defendant as being near the scene of a burglary. They were anonymous for reasons of fear, but their identity was not known to anyone but the police and they were not questioned by anyone else. Thus they were anonymous and absent, there was no investigation of their credibility whatsoever and there was in effect no way their reliability could be explored.[43]In other cases there were other reasons for the finding of a breach of Article 6. i) In Delta v France (Application 11444/85) the complainant in a street robbery case, and her supporting friend, had simply failed to come to court, with no explanation. There was no reason for the admission of their statements. ii) In Ludi v Switzerland (1992) 15 EHRR 173, the evidence was that of an undercover officer and the defence was entrapment. True it was that the case depended entirely on the officer, but there was no attempt to have him present, even if anonymous, for examination by the defendant, and moreover the defendant was unable to challenge the transcript. This was a case in which other measures to preserve the officer’s anonymity could have been taken without keeping him altogether away from the trial, and if such measures had been taken it might be thought that the trial could be fair and the rights of the defence respected notwithstanding anonymity. iii) Saidi v France (1993) 17 EHRR 251 was a case of absent witnesses, two of whom were absconding co-accused, and although the names of the others were known there appears to have been no attempt to provide any information about them such as would enable their credibility to be checked. It appears that only one of six or so was ever questioned by anyone other than the police, and none by or on behalf of the defendant. All were drug users who might be thought to belong to a category of the potentially very unreliable.[44]Thus in all these cases prior to Doorson there was ample ground for holding the trial unfair or the rights of the defence had not been respected. References to the absence of other evidence simply demonstrated that the evidence from a witness whom the defendant did not have an opportunity of questioning mattered significantly. It did not necessarily mean that such evidence which was critical to the trial could not fairly be relied upon if either it was demonstrably reliable or there were proper means of assessing its reliability and thereby providing counterbalancing measures that properly respected the rights of the defence.[45]It appears to be in Doorson that the expression “sole or decisive” was first employed. This was another case of anonymous witnesses but they were questioned by an investigating judge on the direction of the appeal court, and the defence advocate had the opportunity to examine the witnesses. That was held to be a sufficient counterbalancing measure. There was also other evidence against the defendant. His claim of breach of Article 6 failed. The Court included in its judgment this passage:
“76. Finally it should be recalled that even when counterbalancing procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements. That however is not the case here: it is sufficiently clear that the national court did not base its finding of guilt solely or to a decisive extent on the evidence of Y15 and Y16.”
This observation was not, however, necessary to the decision. No question arose in that case as to the position where there is evidence from identified witnesses forming the sole or a decisive part of the case for the prosecution, and such evidence is demonstrably reliable or its reliability can be assessed and tested, thereby properly respecting defence rights.[46]The formulation in Doorson was, however, repeated subsequently in other cases: i) in Van Mechelen, though in that case there was no justification for operational and non-undercover police officers to be accorded anonymity. ii) in Luca v Italy (2003) 36 EHRR 46, though in that case the evidence in question was that of a co-accused who was silent for the good reason that he relied on the equivalent to his privilege against self-incrimination. A co-accused with a plain interest in diverting blame from himself to another is a witness carrying a particular risk of unreliability. It is not difficult to see why evidence of this kind ought to be heard in person and comprehensively tested, or not heard at all. iii) in Visser and in Krasniki, though in both cases the witnesses were anonymous, there was no provision of material which enabled credibility to be tested and the only questioning allowed to the defendant was through a sound-only link which meant that the defence lawyer could not see the witness. iv) in Birutis, but in that case, as we have already said (at paragraph 38 above), there was no proper evaluation of the reliability of the statements of a large number of anonymous witnesses.[47]It follows that we respectfully question whether any of the decisions prior to Al-Khawaja has gone so far as to examine evidence from an identified witness who is absent for good reason, but where such evidence can be assessed as reliable or tested in a manner that respects the rights of the defence. (v). The “sole or decisive” test in anonymous witness cases.[48]It is necessary, we think, to distinguish between cases of anonymous witnesses and identified but absent witnesses. The CJA 2003 is concerned with identified but absent witnesses. It does not permit the admission of the evidence of anonymous witnesses. Different considerations apply to anonymous witnesses.[49]The origin of the expression “sole or decisive” in Doorson was in the context of anonymous witnesses. Many if not most of the subsequent cases in which the expression has appeared have been similarly concerned with anonymity. Even here, as Lord Mance pointed out in R v Davis [2008] UKHL 36 at paragraphs 88 and 89 the case law of the ECtHR may not preclude circumstances in which even decisive testimony can be given anonymously.[50]Whatever may be the position in relation to anonymous witnesses, in the balancing exercise necessary to see whether the trial as a whole is fair and defence rights respected, the considerations relating to anonymous witnesses are different from those arising where the witness is identified but absent for a specified reason. The issue of anonymity was considered by the House of Lords in R v Davis. The House concluded that the common law had long recognised the principle that the accused had the right to know the identity of his accusers. It was for Parliament to legislate in respect of the admission of such evidence in a manner compliant with the ECHR (see in particular paragraphs 45 and 98). The position of anonymous witnesses is now governed by the Criminal Evidence (Witness Anonymity) Act 2008, which sets out the specific conditions which must be met and the considerations a court must take into account. They are designed to protect the rights of the defendant. But we heard no argument on that Act and are not concerned with it. We are concerned with the position of identified but absent witnesses where the position is governed by the CJA 2003 and the considerations are different, as was accepted in Davis - see paragraph 20 of the opinion of Lord Bingham.[51]It is also important to note that in Recommendation No R(97) of the Committee of Ministers of the Council of Europe (to which Lord Mance referred in Davis at paragraph 79) it is only in the case of anonymous witnesses that the recommendation was made that a conviction should not to a sole or decisive extent be based on such evidence (see paragraph 13). The provisions of the CJA 2003 do not, as we have stated, permit evidence from unidentified or anonymous witnesses to be adduced. (vi). The decision in Al-Khawaja on the application of the sole or decisive test to absent but identified witnesses[52]In Al-Khawaja the ECtHR relied upon the following passage at paragraph 40 of the judgment in Luca v Italy, in which the expression “sole or decisive” had been repeated:
“As the Court has stated on a number of occasions (see, among other authorities, the Isgró v Italy judgment of 19 February 1991, Series A no. 194-A, para 34, and the Lüdi v Switzerland judgment cited above, para 47), it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6(1) and 3(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6 (see the judgment of Unterpertinger v Austria of 24 November 1986, Series A no. 110, paras 31-33; Saïdi v France of 20 September 1993, Series A no. 261-C, paras 43-44; and of Van Mechelen and Others cited above, p 712, para 55; see also Eur Commission HR, Dorigo v Italy, application no. 33286/96, Commission Report of 9 September 1998, paras 43, unpublished, para 43 and, on the same case, Committee of Ministers Resolution HR (99) 258 of 15 April 1999).”
[53]In our respectful view, there is, on analysis, no reason from the case law of the ECtHR, as we have set out, to treat the cases dealing with absent and anonymous witnesses as the same, as this passage appears to do. We also consider that the observations of the court in Luca went further than the facts of that or previous cases required, for the reasons we have given in paragraph 45(ii) above.[54]In reaching its conclusion that the sole or decisive test applied to an absent witness, the ECtHR in Al-Khawaja and Tahery first held that the right under Article 6(3)(d) was a minimum right that must be accorded to anyone charged with a criminal offence. It was an express guarantee and could not be read as an illustration of a matter to be taken into account when considering whether a fair trial had been held. After referring to the passage from Luca cited at paragraph 51 above, it continued (at paragraph 37), “The Court notes that in the present cases the Government, relying on the Court of Appeal's judgment in Sellick, argue that this Court's statement in Luca v Italy [2001] ECHR 33354/96 and in other similar cases is not to be read as laying down an absolute rule, prohibiting the use of statements if they are the sole or decisive evidence, whatever counterbalancing factors might be present. However, the Court observes that the Court of Appeal in Sellickwas concerned with identified witnesses and the trial judge allowed their statements to be read to the jury because he was satisfied that they were being kept from giving evidence through fear induced by the defendants. That is not the case in either of the present applications and, in the absence of such special circumstances, the Court doubts whether any counterbalancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant.” The Court rejected the argument that the decisions in Doorson or SN provided any authority to the contrary. The court then considered at paragraph 40 the argument on the counterbalancing measures – in particular, the correct application of the statutory tests, the judge’s conclusion that it was in the interests of justice to admit the statements and the review by the Court of Appeal of the safety of the conviction. It concluded at paragraph 40:
“The Court finds these particular factors to be of limited weight since the very issue in each case is whether the trial judges and the Court of Appeal acted compatibly with art 6(1) and (3)(d) of the Convention and correctly applied the relevant case law of this Court. On the basis of these observations, and on the basis of the general principles set out at paras 34–38 above, the Court will now examine the remaining counterbalancing factors relied on by the Government in each case.”
It concluded that none of the measures counterbalanced the prejudice caused to the defence by the admission of the statements. (vii). Our analysis of the consistency of Al-Khawaja with the case law[55]With respect, we consider that some further analysis is required of the statement of the ECtHR in Al-Khawaja at paragraph 37 that it doubts whether there can be any counterbalancing factors sufficient to justify the introduction of an untested statement which was the sole or decisive basis for a conviction. We do so in the light of a much fuller examination of the provisions of the CJA 2003 which we have set out at paragraphs 11-16 above.[56]It is clear in our view that the right to confront witnesses for the prosecution under Article 6(3)(d) is not an absolute one. That follows from the case law of the ECtHR and is the position accepted by the Privy Council in Grant v The Queen [2007] 1 AC 1 at paragraphs 17(1) and 19. If it were, there would be no exception and there would be a prohibition upon all hearsay evidence, whether crucial or otherwise. As we have set out, the case law demonstrates that the right to confront a witness can in certain limited circumstances be restricted, provided that the trial is fair and the rights of the defence respected. In considering whether the trial is fair, a legitimate justification for the admission of the absent witness’s statement must be established and appropriate counterbalancing measures must be taken to ensure that the defendant is not placed at an unfair disadvantage and his rights respected. The adequacy of such counterbalancing measures can only be judged by the criterion whether the proceedings as a whole are fair, for once it is accepted that the right under Article 6(3)(d) is not absolute, that is the only criterion against which it can be judged. This is not to say that Article 6(3)(d) is merely an example of the right to a fair trial. As we have accepted, it does have a content of its own, but that content is not absolute, a point to which we return at paragraph 79 below.[57]Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable, or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures.[58]In arriving at our conclusion that there neither is nor should be a rule that counterbalancing measures can never be sufficient where the evidence is sole or decisive, we have relied on a number of considerations. First, such a requirement was rejected by the Law Commission as we have set out and it was rejected by Parliament; we have referred to this at paragraph 17 above. Second, the code set out in the CJA 2003 provides the rigorous conditions for admissibility summarised at paragraphs 11-15 above. Third, explicit provisions are made which enable the defence to test the credibility and reliability of the evidence by s.124 of the CJA 2003 – see paragraph 16.i) above. Fourth, such a rule, as we show in the next paragraphs has principled and practical objections. The essential considerations are whether there is a justifiable reason for absence (accepted in the fifth and sixth propositions which we consider can be derived from the case law of the ECtHR) and whether the evidence can be assessed and tested so that it is safe to rely upon it – a consideration which the ECtHR has not, it appears, fully considered. Fifth, s.125 of the CJA 2003 provides an overriding safeguard which goes to the essence of the evidence so admitted – its reliability. Sixth, the difficulties facing a defendant when an application is made to admit hearsay evidence are well understood by the courts of England and Wales; the statutory conditions in the CJA 2003 are rigorously applied. Seventh, we consider that the decision of the ECtHR in Al-Khawaja does not, on the analysis which we endeavour to set out in the light of a fuller consideration of the CJA 2003, justify us in departing from the decisions of this court prior to that decision. (viii). The difficulties in adopting a “sole or decisive” test as an absolute test for exclusion[59]We therefore turn to the fourth of our reasons, the principled and practical difficulties that in our judgement prevent the adoption of a test that would exclude any evidence contained in a statement of an absent witness on the grounds that it was sole or decisive.[60]The principled difficulty is that it makes two assumptions. The first is that all hearsay evidence which is critical to a case will be potentially unreliable in the absence of testing in open court. The second is that the fact finder cannot be trusted to assess the weight of such evidence. (a). Reliability does not depend on the importance of the evidence[61]Hearsay evidence may, obviously, be potentially unreliable. So may much other evidence. The difference in the case of hearsay is that the opportunity to test it is much restricted. The whole of trial experience in England and Wales supports the proposition that confrontation and oral testing of evidence may expose either the reliability of evidence or its opposite. But not all hearsay evidence, including that necessary to a case, is in this category of the potentially unreliable. If the woman under attack manages to get to the telephone, calls the police and screams that “X is here; he’s got a knife”, before being cut off, and when the police get to the house she is found dead by stabbing with no other evidence who did it, her assertion that X was responsible is hearsay. It would also be the sole or decisive evidence. But in the absence of some unusual feature a fact finder would be fully entitled to conclude that the possibility that she was under attack from Y, but falsely screamed that it was X, is one which can be eliminated.[62]If the drive-by shooting takes place in the street in front of unconnected members of the public (as it all too often does), one of those unconnected persons may take the number of the car as it drives away. He or she may write it down, or telephone it to the police or to a friend. The witness may subsequently die, or may be elderly and too terrified to come to court. The evidence of the number is hearsay. The car may have been traced through the number and linked to the defendant. There is no possible basis for querying the truthfulness of the witness. As to possible inaccuracy, there may well be no practical likelihood that the number was wrongly taken down – for example there is no other similar number, or there is gunshot residue in the car which, though not showing that it was concerned in this shooting effectively rules out the accidental misrecording of the number. But the car number remains an essential link in the chain of evidence connecting the defendant to the shooting: it is decisive evidence.[63]In a less serious case, the defendant may be charged with the possession of drugs in a night club with intent to supply others. The evidence of finding the drugs on him comes from a security man, who is ill or has gone abroad by the time of the trial. The defendant remained silent throughout his interview. Although there has been no admission of possession, his lawyer has canvassed with the prosecution whether if he were to admit simple possession that would satisfy the Crown. The evidence of possession is an essential link in the chain, but although there is no admission, it will not in practice be in dispute. In a fraud case, the records of the bank may be a decisive element in the chain of evidence against the accused. It may be quite impossible to find whoever compiled the record. Unless, however, it can realistically be suggested that the unknown recorder was himself complicit in some fraud or impropriety, there is simply no reason to doubt the accuracy of the record.[64]These are simple examples of sole or decisive evidence which does not carry such an inherent risk of unreliability that a conviction relying upon it is unsafe. Conversely, hearsay evidence which is not sole or decisive may carry exactly that risk. The importance of the evidence within the case is an entirely separate issue from its reliability.[65]We note that in the different but analagous case of evidence unlawfully obtained, the ECtHR specifically held in Khan v UK (2001) 31 EHRR 45 at paragraph 37 that although the evidence was the sole evidence, “In the present circumstances, where the tape recording was acknowledged to be very strong evidence, and where there was no risk of it being unreliable, the need for supporting evidence is correspondingly weaker.” (b). A court can be trusted to assess the reliability[66]The second assumption to which we referred at paragraph 60 is equally open to error. It may certainly be that a jury which hears no oral evidence of significance and sees no witness cross examined, may have difficulty in appreciating what has been unavailable to it. But many juries sit for several days or weeks examining evidence which is rigorously tested, and if, amongst that evidence, it receives the written statement of a witness who is ill, or dead, or frightened to appear, it is often perfectly able to understand its limitations. If it is then provided with material under s.124 of the CJA 2003 about the absent maker of the statement, and powerful arguments are presented by both sides as to what reasons, or absence of reasons, there may be for untruth or error, it cannot realistically be contended that in every case the jury or other fact finder will be incapable of making a proper decision as to what weight can be attached to the evidence. The mere fact that such evidence is an essential link in the chain by which it is sought to prove the guilt of the accused does not alter that. The evidence of the forensic scientist may be critical to the case against the accused. It may depend in part upon laboratory work done by unidentified assistants. To that extent it is hearsay. But the possibility that there has been error is one which can perfectly adequately be ventilated at the trial, no doubt if necessary with the aid of an independent expert instructed by the defence, without the calling of every person who worked in the laboratory at the time.

(c) Practical difficulties

[67]Apart from these principled objections to the argument that the ECHR requires that evidence that is sole or decisive should not be admitted, there are practical difficulties with such a test as a test of admissibility.[68]It is clear from the judgment in Al-Khawaja v UK that the ECtHR took the view that the error had lain in admitting the hearsay evidence: see in particular paragraphs 37, 40, 42 and 46. Any test of admissibility must be one which can be applied in advance of the giving of the evidence, let alone of the outcome of the trial. A routine test of admissibility of evidence which can only be applied in retrospect, after the outcome of the trial is known, makes the trial process little more than speculative. Judge, jury, witnesses and parties may find themselves engaged in shadow-boxing without knowing whether the solemn result of the trial will stand to be reversed on the grounds that, as things have turned out, the test of admissibility was not met. Nor can any defendant decide how to conduct his case, and indeed whether or not to plead guilty, if he does not know what evidence can and cannot be relied upon.[69]It will no doubt often be possible to identify in advance a case in which the hearsay evidence in question is the sole evidence against the accused. An obvious case is that of the single eye-witness case, with no suggested support from any other source. But this frequently may not be clear from the outset; there may be other evidence which the prosecution intends to present, but which, on hearing, turns out not to incriminate the accused, or is effectively demolished. Conversely, what appears at the outset to be hearsay evidence standing alone may sometimes come to be supported by other material as the evidence develops. A witness may add something of great significance not previously mentioned, or the significance of something always said may become apparent when apparently unconnected other evidence is given. In any case where there is more than one accused jointly charged, it is common experience that the evidence of one may well shed enormous light upon the guilt or innocence of another. So even the concept of ‘sole’ evidence is an impractical test for admissibility.[70]It is, however, the second limb of the suggested test which is apt to cause the greatest difficulty. No one can know what evidence is decisive until the decision-making process is over. On no view can it be possible to rule in advance, at the stage when admissibility is in question, which evidence will be decisive - as is illustrated in the appeal of Marquis and Graham – see paragraphs 142.v) below. The application of the test is made the more difficult yet if the meaning of ‘decisive’ is extended to encompass any evidence of which it can be said that, if it were absent, “the prospect of a conviction would have receded and that of an acquittal advanced” (see paragraph 21 of Al-Khawaja.) Indeed, if that is the test of what is decisive, virtually all evidence would qualify; evidence which does not, if accepted by the jury, advance the prospect of conviction will ordinarily be excluded as irrelevant.[71]A further impossibility arises where the hearsay evidence is advanced not by the prosecution but by a co-accused. It may be potentially decisive, not only in the defence of Accused A, but also in showing the guilt of Accused B. The judge could not, consistently with established principles of law of England and Wales, refuse A the right to adduce such evidence if it were necessary to develop his case in defending himself. That it might end up decisive evidence (however defined) against B could not alter that rule of law.[72]It follows that as a matter of practice the concept of ‘sole or decisive evidence’ is incapable of operating as a legal test of admissibility, as it would have to be applied in a criminal trial in England and Wales. (ix). The safeguard in s.125. A proportionate assessment of reliability[73]We turn to the fifth reason – s.125 of the CJA 2003 which, as we have set out at paragraph 16.ii) above provides the trial judge with the express power to withdraw a case from the jury if(i) it depends in whole or in part on hearsay evidence,(ii) that evidence is unconvincing and(iii) in consequence it appears to the Judge that a conviction would be unsafe. This is specifically designed to confront the potential weaknesses to which hearsay may be subject.[74]For the reasons which we have endeavoured to give, it would not serve justice if this power were to be trammelled by a requirement that it be exercised in every case in which the hearsay evidence were the sole or decisive evidence. Sole or decisive hearsay evidence can be wholly convincing, indeed scarcely capable of dispute. Equally, evidence which is neither sole nor decisive might, in some circumstances, have such a potential influence upon the deliberations of the jury that the judge is persuaded that a conviction would be unsafe. Moreover, in the system in England and Wales where it is a vital principle of the administration of justice that the decision in the more serious cases is made by a jury, the detail of whose deliberations remain confidential from everyone, it cannot be known what feature of the evidence it may regard as decisive. The judge must therefore make up his own mind whether, if a conviction results, it will be safe or not. He should ordinarily do so, not at the close of the prosecution case, but at the close of all the evidence, unless of course at the earlier stage there is no case to answer. The hearsay evidence, in other words, is not to be disregarded at the stage of considering whether there is or is not a case to answer – it falls to be considered in the same way as any other evidence, in accordance with the principles of Galbraith. But at the close of all the evidence, the judge is required, in a case where there is a legitimate argument that the hearsay is unconvincing and important to the case, to make up his own mind, not as a fact finder (which is the jury’s function), but whether a conviction would be safe. That involves assessing the reliability of the hearsay evidence, its place in the evidence as a whole, the issues in the case as they have emerged, and all the other individual circumstances of the case. The importance of the evidence to the case is made a specific consideration by the statute: see s.125(1)(b). This is a particular, and not a general, task. In performing it, the judge will call upon long experience of trials, both as advocate and judge, and upon his immersion in and understanding of the particular trial which he is conducting. He will have the benefit of close legal and factual argument on behalf of both sides.[75]It does not follow that all hearsay evidence should automatically be admitted and any decision upon it postponed to the s.125 one at the end of the trial. Where the evidence is tendered under s.114(1)(d), the CJA 2003 requires by s.114(2) the Judge to address the question of admissibility according to the interests of justice. Where the reason for advancing hearsay evidence is that the witness is in fear, the CJA 2003 contains a similar requirement in s.116(4). In each case, further statutory considerations are provided which must be weighed by the trial Judge. It is also possible that there may be a residuum of cases where the exclusionary power conferred by s.78 Police and Criminal Evidence Act 1984 falls for application. (x). Our experience of the application of the safeguards.[76]We turn to our sixth reason. We accept that there can be a very real disadvantage in the receipt of hearsay evidence. Article 6(3)(d) may originally have been intended to safeguard a person from an accusation whose source is unknown - the anonymous witness - and to provide all defendants with the same rights to call evidence as are possessed by the Crown, but as applied in present times it contains a vitally important reminder that the handicap to a defendant who cannot test evidence which is potentially unreliable and in dispute is not to be underestimated and may render the trial unfair.[77]However, we should emphasise, now that the CJA 2003 has been in force for four years, that it does not have the effect of equating hearsay evidence to first hand evidence. On the contrary, hearsay evidence needs cautious handling.[78]That such an approach has to be adopted to the provisions of the CJA 2003 was emphasised in R v Y [2008] 1 Cr App R 34. At p. 411, the court stated:
“Although s.114(1)(d) as enacted does not contain the cautionary reminder, which draft clause 9 did, namely that the probative value of the out-of-court statement must outweigh the difficulties of challenging it before it will be in the interests of justice for it to be admitted, the statute as enacted is not less rigorous. That is because s.114(2) lists specific factors which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted. After setting out those factors, the approach a court should take was set out: “As this court explained in Taylor [2006] EWCA Crim 260, s.114(2) does not mean that the Judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the Judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission.……………..”
The court referred to other considerations and concluded: “S.114(2)(i) moreover requires consideration of the injurious consequences of admission ('prejudice') to the party facing the evidence which will arise from the difficulty of challenging it. Since the burden of proving the case is upon the Crown and to the high criminal standard, very considerable care will need to be taken in any case in which the Crown seeks to rely upon an out-of-court statement as supplying it with a case against the defendant when otherwise it would have none. In such a case if there is genuine difficulty in the defendant challenging, and the jury evaluating, the evidence, the potential damage to the defendant from that difficulty is very large.” (xi). Conclusion[79]For these reasons, we conclude that, provided the provisions of the CJA 2003 are observed, there is no breach of Article 6 and in particular Article 6(3)(d), if the conviction is based solely or to a decisive degree on hearsay evidence admitted under the CJA 2003. There is nothing in our view in the judgment of the ECtHR in Al-Khawaja considered in the light of a full analysis of the CJA 2003 that leads us to conclude that this court was wrong in the result it reached in a number of its decisions in relation to Article 6 and Article 6(3)(d). Where the hearsay evidence is demonstrably reliable, or its reliability can properly be tested and assessed, the rights of the defence are respected, there are in the language of the ECtHR sufficient counterbalancing measures, and the trial is fair. There is therefore no reason which justifies us departing from the conclusions in that line of authority binding on us, particularly in the light of their approval in the opinion of the Privy Council given by Lord Bingham in Grant v The Queen at paragraphs 17(2) and (3).[80]What Article 6 requires is that the trial shall be fair. As we have set out, Article 6(3)(d) is not simply one example of the right to a fair trial, but has a content of its own. But given that Article 6(3)(d) does not create any absolute right in an accused to have every witness against him present to be examined, the balance struck by the code enacted in the CJA 2003 is a legitimate one and wholly consistent with the ECHR.[81]We conclude therefore that, applied in this way, the principled solution provided for by the CJA 2003 in relation to hearsay evidence is consistent with Article 6(3)(d) of the ECHR, and is not further qualified by a separate test relating to whether the evidence is sole or decisive in the case.[82]It is not therefore necessary for us to consider the methods by which a sole and decisive test could be written into the code set out in the CJA 2003.

THE AMBIT OF FEAR

[83]A witness who is in fear may be as effectively unavailable as a witness who is dead, ill, or overseas. In some cases, the fear will have been induced by or on behalf of the accused. Nor is it always the case of fear induced by or on behalf of the accused is limited to one of overt traceable threats. Sometimes the reputation of the accused and his associates is enough: this is one way in which gangs can maintain their hold on an area. The finding that the fear is induced by or on behalf of the accused may be an inevitable one if the enquiry be made: cui bono? Where the fear is attributable to the accused or his associates, it is an additional factor supporting the admissibility of the evidence, since otherwise a premium is put by the criminal justice system on the intimidation of witnesses.[84]The case of a witness in fear is not, however, limited to fear induced by or on behalf of the accused. It is a melancholy fact of life that in some communities or geographical areas, a citizen is intimidated by a climate of fear from being seen to give evidence. The point is well illustrated by some of the cases considered by the ECtHR. In Doorson at paragraph 71 the court said:
“Although, as the applicant has stated, there has been no suggestion that Y15 and Y16 were ever threatened by the applicant himself, the decision to maintain their anonymity cannot be regarded as unreasonable per se. Regard must be had to the fact….that drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them. Furthermore, the statements made by the witnesses concerned… show that one of them had apparently on a previous occasion suffered violence at the hands of a drug dealer against whom he had testified while the other had been threatened. In sum there was sufficient reason for maintaining the anonymity of Y15 and Y16.”
In Kok v The Netherlands (Application 43149/98), sufficient reason for anonymity was found in the reputation of the defendant, without any evidence of actual threat and in Visser v The Netherlands (Application 26668/95) in the reputation of a co-defendant (paragraph 47).[85]Although in such cases consideration must first be given to whether special measures can be adopted to enable such a person to give evidence, in some instances none will suffice. For the reasons explained in R v Mayers [2008] EWCA Crim 2989 at paragraph 9, witness relocation and protection is normally incompatible with the continuation of any ordinary life, and indeed with the Article 8 rights of the witness. So it may happen that, after all possible efforts to obtain the attendance of the witness have been made, the fearful witness is indeed as unavailable as the witness who is dead, ill or overseas. S.116 of the CJA 2003 recognises this.[86]In our view, the terms of s.116, like the jurisprudence of the ECtHR, do not impose the requirement that the fear must be attributable to the defendant. It is sufficient that the witness is in fear. No doubt Parliament took into account the well known difficulties of ascertaining the source of a witness’s fear. Nor does Article 6 of the ECHR require this. As we have set out, it is our view that in determining whether the requirements of Article 6(3)(d) have been met, two of the essential questions are whether there is a justifiable reason for the absence of the witness supported by evidence (see the fifth and sixth propositions that we consider can be derived from the case law of the ECtHR) and whether the evidence is demonstrably reliable or its reliability can properly be tested and assessed. On this analysis, if the witness can give evidence which should be heard by the court in the interests of justice, but is clearly too frightened to come, then it matters not whether that fear was brought about by or on behalf of the defendant – there is a justifiable reason for the absence. The task of the court is to be sure that there are sufficient counterbalancing measures in place (including measures that permit a proper assessment of the reliability of that evidence fairly to take place) and to permit a conviction to be based on it only if it is sufficiently reliable given its importance in the case. The provisions of the CJA 2003 require all this to be done.[87]It is, however, important that all possible efforts are made to get the witness to court. As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d). It is only to be departed from in the limited circumstances and under the conditions set out in the CJA 2003. The witness must be given all possible support, but also made to understand the importance of the citizen’s duty, and indeed that the violent and intimidatory will only flourish the more if that duty is not done, whilst they will normally back down in the face of determination that it be performed. For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read. Unless the defendant consents, it is only the court applying the strict conditions of the CJA 2003 based on evidence that can admit such a statement. Any indication, let alone an assurance, can only give rise to an expectation that this will indeed happen, when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all.[88]It may well be that in the early stage of police enquiries into a prominent crime the investigators need to seek out information on a confidential basis: that is a matter for practical policing and not for us. But no person who is becoming not simply a source of information but a witness should be told that his evidence will be read, or indeed given any indication whatsoever that this is likely. The most that he can be told is that witnesses are expected to be seen at court, that any departure from that principle is exceptional, and that the decision whether to depart from it is one for the Judge and not for the police. In the case before us of Marquis and Graham, as we set out at paragraphs 127 and 132, the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down, although relocated, and killed. Although notorious, that incident was an extreme and very unusual case. The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness. Whilst the CJA 2003 requires fear to be construed broadly, it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury. If the evidence can really only be assessed by the jury by seeing the witness, as will often be the case, it may not be admitted. If it is admitted and central to the case, there is a significant possibility that at the end of the trial the Judge may have to rule under s.125 that a conviction relying upon it would be unsafe.[89]We therefore turn to each of the appeals before us.

HORNCASTLE AND BLACKMORE

[90]Horncastle, Blackmore and James Daord were arraigned on an indictment charging them with causing Peter Rice grievous bodily harm with intent contrary to s.18 of the Offences against the Person Act 1861 at the Crown Court at Liverpool before His Honour Judge Phipps and a jury. On the third day of a trial, 14 March 2007, Daord pleaded guilty. There was insufficient time for that trial to be completed and the jury were discharged. A second trial of Horncastle and Blackmore began in June 2007, but could not be concluded as an issue arose in relation to the forensic evidence; the jury was discharged. A third trial took place in November 2007 and on 29 November 2007, Horncastle and Blackmore were convicted. Horncastle was sentenced to Imprisonment for Public Protection with a minimum term of 6 years and Blackmore was sentenced to 12 years imprisonment. Daord had been sentenced to 10 years imprisonment. Leave to appeal against conviction was granted by the single judge on grounds relating to the admission of bad character evidence of a person the appellants had blamed for the attack on Peter Rice and their appeals against sentence referred to the Full Court. In the light of the decision in Al-Khawaja, leave was granted in respect of the admission into evidence of the statement of the victim of the attack who had died.

(i) The decision to admit the statement of the deceased witness

[91]On 7 May 2005, Peter Rice, a registered alcoholic, was attacked in his flat (No. 9) in a block of flats in Birkenhead. His extensive injuries included a large blood clot on the surface of the brain, a small blood clot inside the skull, fractures to the rib, cheekbone and jaw and extensive bruising. He was in hospital until 8 June 2005, but made a good recovery. He was able to make a statement to the police on 3 June 2005. He died on 23 July 2006, prior to the first trial, from an alcohol related illness.[92]The prosecution case was that Lee Burns and Gerard (Jeddah) Murphy had burgled another flat in the block (No. 23) and taken the stolen property to Peter Rice’s flat (No. 9). Burns and Murphy pleaded guilty to that burglary; Burns had admitted that burglary three days after the burglary. The attack on Peter Rice had occurred when Horncastle and Blackmore had gone with James Daord (who had been staying at No. 23) to recover the stolen property.[93]The defence case was that although Horncastle and Blackmore had gone to Peter Rice’s flat to help recover Daord’s property, neither had been involved in the attack on Peter Rice. That attack had been carried out by Gerard Murphy; Mark Jones had witnessed that attack.[94]The Crown applied to read his statement under s.116(2)(a) of the CJA 2003. It was opposed by the appellants on the basis of s.78 of the Police and Criminal Evidence Act 2003. It was contended that it would be unfair to admit the statement which constituted the only admissible evidence of participation against them, as there could be no opportunity to challenge it and it was inherently unreliable. They relied on the admission by Peter Rice that he had drunk a quantity of alcohol, he had said “I don’t know times and my memory is vague”, and on the fact that the description given of the first male could not fit Blackmore.[95]The judge ruled on 24 January 2007 (prior to the first trial and the plea of Daord) that the evidence should be admitted on the basis that the condition in s.116 (1)(a) was satisfied; that on the basis of the decision of the Court of Appeal in Al-Khawaja, the fact that it was the principal evidence against the appellants did not make it unfair. He relied in particular on the fact that the appellants had all admitted being present in the flat to recover Daord’s property, the appellants were going to call Mark Jones to give evidence and that Murphy had been responsible for the attack. He would give appropriate directions to the jury. (ii). The evidence[96]The evidence relied on by the prosecution, apart from the statement of Peter Rice, was: i) David Jones, the caretaker at the block of flats, had been told at about 5.30 pm on 7 May 2005 by Mr Hughes, the tenant of No. 23, that his flat had been burgled, that the police had been told and that the TV and stereo had been stolen. Later that evening at about 10 pm, he was given by another tenant a DVD player which he had found in the lift. He had visited No. 23 at about 10.15 pm and seen a person whom he knew also to be living there. The man used crutches and told him that he had recovered other items taken in the burglary and that the man from No. 9 (Peter Rice) was a “robber”. ii) Michael Broderick had been with Peter Rice during the afternoon of 7 May 2005 at No. 9. He had drunk cider with Peter Rice; Rice had been drinking before he arrived. Rice was not drunk, but tipsy. He left when Burns and Murphy arrived; he did not like Murphy. He could not recall if they were carrying anything. When cross examined about his second statement in which he had said that when Burns and Murphy arrived they were carrying a TV, he said that he saw a TV by the bedroom door, but he could not recall if they were carrying it. He had not said anything in his first statement about a TV. When he left, Rice was uninjured. He had gone to Peter Rice’s flat the following morning after a telephone call from Peter Rice’s sister, found him covered in blood and called an ambulance. He had visited Peter Rice in hospital where he had indicated that he had been attacked by three people, but he could not really remember who had attacked him. iii) Garry Griffiths went to Peter Rice’s flat on the evening of 7 May 2005 with Murphy and found Peter Rice lying on the floor covered in blood. He told them he did not want an ambulance. He told Murphy that it was his (Murphy’s) mates from upstairs and referred to “Jimmy” (Daord). Rice showed no fear when he saw Murphy. iv) Ian Scarisbrick (Peter Rice’s brother in law), who had been out drinking, had visited Peter Rice at about 3 am on 8 May 2005. He had been covered in blood. Peter Rice told him that he had received a good kicking off “Jimmy” and three other lads because there was a TV and stereo in his flat and he was being accused of stealing them. He refused to go to hospital. v) The police officer who had attended to investigate the burglary at No. 23 had recovered a Sanyo TV set, stereo system and DVD player. Another officer lifted some finger prints from the TV as well as a slide of blood. vi) A forensic science officer, Geraldine Davies, gave evidence, from her examination of the blood distribution, that the assault was at the front door and the hallway and then at the entrance to the bedroom. There was pooling of blood at the entrance to the bedroom as if the source of the blood had lain there for sometime. She was unable to say how many assailants there were. vii) Another forensic science officer, Pamela Bauer, had concluded that blood on the crutches taken from flat No. 23 and belonging to Daord matched the DNA profile of Peter Rice. There was nothing on Blackmore’s clothing or footwear or in other forensic evidence to link him to the attack. If he had been present at the time of the attack and his shoes had not been cleaned, she would have expected blood spots; there was no evidence that the shoes had been wiped. The blood on the Sanyo TV found at No. 23 matched that of Peter Rice. The blood on the sole of Murphy’s trainer matched that of Peter Rice; the sole had been in contact with wet blood, but there were no spots on the trainers which she would have expected to find if the shoes had been there at the time of the assault, though she could not rule it out. There was therefore no scientific evidence to link Murphy with the assault. viii) In their police interviews both appellants had admitted going to Peter Rice’s flat about 10 pm to recover what had been stolen. Horncastle had admitted taking back the TV.[97]The statement of Peter Rice made clear he was a long term alcoholic. He had spent the afternoon drinking with Michael Broderick, Burns and Murphy whom he described as friends. He had drunk at least 3 litres of cider. Burns and Murphy had gone out and returned with a TV and hi-fi system. He told them they would have to take them away, as he was due to have children around the following day. All three left in the course of the evening. Later, there was a knock at the door; he opened it and saw three males who pushed him into the flat. The bigger male, described as a big six foot three tall man very stocky in build, started to punch him; he gave a more detailed description, describing his hair as short light brown, aged 34 or 35 and possibly having stubble and a tattoo on his face. A male on crutches who lived on the fourth floor (a description that could only have fitted Daord) then joined in as did the third - Horncastle whom he had known for a number of years. He was dragged into the bedroom where they saw the TV. They then went mad and punched him more. It lasted about 15 minutes. They took some things and left. The next he remembered was waking up in hospital.[98]Horncastle gave evidence. He had been drinking all day with Daord and Blackstone. At about 9.30 pm, he had gone to Daord’s flat with them to get cannabis. Daord said the flat had been burgled and items had been stolen. He asked their help to recover the TV. They went downstairs to another flat where Daord went in first, followed by Horncastle. He saw a man staggering in the hallway; he had known Peter Rice since childhood, but did not recognise that it was him. Daord pointed out the items that had been stolen. He picked up the TV and returned to flat 23; Horncastle and Daord then returned to No. 23 about 4 or 5 minutes later with the remainder of Daord’s goods. He had not seen an assault and had not seen any blood. He had washed his clothes, but had not taken part in an assault. They had returned to the pub. His interview by the police on 7 July 2005 was consistent with his evidence at the trial.[99]Blackmore did not give evidence at the trial. In his interview, following his voluntary surrender to the police on 13 May 2005, Blackmore had said he had been drinking with Daord and Horncastle. He had gone back to Daord’s flat with Horncastle and Daord at about 9 pm and discovered it had been burgled. Daord asked if they would go down and recover the stuff, as he had been told where it was. They went to flat 9 at about 10 pm. The door was opened by a man who the others pushed out of the way. They saw the DVD player and the TV. He picked up the DVD player, walked out, stepping over Peter Rice who was lying on the floor. “Either he’s had a crack and someone must have put him on his arse”. He said he had some specks of blood on his shoes, jeans and T shirt which had come from the wall or a splatter when Peter Rice had been hit. The door closed behind him. He knew that Peter Rice was getting punched and he did not want to have anything to do with that. He did not know what happened after that. He put the DVD player in the lift. He went back to see if the others needed a hand with the TV; the lift at that point closed. He ran after the lift to try and recover it. When he came back, he went into the flat to see if he could lift the TV. Peter Rice was still lying on the floor. The others were just leaving. There was blood everywhere – on the carpets, on the walls, the doors, the ceilings and the TV. He had not hit him. He had not expected them to do what they had done. His jeans and T shirt had been washed.[100]Mark Jones, another tenant in the block of flats, was called to give evidence for the defence. His evidence was that at about 10 or 10.30 pm he had seen Peter Rice when Peter Rice came to his door and asked for some pizza. A little later he had heard some shouting and banging; he had seen Murphy banging and asking him and Peter Rice to open their doors. Later he opened the door a little and saw Murphy holding Peter Rice in a headlock; another person was with him. He closed the door but heard a lot of shouting and noise for the next 20 minutes He had made a statement to the police and gave answers in cross examination which were not consistent with that evidence. The judge made clear in a ruling given during the course of the trial that the calling of that evidence did not have the consequence that the evidence of Horncastle’s previous convictions would be admitted.[101]The judge, on Blackmore’s application, admitted under s.100 of the CJA 2003 evidence of Murphy’s previous convictions – robbery (1994), grievous bodily harm (1995), robbery (1999), violent disorder (2000), affray (2000), child cruelty (2002), threatening behaviour (2005) and arson (2005) in addition to the burglary of flat 23; these were admitted as evidence of a propensity for violence. The judge ruled that this did not have the consequence that Blackmore’s previous convictions would be admitted, as the judge did not consider that his record of previous convictions (common assaults, affray and criminal damage) was relevant.[102]However, the judge ruled against Blackmore’s application to admit evidence of a charge under s.18 of the Offences against the Person Act 1861 made against Murphy arising out of an attack on Ahmed Bashir during the course of a burglary on a flat in Birkenhead on 9 August 2007. Murphy was awaiting trial on that charge. Ahmed Bashir had received very serious injuries in the course of the burglary. Although Murphy had admitted being involved in the burglary he had pleaded not guilty to the offence under s.18. The judge ruled that it should not be admitted into evidence. There was enough evidence to show Murphy was a burglar. “Whether it shows that he has a propensity to commit this sort of violence in the circumstances in which there is no conviction and a lack of, at the moment before me, forensic or medical evidence, and taking account Murphy’s admissions were in respect of it, I am not going to allow it in.” (iii). The summing up and the question from the jury[103]The judge made clear the importance of the evidence of Peter Rice at the outset of his review of the evidence in the summing up:
“The prosecution case here depends, does it not, upon the evidence of Peter Rice”
[104]He explained to the jury that the evidence was not agreed, that the defence had not had the opportunity of testing it by cross examination and that it would carry less weight than evidence from a witness who had come to court and had testified. He set out examples of areas in his statement which had not been cross examined. Just over an hour after the jury had retired, the jury asked to see Peter Rice’s statement; the judge told the jurors they could not see it but reminded them of its contents by reading it to them. Unanimous verdicts were returned about 2½ hours later. (ivi). The appellants’ contentions that the statement of Peter Rice should not have been admitted as evidence.[105]It was contended on behalf of both these appellants that the decision of the judge to admit the statement of Peter Rice was wrong.[106]The initial contention made by Blackmore prior to the decision of the ECtHR in Al-Khawaja wasthat the judge’s decision to admit the statement of Peter Rice was an unreasonable exercise of the discretion. Although Horncastle was aware of that contention, his counsel did not consider that there was any basis on which Horncastle could challenge the decision to admit the evidence. The argument advanced on behalf of Blackmore was that: i) The medical notes prior to the making of the statement indicated that Peter Rice was confused and after the statement indicated he was forgetful at times. These notes were unavailable when the judge made his decision on the admissibility of the statement. Peter Rice had admitted that he had drunk a significant amount and his memory was very vague. The calling of Mark Jones did not counterbalance the prejudice caused, as he dealt only with events later that night and Peter Rice’s statement did not address the matters raised by Mark Jones, despite the fact that the police had been in possession of Mark Jones’ statement since 9 May 2005, 3 weeks before Peter Rice made his statement. ii) The description of Blackmore did not fit him. iii) If the court had been able to consider the interests of justice test under s.114(1)(d) of the CJA 2003, the court should have concluded that the combination of the inherent unreliability of the statement, the denial of the opportunity to test it and the fact that without it there was no evidence of participation against the appellants meant that it was not in the interests of justice to admit it. Leave was refused by the single judge.[107]In the light of the decision of the ECtHR in Al-Khawaja, Horncastle sought leave to contend that the judge’s decision to admit the statement was wrong and Blackmore relied on the decision as providing a ground on which to renew the application for leave. Both submitted that the statement was the sole or decisive evidence against them for the following reasons: i) Peter Rice had not named the appellants when speaking to Griffiths shortly after the attack, nor to Ian Scarisbrick on 8 May 2005 nor to Michael Broderick when he visited him in hospital prior to 3 June 2005. ii) There was no evidence other than Peter Rice’s statement linking them with the attack. In the case of Blackmore, his admissions went no further than mere presence at the time of the attack and of having left at the time the attack commenced. In the case of Horncastle, his admissions went no further than presence and of having left before the attack. iii) There was nothing to counterbalance the prejudice caused to the defence; in addition to the points originally made, the appellants relied on the fact that no other witnesses could be cross examined about the attack, as none gave direct evidence of it. iv) It was of significance that the jury had asked to receive copies of the statement; this reinforced the contention that the conviction was based to a decisive degree on Peter Rice’s account of the attack which could not be challenged. (v). Our conclusion on the evidence contained in Peter Rice’s statement[108]There was substantial evidence independent of the statement of Peter Rice to prove that Blackmore and Horncastle went to the flat, that they were present when an attack took place and that both took away items from the flat. i) Blackmore and Horncastle both admitted they accompanied Daord to flat 9 and were present when the door was opened. ii) Horncastle removed the TV on his own admission. The TV had Rice’s blood on it. It is an inescapable inference that Horncastle must have been present after sufficient violence had been inflicted on Rice for blood to have got onto the TV. His account that he saw no violence must have been untruthful. iii) Blackmore admitted taking the DVD and stepping over the prostrate body of Rice. He must have been present when the violence began and he returned to the flat to help with removing the TV, despite knowing that Rice had been attacked. iv) Neither appellant contended there was anyone else other than Daord present at that time they first went to the flat or when the DVD or TV were removed. v) The scientific evidence pointed clearly to the attack having taken place at the entrance to the flat and at the door to the bedroom which was near the entrance. The attack must therefore have been visible to anyone who remained at the entrance. vi) It follows from the above that there was a significant amount of evidence which showed that the attack occurred in the presence of each of the appellants. vii) There was no evidence of motive for Murphy to have attacked Peter Rice. On the contrary he was a friend of Rice’s and Rice had shown no fear when he saw him with Garry Griffiths after he had been attacked.[109]It was submitted to us that there was a basis on which it could properly be inferred that as each went to the flat with the intention of recovering the stolen property and, as at least some force was used in the presence of each, they were acting jointly. However, if this was a basis on which the case could have been put, this contention should, in our view, have been raised before the jury and the judge should have been invited to sum the case up on that basis. That was not done and it is too late to raise the issue now.[110]Although there was the substantial evidence to which we have referred independent of Peter Rice, it is clear from the judge’s ruling on the admissibility of Rice’s statement, from the way in which the case was summed up and from the question from the jury, that the evidence of Peter Rice was to a decisive degree the basis on which the appellants were convicted, if, contrary to the views we have expressed, that is the central consideration.[111]For the reasons we have explained, in our judgment, however, the decisive nature of the evidence is but one factor the court has to put into the balance in the various stages that the court must go through in applying the statutory code. i) The judge’s decision on the admissibility of the evidence carefully applied the statutory tests under the CJA 2003 ii) The appellants were provided with ample material to attack the credibility of Peter Rice, including the notes of his treatment in hospital. iii) No application was made under s.125 of the CJA 2003. iv) The judge’s direction to the jury was very full. He drew to its attention the particular matters that put the defence at a disadvantage and in particular the inability to cross examine him as to his memory, his alcoholism, his description of Blackmore and other matters. v) There was no suggested reason why Rice, if attacked by Murphy (or even by only one or two of the three defendants who came together to his door), should have provided an untruthful statement. vi) As to possible error, we have considered very carefully the ability of the jury to assess the reliability of his evidence contained in the statement and made our own independent assessment. We are satisfied that the jury was able to make a proper assessment. It was properly directed and the request to be reminded of the statement illustrates that the issue was given careful consideration. vii) Our own view is that the jury were right in placing reliance on that statement, as its convincing nature and reliability in important respects could be tested against other evidence, including the appellants’ own admissions, the visit of 3 persons to the flat and taking items away, the evidence of blood on the TV removed by Horncastle, Blackmore’s evidence in relation to observing Peter Rice being on the floor and the blood in the flat and the other matters set out at paragraph 108. viii) The appellants were provided with sufficient counterbalancing measures and their rights respected. They received considerable information about Peter Rice and his time in hospital; they were able to draw to the jury’s attention all the arguments for treating the statement as unreliable. They were able to put forward an alternative case that the assault was carried out by Murphy by calling independent evidence in support. This aspect of the defence did not rely upon the appellants giving evidence, but was independent of that.[112]If that statement had been excluded on the initial ruling as to its admissibility or the trial stopped using the power in s.125, there would have been a denial of justice in circumstances where the death of a key witness intervened prior to trial. The evidence was carefully admitted and considered by a judge and then by a jury in accordance with the statutory code enacted by Parliament. There is nothing in the ECHR or in our analysis of the jurisprudence of the ECtHR that permits or requires us to hold that, given the statutory code enacted by Parliament was followed, the defence rights have been unfairly abrogated and that the appellants have not had a fair trial.[113]On the contrary the appellants received in our judgment a fair trial, their rights were respected and there was ample evidence to support their conviction. (vi). The second ground of appeal: the further evidence of Murphy’s propensity for violence[114]Both appellants advanced the further ground of appeal based on the judge’s refusal to admit the evidence in relation to the matter with which Murphy had been charged. In summary the argument advanced was: i) After the conclusion of the trial, Murphy had on 24 January 2008 pleaded guilty to the offence under s.18 and been sentenced to Imprisonment for Public Protection and a minimum term of 11 years specified. ii) Although it could not be argued that the judge was wrong to exclude the evidence in relation to the charge as the matter was at that time in issue, once Murphy admitted the s.18 offence, the evidence was plainly admissible and it might well have affected the jury’s decision to convict. iii) This Court should therefore exercise its powers under s.23 of the Criminal Appeal Act 1968 to admit the evidence of the plea and the circumstances relating to the attack on Mr Bashir.[115]In our judgement there was a considerable amount of evidence before the jury as to the propensity of Murphy to dishonesty and violence. The judge was right in the ruling he made. Although there is now fresh evidence before us in relation to the attack on Mr Bashir, we do not consider, applying the test in Pendleton that it might have made a difference to the way in which the jury decided the case. First there was sufficient evidence of propensity, second, there was no evidence of any motive for Murphy to have attacked Peter Rice and third, there was no evidence, as we have mentioned, to suggest that Rice showed any fear of Murphy when he saw him with Garry Griffiths that evening after the injuries had been sustained. This ground of appeal therefore fails.[116]We consider that the convictions are safe and dismiss the appeal.

MARQUIS AND GRAHAM

[117]On 12 May 2008, Marquis and Graham were convicted at the Crown Court at Nottingham before HH Judge Bennett and a jury of kidnapping Hannah Miles on 1 November 2007. Graham had earlier pleaded guilty to offences of dangerous driving and assault with intent to resist arrest. They were each sentenced to Imprisonment for Public Protection; the minimum term specified for Marquis was 10 years, less time spent on remand. The minimum period specified for Graham was 5 years, less time spent on remand.[118]The prosecution case was that at about 19:00 on 1 November 2007, 6 men entered the house at 19 Danethorpe Avenue in which Hannah Miles lived with her partner, Gary Price. They searched the premises and stole various items, including jewellery. After threatening her with a knife, they kidnapped her by taking her away in the car they had come in. A BMW owned by Gary Price was also taken at the same time.[119]The case of Graham advanced by Mr Smith QC was that there had been no kidnapping; Hannah Miles and Gary Price had been involved in an attempted insurance fraud. This was not a defence put forward by Marquis; he put the prosecution to proof a kidnapping. He denied any involvement in any kidnapping there may have been.[120]Neither Hannah Miles nor Gary Price gave oral evidence. The judge admitted the statement of Hannah Miles under s.116(2)(e) of the CJA 2003 on the basis that she was in fear. He did not accept the evidence that Gary Price was too frightened and refused the application made by the appellants to admit into evidence Gary Price’s statement.[121]Marquis and Graham appealed against their conviction, with the leave of the single judge, on the grounds that: i) The statement of Hannah Miles should not have been admitted because there was no evidence that the fear had been caused by the appellants and the police had contributed hugely to the fear. In reliance on the decision of the ECtHR in Luca, it was also contended that the evidence was the determinative or decisive evidence against the appellants, as it was the evidence that there had been a kidnapping. ii) The judge did not properly consider the application to admit the statement of Gary Price. Furthermore it was not fair to have admitted the statement of Hannah Miles, if the statement of Gary Price was not also admitted.

(i) The evidence

[122]The evidence for the prosecution, apart from the statement of Hannah Miles, was, in summary: i) Graham was seen with other masked men on the CCTV cameras at 18 Danethorpe Avenue entering the house at about 19:00 on the evening of I November 2007. That evidence was not disputed by Graham at trial, but, when initially questioned by the police, he had not accepted that he had been to the house or that the person shown on the CCTV was him. ii) It was not disputed that Gary Price’s black BMW X5 had been taken from outside the house shortly thereafter. iii) At about 19:30, Gary Price was contacted on his phone using Hannah Miles’ phone. Subsequently, a number of calls were made from Marquis’ phone (884) to Gary Price between 19:58 and 20:14. The phone records which proved this were undisputed. iv) Matthew Seaton gave evidence (which the judge directed the jury to treat with caution). He said he had been with Gary Price at a friend’s house when Gary Price received a telephone call. He answered it and looked distressed. He could hear some of the conversation - a demand for £100,000 and a girl crying in the background. Gary Price told him that someone had taken his girl friend and was demanding money. There were then a couple more calls. Gary Price asked him to phone the police which he did. The tape of that call recorded the person calling the police as giving a Leicestershire address and giving an account that three black males were demanding money whilst holding his girl friend in the bathroom at her house. Gary Price also received further calls from another phone. Seaton had recognised the 884 phone number and when he put it into his own mobile phone it registered as belonging to Bijah, the abbreviation used by Marquis for his first name. When Seaton denied that Bijah was the same person as the appellant Marquis, the judge permitted him to be treated as a hostile witness and evidence was put to him to show he knew the appellant Marquis. v) A police officer, Inspector Nolan, gave evidence that he had called Seaton’s mobile phone and spoken to a man who gave his name as Gary Price. He sounded agitated and was shouting that they had kidnapped her. He then heard a mobile ringing and was told by Gary Price it was his girl friend’s number. Gary Price asked him to listen; he had been able to hear some of the demands for money when the two phones were held against one another. The phone rang again and he could hear a girl’s voice screaming that they had taken her. When the phone went dead, Price confirmed it was his girl friend Hannah, but he did not know where she was. He did not say where he was but he would be returning to Danethorpe Avenue shortly. Another call then took place during which money was demanded. vi) The police attended at 18 Danethorpe Avenue at 19:39. vii) Hannah Miles’ father, Christopher Miles, gave evidence that he had received a phone call between 20:30 and 20:45 on 1 November 2007 from his daughter. She told him that she had been kidnapped and needed to be picked up. She sounded distressed. He collected her and she gave him an account of what she said had happened. She had tried to contact her partner, Gary Price, on the phone, but had had no answer. They went to 18 Danethorpe Avenue to see if he was there. When they arrived at the house, two of her friends were there and asked what had happened. She gave an account, tearful and shaken. He searched the house, but Gary Price was not there; he found lukewarm water in the bath. He phoned the police. Before they came again, she gave an account of what had happened which was consistent with the statement she subsequently gave. viii) Marquis spent the night of 1/2 November 2007 at the Castle Marina Holiday Inn at Nottingham. The evidence of Keelie Haye was that she went to the hotel to meet him; she was told to park her car between a red van and “my X5”. When she went up to his room, she was introduced to a man (whom Marquis refused to identify when giving evidence). She saw a pink phone which was identical to the one owned by Hannah Miles. ix) It was accepted that the 884 phone used to telephone Gary Price to make the demands which the police officer heard was used by Marquis to contact Keelie Haye between 31 October and 2 November 2007. A text to her from Marquis at 01:35 stated: “Hey don’t let no-one know where I am, you know. Remember I know your address and that. You should have just said you were going. I ain’t bothered, but if I get arrested, I know it’s you” x) At about 13:03 on 2 November 2007, the CCTV at the Top Valley Way Tesco at Nottingham showed Marquis and Graham together in the store and Graham was seen at the wheel of the car. Graham was seen at the same location at 20:25 that day also driving Gary Price’s BMW; by then it had false registration plates. A pursuit ensued and Graham was arrested; a knife was found in the car. There was also evidence that a man describing himself as John Graham rented a room at the Castle Marina Holiday Inn on 1 November 2007 and had described himself as the driver of a black BMW X5. xi) Graham pleaded guilty subsequently to dangerous driving and assaulting a police officer in relation to the events before his arrest. When interviewed, he answered “no comment” to all questions. He explained that he had the car as he was doing someone a favour by trying to find a buyer for it.[123]After his arrest on 14 November 2007 Marquis gave a no comment interview. He did give evidence at trial, denying any role in the kidnapping. He stated that his phone (884) had been used by him between 31 October and 2 November 2007 to contact Keelie Haye, but he had lost the phone when he got into a car owned by some men on the afternoon of 1 November 2007 and did not get it back from them until he was at the Castle Marina Holiday Inn where he had agreed to meet the men, book a room and invite girls. The phone was therefore not in his possession when the calls were made to Gary Price. He would not identify the men. When he went to the room at the hotel, the pink phone was already there, but he had no idea how it had got there. As to being at the Top Valley Way Tesco, he did not want to name whom he met there. He did speak to Gary Price but this was because he had been told the latter wanted to speak to him. Gary Price had told him that he had been phoned by a person using Marquis’ phone number and he wanted to know if he (Marquis) knew anything about it. He told Gary Price he knew nothing about it, but Gary Price said somebody had wanted to buy his car, went to his house, left a deposit and took a lap top, some drugs and the car without paying for it. Marquis said again he did not know the people, but he would see what he could do. There was a second call in which Gary Price had been trying again to find out what had happened.[124]Graham did not give evidence. He provided no evidence from any person which would have formed a basis for the case that the kidnapping was an attempted insurance fraud. The allegation was simply put to Seaton who denied it. It was nonetheless advanced as part of the defence case to the jury, despite the absence of any evidence (ii). The evidence of Hannah Miles and the decision to admit it[125]On 1 November 2007 Hannah Miles made a statement giving an account of her movements on 1 November 2007. She stated that, as she was about to bathe, two masked men entered her bedroom; one had a knife. She was ordered downstairs where there were 4 other men. They asked where the jewellery, money and car keys were. They then took her to the car they had come in; 4 men were with her and they drove off. They asked for Gary’s number which she gave them and they phoned him. She then described the phone conversations that followed. She was told by those that had kidnapped her that she should not go to the police because she would know what would happen to her if she did. She was put in the boot for a while before being dropped off unharmed. After unsuccessful attempts to phone from various locations, she eventually spoke to her father who picked her up. She did not identify any person.[126]On 2 and 3 November 2007 she made further statements adding more detail.[127]On 4 November 2007, Inspector Griffin visited Hannah Miles and Gary Price in the presence of Hannah Miles’ father and told them “in no uncertain terms” that the men the police were seeking were dangerous and that it was not beyond them to use guns against Hannah Miles and Gary Price. He gave as an illustration the use of guns against the Stirland family who had fled from Nottingham in 2006 and been murdered in a Lincolnshire village to which they had been relocated. He spoke to them about moving. Gary Price responded that he could look after himself.[128]On 22 November 2007 she made a statement stating that she wished to retract her previous statements and did not want the police to pursue a prosecution, as she was scared for the safety of her family.[129]She did not attend court on 4 April 2008 in compliance with a witness summons that had been issued for the trial which was due to start on 7 April 2008. She was arrested. On giving an explanation to the judge that, although she was frightened, she would have attended court if she had not been told not to attend by Witness Support prior to 4 April 2008, she was bailed to appear on 9 May 2008, with the trial fixed for 12 May 2008. Keelie Haye had also been summoned to attend court on 4 April 2008 because it was feared she would not attend in the light of threats made against her. She had failed to attend for the same reason and had also been arrested.[130]Hannah Miles made a third statement on 9 April 2008 which was video recorded. In it she said that she had made the statement of 22 November 2007 because she was scared. She thought that those who had kidnapped her were dangerous and was very frightened. She said:
“Since I have been kidnapped, I’ve found that the incident has altered my life. I’m petrified. I find myself looking over my shoulder and wondering if the people responsible will come and get me. I feel like this because at the time they said to me, ‘you’d better not go to the police, ’cos you know what will happen if you do’. I perceive this as a direct threat against me and I just don’t know what they are capable of, considering that they forced their way into my house and kidnapped me. I perceive them as very dangerous people.”
She added that the police had made her more frightened when they told her that she and Gary had to move. She did not feel she could leave her house for fear of what might happen to her and her anxiety had been increased by the court case. She was prepared to give evidence, but only if she could do so from behind screens. She said she had not been subjected to any threats directly or indirectly from those responsible for kidnapping her, but she still felt scared.[131]She did not attend on 9 May 2008. Her father’s evidence to the trial judge was that she had fled the day before. On 12 May 2008, the Crown applied to read her statement and that of Gary Price under s.116(2)(e) of the CJA 2003 on the grounds that they would not give evidence through fear.[132]On 13 May 2008, the trial judge heard evidence from Hannah Miles’ father and Inspector Griffin which covered the matters we have set out at paragraph 127 in relation to what had happened on 4 November 2007. Her father also gave evidence that she was scared about coming to court. The judge concluded that Inspector Griffin, though acting entirely in good faith to protect the witnesses, had imparted real fear in Hannah Miles:
“Having heard all the evidence, the only sensible conclusion is that she was and is so terrified of coming to court to give evidence, she would rather face arrest and imprisonment. I have no doubt she is in fear of giving evidence.”
[133]The appellants had contended that the statement could not be admitted as her fear was not fear within the meaning of s.116(2)(e), as the fear had not been generated by any action of the appellants or their associates, but by what Inspector Griffin had said. The judge rejected this contention and concluded that, whether or not there had been some independent act by or on behalf of either of the appellants, there was power under s.116(2)(e) of the CJA 2003 to admit her statement as she was a witness in fear. The Judge then considered whether it would be unjust or unfair to admit it; he concluded it would not. In the same ruling he declined to admit the evidence of Gary Price, but as the appellants contend as the second ground of the appeal that he should have done so, it is necessary to set out the circumstances. (iii). The refusal to admit the evidence of Gary Price[134]On 1 November 2007 Gary Price made a short statement setting out his account of the ransom demands and how Hannah Miles would have her fingers cut off if he did not pay the ransom. On 22 November 2007 he made a statement in terms similar to that made by Hannah Miles.[135]He also did not attend court on 4 April 2008 and a warrant was issued for his arrest. He surrendered into custody on 16 April 2008, but on his assurance he would give evidence at the trial in May, he was also bailed to attend. He also made a statement on video on 16 April 2008. In that statement he said that he tried to get in touch with Marquis because he blamed him for what had happened; Marquis had rung him, but it was clear when Marquis rang that this was not the person who had rung him on the phone that had had Marquis’ number (884) on 1 November 2007. Marquis had explained to him that he had sold the phone the week before.[136]He did not attend at the time he was required to attend and a warrant was issued for his arrest. He could not be found. The prosecution also applied to read his statement under s.116(2)(e), but the judge concluded in the ruling he gave on 13 May 2008 that, in the light of the video statement on 16 April 2008 and other evidence, his non attendance was not due to fear and therefore declined to allow his statement to be read.[137]On 15 May 2008, an application was made to the judge to admit Gary Price’s statement made on 16 April 2008 in the interests of justice under s.114(1)(d) of the CJA 2003 so that it could be advanced as part of the defence case of Marquis. It was submitted that Marquis was put at a great disadvantage because they could not cross examine him in relation to the voice heard when the 884 phone rang. The judge refused the application on the basis that Gary Price was not in fear and he was not prepared to go behind his ruling; the evidence covered many matters which implicated the appellants and not just that part of it relating to the recognition of the voice on the 884 number.[138]Subsequent to the trial, Hannah Miles and Gary Price were arrested and brought before a court. (v). The statement of Hannah Miles was properly admitted and considered by the court under the CJA 2003[139]In our view the judge in his careful ruling properly applied the statutory provisions and rightly admitted the statement of Hannah Miles. For the reasons we have set out at paragraphs 83-88, we also consider that the judge was correct in his ruling as to fear. The directions given to the jury were appropriate in relation to the way in which they should treat Hannah Miles’ statement and the disadvantages to the appellants in not being able to cross examine her.[140]Furthermore there was sufficient material before the jury which enabled them properly to assess the reliability of her statement. We also consider that its convincing nature and reliability in important respects could be tested against other evidence including: i) that when the police visited the house, the bath had lukewarm water in it. ii) that a knife was recovered from the BMW in which Graham was arrested; she identified it as the one used on her. iii) that Gary Price was phoned using her phone and an identical phone was seen in the bedroom at the Castle Marina Holiday Inn used by Marquis.[141]In considering the overall fairness of the decision to admit the evidence of Hannah Miles and in looking at the safety of the conviction, we have taken into account the criticism of the judge’s refusal to admit the statement of Gary Price. Marquis sought to admit only part of his evidence contained in the statements. The judge had concluded that Gary Price was not in fear and could have attended. To have admitted the whole of the evidence in those circumstances would not have been in accordance with the statutory code and to have admitted part of it on Marquis’ application would have been to provide evidence that was misleading without the rest of the evidence. (vi). The significance of Hannah Miles’ evidence: it was not decisive[142]In this appeal, it is in our view clear that the convictions did not rest on the evidence of Hannah Miles to a decisive extent. i) The main evidence against Graham was that there was clear CCTV evidence that Graham had been at the house at the time Hannah Miles said she was kidnapped; he admitted that, though in his interview he had not accepted that. He was arrested in Gary Price’s stolen BMW X5. Hannah Miles’ statement did not identify him. ii) The main evidence against Marquis was that his phone was used to make the ransom demands heard by Seaton and Inspector Nolan. It was not disputed that a phone identical to one owned by Hannah Miles’ was seen by Keelie Haye when she went to Marquis’ bedroom at the Marina Castle Holiday Inn. Hannah Miles statement did not identify him. iii) The only matter proved by Hannah Miles’ statement was that she had been kidnapped. There was, however, sufficient evidence of that from the other witnesses in the case, particularly her father. iv) There was no evidence to support the case advanced by Graham that the kidnapping was an attempted insurance fraud. v) Counsel for the Crown had submitted in his application to the judge to admit the statements of both Gary Price and Hannah Miles that they were central to the case. However, the fact that this submission was made is an illustration of the difficulty we identified at paragraph 70 above of determining in advance whether the evidence is decisive. Self evidently the evidence of Gary Price made no difference, as it was not admitted and in the result, for the reasons we have given, the evidence of Hannah Miles was not, in the event, decisive. vi) Thus, if contrary to the view we have expressed, a statement of a person kept away by fear could not be relied upon as evidence of a decisive extent in favour of a conviction, then as the conviction rests on other evidence, then that ground of appeal fails for that additional reason.[143]In the light of all the circumstances, we consider that the evidence was properly admitted, that the jury were entitled to rely on the statement of Hannah Miles and that it was in our judgement reliable. Defence rights were respected, the trial was fair and the conviction safe.

CARTER

[144]On 22 October 2008 the appellant Carter was convicted at the Crown Court at Reading before HH Judge McIntyre and a jury of 10 counts of distributing indecent photographs of children. Leave to appeal against conviction was granted by the single judge.

(i) The investigation

[145]After the arrest in Cornwall of Derek Holloway by the Devon and Cornwall Constabulary and an examination of his computer in 2002, a large number of obscene images of children were found to have been received between January and February 2002 from “manicxc@aol.com”. An enquiry of AOL, the provider of the e-mail address was made on 10 March 2005 by the Devon and Cornwall police under s.22 of Regulation of Investigative Powers Act 2000 (RIPA) in relation to that and other addresses. AOL answered the enquiry on the same day in a memorandum which gave the name of the appellant Carter and his address in Sandhurst as the holder of the address -“manicxc@aol.com”. The memorandum stated that the information was provided pursuant to the request made under RIPA subject to four provisos, the first of which was in the following terms:
“1. This data is extracted from the information provided by the subscriber during the registration process for AOL. We assume and expect that the data supplied to us by the member is accurate. However you should be aware of the possibility that the user of the e-mail account may not be the above named account holder, but another unidentified person having obtained access to the account…”
The other provisos made clear that the information was only to be used for intelligence purposes and for no other purpose. It made clear no witness statement would be provided.[146]The memorandum was forwarded to the Thames Valley Police. On 22 September 2005, Carter’s home was searched. His computers were seized and subsequently examined. No indecent images were found. On one of the computer hard drives the AOL user profile “manicxc@aol.com” was found. That profile had been used in September/October 2002. There was no evidence that it had been logged in at the time the e-mails sending the indecent images of children had been sent to Mr Holloway in Cornwall; there was no other evidence to show that any computer seized from the appellant had been used to send the indecent images.[147]On 17 May 2007, Carter was arrested and interviewed; he said he did not know Holloway and did not use the manicxc@aol.com address. He said that his lodger may have been responsible. He had used an address “manicxd@aol” which he had cancelled in 2000 but could not recall manicxc@aol.com. He did not name his lodger in the interview, as he said he did not want him to be convicted. He did name the lodger at the trial but said he had not managed to find him. (ii). The issue as to hearsay[148]At the commencement of the trial the appellant’s counsel provided the Crown and the court with a skeleton argument making clear that the appellant objected to the admission of the memorandum dated 10 March 2005 from AOL on the basis that it did not satisfy the requirements of s.114 and s.117 of the CJA 2003 for admission as hearsay. Reliance was also placed upon the failure to give the requisite notice. It was submitted that there was no statement from the person who had written the document; the accuracy of information was qualified and the prosecution had taken no further steps to confirm its accuracy. The skeleton argument identified the detailed reasons why the provisions of s.114 and 117 had not been met. An argument was also advanced under s.78 of PACE that it would be unfair for it to be adduced. It was contended that it was therefore not permissible for the Crown to rely upon the document to prove that Mr Carter had subscribed to the manicxc@aol.com address.[149]Counsel for the Crown told us that when he received the skeleton argument, he explained to the appellant’s counsel that the document was not in any way central to their case. The case against the appellant was based on the fact that a hard drive found at his home contained evidence that the user of that hard drive had used the e-mail address manicxc@aol.com to send e-mails. In the absence of explanation the jury could infer that the appellant had used that address. The sole purpose for introducing the AOL memorandum was to explain why the police had visited and searched the appellant’s home. The Crown offered to proceed without the document, if the jury could be given an explanation as to why the appellant’s home was searched.[150]The matter was not resolved when the trial began. Counsel for the Crown told the judge of the AOL memorandum and the limited way in which the Crown sought to use it; the AOL memorandum was not relied on for the truth of its contents. It was, therefore, not hearsay. No application was made to admit the AOL memorandum under the CJA 2003. After the judge had been told this, the appellant’s counsel maintained the position set out in his skeleton argument that the document was hearsay and inadmissible because it did not satisfy the requirements of the Act for the reasons set out in the skeleton.[151]The judge made no formal ruling but in the course of argument he made it clear that he considered that the requirements of s.117 had been met on the apparent basis that it was information supplied in the course of a business. He said:
“The document contains the statement on which the prosecution rely. It is simply a question of in whose name the e-mail address account was registered, and AOL say it is David Carter and I do not see what else AOL could reasonably be expected to say when asked for that information .. I think the document on its face quite clearly satisfies the provisions of s.117.”
[152]Discussions then took place between counsel as to what should happen. The AOL memorandum was put before the jury. We were told by counsel for the Crown that the jury had never been asked to use the AOL document in any way adverse to the appellant. The jury was told that the only reason that they had been provided with it was that it gave the explanation as to why the police had visited and searched the appellant’s home.[153]In his direction to the jury, the judge did not explain to the jury the use that they might make of the document or why it was before them. He said simply:
“ And you have got the letter from AOL…”
[154]We accept that counsel for the Crown did tell the jury the limited purpose for which the document was before the jury. However the judge failed in his directions to the jury to give to them any directions as to the use they could make of it. It was contended by counsel for the Crown that the reason the judge did not explain the use that could be made of the document was because it had not been admitted as hearsay and only for a very limited purpose.[155]We cannot accept that contention. It plainly was a document that the jury could have considered as containing evidence which was adverse to the appellant. The judge should have explained to the jury that the statement by AOL was not evidence against the appellant and that it had only been given to them to explain why the police had visited the appellant’s home and searched it. It is perhaps not surprising that no such explanation was given to the jury as the terms of the judge’s ruling made it appear that the judge did regard the statement as hearsay evidence that was admissible against the appellant. If that had been the position, then the judge would have failed to follow the provisions of the CJA 2003 as to the admissibility of the evidence and have failed to give proper directions to the jury.[156]Given the position taken by the Crown, it is not necessary for us to consider whether the document was admissible as hearsay, as the Crown never sought to rely upon it for that purpose. As we have emphasised, if the Crown had sought to make that contention, then the judge would have had to apply the provisions of the CJA 2003 in considering whether it was admissible. In particular the judge would have had to consider whether the stricter provisions of s.117 applied to the AOL memorandum dated 10 March 2005 as a document created for the purpose of the criminal proceedings. If it was, then the prosecution would need to have produced the original record and evidence to support that – see paragraph 15 above.[157]The judge’s failure to explain the use that might be made of the document was a material misdirection, as without such direction the document could have been used by the jury to link the appellant to the e-mail address.[158]We cannot regard the conviction as safe and accordingly allow the appeal.

APPEALS AGAINST SENTENCE BY HORNCASTLE AND BLACKMORE

[159]The judge rightly described the attack as one of great violence which inflicted life threatening injuries; it was carried out to inflict punishment on a person vulnerable because of his alcoholism. He also rightly determined that there was no distinction between the appellants and Daord as regards culpability.[160]In our judgment the judge was not in error in imposing a determinate term of 12 years for such an attack; the sentence imposed on Daord was reduced to reflect his guilty plea and the time at which it was made. There is accordingly no merit in the appeal of Blackmore and we refuse leave.[161]Horncastle had convictions for a number of serious specified offences, including robbery, attempted robbery and threats to kill and for two specified offences – assault occasioning actual bodily harm and affray. The judge took into account the statutory presumption that there was in his case a significant risk of serious harm being caused by the commission of serious specified offences. He concluded that, although there might well have been no serious harm caused to the victims of the previous offences, the present case showed an escalation in the seriousness of the violent offending. That view was supported by the assessment in the pre-sentence report that there was a high risk of re-offending. He concluded that Horncastle was a very dangerous young man and it was not in all the circumstances unreasonable to make the statutory assumption.[162]It was submitted on behalf of Horncastle that because the judge had concluded that Daord and Blackmore were not dangerous, the judge must have concluded that the offence in itself did not demonstrate that the offenders presented a significant risk of serious harm to the public; given that his previous pattern of offending had resulted in only minor injuries and the previous offences were all connected with drink and drugs, the judge should not have found Horncastle dangerous.[163]In our view, the judge correctly took into account all the circumstances. He carefully evaluated the previous offending and the present offence. He was in the circumstances entitled to conclude that Horncastle was in fact dangerous.[164]Accordingly we refuse leave to appeal against the sentences.

Cited in 19 later judgments

and 10 more of the most senior