Fagan, R v [2012] EWCA Crim 2248

[2012] EWCA Crim 2248No: 2011/4262/D3 & 2011/4583/D3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Friday, 7 September 2012
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE RAFFERTY DBE
MR JUSTICE MITTING
MRS JUSTICE SHARP DBE
Between
R E G I N ACrownv
Between
TAARIQ FAGANMICHAEL FERGUS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Bennathan QC and Miss N Bahra appeared for AppellantsMr J Dawes appeared for Crown
J U D G M E N T

LADY JUSTICE RAFFERTY:

On

[1]8th and 11th July 2011 in the Crown Court sitting at Inner London, Taariq Fagan, 20, and Michael Fergus, 26, were convicted by majority verdicts and on 2nd September sentenced in this way: Fagan, count 1, kidnap, six years' detention in a young offender institution; count 2, false imprisonment, five years' detention in a young offender institution; count 3, blackmail, seven years' detention in a young offender institution, and [we add for completeness] count 6, robbery, three years' detention in a young offender institution. The first three terms were concurrent, the one with the other, the last consecutive. The total therefore was 10 years with days served to count. Fergus, for kidnap was sentenced to three years' imprisonment with days to count. A co-accused Bangura was acquitted. By leave of the single judge each appeals against conviction limited for Fagan to counts 1 to 3 and Fergus appeals against sentence.[2]Shortly after 11pm on 10th September 2010, Andre Stephens in his grey Volkswagen Golf HJ58 TWK in South East London was approached by a black male, hatted and hooded, who reached inside the window and took his car keys before grabbing and pulling chains from Mr Stephens' neck. In so doing he dropped a Jesus pendant onto the floor. As he reached down for it, Mr Stephens alighted the car, only to be set upon by four or five males who hit him to his head. Something was poked into his back and he was told to walk to a van he was first to describe as a blue Rascal-type with sliding side doors. He was shoved inside, driven around and beaten whilst demands for £4,000 were made to his friends by telephone. His car meanwhile was stolen. He escaped when the van was parked.[3]On 24th September 2010 a number of black men, after an aggravated burglary, left the scene in a grey Volkswagen Golf HG58 CYX, later abandoned. The vehicle bore false plates but was that stolen from Mr Stephens. Four of Fagan's fingermarks were on the rear of the false plates.[4]On 26th November 2010, a driver delivering cigarettes was robbed by a black male who had a blue van. The victim gave the registration number X439 LBJ but warned that it might be in the wrong order. Closed circuit television showed the correct registration, X493 LBJ.[5]The Crown's case was that both appellants were responsible for the kidnap, false imprisonment and blackmail of Mr Stephens. Fergus leaned through the window. It relied upon the van used, which was linked to Fagan, upon cell site evidence showing the use in the vicinity of the kidnap of telephones attributable to the appellants and in relation to Fergus on the VIPER identification by Mr Stephens.[6]On 4th November 2011 Fagan and Fergus (cousins) were arrested for a non-residential burglary. Fagan's bedroom revealed a congestion charge receipt he had paid for a blue Suzuki Carry panel van, X493 LBJ, registered to "Pablo Rowe", but Fagan, on 22nd October, had insured it. It resembled a "Rascal", the description given by Mr Stephens, who had added that the floor he saw had either a cardboard or cardboard-coloured covering. Fagan's laptop revealed a search "Is my car wanted by police?" Rowe, the Crown suggested, was an alias used to register the van.[7]At 8.59 in the evening on 10th September the automatic numberplate recognition system on Vauxhall Bridge photographed a Suzuki X493 LBJ southbound leaving central London. The Crown's case was that it was used in the first and the third set of offences.[8]On 7th December 2010, answering an advertisement on Gumtree.com, offering a van for sale in the next road from where Fagan lived, Mr Rose met a seller who gave his name as "Pablo Rowe". His description fitted Fagan. Mr Rose bought the van. Its floor covering matched the description given by Mr Stephens.[9]On 11th September 2010, before the kidnap, Fergus' telephone, 0081, was located with one attributed to Fagan, 6770. During the kidnap, their phones were located similarly at various routes along the kidnap, alongside Stephens' phone, used, it should be remembered, to make demands of his friends for money. At the end of the kidnap and after Stephens had escaped, his phone was located in SW9, as was Fagan's at the same time. Fergus's mobile telephone received a call at 10.50 in the evening from the Fulham landline of his girlfriend, Tamara Wilson. A text from his phone was sent to her mobile telephone at 4.45 in the morning of 11th September. His phone made and received calls in the period following the kidnap, none using cell sites in Fulham.[10]Fagan was arrested on 21st December 2010 and attempted to destroy the SIM card from his mobile. In evidence he said he took it out to keep some numbers, but the officer grabbed his hand and in the process snapped the card. Recovered from his property were the numberplates HJ58 TWK from Mr Stephens' Golf.[11]On 14th September Mr Stephens made a statement by way of an achieving best evidence interview and said:
"The first guy that come to me, I would be able to recognise his face coz he's the only face I actually got to see ... It would be hard for me to actually describe you his actual look. I'm no good at describing people's features. The easiest way for me to explain it to you is he looks like an English rapper ... It's like he had a kind of sucked in face. His eyes were kind of sucked in. Stubble ... black guy. He had a hat on ... hood up ... sunken cheeks and his eyes were kind of sunken. Full stubble. Slimmer than me. A bit shorter than me ... I am six foot three."
[12]On 23rd September 2010 Mr Stephens compiled an E-fit image said to resemble Fergus.[13]On 2nd March 2011 he attended a VIPER identification procedure, Fergus's image at number 3, where he asked to look again at numbers 2 and 3. He said he could not be 100% sure but would say it was number 3. Immediately he quit the identification room he said:
"I am sure it was number 3."
On 18th March he made a statement saying that as soon as he saw number 3 he knew it was the person who had grabbed him in the car and had asked to see number 2 again as he thought number 2 might have been one of the other males in the van. He was sure number 3 kidnapped him.[14]The defence cases were alibi. Fagan claimed to have been with "James" in his car selling cannabis around the area before going home. Fergus claimed to have been at the home of Tamara Wilson, going to bed about the time of the kidnap and in bed with her the entire night. The issue was identification and consequently whether either or both were responsible for the offences.[15]The Crown sought to lead the evidence of Mr Stephens who had expressed himself as unwilling to give evidence and in fear. Section 116(2)(e) and (4) of the Criminal

Justice Act 2003 reads, where relevant, as follows:

"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if- (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of the matter; (b) the person who made the statement (the relevant person) is identified to the court's satisfaction; and (c) any of the five conditions mentioned in subsection (2) is satisfied."
Subsection (2):
"The conditions are ... (e) that through fear the relevant person does not give ... oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence."
Subsection (4):
"Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard- (a) to the statement's contents, (b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it would be to challenge the statement if the relevant person does not give oral evidence) ... (d) to any other relevant circumstances."
Subsection (5):
"A condition set out in any paragraph subsection (2) which is in fact not satisfied is to be treated as not satisfied if it is shown that the circumstances described in this paragraph are caused- (a) by the person in support of whose case it is sought to give the statement in evidence, or (b) by a person acting on his behalf."
[16]The Crown relied heavily on the evidence of Mr Stephens who had been taken off the street into a van. There were no eyewitnesses available to be called, so he was very important. Many months later he made an identification of Fergus as concerned in the relevant events. The Crown's position was that even if his evidence could be described as sole or decisive, there were other strands including cell site and science.[17]The Crown could show that Mr Stephens was a willing and cooperative witness until May 2011 when he gave an account of receiving a series of threatening phone calls. The first, he said, was to his mother, others to him. He made a statement which included:
"It was from a private number on my mobile phone ... a male voice said: 'I would advise you not to go to trial. There are a lot of people upset. They are on standby waiting for the word.' I did not recognise this voice. It sounded black. I hung up the phone. Straightaway the phone rang back with 'private number'. I answered the call but did not say anything. I did not listen to the phone and hung up. The phone rang again and my girlfriend ... answered the call. They told her the same things and said they were in ... She told them not to ring again and hung up the phone. During the first phone call the person told me details about the case such as what I said in my statement and details about the identity parade. I do not know if I want to go to court now. I am scared for my family. I am worried that they know details about the case."
[18]Mr Stephens was visited by Detective Constable Hughes who explained to him various forms of witness protection and told him he might be summonsed. Mr Stephens replied that were that so he would not say anything in court and would not give his evidence. The Crown did not seek either summons or warrant but went straight to the application we have explained.[19]The Crown made what it described as the obvious point that as a general principle if an important witness for the Crown were absent, the absence achieved by or on behalf of a defendant who has improperly put that person in fear risked allowing that defendant to profit from the absence of the witness by his having his objectives upheld and the evidence excluded. It was urged upon the judge that that was a very important consideration.[20]The judge also considered whether it were in the interests of justice to admit the evidence with regard to section 78 of the Police and Criminal Evidence Act 1984.[21]In his ruling he summarised the effect of Mr Stephens' evidence. First, his interview set out the circumstances of the alleged offences. Second, his written statement, post-identification procedure months later, made an identification of Fergus. In relation to that, he made follow-up statements in which he explained he was "sure" of his identification, saying in fact it was number 3 (Fergus) and explaining why he had phrased things as he did. Third, he made a statement in which he completed an E-fit of a defendant. The judge found as a fact to the criminal standard that Mr Stephens was put in a state of extreme fear by one of the defendants or by somebody associated with them and with their knowledge and/or approval. He said:
"On the basis of material available to me at the moment, I conclude as a matter of fact, so that I am sure about it, that Mr Stephens was put in a state of extreme fear by one of these defendants or by somebody associated with them and with their knowledge and/or approval. In other words, these defendants are associated with those threats. I find that as a fact to the criminal standard. ... I have found as a fact it is through deliberate actions attributable to these defendants or with their approval that Mr Stephens is absent."
He also accepted that Mr Stephens' evidence was "sole or decisive" in one sense, although he reminded himself that there was supporting evidence not least in the telephone evidence. The judge also made reference to authorities to which he had been taken.[22]All founding bodies of material for the argument by the Crown had been objected to by the defendants as flying in the face of established authority. Reference was made to Al-Khawaja v United Kingdom [2009] 49 EHRR 1 and R v Horncastle and Blackmore [2009] 2 Cr.App.R 15 CA. The contention was that it would be unfair to admit the evidence because it could not properly or possibly even at all be challenged. Normally, the judge was reminded, it was extremely important a witness be available for cross-examination. The judge was not persuaded. He had reminded himself that as to the impact, the identification evidence was captured on a DVD. That meant that it could be fully tested and assessed. Whilst the defence could not cross-examine Mr Stephens as to why in his witness statement he appeared to express confidence about the identification procedure, nevertheless he (Mr Stephens) set out a clear line of reasoning as to exactly what had happened. There was ample material upon which the defence could test sureness and could make submissions. The evidence was reliable, documented, reasoned, testable, fully commented upon and admissible.[23]The evidence of Mr Stephens was read. The defence case[24]Fagan gave evidence that he was more confident about dates than in simple reliance on his own memory since speaking to the two Fergus brothers - Michael, his co-defendant, and Darren. He told the jury that at about 9.30 on 10th September 2010 he was in Dulwich collecting Michael Fergus's phone from Darren Fergus's address. Between 10 and 11 at night he was at home sorting drugs. He then went to buy cannabis and then on foot to meet James Payne who was in a car. James helped him to deal and then dropped him somewhere. From about 10 until 2 in the morning, using his pay-as-you-go telephone, the one he kept strictly for cannabis selling, he received some 20 calls until it ran out of credit. He toured round on his motorcycle to meet customers. Fergus's phone was in his pocket and he both answered calls and accidentally sent texts. The call at 21.58 was from Fergus asking where was his phone. When Fagan went home at two in the morning, he left the Fergus phone with James in the latter's car. It was coincidence that his phone and that of Fergus were both located in the vicinity of the kidnap.[25]On the relevant date he paid the congestion charge for the Suzuki van at the request of James who had supplied the registration number. He discovered later that this man was not James Payne but James Smith, now dead and therefore unavailable to give evidence. On 12th September at James' request he had arranged for numberplates to be made up which James collected, paying him and reimbursing the congestion charge. James gave him another set of plates and asked him to hold them as he (James) had bought a vehicle he wanted to sell. Fagan first said he had not Smith's phone number. The next day he produced a piece of paper with a mobile telephone number written on it against the name "James Smith". He told the jury he had written it over the weekend. He insured the Suzuki van up to 9th November because he was doing casual labouring, he explained, and James had said he might borrow it. He used it on 6th and 9th November. On 11th and 12th~November James collected it. He did search "Is my car wanted by police" on his laptop, but at the request by letter (a letter he could not find) from his friend Ryan Thompson. On 12th September at James' request he searched for Golf salvage items. He did not know a man named Pablo Rowe and he was not Pablo Rowe. The police told him his fingerprints were on the Golf's false numberplates. On the advice of his solicitor he did not answer questions when interviewed but offered a prepared statement.[26]Fergus told the jury that Stephens' identification was wrong. He did not wear hoods and was six foot four. On the night of 10th September 2010 he had stayed with Tamara Wilson. Between 6.00 and 6.30 in the evening he went to the home of Darren Fergus where he put his phone on charge. Back at Tamara's, at about 8.30 in the evening, he realised where he had left it and telephoned Darren Fergus who said he would try and get someone to drop it over. Before going to bed, Michael Fergus telephoned Darren Fergus's phone but it was Fagan who answered, saying he had collected the phone and would drop it off later that day. Michael Fergus told the jury he went to bed between 11.00 and 11.20, waking at 6 am on 11th September. He had not left the house at all. Once abed he had telephoned once again to find out when his phone would be returned but had no response. He rang again at 6.30 the next morning. James answered and said Fagan had left it in his car and arranged to meet at Hammersmith. At about 5.30 that afternoon Fagan rang (using Tamara's mobile) and spoke to Michael Fergus saying he was coming to pick him up. Fergus left home, on 11th September, for the first time between 5 and 6 in the evening. Fagan drove him to Peckham where James handed over the telephone. His solicitor advised a prepared statement because of limited disclosure. He explained to the jury that he had failed to correct inaccuracy in it due to tiredness and stress.[27]He called Tamara Wilson who supported his alibi. She did not remember and never saw the text her telephone received at 4.45 in the morning on 11th September from Fergus's mobile.[28]In Grounds of Appeal composed and orally developed by Mr Joel Bennathan QC, who did not appear below, with the help of Miss Bahra who did, the first complaint is that the judge erred in ruling that the evidence of Stephens could be read. This deprived the appellants of the ability to cross-examine as to identification of the van. No evidential basis existed for the conclusion that the appellants were behind the threats to Stephens such as to prevent him from attending to give evidence. Ground two, the identifications by Stephens of the van linked to Fagan and his identification of Fergus should not have been led once it was apparent his evidence could not be cross-examined upon.[29]Once whether Stephens were in fear attributable to the appellants is called into question, this court, Mr Bennathan argues, cannot proceed on the basis that the judge would in any event have allowed the evidence to be given. Further, the combined effect of Horncastle in the Supreme Court and Al-Khawaja and Tahery in the Grand Chamber is that absent an individual defendant threatening a witness to stay away from a trial, sole or decisive evidence should not be admitted as hearsay unless there is exceptional and compelling support such as to suggest the account is correct. Mr Bennathan relies on Mr Stephens at the identification procedure initially saying that he could not be sure. He said:
"Out of all of them number 3 [Fergus] gave me an incline ... can't be 100% sure but I would say number 3."
But by stages, it will be remembered, he ended up claiming in a later witness statement that he was sure Fergus was the man who first had approached him.[30]It is accepted that there existed a series of powerful links between Fagan and the blue Suzuki van. After describing the kidnap van in terms consistent with the blue Suzuki "a Rascal ... a little Nissan van ... a little blue thing ... that Royal kind of blue ... a transit", six months later, shown photographs of the blue Suzuki, Mr Stephens said:
"This is the type of van I was kidnapped in ... I can say that this is exactly the van that it was."
[31]During the course of the kidnap, Mr Stephens had been asked to tell the kidnappers where was his cocaine. The abductors, it is argued, assumed his friends would have ready access to large amounts of cash. Scott Howard, a friend of Mr Stephens who became a witness for the Crown, said he first became aware of troubling events when his friend Jashin drove up and said someone had tried to rob him, Jashin, and Stephens outside the latter's flat. Howard then drove for a few minutes to the area of Stephens' flat. Jashin neither assisted the police nor was called as a witness for the Crown. Neither man had called the police. That was left to Stephens' girlfriend who eventually did so at 12.20 am.[32]The trial proceeded without further event and the judge summed up. He analysed the question for the jury thus:
"The question for you, I would suggest, is was that van, that particular blue van, linked to the crimes? I have reminded you ... on Mr Stephens' evidence who gives a general description of the van ... he is then shown photographs ... and I have reminded you ... how the defence say they have been disadvantaged by him not having him here to question him. But you also have, have you not, other evidence, if you accept it, which links Fagan to that particular van where police observation of him in the street going to it on two occasions at least."
The law[33]The court is indebted, as ever, to Mr Bennathan for a distilled history of the development of this topic. It begins with Blastland [1985] 2 All ER 1095, where the court recognised the great difficulty in assessing what weight could be given to a statement by someone a jury has neither seen nor heard, and who has not been tested in cross-examination. The danger against which the law tries to protect is that untested hearsay might be treated as having undeserved probative force. In more recent times, in Luca v Italy [2003] 36 EHRR 46 the court said:
"... 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."
That approach was rejected by the Supreme Court in Horncastle and others [2010] 1 Cr.App.R 17, where, dealing with the sole or decisive test, Lord Phillips said:
"It would not be right for this court to hold that the sole decisive test should have been applied rather than the provisions of the 2003 Act interpreted in accordance with their natural meaning."
The court declined to follow the ECHR section judgment in Al-Khawaja and Tahery.[34]A reconsideration occurred when the Grand Chamber gave judgment in Al-Khawaja and Tahery [2012] 54 EHRR 53. It re-affirmed the 'sole or decisive' test but modified the rigidity of its application, saying:
"... where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 (1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny."
It had already said:
"When a witness’s fear is attributable to the defendant or those acting on his behalf, it is appropriate to allow the evidence of that witness to be introduced at trial without the need for the witness to give live evidence or be examined by the defendant or his representatives – even if such evidence was the sole or decisive evidence against the defendant. To allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. No court could be expected to allow the integrity of its proceedings to be subverted in this way. Consequently, a defendant who has acted in this manner must be taken to have waived his rights to question such witnesses under Article 6 § 3(d). The same conclusion must apply when the threats or actions which lead to the witness being afraid to testify come from those who act on behalf of the defendant or with his knowledge and approval."
The view of the Grand Chamber as to what hearsay might be seen as sufficiently reliable is perhaps deducible by a consideration of Al-Khawaja where the court allowed the United Kingdom's appeal, finding that it would be difficult to conceive of stronger corroborative evidence. By contrast, in Tahery the Grand Chamber thought that even though the testimony may have been coherent and convincing on its face, it could not be said to belong in the category of evidence describable as 'demonstrably reliable'. Mr Bennathan accepts that if we see any part of the Grand Chamber judgment as in conflict with the Supreme Court judgment, then absent exceptional circumstances we are bound by that of the Supreme Court.[35]In Ibrahim [2012] EWCA Crim 837 this court considered Horncastle and the Grand Chamber judgment, and said, Aikens LJ giving the judgment, that the Court of Appeal and the Supreme Court both emphasised that when untested hearsay evidence is critical, the question of whether the trial is fair will depend on three principal factors. First, there must be good reason to admit the untested hearsay in compliance with the statutory code; second, and most importantly, there must be an enquiry as to whether that evidence can be shown as reliable; and third, there must be consideration of the extent of counter balancing measures.[36]At paragraph 90, Aikens LJ said:
"What is the task of the court in a case such as this?" and: "
How 'demonstrably reliable' are the statements?"[37]Considering how the courts should approach absent witnesses, in Horncastle this court said that all possible efforts should be made to get the witness to court and the witness given all possible support but also made to understand the importance of his civic duty.[38]In Doherty [2006] EWCA Crim. 2716, the exercise was one of balance, not strictly a discretion, but akin to it. On the one hand was the risk of unfairness to the defence because evidence was unchallenged, as against the risk to the Crown because it could not put evidence before the jury. The exercise is evaluative and fact-sensitive and the trial judge best positioned to do it. The Court of Appeal will only interfere if satisfied that the judge's conclusion is obviously wrong or, as it was otherwise put, perverse or unreasonable.[39]Mr Bennathan relies on Doherty as applicable to the judge's conclusions when he has heard evidence, for example as was the case in Doherty when a voir dire was held. Compare and contrast this case when the matter proceeded only on the papers. He further submits that this court should not shroud the entire decision of the trial judge to admit hearsay in a full Wednesbury discretion. Where, as here, the judge makes a ruling purely on the papers, absent the hearing of evidence, this court, he argues, is in just as good a position to make the relevant judgment. Al-Khawaja established that the evidence of an absent witness must attract the most searching scrutiny. Mr Bennathan submits that this could not be accomplished were this court to refuse to reverse after review a decision with which it disagreed, solely in the interest of respecting the view of the trial judge. Section 6 of the Human Rights Act supports that argument. With this last uncontroversial submission we agree. Identification[40]This court has always been alive to the perils of such evidence. Directions are uniformly given warning the jury of the need for special caution. Identification evidence is approached with the greatest of care. Mr Bennathan suggests that the identification of the Suzuki van and of Fergus were the centre of the case against both appellants. He submits that the two grounds of appeal are best considered together. We agree.[41]The decision to admit the evidence of Stephens was taken by the judge after considering both the witness's absence and the content of his accounts, with specific consideration of the identification of the appellant Fergus. Mr Bennathan has minced no words in criticising the behaviour of the Crown. It should, he argues have taken steps to compel Mr Stephens' attendance. If it had read Horncastle it would have known that. In many cases witnesses who announce they are in fear once brought to the court are susceptible to persuasion that they should give evidence. Putting the matter colloquially, the submission is that the judge 'jumped too soon'. If the Crown was not prepared to bring Mr Stephens, then the submission is that the judge for that reason alone should have rejected its application. To that matter we shall return.[42]Though there is no conflict between the Grand Chamber and the Supreme Court on the test to be applied, in considering whether an accused can be seen as responsible for a witness's absence, what is required is a degree of involvement of the sort described in Al-Khawaja. It would not be sufficient were a judge to conclude that a witness had been put in fear by someone acting out of motives which for example might include loyalty to an accused, or that an accused, had he known about it or when he did know about it, would have been pleased. Rather, there is required some act by the accused at the least to communicate to those acting for him approval of their intended intimidation and approval before the intimidation takes place.[43]Finally, Mr Bennathan took us to an authority which the judge below could not have read since it post-dates his judgment: Riat [2012] EWCA Crim. 1509. A court presided over by the Vice President considered aspects of Horncastle and at paragraphs 4 to 6 and 16 to 17 gave guidance. Horncastle contains a number of references to hearsay either as "demonstrably reliable" or "capable of proper testing" and the two expressions are several times used in tandem. The clearest use of the language, the Vice President said, comes in relation to the evidence of an identified but absent witness. There is no reason for an absolute rule that no counter balancing measures can be sufficient where the statement is sole or decisive. That would include hearsay evidence demonstrably reliable or of reliability capable of proper testing and assessment. In Riat (conjoined appeals) the court said:
"The written arguments in several of the cases now before us suggest that this language may be being understood to mean that hearsay evidence must be demonstrated to be reliable (i.e. accurate) before it can be admitted. That is plainly not what these passages from Horncastle say. The issue in both this court and the Supreme Court in Horncastle was whether English law knew an overarching general rule that hearsay which could be described as the sole or decisive evidence was not to be admitted, or would inevitably result in an unfair trial if it was. In answering 'no', this court pointed out repeatedly that any such inflexible rule would exclude hearsay which was perfectly fair because either it did not suffer from the dangers of unreliability which often may attend such evidence, or (if it did) there were sufficient tools safely to assess its reliability. This court was far from laying down any general rule that hearsay evidence has to be shown (or 'demonstrated') to be reliable before it can be admitted, or before it can be left to the jury. That is to take only half of the paired expressions as if it represented a separate and universal rule. If that had been the rule adopted, the appeals under consideration in Horncastle would probably not have been dismissed. Nor can that be the rule, for it would mean that hearsay evidence has to be independently verified before it can be admitted or left to the jury. That would be to re-introduce the abolished rules for corroboration ... The true position is that in working through the statutory framework in a hearsay case (below), the court is concerned at several stages with both (i) the extent of risk of unreliability and (ii) the extent to which the reliability of the evidence can safely be tested and assessed."
The court went on to give simple examples.[44]It dealt with credible material under the provisions of section 124 of the Criminal

Justice Act:

"What material is there which can help test or assess the hearsay?" and said at paragraph 17: "
If a specific gateway for admission is passed, we suggest that a court should always at that point consider the vital linked questions of (i) the apparent reliability of the evidence and (ii) the practicability of the jury testing and assessing its reliability. Section 124 is critical at this point."[45]One of the conjoined appeals was Wilson. All three relevant witnesses had said that screens might solve their difficulties, then changed their mind and did not wish to attend, then two out of three said they would attend if screens were available. All three were silent as to threats. All three simply said they were scared because those who answered the allegation knew where the witnesses lived. Wilson's convictions were quashed, the court finding that there had been no proper examination of their position and that at an interlocutory stage live evidence would have been wise. The fear hurdle, we might put it, had not been cleared.[46]The position for which Mr Bennathan contends is that there was here simply no evidence to sustain the judge's finding that Stephens had been put in a state of fear by these defendants or their agents with their knowledge and approval. He relies on the following. All defendants were in custody. This court can take judicial notice of phone calls from prison being recorded. It is inconceivable they could have made the threatening calls. Fergus had been in solitary confinement at the time of the calls. Next, there were others with an obvious motive to want Stephens to refuse to give evidence. Those included persons involved in the kidnap but not apprehended, family or friends of any one of the defendants, the cousin of both, Darren Fergus, wanted for these offences but at large. There was no evidence of which defendant made any improper approach or organised it, nor any basis to link such activity to a request by a defendant or to establish his knowledge that the same would be done. Even where one accused brought about the absence of the witness, there would be consequential difficulties in a joint enterprise trial. This court should not treat the decision of the trial judge as only to be upset if so unreasonable that no reasonable judge could have reached it, rather it should view the decision as unsupported by sufficient evidence whatever the test applied. It is understandable that any trial judge faced with the absence of Mr Stephens might have been deeply suspicious whether one defendant or both had played a part in bringing that about. Suspicion is one thing. An evidential basis for one or both being causative of fear is another.[47]If this court were to find there was no evidential basis for the judge's decision, then these convictions cannot stand unless this court is confident the hearsay evidence of Stephens would in any event have been allowed into evidence and appropriately so. Mr Bennathan suggests that this court cannot take that view for these reasons. First, the judge's ruling, never mind the Crown's description of the evidence of Stephens, was explicit. It was in his view sole and decisive and central to his decision. At no stage in his ruling did this very experienced judge say that even if he were wrong in finding against the defendants he would in any event have admitted the evidence under the broader section 116 ground of a witness in fear. Next, to use Ibrahim language, there must be an enquiry as to whether the evidence can be shown to be reliable. What is needed is the strongest corroborative evidence of a disputed fact rather than evidence on its face coherent and convincing. The evidence of Mr Stephens, so the submission goes, is neither. The cell site evidence was explicable by other causes. The background to the offence may be founded in drugs and money. This court should not forget the surprising reluctance of Stephens' friends to report the matter and the failure of an eyewitness to come forward. These were at least matters for exploration.[48]Finally, Mr Bennathan relies upon what he described as a complete change in Mr Stephens' identifications of van and man. He could not be regarded as reliable. He was also giving identification evidence, long regarded as a minefield and requiring special care. There were real flaws, and previous comments undermined confidence in the identification. Drawing those strands together, the submission is that three needs for caution were piled one atop the other: Hearsay, identification and previous inconsistent accounts.[49]In our view what went on during the identification procedures was before the jury in totality by virtue of its recording. The Crown called all police officers and civilian employees present during the procedure and during the taking of Mr Stephens' statement. It is worth reminding ourselves that there was no factual dispute with Stephens as to what happened during the kidnap, let alone the identification procedure. We should also remind ourselves that the Crown relied on the supporting telephone evidence as supporting the proposition that Fergus was with the kidnappers and as inconsistent with his alibi. We agree. It was powerful evidence that his telephone was at the scene of the crime and he had it in his possession.[50]Next, the efforts made to secure Stephens' attendance. The Crown avers that Stephens had made himself clear. He had said he did not think special measures would protect him. All reasonable efforts had thus already been pursued by the time the trial began. A summons would have resulted in his refusal to attend and inevitably triggered his arrest. That was not something a responsible prosecuting authority should have espoused.[51]In our judgment, the judge's ruling and his reasoning are unimpugnable. We have set out the factual justification for his conclusion in considerable detail. It would have been wise to secure at court the attendance of Mr Stephens. Whether or not the Crown felt it a pointless exercise or that the usual familiar steps would so increase the pressure on Mr Stephens as to make it less likely he would give evidence, it would have been wise for the court to ensure he was brought. If he were not willing, for example, to accept a generous offer by a police officer to bring him, then there were steps through which the court could have gone to ensure his attendance. Experience teaches that a reluctant witness once in a court building can often be reassured and will then give evidence. Kelly in which Butterfield J essayed every effort known to the courts and only then was the witness determinedly unwilling, is an example of proper procedure. Mr Stephens should have been brought to court by whatever appropriate means because there was a good chance that once there he would consent to give evidence. That it was not done is, on these facts, nowhere near fatal to the judge's conclusion.[52]The defendants were those with an obvious interest in the absence of Mr Stephens. It may be that a potential defendant at large had available to him flexibility of movement and conversation denied the defendants. However, the interests of the absent accused and those in the dock marched together. It would be a judge of surprising naivety who was persuaded of distance from responsibility by virtue only of defendants being denied their liberty. Putting in fear need not be the work of those in the dock by direct contact. This was a conclusion supported by an application of law to facts permissibly found.[53]We are grateful to Mr Bennathan for his lucid and helpful submissions. The authorities through which, with his help, we have gone serve to underline the safety of the judge's conclusion. The summing-up is neither impugnable nor impugned. As Mr Bennathan concedes, his grounds stand or fall together, albeit in a technical sense the second is capable of standing proud of the first. For the reasons he has sensibly suggested, we have dealt with the two together and for the reasons given on conviction against both defendants these appeals are dismissed.[54]MR BENNATHAN: My Lady, I would ask the court to certify a point and the area of that is the argument gap between the approach of this court in Ibrahim on the one hand and Riat on the other. I happen to have to hand the sort of shape such a document might take. (Handed)

LADY JUSTICE RAFFERTY: The Ibraheem/Riat dichotomy?

[56]MR BENNATHAN: My Lady, precisely. It may be, having listened with great respect to the analysis of my Lady, it may be the word "manifestly" is better expressed as demonstrably both in the draft question and in the paragraph that accompanies it. In two sentences if I may. The language and the decisions of the Grand Chamber and the language in both paragraphs cited by this court in Ibrahim, we would suggest clearly paint a picture of a judge having a gate keeper duty to confine sole or decisive elements to that which is demonstrably reliable whereas the explanation of the law set out by my Lady and my Lords court in Riat obviously gives the twin bases being much more loyal to this court's judgment in Horncastle in 2009. So we do suggest, with great respect, this is a developing and fast unfolding important area of the law and it is entirely appropriate that the court certifies such a point and of course as a matter of form I would also ask for leave to go to the Supreme Court with perhaps less optimism. Can I then turn to submissions against sentence?

LADY JUSTICE RAFFERTY: Would it inconvenience you, Mr Bennathan, if we reflected on your application? We could let you know about that separately.

[58]MR BENNATHAN: Of course, whatever the court prefers.

LADY JUSTICE RAFFERTY: Thank you. (There followed submissions on sentence)

LADY JUSTICE RAFFERTY:

[60]Fergus has leave from the single judge to challenge his sentence. The details on which it was based will be apparent from a reading of the judgment we have already given. Born on 21st July 1985, and 26, he has 14 convictions comprising 38 offences between 1999 and 2011. They include two for robbery which are of some age, between eight-and-a-half and nine years old at sentence for the index offence. They include fraud, theft, public order, offences relating to bail and drugs, in addition to others. Various dispositions have been essayed over the years.[61]In a pre-sentence report the author remarked that Fergus continued to deny the offence. He had been expelled for disruptive behaviour when in care. At 15 he was sent to an adult hostel. The sad result was that he associated with older criminals and his offending escalated. In 2003 he was convicted of two robberies, during one threatening office staff with a stun gun. In 2009 after possession of class A and C drugs he seemed to have made some progress as a consequence of a drug rehabilitation order and there was hope. However, misplaced loyalty made him regress. He endured knife wounds and was admitted to hospital. He has convictions for violence and the current offence was a joint enterprise and may have involved an element of pre-planning. His lack of remorse and his lack of responsibility made him a high though not a significant risk to members of the public of the commission of future such offences.[62]The judge said the jury must have accepted that initially he went to Stephens in his vehicle robbing him of his property and thereafter took part in forcing him into the van where there was clear evidence Stephens was punched by group members. The judge took account of all said on his behalf and derived some help from the Sentencing Guidelines for robbery. The appropriate starting point was four years' custody, the range two to seven years. No weapon was produced, but there was more than one offender, and restraint and detention were involved.[63]Relevant criminal convictions were the two for robbery, albeit nine years earlier. He would make allowance for the passage of time. That this was a kidnap indictment made matters more serious and the sentence would be increased from the notional starting point of four years to one of six years.[64]The complaint is that the term was manifestly excessive, there being very little basis to pass a sentence in excess of what Mr Bennathan describes as the judge's "eminently sensible" selection of a four year starting point for a comparable offence of robbery. This was a complicated situation. There were mixed verdicts in respect of the Stephens incident, the initial approach and snatching from the car, followed perhaps by a forcing towards the van, but the forcible imprisonment was outwith the sentencing exercise for this defendant. The judge identified two aggravating features -- the kidnap and the previous convictions -- but in the light of the acquittal on count 2 the kidnap had to be approached delicately. It was brief and encompassed a very short distance. There were no injuries attributable to that stage of the ordeal and the very unusual extent of the taking away should not add significantly to the four years. The two previous robberies were old, and Mr Bennathan argues they too should have added little to the sentence for the index offence.[65]In our judgment, this sentence was unimpugnable. The judge was quite right to select a four year starting point and right to turn for help to the Guideline on robbery. However, the two aggravating factors make the uplift to a term of six years after a contested trial and therefore lacking the mitigation of a plea unexceptionable. Grateful once again as we are to Mr Bennathan, the appeal against sentence is dismissed.[66]MR BENNATHAN: May I burden the court with two more matters? The first is simply to ask the question of my Lady that I will be asked shortly and that is does the court envisage a timescale for telling us whether or not the point of law will be certified? I am sorry to interrogate the court.

LADY JUSTICE RAFFERTY: Short.

[68]MR BENNATHAN: Thank you very much. Secondly, the matter of representation. My learned friend Miss Bahra had a representation order which allowed her to draft grounds, leave was obtained and on discussions with the Registrar it was then thought this case would be part of the co-joined appeal in Riat. I was brought in and she was still funded to attend a conference and explain to Mr Fergus and Mr Fagan who I was and what was happening. Thereafter representation ceased. She has nonetheless contributed to the drafting of the skeleton in our names and she has been invaluable today telling me what happened at the trial on at least three queries that have arisen last minute. Notwithstanding the result, with great respect, it is a factually complicated case, the law is not straight forward, I would say that exceptionally the court ought to be able to extend the representation order to encompass preparation and attendance at today's hearing.

LADY JUSTICE RAFFERTY: Certainly.

[70]MR BENNATHAN: Thank you very much.

Cited in 1 later judgment