Chinn, R. v [2012] EWCA Crim 501

[2012] EWCA Crim 501Case No 201106439 D1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Lincoln Crown Court
His Honour Judge Morris
201106439D1*4
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/03/2012
Before
LORD JUSTICE AIKENSMR JUSTICE FIELDHIS HONOUR JUDGE COOKE QC
Between
ReginaRespondentChinnAppellant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr. S Moore-James (instructed by The Crown Prosecution Service) for RespondentMr. AK Montgomery (instructed by Morgan Rose Solicitors) for AppellantHearing Hearing dates: 21st of February 2012
Judgment
[1]This appeal concerns the circumstances in which a party to criminal proceedings can rely on section 120(3), (4), (5) and (6) to introduce, as evidence of the matters stated therein, the previous written statement of a witness, when the witness states in her oral evidence that she cannot now independently remember various specific facts set out in the written statement. We heard oral argument from counsel on 21 February 2012. We reserved our judgment. Subsequently we sought from counsel further written submissions on aspects that had not been the subject of oral argument.[2]This is an appeal against conviction by Michael Chinn, now aged 37, which is brought with the leave of the single judge. On 7 November 2011 after a trial before the Recorder of Lincoln, HHJ Morris, and a jury at Lincoln Crown Court, the appellant was convicted of one count of unlawful wounding, contrary to section 20 of the Offences Against the Person Act 1861. The appellant was acquitted of a further count of unlawful wounding by direction of the judge who, at the conclusion of the prosecution case, upheld a submission of “no case to answer” in respect of that charge.[3]On 12 December 2011 the appellant was sentenced to 15 months imprisonment, with 35 remand days to count towards that sentence.

The Facts and the oral evidence of Ms Inglis

[4]The two charges arose from an incident in a nightclub in Spalding, Lincolnshire, during the night of 30 September/1 October 2010. Two young women called Cheri-Leigh Lincoln and Meghan Davies were struck on the head and wounded by objects that had been thrown from a distance. The appellant was acquitted of wounding the first but convicted of wounding the second. The prosecution case was that the appellant had, in each case, thrown a glass bottle at the young women, one after the other.[5]At the trial Ms Lincoln gave oral evidence. She accepted that she had been drinking. She said that the appellant had been looking for a fight with Ms Davies’ brother, Michael. Bouncers had taken the appellant towards the exit. Ms Lincoln thought that the appellant had gone away. Then something flew through the air and struck her on the head and she bled. She thought that it had come from the appellant and she rushed over to him in the bar area. She shouted at him “that fucking got me” but he did not respond.[6]Ms Davies also gave oral evidence. She said that she had been out with the appellant on a few dates. She had spoken to him at the club. He did not get on with her brother, Michael, and a few words were exchanged between them. Her evidence was that the appellant then walked off and came back with two men and offered to fight her brother but the two men pulled the appellant away. Suddenly she heard a commotion and as she turned she saw the appellant. Her evidence was that then a glass came through the air and struck her head. She said that it was the appellant who had thrown the glass.[7]Inconsistencies between what she had said in her oral evidence, what was set out in her witness statement to the police and what was in the police officer’s notebook were put to her in cross examination. She accepted that she had told the officer that she had seen the appellant throw a bottle at Ms Lincoln but that she had not mentioned this in her evidence. She said in evidence that she could not now remember seeing how her friend was injured.[8]There was a third witness, Ms Inglis, who gave oral evidence from behind a screen. In summing up the judge said that the jury might regard her as “the closest you will get to an independent witness”: transcript at 16A. Only a few hours after the incident Ms Inglis had given the police a witness statement in the usual form in accordance with section 9 of the Criminal Justice Act 1967. In this statement she had described the appellant and what he was wearing, which she said was a blue coloured chequered shirt, but she stated that she could not remember what else he had on. She described a verbal altercation between the appellant and Michael Davies. She also said that she was talking to her friends. Her witness statement then continued: “…I looked around to the double doors that are the main entrance and exit to the club, I could clearly see Michael Chinn was stood at these doors and threw what I believe to be a glass bottle, this bottle has narrowly missed my head and has struck Megan Davies to her head causing a large cut to her forehead….The whole incident lasted no more than two minutes at the most from where Michael Chinn was shouting at Michael Davies to when he threw the glass bottle towards the group. I did not have any obstructions in my view and whilst it was dark inside there was various coloured lighting which provided ample light of the whole bar area”.[9]Ms Inglis’ oral evidence at the trial was that she had been drinking, that she saw the appellant and Michael Davies having an argument and that she saw men pulling the appellant away towards the exit. Counsel for the prosecution then asked her whether the appellant left and she said that she could not remember because it was so long ago. She said that she had looked at her statement and she stood by what she said but she could not remember now. She was asked about Ms Davies being hit and whether she could remember how that was caused and she said she could not remember.[10]Counsel for the prosecution then asked Ms Inglis whether she had made a statement on1 October 2010 and whether matters were fresh in her memory then and she said yes. Counsel asked if Ms Inglis could be given a copy of her statement and the judge agreed to that being done. Just before doing so, the judge commented to the jury that “it is not a memory test, members of the jury”. Counsel asked Ms Inglis to read parts of the statement and then asked her if she could recall how events unfolded that evening and she said “I still can’t remember him doing it now. I can’t”: see transcript of Ms Inglis’ evidence page 7B.[11]The judge then asked the witness what she had told the police when she gave her statement. Ms Inglis replied: “Yes I seen him throw a bottle and it missed me and it hit – I didn’t see it hit Cheri-Lee but it hit Megan”: transcript 7H, and she confirmed that “he” meant the appellant.[12]After some further questions, counsel for the prosecution asked Ms Inglis:
“what made you inform the police, as you did, that the bottle had been thrown by Michael Chinn”? Her answer was: “Because from this I seen him do it, but I don’t want to say what I can’t see in my head now. I can’t remember him doing it now”
. Ms Inglis confirmed that when she made the statement the events were clear to her and that she had told the truth in her statement. A little later on, counsel for the prosecution put to the witness: “when you saw Michael Chinn, in your statement at any rate you said that he threw something at Mandy, sorry Miss Davies, not Mandy”: to which the answer was “Yes” and then she confirmed that was Megan Davies: transcript 10F.[13]Counsel for the defence then cross-examined Ms Inglis. His first question was to suggest that the version of events that she had given to the police in her statement was mistaken in that Mr Chinn (the appellant) did not throw a bottle at Miss Davies. Ms Inglis replied “I can’t remember now, no. It was over a year ago. At the time I stand by my statement. I would never have lied”. Counsel then suggested that because of poor light, the situation, the speed of events and so forth, she might be mistaken. Ms Inglis’ reply was:
“Not looking at my statement, no”
. She confirmed that she could only rely on her statement and that she now had no memory of some aspects of what had occurred. She could not remember whether the object thrown was a bottle, tumbler or some other type of glass.[14]Counsel for the defence then said that he did not have to take her through the statement because she had read it before she gave evidence and she agreed. Counsel then said:
“a couple of things emerge from it” and he asked Ms Inglis about what she had said in her statement of the appellant throwing an object when he was standing at some doors and her description of him doing things in terms of throwing objects. She accepted that is what she said in her statement: see transcript page 12 E. The witness was then shown a video clip of events and Ms Inglis was asked further questions, by reference to the video clip, about what she had said in her statement about where Mr Chinn was standing. The witness was then asked where she was standing at the bar and then some questions in relation to the assault on Ms Lincoln. Counsel then asked questions in relation to the attack on Ms Lincoln. He then returned to the attack on Ms Davies: “…in the statement you speak of a bottle, don’t you. I appreciate you say you can’t remember it, but you speak of a bottle, Yes?”
. Ms Inglis’ answer was: yes but she could not now remember.[15]After some further questions about the incident and afterwards, counsel asked Ms Inglis whether she remembered what Mr Chinn was wearing. Ms Inglis’ response was:
“Only because I’ve seen in here that I said he had a blue shirt on, but I can’t remember that”
. Counsel said:
“Very well, I’ll leave it then”
. There was no re-examination.[16]It will be noted that there was no express objection by counsel for the defence to the witness looking at her witness statement in an attempt to refresh her memory, although it is clear that this exercise did not, in fact, do so. Nor, at that time, was there any discussion (with or without the jury being present) on the question of whether any particular statements in the witness statement were admissible as evidence of the truth of the matters stated therein or even a general discussion of the status of those statements as evidence.[17]At the end of the prosecution’s case counsel for the appellant submitted that there was no case to answer on both count 1 (relating to the wounding of Ms Lincoln) and count 2 (relating to the wounding of Ms Davies). As already noted, the judge accepted that submission in relation to count 1 but he rejected it with regard to count 2. We do not have a transcript of his ruling.[18]Counsel for the defence also submitted that the judge should discharge the jury in relation to count 2. The basis for this was that the passages in Ms Inglis’ witness statement that had been put to her and so put before the jury ought not to have been admitted in evidence, because the conditions governing the admissibility of those statements, as set out in section 120(4) and (6) of the Criminal Justice Act 2003, had not been met. The judge rejected that submission. He said that he would tell the jury to treat her evidence very carefully, bearing in mind how it came out. The judge said: “I am of the view that this evidence would have come in by one route or another and I will give a direction to the jury in the defendant’s favour along the same lines as one would have given if it was evidence that had come from a hostile witness”.[19]When the judge summed up to the jury he summarised Ms Inglis’ evidence and then he posed the question: how do you approach her evidence? The judge directed the jury that the evidence of Ms Inglis about what occurred “with the help of her statement – in effect repeating what is in it – is still evidence in the case which you can consider alongside the evidence she gave about what she could recall without the use of her statement”: transcript page 18D.[20]The judge then said that it was for the jury to decide whether Ms Inglis had really forgotten the main events of that evening or whether she was now saying that she could not remember because what she had originally said in her statement was not true or her loss of memory was for some other reason. It was for the jury to assess her as a witness. The judge reminded the jury of the defence argument that Ms Inglis had apparently remembered other events that evening in her oral evidence but now said that she could not remember the key event: and the submission that this difference in her memory was not credible.

The judge then continued, at page 19B-G of the transcript:

“If you are of the view that it is just not feasible to have forgotten the important middle bit – if I can call it that – then yes, one approach is to treat her evidence as unreliable, and therefore worthless. It is open to you, however, to reach a contrary view. Her evidence that she has given with the use of her statement is evidence you are entitled to rely on if, after careful consideration, you think it is right to do so. If you are sceptical of her loss of memory but, nonetheless, consider her otherwise a truthful and reliable witness, and you are sure she was telling the truth in her statement to the Police, then you can use that evidence that she, in effect, regurgitated from her statement. Alternatively, as the Defence invite, if you are sceptical of her memory loss, you are equally entitled to reject her as a reliable witness entirely, and regard her statement and, indeed, the oral testimony to you, and that what is the defence invite you to do. Those are all matters for you.”
[22]The relevant provisions of the CJA are contained in Chapter 2 of Part 11 of the Act, which deals with Hearsay Evidence. That chapter enacted (with some modifications) the recommendations of the Law Commission set out in its Report on Evidence in Criminal Proceedings: Hearsay and Related Topics of June 1997 (Cm 3670). The statutory provisions make some far-reaching changes to the common law on the admissibility of hearsay evidence in criminal proceedings.[23]The relevant provisions for the purposes of this appeal are sections 114(1), 115, section 120 (1), (3), (4), (5), (6) and (7) and section 139(1). We have set them out in an Appendix to this judgment.[24]The broad effect of Chapter 2 of Part 11 of the CJA is that a previous out of court statement of a witness who is called to give oral evidence in criminal proceedings is hearsay evidence if the aim of adducing the statement in evidence is to prove the “matters stated” in it within the meaning of section 114(1) and 115 of the Act. Any statement not made in oral evidence in criminal proceedings is admissible as evidence of any matter stated in it (within the meanings of sections 114 and 115) only if one (or more) of the four conditions set out in section 114(1) is applicable. Those are:(1) that one of the provisions of Chapter 2 of Part 11 of that Act makes that statement admissible;(2) that any rule of law specifically preserved by section 118 of the Act makes that statement admissible;(3) that all parties to the proceedings agree to that statement being admissible; or(4) that the court is satisfied that it is in the interests of justice for that statement to be admissible. In the last case the court has to consider (at least) the nine listed factors set out in section 114(2) before deciding whether it would be in the interests of justice to admit the hearsay evidence it is proposed to admit.[25]Section 139 reformulates the circumstances in which a person giving oral evidence in criminal proceedings about any matter may refresh his memory of that matter from a document made or verified by him at a previous time. It is generally accepted that the statutory provisions enlarge the previous common law rules.[26]The Criminal Procedure Rules set out procedural rules for dealing with hearsay evidence at a trial. There are no rules that apply directly to section 120 of the CJA. That section itself clearly contemplates that there may be opposition to a previous statement of a witness being admitted as hearsay evidence. If there is then, obviously, a trial judge has to rule on the issue of admissibility in accordance with those provisions before the evidence can go before a jury.

The Grounds of Appeal and the arguments of the parties

[27]The principal ground of appeal is that Ms Inglis’ oral evidence was clear: at the time that she gave her oral evidence to the jury she had no independent recollection of the key issue of whether or not she had seen the appellant throw a glass bottle at Ms Davies. She was only able to confirm what was in her statement, which she said was the truth. Her witness statement was to the effect it was the appellant who had thrown a glass bottle at Ms Davies. Mr Montgomery, who appeared for the defendant at the trial and who appeared for the appellant before us, submitted to us that the evidence contained in Ms Inglis’ witness statement made to the police on 1 October 2010 was not admissible because it was a previous out of court statement by that witness which was hearsay and that none of the relevant conditions of section 120 of the CJA 2003 were satisfied so as to make the statements in the witness statement admissible as evidence of fact as if those facts had been given directly in oral evidence by Ms Inglis.[28]Mr Montgomery also submitted that it was wrong for the judge to have questioned Ms Inglis and thereby introduced the evidence contained in her witness statement. He further submitted that the judge should have acceded to a submission of no case to answer on count 2, on the basis that such evidence as there was that the appellant had thrown the glass bottle at Ms Davies was of a tenuous character because of inherent weakness and vagueness, such that a jury, properly directed could not reasonably convict. He relied upon the fact that the complainant, Ms Davies, had changed her account many times and her oral evidence at the trial was inconsistent. If, as he submitted should have happened, the statement evidence of Ms Inglis had not been admitted, then there was no or insufficient prima facie evidence that the appellant had thrown a bottle or glass at Ms Davies, so that, as with Count 1, the case should not have gone to the jury.[29]For all these reasons, Mr Montgomery submitted that the conviction on count 2 was unsafe and so the appeal should be allowed.[30]Mr James-Moore, who appeared for the prosecution at the trial and for the Crown before us, submitted that that the evidence derived from Ms Inglis’ witness statement was admissible by virtue of section 120(4) and (6) of the CJA 2003. In this regard he submitted that there was no authority for the proposition that section 120(4) and (6) applied only where the matters sought to be adduced as evidence of the matter stated were “routine”, as suggested in the commentary in Archbold (2012 ed) at 11-39.[31]Mr James-Moore also submitted that the evidence would have been admitted as a result of the witness being declared “hostile” in which case the evidence would have been admitted pursuant to section 119 of the Act. He submitted that there was no need for any application to treat the witness as “hostile” because of her adoption of the contents of her statement. But if there had been such an application then it would have been granted and the evidence in her statement would have been admitted as evidence of the matters stated therein.[32]Lastly, Mr James-Moore submitted that the judge gave proper directions to the jury on how they should approach the evidence of Ms Inglis. Therefore, if, (as he submitted was the case) the judge was correct to say that the evidence would have been admitted in full “by one route or another”, then the conviction was safe so that the appeal should be dismissed.

Issues that arise on this appeal

[33]When the prosecution (with a little aid from the judge) led the evidence of what Ms Inglis had stated in her witness statement, Mr Montgomery did not object to that course either then or at the end of her evidence in chief. The first time he really objected was at the close of the prosecution case when he asked the judge to dismiss the jury in relation to count 2.[34]However, in our view this is not a case where we should hold that evidence in the form of Ms Inglis’ witness statement was admitted by agreement. It plainly was not. Mr Montgomery was, we think, somewhat wrong-footed by the way the witness statement was introduced. It is common ground that as no application was made to adduce this statement under section 114(1)(d), therefore the statement was not admissible under that provision. It is also common ground that sections 118 of the Act does not apply in this case.[35]In our view section 119 is not relevant because there was never, at any stage, any suggestion that Ms Inglis had made a previous statement that was inconsistent with her oral evidence at the trial. There was never an application to treat her as a “hostile” witness and, on the basis of the transcripts before us, it is difficult to see how she could have been so treated. In any event, even if there had been such an application, the question of the admissibility of statements in Ms Inglis’ witness statement as evidence of the matters stated therein would still have to be dealt with in accordance with Chapter 2 of Part 11 of the CJA and that would inevitably bring the issue back to section 120 in this case.[36]The prosecution hoped that Ms Inglis’ memory would be refreshed by getting her to look at her witness statement in the hope that she could then give oral evidence that it was the appellant who threw a glass bottle at Ms Davis. The prosecution failed in its primary object because Ms Inglis made it plain in her evidence in chief that even after she had re-read her witness statement, she still had no independent recollection that the appellant was the person who threw a glass bottle at Ms Davies. That much was accepted by Mr James-Moore before us.[37]So the principal issue that arises on this appeal is whether, in the circumstances of this case, the statements in Ms Inglis’ witness statement to the effect that it was the appellant who threw a glass bottle at Ms Davies were admissible as evidence of those matters stated. There is a preliminary point: was Ms Inglis entitled to use the witness statement that she had made on 1October 2010 in an attempt to refresh her memory in accordance with section 139(1) of the Act? The remaining questions are: do the provisions in section 120(3), or 120(4)(b) and (5) or 120(4)(b) and (6) apply in this case and, if one or other does, what are the consequences? Discussion of the Issues. Section 139(1) of the CJA[38]Was Ms Inglis entitled to examine her witness statement in an attempt to refresh her memory? We think that she was. She stated in her oral evidence that the document recorded her recollections of the matter at an earlier time, viz. when she made it shortly after the incident. It is plain that, objectively speaking, her recollection of the matters was likely to have been significantly better at that time than it was at the time of her oral evidence one year later. Therefore the conditions set out in section 139(1)(a) and (b) of the CJA were fulfilled. Both counsel accepted before us that this was the case. Yet it is equally clear that Ms Inglis’ evidence was that her memory was not refreshed. She said she had no independent recollection of the vital issues of whether the appellant threw anything at Ms Davies and, if he did, what it was.[39]So the next question is: do any of the provisions of section 120(3), (4) and (5) or (4) and (6) of the CJA apply in this case so as to make admissible the relevant statements in Ms Inglis’ witness statement? Section 120(3).[40]Both Mr Montgomery and Mr James-Moore were inclined to argue that section 120(3) did not apply so as to make admissible statements made in Ms Inglis’ witness statement given on 1 October 2010. Both counsel accepted that the prosecution had attempted to use the witness statement to refresh Ms Inglis’ memory whilst she gave evidence in chief. Both also accepted that this effort failed with regard to the vital issues. They also accepted that Ms Inglis was cross-examined on the witness statement. But, as we understood the argument of Mr Montgomery, he submitted that neither the statement that the appellant had thrown a glass bottle at Ms Davies nor the whole document (viz. the witness statement) was “in consequence” received in evidence in the proceedings, because the statement about the appellant and him throwing a bottle was in evidence from the moment that Ms Inglis confirmed that what she had said in her witness statement on those issues was the truth. We understood Mr James-Moore to agree with this analysis. Therefore, it was submitted, what happened in this case did not accord with the necessary conditions set out in section 120(3) to admit Ms Inglis’ statement (either in whole or part) as evidence of matters stated therein.[41]Although Chapter 2 of Part 11 of the CJA sets out a new code on the admissibility of hearsay evidence in criminal proceedings, unfortunately it is still necessary to look at the old common law position to understand how section 120(3) came to be drafted as it was. Broadly speaking, the common law position was that previous consistent out of court statements by witnesses were inadmissible as evidence of the facts stated in them. They were hearsay evidence and they did no more than confirm what the witness said in oral evidence in court. The prohibition on adducing such evidence was known variously as “the rule against self-corroboration” or “the rule against narrative”. However, if a previous statement of a witness made in an out of court document was used to refresh the witness’s memory when giving oral evidence and the witness was then cross-examined on another part of the document which part the witness has not used for the purpose of refreshing his memory, then the document became an exhibit in the trial. The statements in the document did not become evidence as such, except insofar as the witness confirmed those parts of the document put to him. Otherwise the document only went to the witness’s consistency, but not as evidence of the truth of its contents: see R v Virgo (1978) 67 Cr App R 323; R v Sekhon (1987) 85 Cr App R 19.[42]The intent of the Law Commission was to change the law, as is clear from para 10.82 of its Report. The recommendation (no 39) was set out in the following terms at para 10.82: “We recommend that a statement made by a witness in a document which is used by the witness to refresh his memory, on which the witness is cross-examined, and which as a consequence is received in evidence, should be admissible as evidence of any matter stated in which oral evidence by the witness would be admissible”.[43]It is a little unclear whether it was the intention of the Law Commission that, in those circumstances, all of the statements in the document used to refresh his memory would be admissible if they would have been so as oral evidence, or whether the admissible evidence is confined to those parts of the document on which witness was asked to refresh his memory. Those parts of the document on which the witness was cross-examined and which he accepted as being the case would be admissible as evidence of those facts anyway.[44]The wording of section 120(3) is a little difficult to follow. The opening words of it are “A statement made by a witness in a document-“. Then sub-paragraph (a) sets out the first condition – “which is used by him to refresh his memory while giving evidence”. The word “which” in that paragraph must refer back to “a document”, because it is the document which is used to refresh the witness’s memory. Moreover, it is clear that this sub- paragraph contemplates that the document has to be used by the witness to refresh his memory while giving evidence in examination in chief, given the subsequent reference to cross-examination in sub-paragraph (b). Sub-paragraph (b) does not follow the old common law position in that it does not specifically stipulate that there must be cross-examination of a part of the document which was not used by the witness to refresh his memory. The sub-paragraph simply says “on which he is cross-examined”. The word “which” in that sub-paragraph must also refer to the document and, we think, to the whole document. Given the plain wording of that sub-paragraph there is no room for any implied limitation to a part of the document. We think that sub-paragraph (c) must be intended to reflect the common law rule that where there had been cross-examination then the document would become an exhibit in the trial; hence the words “in consequence [is] received in evidence in the proceedings”. Thus, consistently with sub-paragraphs (a) and (b), the word “which” in that sub-paragraph must also refer to the document as a whole. The last part of section 120(3) refers back to the first words of the sub-section. So the thing that “is admissible as evidence of any matter stated of which oral evidence by [the witness] would be admissible” must be the “ statement made by the witness in a document….” . But if the document contains several “statements”, plural, then those statements will be admissible as evidence of the matters stated in them of which oral evidence by the witness would be admissible, provided that those “statements” in the document were used by the witness to refresh his memory. The document itself will not be given to the jury, even though it is an exhibit, unless the court specifically permits it: see section 122.[45]We think that our construction is consistent with the explanatory notes to the CJA. In relation to section 120, it states: “Other previous statements by witnesses. This section makes other previous statements admissible as evidence of the truth of their contents (not merely to bolster the credibility of the witness’s oral evidence) in the following circumstances:…subsection (3) applies to the situation where a witness is “refreshing his memory” from a written document. If he is cross-examined on the document and it is received in evidence, the statement will be evidence of any matter contained within it…”. (Emphasis provided).[46]This court considered the ambit of section 120(3) in R v Pashmfouroush [2006] EWCA Crim 2330. The circumstances in that case were different from those in the present case because statements in an out of court witness statement were only put to the witness in cross-examination and the issue was whether the prosecution was entitled to re-examine on parts of the document not put to the witness in cross-examination. We think that nothing in the analysis of section 120(3) by Richards LJ at [23]-[26] of the judgment is inconsistent with our analysis. As we understand the sentence in [25] where Richards LJ says that the question of whether an out of court document should be received in evidence at the trial in the first place “is subject to the former common law rules”, he is referring to the matters we have set out at [41] above. As we understand it, Richards LJ was not purporting to deal with the admissibility of statements made in out of court documents as evidence of the matters stated. That point is, of course, now dealt with in section 119 and section 120(3) and (4) to (7) of the CJA.[47]But what if a re-reading of a previous out of court document fails to refresh the witness’s memory when giving oral evidence at the trial, as clearly happened in this case? It seems to us that in those circumstances section 120(3) cannot apply to make admissible as truth of the matters stated any or all of the statements made in the written document. This is for two principal reasons. First, section 120(3) contemplates that the witness does refresh his memory by examining the relevant statement in the out of court document. The effect of that is that his oral evidence about the facts of which he has refreshed his memory are admissible oral evidence in the normal way. The novelty in section 120(3) is that those statements in the document used to refresh the witness’s evidence also become admissible evidence of the matters stated therein.[48]Secondly, the situation where the witness has made a previous statement when the matters were fresh in his memory but he does not remember them at the time of the trial, even when he has attempted to refresh his memory, is dealt with specifically by section 120(4) and (6). Those provisions contains particular conditions, (which we will examine below), which must be fulfilled before that previous statement becomes admissible as evidence of the matters stated. It would, in our view, subvert the statutory scheme if section 120(3) could be used to make a previous written statement admissible as evidence of the matters stated without requiring that the conditions set out in section 120(4) and (6) be fulfilled.[49]Accordingly, we have concluded that counsels’ intuition, although not perhaps their reasoning, is correct: section 120(3) does not apply in this case.

Section 120(4) and (5)

[50]Section 120(4) stipulates that a previous statement by a witness (which does not have to be in a document for the purposes of this sub-section) is admissible as evidence of the matter stated of which oral evidence by him would be admissible if one of three conditions set out in the succeeding sub-sections are satisfied. In addition, there are two pre-conditions, set out in section 120(4)(b). These are that witness has to have “indicated”, whilst giving evidence, that to the best of his belief he made the statement concerned and also that to the best of his belief that statement stated the truth.[51]Both counsel accepted that the two pre-conditions set out in section 120(4)(b) are fulfilled in this case. It is clear from Ms Inglis’ oral evidence in chief that she indicated that she had made the witness statement of 1 October 2010 and that it stated the truth.[52]So, for section 120(5) to apply, the question is whether Ms Inglis’ witness statement which narrates the events of the night of 30 September/1 October 2010 and states that it was the appellant who threw a glass bottle at Ms Davies is admissible because it is a statement that “identifies or describes a person, object or place” within section 120(5). This possibility was not the subject of oral argument before us. However, we decided that this section could be relevant and so we invited counsel to make further written submissions, for which we are grateful.[53]Mr Montgomery submitted that Ms Inglis’ statement could not be made admissible using section 120(5) because it is principally a statement which describes a narrative of events, in the course of which (admittedly) it says that it was the appellant who threw a glass bottle at Ms Davies. Mr Montgomery submitted that section 120(5) applied solely to statements which only identified a person, object or place and did no more than that. He said, rhetorically, that if a statement that identified a person, object or place in the course of a more general narrative was admissible under section 120(5), then what would be the purpose of having the further safeguards set out in section 120(6), viz. that the court is satisfied not only that the witnessdoes not remember the matters but that he cannot reasonably be expected to remember them well enough to give oral evidence of them in the criminal proceedings?[54]Mr James-Moore was inclined to support this view. He submitted that section 120(5) was designed to assist witnesses specifically to identify or describe a person, an object or a place, but not to do more than that. Mr James-Moore referred us to the Explanatory Note to section 120 of the 2003 Act and to an article on the hearsay provisions in the CJA 2003 by Mr Gregory Durston in the 2005 Criminal Law Review page 206. The latter commented (at 211): “There is, however, uncertainty as to how much “surrounding” detail might be admitted under this provision. For example, if the description of an object was made in the body of a police statement, to what extent would it be ripped from its context, even if this made it hard to evaluate?”.[55]We accept that the precise scope of section 120(5) is not entirely clear from the statutory wording. We do not like having to go back to the pre-existing common law to try and work out the possible ambit of the sub-section, which is, after all, part of a new statutory code on hearsay evidence in criminal proceedings. But we accept that this exercise may assist in construing the sub-section. At common law a previous identification (particularly of the accused) was admissible as evidence of that fact at trial. Originally the rationale was that this could neutralise the argument that a witness only identified the accused because he was in the dock. The type of previous identification admissible was extended to out of court “photofits” by the complainant of the accused or a complainant’s description that enabled a police artist to sketch the accused’s likeness. But if a witness saw a lorry involved in an incident and noted its registration number, then gave the number to a policeman who had not seen the lorry, the evidence by the policeman of his note of the lorry’s number plate was held by the Divisional Court to be inadmissible hearsay: see Jones v Metcalfe [1967] 1 WLR 1286.[56]The Law Commission approved the “previous identification” exception to the hearsay rule, but thought that it should be extended to cover descriptions as well as identifications and also believed it should apply to descriptions or identifications of objects and places as well as people: see paras 10.46 – 10.52. The effect of section 120(5) is, clearly, to reverse Jones v Metcalfe.[57]We see some force in the argument of Mr Montgomery that it cannot have been the intention of Parliament that section 120(5) could be so broad that it could be used to circumvent the safeguards set out in section 120(6). However, in order to work out the precise scope of section 120(5) we think it is necessary to look more closely at its purpose. The previous statement of a witness will have identified or described a person, object or place that is connected with an alleged offence or other relevant event. A description of a person, object or place that is made in a vacuum is of no use in criminal proceedings. The description or identification has to be put in the relevant context because the person, or object or place is being described or identified for a particular purpose in the criminal proceedings. Thus the witness may say in the statement that it was Mr X who was at the ABC Bar on a certain day at a certain time. That statement identifies Mr X in this way because it is that identification at that place and time that is relevant; probably to an alleged offence at the ABC Bar at a particular time. The same must be true of an object and a place.[58]Thus, we conclude that section 120(4) and (5) can be used to admit parts of Ms Inglis’ witness statement, but not the whole of it. The parts that describe the appellant and identify him as being the person who was in the nightclub and then threw a glass bottle that hit Ms Davies are, in our view, admissible under section 120(5). But other parts of the narrative in the witness statement that go beyond identifying or describing the appellant and the fact that it was him that threw the glass bottle, are not admissible under section 120(4) and (5).[59]We should add here that section 126(2) of the CJA provides that nothing in that Act prejudices the power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). In certain circumstances, eg. where the only evidence of identification of an accused is that contained in a hearsay statement sought to be adduced by the prosecution under section 120(5), the defence might argue that it should be excluded on the grounds that its admission would so adversely affect the fairness of the proceedings it should not be admitted. That point was not argued before the judge or us in this case.[60]Further, in a suitable case, the judge has the power under section 125 of the CJA to stop a case after the close of the prosecution if he is satisfied that the case against the defendant is based solely or partly on a statement not made in oral evidence in the proceedings and that such evidence is “so unconvincing” that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe. As we understood it, Mr Montgomery did not base his application to the judge of “no case” on count 2 on the provisions in section 125. Nor was that argument advanced before us. Indeed, Mr Montgomery expressly accepted that if Ms Inglis’ statement was admissible under section 120, then there was a case to go to the jury on count 2. Implicitly, therefore, Mr Montgomery must have accepted that he could not have mounted an argument under section 125.

Section 120(4) and (6)

[61]These provisions were at the centre of the oral argument between Mr Montgomery and Mr James-Moore. In our view the conditions of section 120(6) could have been fulfilled in this case. The witness statement was made when the matter was fresh in the memory of Ms Inglis, because the witness statement was given on 1 October, only hours after the incident. Her evidence was that, at the time that she gave her oral evidence, she did not then remember the relevant events of the night of 30 September/I October 2010, viz. whether the appellant threw a glass bottle at Ms Davies. She said that her reason for saying this was that it was now over a year ago and the facts were no longer in her head. There was therefore material in her evidence for the judge to have reached a conclusion that Ms Inglis could not reasonably have been expected to remember those matters well enough to give oral evidence of them at the trial.[62]But we are not prepared to say that the witness statement of Ms Inglis was admissible under section 120(4) and (6) because it is clear that no one at the time considered that subsection or its applicability or whether the two cumulative conditions in section 120(6) had, in fact, been fulfilled. The first condition is that the statement was made when the matters stated were fresh in the witness’s memory and he cannot now remember them. This will not often be contested, but if it is, then it is for a judge to decide the issue. It was not done in this case. But, in his closing speech to the jury, Mr Montgomery submitted to the jury that Ms Inglis must have remembered the events but chose to say otherwise in her oral evidence.[63]The second condition is that the witness cannot reasonably be expected to remember the matters stated in the previous statement well enough now to give oral evidence of it. This may well be disputed. If it is then the judge must make an assessment and give a ruling on the point. The assessment will depend (amongst other things) on the characteristics of this particular witness, the nature of the particular incident, the circumstances in which it occurred and also other factors such as what has happened to the witness between the time of the incident and the trial. The judge has to take all relevant factors into account then decide, objectively, whether that witness could reasonably be expected to remember the relevant matters at the time of the trial well enough to give oral evidence of them at the trial. The judge did not do that exercise in this case. Again, it was Mr Montgomery’s submission to the jury that Ms Inglis could, reasonably speaking, have been expected to remember those events well enough to have given oral evidence of them.[64]We do not accept that sections 120(4) and (6) were intended to apply only when the matters sought to be adduced are “routine”. There is nothing in the statutory wording to limit the scope of the provisions in that way. Nor is that limitation referred to in the Law Commission’s report. The admissibility of previous statements under section 120(4)and (6) will depend solely on whether the statutory criteria, as analysed above, have been fulfilled.[65]Despite the lack of any specific rules in the CPR on the point, we would suggest that the correct way to have dealt with the situation which arose in this case, where section 120(4) and (6) might apply, is as follows: once the witness had said she could not now remember whether it was the appellant who had thrown the glass bottle and that her statement did not refresh her memory, counsel for the defence should have been asked whether he objected to the witness statement (or identified parts of it) being adduced as evidence of the relevant matter stated in it. If he said that he did object, then, in the absence of the jury, the witness should have been asked why she did not now recall the matters that were in her statement. Counsel for the defence could then have cross-examined on both the alleged failure of memory and the alleged reasons for it. If there were any further arguments about excluding the evidence on grounds based on section 78 of the Police and Criminal Evidence Act 1984, (see section 126(2) of the CJA), then those should have been addressed then. The judge should then, in the absence of the jury, have ruled on those matters and, if he had accepted the submission that the witness statement should be adduced (or a relevant part of it), it would then have been adduced in the presence of the jury. Those matters would then have been evidence of the matters stated as if they had been adduced directly in oral evidence.[66]In such a case when the judge sums up he will explain shortly why the jury can consider the written material, stating why, in the case of this matter and this witness, she could not reasonably be expected to remember that matter well enough to give oral evidence in the proceedings. No reference to hearsay evidence or the statute itself need be necessary. The judge will also, of course, direct the jury to consider the reliability of the witness’ earlier recollection of the subject matter of the statement that has been admitted and emphasise that it is for the jury to decide on the weight that they attribute to the evidence in the previous statement. Conclusion on admissibility under section 120 and consequences.[67]For the reasons set out above, we are satisfied that the statements in Ms Inglis’ witness statement that identified and described the appellant and the fact that it was him who threw a glass bottle at Ms Davies are admissible pursuant to section 120(4) and (5) in the circumstances of this case. Other parts of the witness statement were not admissible under those provisions. They were not admissible under section 120(4) and (6) because the proper procedure had not been adopted in this case where, we are prepared to hold, the defence did object to the admission of Ms Inglis’ witness statement. Section 120(3) does not apply on the facts of this case.[68]It is, perhaps, regrettable that the judge should have intervened as early as he did and in the manner that he did. But no harm was done because the previous statement of Ms Inglis that the appellant had thrown the glass bottle at Ms Davies was admissible for the reasons we have given. Insofar as the judge’s intervention forms a separate ground of appeal, we see no merit in it.[69]As the relevant matters in Ms Inglis’ statement were properly before the jury as evidence of those matters, then, as Mr Montgomery properly conceded in argument, there was a prima facie case to go to the jury. Accordingly, the judge was correct not to accede to the submission of no case to answer on count 2.[70]Furthermore, the judge was correct not to discharge the jury, although not, perhaps, for the precise reasons that he gave. In our analysis, not all of Ms Inglis’ witness statement should have been before the jury, although if the judge had gone through the exercise contemplated by section 120(6) further parts than the description and identification of the appellant might have been. However, in our view the jury had not heard any inadmissible evidence of importance. Ms Inglis did give oral evidence that she could remember other relevant matters that surrounded the key fact that it was the appellant who threw the glass bottle at Ms Davies.[71]In addition, in our view there can be no criticism of the judge’s direction to the jury on how they should consider the oral evidence of Ms Inglis and her evidence contained in her witness statement. If anything it was overly favourable to the appellant.[72]There is, however, one further point which we wish to mention on the summing up, although it was not identified in the grounds of appeal, nor was it the subject of argument before us. The principal issue at the trial after count 1 had been withdrawn from the jury was whether it was the appellant who threw a glass or glass bottle or tumbler at Ms Davies. The appellant accepted that he was present at the nightclub. He was well known to both Ms Davies and Ms Inglis, who gave evidence that they recognised him and saw him there. It was put to both of them that they had been mistaken in identifying the appellant as the person who threw the object that hit Ms Davies. It might be said that, in such circumstances, the prosecution case was based on the witnesses’ recognition of the appellant as the perpetrator and so called for some kind of Turnbull direction, at least in an adapted form. None was sought or given in this case. It was not and is not suggested that the conviction was thereby rendered unsafe.[73]On the very particular facts of this case we are satisfied that even an adapted Turnbull direction was not needed; its absence did not make this conviction unsafe. However, in other cases which turn wholly or partly on identification evidence and the accused has been identified in a statement adduced under section 120(4) and (5), or (4) and (6), a judge will have to consider whether some sort of Turnbull direction is needed and, if appropriate, give one in a suitably adapted form.[74]Having considered all the points raised, we have concluded that the conviction of the appellant was safe.

Disposal

[75]Accordingly, this appeal must be dismissed.