Abiodun, R v

When defence witnesses cannot attend a criminal trial, the decisive question is whether the trial can nevertheless be fair. The trial judge should assess that question at the date of trial and may consider every available means of placing the evidence before the jury.

The admission of relevant witness statements under section 23 of the Criminal Justice Act 1988, coupled with an appropriate direction about the absence of cross-examination, does not of itself breach Article 6 of the European Convention on Human Rights. The absence of oral testimony must be assessed in the context of the whole trial.

The appellant was convicted at the Crown Court at Croydon of fraudulently evading prohibitions on the importation of heroin and cocaine. Her defence was that she had unknowingly agreed to carry a wheelie bag for another person.

Two Nigerian witnesses supported her account of receiving the bag but could not obtain visas to attend trial. Their statements were admitted under section 23 of the Criminal Justice Act 1988. Before trial, the judge refused an application to stay the proceedings as unfair. The appellant appealed against conviction, contending that the absence of the witnesses and the State’s conduct concerning their visas made a fair trial impossible.

1. Appeal dismissed. The trial judge was right to refuse a stay, and the Court of Appeal’s own assessment confirmed that the appellant had a fair trial.

2. The proper question was whether a fair trial was possible on the circumstances existing at the date of trial. The criminal trial judge was not required to review or disapprove the merits of the Deputy High Commission’s visa decisions. The court found it unnecessary to decide the wider submission that the State was indivisible for this purpose.

3. In deciding fairness, the judge could consider all available means of adducing the witnesses’ evidence. Video-link evidence was not technically possible. Admission by agreement under section 9 of the Criminal Justice Act 1967 was unavailable because the Crown could not reasonably agree to statements when it could not say whether their contents were true. Section 23 of the Criminal Justice Act 1988 was therefore the appropriate route.

4. The court applied the approach in R v D [2002] EWCA Crim. 990: there is no absolute right to have witnesses available for cross-examination, and the essential issue under Article 6(3)(d) of the European Convention on Human Rights is the fairness of the trial process. The judge’s direction properly identified the jury’s disadvantage in not seeing the witnesses or hearing cross-examination. It was mild and did no more than state the obvious. Their absence also removed the possibility that their evidence would be damaged in cross-examination.

5. The witnesses’ evidence had become of reduced significance because the Crown did not challenge the occurrence of the meeting at which the bag was handed over, nor the appellant’s good character. The central issue was whether she knew she was importing prohibited drugs. The verdict showed that the jury accepted the customs officer’s evidence and rejected the appellant’s evidence where they differed, and accepted the Crown’s challenge to the plausibility of her account.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2003] EWCA Crim 2167.
• Crown Court at Croydon: The appellant was convicted of fraudulent evasion of the prohibitions on importing heroin and cocaine, after the judge refused to stay the proceedings. Concurrent sentences of 11 years and six months’ imprisonment were imposed.