Lobban, R. v

A witness statement prepared for a criminal investigation and admitted because its maker is said to be afraid is subject to the stricter leave requirement in section 26 of the Criminal Justice Act 1988. The court must decide whether admission ought to be in the interests of justice, with proper regard to the disputed nature and importance of the evidence.

Fear must be established by fair procedure. A defendant should ordinarily be present and counsel should normally be able to test evidence given on a voir dire. If questioning is exceptionally conducted by the judge, counsel’s identified issues must be fairly explored. The jury must receive a clear warning about the limits of contested evidence not tested by cross-examination, and the judge must fairly summarise a positive defence disclosed in interview.

The appellant was convicted on a retrial at Snaresbrook Crown Court of possessing cocaine with intent to supply and was sentenced to six years’ imprisonment.

At the first trial, Judge Reynolds allowed the Crown to read Heather Moore’s statement under section 23 of the Criminal Justice Act 1988, after she said that she feared giving evidence. The ruling was adopted at the retrial. Her statement was important because it asserted that the appellant had borrowed the car in which cocaine was found, whereas his interview account pointed to her partner as the person responsible.

The appeal challenged the procedure used to receive evidence of fear, the statutory test applied to admit the statement, the absence of an adequate jury direction about untested evidence, and a direction concerning fingerprints. The court also considered the judge’s failure to put the appellant’s positive defence to the jury.

1. Appeal allowed. The conviction was unsafe and was quashed. No retrial was ordered because the appellant had served the greater part of his sentence.

2. The hearing in the judge’s room, without the appellant or a shorthand writer, was inappropriate. More importantly, the appellant was wrongly excluded while the witness gave evidence of fear, and counsel was denied an adequate opportunity to test that evidence. A defendant has a fundamental right to be present throughout criminal proceedings, save with consent or in exceptional circumstances. Screens or a television link could have protected the witness while preserving that right.

3. Where a witness is called on a voir dire to establish fear for section 23 purposes, the usual course is questioning by counsel. A departure may exceptionally be justified for a vulnerable witness, but the judge must first consider the matter carefully and ensure fairness. Counsel should identify the questions and issues to be explored, and the judge must then ensure that material issues are addressed. Here, no proper basis justified refusing cross-examination and important issues relevant to the witness’s fear and credibility were not explored.

4. The trial judge applied section 25 instead of section 26 of the Criminal Justice Act 1988. The statement had been prepared for contemplated criminal proceedings. Section 26 therefore required leave and permitted admission only if the court considered that it ought to be admitted in the interests of justice. That was materially different from the section 25 approach. Had the correct test been applied with a proper understanding that the statement was centrally disputed, the judge might have excluded it.

5. The jury should have been warned that, because the statement was contested and not cross-examined, they had not seen the witness give evidence or tested how her account withstood challenge. They should have been directed to take those limitations into account when assessing its weight. The absence of that direction was a serious deficiency.

6. The judge also failed to summarise the appellant’s positive interview account that the car belonged to the witness’s partner and that he had left it there. That defence went to the central issue of responsibility for the drugs. The minor earlier misdescription of the location of fingerprints was corrected by the later, accurate summary and did not found a material complaint.

• Court of Appeal (Criminal Division): Allowed the appeal in [2004] EWCA Crim 1099, quashed the conviction, and declined to order a retrial.
• Snaresbrook Crown Court: On a retrial, convicted the appellant on 22 August 2002 of possessing a class A drug with intent to supply and imposed six years’ imprisonment. The earlier ruling admitting Heather Moore’s statement under section 23 of the Criminal Justice Act 1988 was adopted for that retrial.