Arnold, R. v

In an identity case, evidence of one offence may be used on another count where the circumstances provide sufficiently cogent probative support for a conclusion that the same person committed both offences, and its use remains fair despite prejudice. The necessary relationship is not confined to a distinctive signature.

A statement from a witness absent through fear may be admitted under the Criminal Justice Act 1988 only where the interests of justice require it. Fairness under article 6 depends on the proceedings as a whole, including the practical ability to challenge the statement and whether it is sole or determinative evidence.

The defendant was convicted at Croydon Crown Court of two counts of wounding with intent contrary to section 18 of the Offences against the Person Act 1861. Each count concerned an apparently motiveless attack outside a public house in Croydon on the same evening.

He appealed against the refusal to sever the counts, the admission of injury photographs, the use of each incident as similar-fact evidence on the other, and the admission of a fearful witness’s earlier statement under sections 23 and 26 of the Criminal Justice Act 1988. The central issues were whether the similarities justified mutual use of the evidence and whether admission of the absent witness’s statement was fair.

1. Appeal dismissed. The trial judge was entitled to refuse severance. His direction that the jury must not aggregate the counts or use evidence on one as evidence on the other was adequate at that stage. Once the evidence was properly admitted as similar fact, the refusal to sever could not render the convictions unsafe.

2. The injury photographs were relevant to whether the attacks had been committed by one or two attackers. The jury could assess their broad similarities using common sense, provided they were not invited to act as medical experts.

3. The circumstances of the two attacks were sufficiently probative to justify their mutual use on identity. Each was a close, unprovoked and unexplained attack outside a public house, within a short period and a short distance, involving explosive use of a sharp implement against the face and then the body. The combination of features, including the full-thickness cheek wounds, was sufficiently cogent that rejecting a common perpetrator as coincidence would affront common sense. The court applied the approach in Director of Public Prosecutions v P [1991] 2 AC 447 and R v W (John) [1998] 2 Cr App Rep 289.

4. The statutory gateway in section 23 was satisfied because the witness did not give oral evidence through fear. Under section 26, the starting point was that the statement should not be admitted. However, the judge was entitled to find that admission was in the interests of justice. The defence had substantial admissible material with which to challenge the statement, including contradictory accounts, evidence from the investigating officer, the witness’s mother and his solicitor.

5. Article 6 required an assessment of the fairness of the proceedings as a whole. The absent statement was not sole or determinative evidence once the identification evidence on the second attack was admissible as similar fact on the first count. The ruling therefore did not infringe article 6(3)(d), and the careful jury directions removed no remaining unfairness.

6. The court nevertheless cautioned that the judgment gave prosecutors no general licence to read fearful witnesses’ statements. Judges must scrutinise each application closely, especially where the statement is sole or determinative evidence, and ensure a fair hearing.

• Court of Appeal (Criminal Division) — dismissed the defendant’s appeal against conviction: [2004] EWCA Crim 1293.
• Crown Court at Croydon — on 16 December 2002, convicted the defendant of two counts of wounding with intent and imposed concurrent automatic life sentences.