Sed v R

Under Criminal Justice Act 1988, section 23 makes documentary hearsay admissible where its maker is unfit to attend trial. It does not impose a separate threshold of witness competence at the time of making the statement.

The decision whether to receive the evidence is a distinct section 26 question of the interests of justice. The court must assess intelligibility, reliability, the ability to challenge the evidence, and all circumstances bearing on fairness. The section 53 formulation in the Youth Justice and Criminal Evidence Act 1999 is a useful but non-mandatory guide in that assessment. Reliability remains for the jury where adequate safeguards permit a fair evaluation.

The appellant was convicted at Wood Green Crown Court of attempted rape of an 81-year-old care-home resident with moderate to severe Alzheimer’s disease. He received an extended sentence of 14 years’ imprisonment.

Before trial, the judge admitted a video-recorded police interview with the complainant under sections 23 and 26 of the Criminal Justice Act 1988, although her condition prevented her from giving live evidence or being cross-examined. The appellant challenged that ruling, the judge’s directions on the video evidence, and the admission of a later police interview after disclosure of a DNA match.

The central issue was whether receiving the complainant’s untested video-recorded account was compatible with the statutory interests-of-justice test and a fair trial.

1. Appeal against conviction dismissed. The trial judge was entitled to admit the complainant’s video-recorded interview and to leave its reliability to the jury subject to strong warnings.
2. Section 23 of the Criminal Justice Act 1988 creates the first stage of a two-stage hearsay scheme. It makes a documentary statement admissible where its maker is unfit to attend trial through bodily or mental condition. It does not require the judge to determine whether the maker was competent when making the statement. The court approved the relevant approach in R v D [2002] 2 Cr App R 36.
3. At the separate section 26 stage, the judge must decide whether admission is in the interests of justice. A witness’s intelligibility, reliability and mental condition are highly material, but they are not technical threshold requirements. The section 53 formulation in the Youth Justice and Criminal Evidence Act 1999, concerning ability to understand questions and give understandable answers, was a reasonable but non-obligatory guide.
4. The complainant’s answers need not have demonstrated complete mutual understanding. The judge could assess her performance as a whole and identify a comprehensible thread in her account. Once her evidence was sufficiently intelligible on critical matters, reliability and cogency were matters for the jury.
5. The judge had fairly balanced the disadvantages caused by the absence of cross-examination against the jury’s ability to see the video, hear psychiatric evidence, assess supporting evidence, and receive careful directions. Section 78 of the Police and Criminal Evidence Act 1984 and Article 6 did not add a basis for exclusion. It was not normally material that the prosecution might have had other evidence capable of proving the case.
6. The directions properly identified the dangers in the video evidence. A direction that none of the complainant’s allegations could be relied upon would have usurped the jury’s function.
7. The second police interview did not breach the applicable PACE Code. Newly disclosed DNA evidence and the appellant’s volunteered account of consensual sex entitled the officers to explore a possible explanation. In any event, his subsequent answers were all “no comment”, and no unfair prejudice arose from admitting the interview.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction. It refused permission on the renewed proposed grounds concerning the jury direction, Article 6, and the second police interview.
• Wood Green Crown Court The appellant was convicted on 28 January 2003 of attempted rape. On 7 March 2003, Judge Lyons imposed an extended sentence of 14 years’ imprisonment.