Olumegbon, R v

The prosecution may call a witness who may prove hostile and may ordinarily wait to see whether the witness does so. The trial judge must balance the public interest in witnesses assisting the criminal process against the risk of unfair prejudice from material of limited probative value.

A voir dire to predict a witness's hostility is appropriate only in very exceptional circumstances. The jury should ordinarily see the witness's evidence and assess its reliability. Whether to permit cross-examination of a hostile witness is discretionary. The jury must decide what, if any, evidence it accepts, and must be directed that an earlier witness statement is not evidence unless adopted as true.

The appellant was convicted at Cambridge Crown Court of possessing cocaine and diamorphine with intent to supply, and of supplying class A drugs. He received concurrent sentences of eight years' imprisonment. He was acquitted on a further count of supplying diamorphine to Alex Hughes.

Hughes had first made no comment in police interviews, later made a statement implicating the appellant, and subsequently withdrew it. At trial the Recorder permitted the Crown to call Hughes without first holding a voir dire. Hughes proved hostile and was cross-examined on his earlier account.

The appeal challenged that course and the Recorder's directions concerning Hughes's evidence. The central issue was whether the handling of a potentially hostile witness rendered the convictions unsafe.

1. Appeal dismissed. The Recorder properly exercised his discretion in allowing the Crown to call Hughes and to determine in the jury's presence whether he would prove hostile.

2. The prosecution was entitled to call a witness with the potential to be hostile, even where the witness had previously given hostile evidence: Mann, 56 Cr App R 750. The judge had to balance the need for witnesses to assist the criminal process against the risk that the prejudicial effect of evidence or statements would substantially exceed their probative value, as explained in Honeyghon and Sayles.

3. The court followed the guidance in Khan, Dad and Afsar, [2002] EWCA Crim 945. A voir dire to determine in advance whether a witness will be hostile should be used only very exceptionally. Ordinarily, the jury needs to see the whole course of the witness's evidence if it is fairly to assess what reliance can be placed on it. The circumstances did not justify that exceptional course.

4. The Recorder had set out a careful procedure for the treatment of Hughes if he proved hostile. The jury directions left it to the jury to decide whether any part of Hughes's evidence could be accepted. They did not withdraw that evidence from its consideration. The court found no unfairness in the treatment of the witness or in the summing-up.

5. There was in any event overwhelming independent evidence of the appellant's guilt. No basis existed for regarding the convictions as unsafe.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed: [2004] EWCA Crim 2337.
• Leave to appeal: Leave was granted by the Full Court after refusal by a single judge.
• Cambridge Crown Court: The appellant was convicted of possession of class A drugs with intent to supply and of supplying class A drugs, and was sentenced to eight years' imprisonment concurrently. No citation was stated.