Hayes, R. v

An authorised solicitor’s pre-trial letter offering a plea to a lesser offence may be used in cross-examination as a previous inconsistent statement relevant to the defendant’s credibility. Its origin in plea negotiations does not itself make admission unfair. Under section 78 of PACE, fairness depends on all the circumstances; mere forensic disadvantage is insufficient.

On a fresh-evidence appeal, the court must apply the four matters in section 23(2) of the Criminal Appeal Act 1968. A defendant who deliberately and informatively decides not to call an available and willing witness will ordinarily lack a reasonable explanation for that failure.

The appellant was convicted at the Crown Court at Salisbury, before Judge Pryor QC and by a majority of 10 to 2, of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861. He was sentenced to two years’ imprisonment.

He appealed against conviction on a certificate of the trial judge. The principal ground challenged the admission in cross-examination of a letter from his solicitors offering a guilty plea to assault occasioning actual bodily harm. He also sought leave to rely on fresh evidence from Stephanie McPhie, a witness who had been available and willing to give evidence at trial but was not called.

The central issues were whether the cross-examination was unfair and whether the proposed evidence should be received on appeal.

1. The appeal against conviction was dismissed. Leave to advance the fresh-evidence ground was refused.
2. The solicitors acted as the appellant’s agents and had ostensible authority to write the plea-offer letter. The letter was capable of showing an inconsistency between the appellant’s trial evidence and his earlier position. It was therefore relevant to credibility and admissible in principle.
3. The trial judge correctly declined to exclude the cross-examination under section 78 of PACE. The letter was consistent with the appellant’s police interview, in which he admitted causing a limited injury by kicking the victim’s leg area. It was not unfair to use it after he withdrew from that account at trial. The letter itself was not adduced in evidence, and the jury received a clear direction on its limited relevance. In any event, the cross-examination was of marginal importance because the interview already revealed the same inconsistency.
4. Under section 23(2) of the Criminal Appeal Act 1968, the proposed evidence was admissible, but its credibility and capacity to afford a ground for allowing the appeal were doubtful. The witness had made conflicting accounts and did not describe the critical later part of the alleged assault.
5. The decisive obstacle was the absence of a reasonable explanation for not calling the witness at trial. She was present, able and willing to give evidence, but the appellant had made a recorded decision not to call her. Applying the guidance in R v Hampton and Brown [2004] EWCA Crim 2139, a deliberate and informed decision not to call an available witness should not ordinarily found an appeal based on that witness’s fresh evidence. No waiver of privilege or evidence from trial counsel explained the decision.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction and refused leave to pursue the fresh-evidence ground.
• Crown Court at Salisbury — on 25 March 2004 convicted the appellant of wounding with intent contrary to section 18 of the Offences Against the Person Act 1861; on 17 May 2004 sentenced him to two years’ imprisonment.