Xhabri, R v

A complainant’s prior statement may be admitted under section 120(7) of the Criminal Justice Act 2003 where it is a complaint of conduct constituting the alleged offence, made as soon as reasonably expected, without threat or promise, and the complainant gives oral evidence on its subject matter. A complaint made while the alleged conduct continues may satisfy the timing requirement.

Relevant hearsay may alternatively be admitted under section 114(1)(d) where this is in the interests of justice. Double hearsay may be admitted where the earlier statement is admissible and the evidence is of sufficiently high value and apparent reliability. Article 6(3)(d) does not confer an absolute right to cross-examine every person who relays evidence; the controlling question is trial fairness.

The appellant was convicted at Snaresbrook Crown Court of false imprisonment, two rapes, threats to kill, and controlling prostitution for gain. The prosecution case was that the 17-year-old complainant had acted under duress. The defence contended that the sexual relationship and prostitution were consensual.

Before trial, the judge admitted evidence from the complainant’s parents and a friend about complaints she had made while allegedly being controlled. The judge also admitted a police officer’s account of information given by two unidentified persons, which relayed what the complainant had said. The appellant challenged those rulings under sections 114, 120, 121 and 126 of the Criminal Justice Act 2003, and contended that the statutory regime or its application breached Article 6 of the Convention.

1. Appeal dismissed. The prior statements received by the complainant’s parents and Olga were admissible under section 120(7) of the Criminal Justice Act 2003. Although the trial judge had wrongly considered sections 120(5) and (6) applicable, the six requirements in section 120(7) were satisfied, or likely to be satisfied. The complainant claimed to be the victim of offences charged; her complaints concerned the alleged offending; and they were made while the alleged conduct was continuing. She was expected to give oral evidence before the prior statements were adduced.

2. The same evidence was independently admissible under section 114(1)(d). It was plainly in the interests of justice for the jury to hear evidence from those to whom the complainant had made the statements. If the defence denied that she had made them, the recipients’ evidence was directly relevant. If it alleged that she had lied, its admission could not unfairly prejudice the appellant. There was no basis for exclusion under section 126.

3. The father’s evidence that two men had sought the complainant’s whereabouts was evidence of fact. Their assertion that she had disappeared was hearsay, but was properly admitted under section 114.

4. The police officer’s evidence was double hearsay. The complainant’s earlier statement was admissible under section 120(4), so section 121(1)(a) was met. Section 121(1)(c) was also met because the evidence had very high value and appeared reliable when read with the complainant’s and her mother’s evidence.

5. Section 114 was compatible with Article 6 because section 126 permitted, and the Human Rights Act 1998 required, exclusion where admission would make the trial unfair. Article 6(3)(d) did not give the appellant an absolute right to examine every intermediary witness. Almost all of the hearsay derived from the complainant, who was available for cross-examination; the trial was therefore fair.

• Court of Appeal (Criminal Division): The appeal against convictions entered at Snaresbrook Crown Court was dismissed.
• Snaresbrook Crown Court: Following a 12-day trial, the appellant was convicted of false imprisonment, two counts of rape, threats to kill, and controlling prostitution for gain. His application for permission to appeal against conviction was referred to the full court.