Sellick & Anor, R v

The admission of an unavailable witness’s statement under sections 23 and 26 of the Criminal Justice Act 1988 does not automatically infringe Article 6 where the accused had no opportunity to cross-examine the witness. Fairness depends on the circumstances as a whole, including why oral evidence is unavailable, the quality and importance of the statement, measures enabling its reliability to be challenged, and clear jury directions.

There is no absolute rule excluding sole or decisive evidence where intimidation has kept a witness away. The more decisive the statement, the greater the scrutiny required. Where the accused, or persons acting with their authority, caused the fear, the accused cannot rely on the resulting inability to examine that witness under Article 6(3)(d), although the trial must remain fair under Article 6(1).

The appellants were convicted of murder after a sixteen-day trial at Birmingham Crown Court before Butterfield J. The prosecution was permitted to read four witness statements under sections 23 and 26 of the Criminal Justice Act 1988. Two witnesses had been kept away through fear; two could not be found despite reasonable steps to trace them.

The appellants contended that admission of the statements breached their right to a fair trial under Article 6 of the European Convention on Human Rights because they had no opportunity to examine the witnesses. They submitted, alternatively, that the statements were sole or decisive evidence. The central issue was whether the statutory discretion could lawfully be exercised consistently with Article 6 in those circumstances.

1. Appeal dismissed. The convictions were safe. Butterfield J properly admitted the four statements under sections 23 and 26 of the Criminal Justice Act 1988, and no infringement of Article 6 occurred.

2. Article 6 does not impose an absolute prohibition on admitting a deposition where the accused has had no opportunity to question its maker. The question is whether the proceedings as a whole were fair. The court adopted the general Strasbourg principles that the reason for admitting the statement, the quality and reliability of its contents, safeguards counterbalancing the defence disadvantage, and the caution with which the evidence is used are all relevant.

3. The reference in Luca v Italy (2003) 36 EHRR 46 to convictions based solely or decisively on unexamined depositions did not create an invariable rule for an identified witness kept away by fear. Such a rule would reward successful intimidation. Where the court is sure that the accused, or persons acting on the accused’s behalf, caused the witness’s fear, the accused is the author of the lost opportunity to examine the witness. Article 6(3)(d) cannot then found a complaint about that loss, subject always to the overall fairness required by Article 6(1).

4. The statutory interests-of-justice assessment requires close scrutiny. The court must examine whether fear is genuine, whether it was generated by the accused or authorised persons, whether reasonable steps were taken to find and protect the witness, the importance and reliability of the statement, the availability of the credibility safeguards in section 28 and Schedule 2, and the need for firm jury warnings. The more decisive the evidence, the greater the required care.

5. Here, Carla and Carina were kept away by fear attributable to the appellants or those acting for them. Lee and Donna could not reasonably be found; the circumstances surrounding Lee’s disappearance, though not proved to arise solely from fear, remained relevant. The read statements were not the sole evidence. They were supported by other circumstantial evidence and by Tammy’s oral evidence. The defence could attack credibility under Schedule 2, and the jury received a strong warning about the inability to see or cross-examine the absent witnesses. There was no need to tell the jury that fear had caused a witness’s absence.

1. Court of Appeal (Criminal Division): The appellants’ appeal against conviction was dismissed.

2. Crown Court at Birmingham: Butterfield J and a jury convicted both appellants of murder on 16 December 2002 and imposed life sentences.