Crown Prosecution Service Durham v CE

Where the prosecution case depends solely, or decisively, on an out-of-court statement which the accused cannot test by cross-examination, its admission may breach the accused’s minimum fair-trial right under article 6. The rule is not absolute where the accused has himself caused the witness’s absence, but that qualification does not apply without relevant inducement by the accused.

Leave to admit hearsay under section 116(4) of the Criminal Justice Act 2003 requires a fact-sensitive assessment of the interests of justice and unfairness. An appellate court will not reverse that evaluative decision where the judge applied the correct principles and reached a reasonable conclusion.

The respondent faced two rape counts. The prosecution accepted that it could not proceed on count 2. Its case on count 1 depended solely, or at least decisively, on a video-recorded interview with the complainant.

The complainant was medically unfit to testify and would not attend through fear. The Crown Court at Newcastle upon Tyne refused the prosecution’s application to admit the interview as hearsay under section 116 of the Criminal Justice Act 2003. The judge treated its admission, without cross-examination, as unfair and incompatible with article 6.

The prosecution appealed the terminating ruling. The central issue was whether the judge had erred in law or unreasonably exercised the discretion to exclude the untested video evidence.

Decision

1. The court dismissed the prosecution’s appeal. It confirmed the terminating ruling and directed acquittals on both counts.

2. Article 6(3) protects the accused’s minimum right to examine prosecution witnesses. The principle articulated in Luca v Italy (2003) 36 EHRR 46 is not absolute. As R v Sellick [2005] EWCA Crim 651 shows, an accused cannot rely on that right where he has himself caused the witness to stay away through fear. That qualification did not arise here, because the complainant’s fear had not been intentionally induced by the respondent.

3. The interview was the sole or decisive evidence on consent. It raised serious issues about chronology, memory, the complainant’s mental health and alcoholism, and the circumstances said to have made the relationship non-consensual. Those matters required forensic testing. The respondent could not obtain a real explanation of them without cross-examination. Admission would therefore breach article 6(3) and section 6 of the Human Rights Act 1998.

4. Although the conditions in section 116(2) were met, leave under section 116(4) required an interests-of-justice assessment, including the risk of unfairness. The trial judge had directed himself correctly and reasonably concluded that admission would be unfair. The suggested safeguards, including credibility evidence, a possible later termination of the case and jury directions, did not displace that conclusion.

5. Under section 67 of the Criminal Justice Act 2003, the appellate court could not reverse a properly directed discretionary ruling merely because it might have taken another view. The ruling was neither legally erroneous nor unreasonable. Under section 61(3), acquittal on count 1 followed; at the parties’ request, the court also directed a not guilty verdict on count 2.

• Court of Appeal (Criminal Division): dismissed the prosecution appeal in [2006] EWCA Crim 1410, confirmed the terminating ruling, and directed acquittals on both counts.

• Crown Court at Newcastle upon Tyne: on 26 April 2006, His Honour Judge Wood refused the prosecution’s application to admit the complainant’s video-recorded interview as hearsay and made a terminating ruling.