C & K, R. v

Satisfaction of the condition in section 116(2)(c) of the Criminal Justice Act 2003 is only the first stage in deciding whether hearsay from an overseas witness may be admitted. Reasonable practicability depends upon the steps taken, or not taken, by the party seeking the witness’s attendance. The court must then consider its discretionary powers under section 126 of the Criminal Justice Act 2003 and section 78 of the Police and Criminal Evidence Act 1984. Fairness may require further efforts to obtain the witness’s attendance, or a procedure enabling the evidence to be clarified and challenged. Where such steps remain available, a ruling admitting the statements is premature.

C and K, charged with M with conspiracy to defraud, appealed pre-trial rulings of the Crown Court at Southwark. The prosecution alleged that P, who lived in South Africa, was an important witness, particularly against K. Although P had previously indicated a willingness to attend or assist, he later refused both to travel to the United Kingdom and to give evidence by video-link.

The judge held that P’s written statements could be read under section 116(2)(c) of the Criminal Justice Act 2003. He also refused to exclude them under section 78 of the Police and Criminal Evidence Act 1984. The central issue was whether the prosecution had done enough to secure or facilitate P’s evidence, and whether admission could fairly be determined before further enquiries and alternative procedures had been explored.

1. Appeals allowed. Permission to appeal was granted where required. The rulings admitting P’s statements and refusing exclusion could not stand because they were premature.
2. For section 116(2)(c) of the Criminal Justice Act 2003, whether it is reasonably practicable to secure an overseas witness’s attendance depends upon the steps taken, or not taken, by the party seeking to call that witness. The Crown Court was therefore entitled to consider P’s refusal to attend. That condition was, however, only the first stage in determining admissibility.
3. The court was also required to consider whether to exercise the exclusionary powers in section 126 of the Criminal Justice Act 2003 and section 78 of the Police and Criminal Evidence Act 1984. Fairness depended in part on what reasonable efforts should be made either to secure attendance or to establish a process by which the statements could be clarified and challenged.
4. R v Radak & Ors [1999] 1 Cr.App.R 187 showed the relevance of evidence on commission, which could permit cross-examination, although it was distinguishable because the prosecution in that case knew from the outset that the witness might not attend voluntarily. In the present case, further enquiries into P’s abrupt refusal and refusal of video-link evidence were reasonably required. The parties could also explore an examination or interview in South Africa and, if appropriate, a controlled approach to P notwithstanding the bail condition.
5. The imminent November trial had explained the parties’ earlier lack of flexibility. Once that fixture had been vacated, further options were available. Their consideration was for the parties and the trial judge through case management; no final ruling on admissibility or exclusion should then be made.

• Court of Appeal (Criminal Division). Allowed C and K’s appeals under the Criminal Procedure and Investigations Act 1996 and held that the Crown Court’s rulings were premature.
• Crown Court at Southwark. On 7 November 2005, Judge McKinnon permitted the prosecution to read P’s evidence under section 116(2)(c) of the Criminal Justice Act 2003. On 8 November 2005, he refused to exclude it under section 78 of the Police and Criminal Evidence Act 1984.