Meredith, R (on the application of) v Harwich Justices

For a hearsay statement to be admitted under section 116 of the Criminal Justice Act 2003, the prosecution must prove to the criminal standard that the witness is unfit to give oral evidence because of a bodily or mental condition. A medical recommendation that written evidence would be preferable may point towards unfitness but does not, without more, prove it. The court must also consider independently whether admission is in the interests of justice and fair to the defendant, even where the defence has not objected.

The claimant sought judicial review of the Harwich Justices’ conviction of him for failing to stop after a road traffic accident. The prosecution relied on a witness statement admitted under sections 116 and 114 of the Criminal Justice Act 2003. The witness had reported anxiety and panic symptoms, and a doctor recommended written evidence but did not expressly state that she was unfit to attend court. The central issues were whether unfitness had been proved and whether admission was in the interests of justice.

1. The claim was allowed. The conviction for failing to stop after an accident was quashed. The conviction for careless driving remained.
2. Under section 116 of the Criminal Justice Act 2003, the prosecution had to establish to the criminal standard that the witness was unfit to give oral evidence because of her bodily or mental condition.
3. The doctor’s statement was insufficient. It recorded a history of depressive illness and panic attacks and recommended written evidence as being in the witness’s best interests. That did not prove unfitness.
4. The apparent absence of objection did not remove the court’s separate duty under section 114 to consider whether admission was in the interests of justice and fair to the defendant. The statement was important to the prosecution case and could not be tested by cross-examination.
5. The justices should have considered an adjournment and possible alternatives, including a video link, counselling or further medical information. Admission of the statement was therefore wrong in law.
6. The matter was remitted to the Magistrates’ Court to address penalty points for careless driving. The CPS could decide whether to pursue a retrial for failing to stop.

The judgment does not state a prior appellate decision. It concerned judicial review of the Harwich Justices’ decision dated 7 October 2005.