Walker, R. v

For hearsay to be admitted in the interests of justice under section 114 of the Criminal Justice Act 2003, the court must assess each hearsay statement separately. The judge must address the statutory reliability factors. The question is whether a reasonable jury could properly find the relevant evidence reliable, rather than whether the judge personally accepts it.

Multiple hearsay under section 121 faces a higher threshold. Its evidential value must be sufficiently high and the statements must appear reliable. A common enterprise cannot be proved by the statement of an alleged participant alone.

The appellant was convicted of murder at Birmingham Crown Court before Mackay J and a jury. The prosecution relied, among other evidence, on Josiah Bogle’s account that a co-defendant had handed him a bag containing the murder weapon and stolen necklace, saying that the appellant had supplied it for safekeeping.

The trial judge admitted that account against the appellant. The appeal challenged the ruling on the basis that it contained hearsay, including an earlier alleged statement by the appellant to the co-defendant. The central issue was whether the statutory conditions for admitting that hearsay, and the further condition for multiple hearsay, had been met.

1. Appeal dismissed. The conviction was safe.

2. The evidence involved hearsay at two stages: the co-defendant’s statement to Bogle, and the appellant’s alleged earlier statement to the co-defendant. The trial judge should have applied section 114 of the Criminal Justice Act 2003 separately to both statements. Although the judge had not performed the complete statutory exercise, the Court of Appeal could do so. It would dismiss only if the judge would necessarily have reached the conclusion adverse to the appellant.

3. Under section 114(2), the judge was not required to decide personally whether Bogle was truthful. The correct inquiry was whether a reasonable jury could properly rely on his evidence in deciding guilt. In considering reliability, the reliability of the evidence that a statement was made was more important than the reliability of its maker alone. It permitted consideration of the surrounding evidence as well as the witness’s credibility.

4. On the evidence, the statutory interests-of-justice gateway was satisfied. Bogle’s account of receiving the bag containing the gun and necklace had substantial probative force. It was supported by evidence of the appellant’s presence shortly after the murder and his subsequent meeting with the co-defendant. The appellant could also have denied giving the bag to the co-defendant in oral evidence.

5. Section 121 imposed a higher threshold for the earlier hearsay statement. Its value had to be sufficiently high, taking account of the apparent reliability of both statements. Had the judge addressed those questions, he would have admitted the evidence. In any event, the admissible evidence that the co-defendant received the bag from the appellant was powerful evidence and rendered the conviction safe.

6. The Court’s view on section 118(7) was tentative and unnecessary to the result. An alleged common enterprise to dispose of the weapon could not be established by the co-defendant’s statement to Bogle. There was otherwise insufficient evidence of that enterprise, so that route to admissibility was not satisfied.

• Court of Appeal (Criminal Division): dismissed the appellant’s appeal against conviction.

• Crown Court at Birmingham: the appellant was convicted of murder before Mackay J and a jury on 15 February 2006.