Cole & Anor v R

Article 6 does not impose an absolute bar on hearsay from a witness whom the accused cannot cross-examine, even where it is sole or decisive evidence. The governing question is whether admitting it is compatible with a fair trial.

Under the Criminal Justice Act 2003, the court must assess the evidence in its context. Its probative value, reliability, the reason for the witness’s absence, alternative evidence, and the ability to challenge the statement are material. The fairness test under section 78 of the Police and Criminal Evidence Act 1978 will ordinarily lead to the same result.

An apparently inconsistent verdict warrants intervention only if it makes the guilty verdict unsafe. A jury may rationally reach different verdicts on separate counts.

Two appeals against conviction were heard together because each involved the Crown’s use of hearsay evidence under section 116 of the Criminal Justice Act 2003.

Keet was convicted at Winchester Crown Court of attempting to obtain property by deception and criminal damage. The statement of the elderly complainant, who had subsequently become unfit to testify, was critical to the deception count. He challenged its admission and contended that his conviction was inconsistent with acquittals on related counts.

Cole was convicted at Basildon Crown Court of three assaults occasioning actual bodily harm against his deceased girlfriend. The prosecution relied on evidence of her statements to relatives and friends, including some multiple hearsay. Its notice to rely on hearsay was served 17 months late. Cole challenged the extension of time, the admission of the evidence, and the refusal of submissions of no case to answer.

1. Both appeals against conviction were dismissed.

2. Article 6 requires a fair trial as a whole. It does not create an absolute rule excluding a statement merely because its maker cannot be cross-examined, including where the statement is sole or decisive evidence. The court rejected an over-broad reading of Luca v Italy (2003) EHRR 46. Once the absolute rule is rejected, the decisive question is whether admission is compatible with a fair trial.

3. The statutory safeguards were capable of securing fairness. The factors in section 114(2) of the Criminal Justice Act 2003 assist the assessment, particularly the evidence’s importance and reliability, its circumstances, the reason oral evidence cannot be given, and the practical ability to challenge it. The fairness inquiry under section 78 of the Police and Criminal Evidence Act 1978 was unlikely to produce a different result.

4. In Keet’s case, the complainant’s statement was critical and no alternative prosecution evidence could prove the relevant allegations. It was nevertheless coherent, reliably recorded, made when she was rational, and open to challenge by the defence. The admission was in the interests of justice and did not make the trial unfair. The conviction for criminal damage, based on independent evidence, also strongly supported the statement on the further-deception count. The acquittals on the earlier counts did not make that conviction unsafe.

5. In Cole’s case, the prosecution’s 17-month delay in serving hearsay notice was lamentable. The judge nevertheless properly extended time under the Criminal Procedure Rules 2005, because the defence had long had the statements, had suffered no prejudice, and there was a strong public interest in trying the alleged persistent abuse. The hearsay evidence formed a coherent picture and was mutually supported by direct and circumstantial evidence. The judge was entitled to conclude that Cole could give coherent evidence if he chose. Counts 2 and 3 were properly left to the jury.

• Court of Appeal (Criminal Division). The court dismissed the conviction appeals of both Keet and Cole.
• Crown Court at Winchester. Keet was convicted of attempting to obtain property by deception and criminal damage. His appeal concerned the deception conviction.
• Crown Court at Basildon. Cole was convicted of three counts of assault occasioning actual bodily harm.