Santharatnam, R. v

A disputed written statement from an absent essential witness should be admitted under sections 23 and 26 of the Criminal Justice Act 1988 only in truly exceptional circumstances. A criminal trial ordinarily requires the witness to give the disputed account orally so that it can be tested by cross-examination.

Where later material creates real doubt about the factual basis on which the statement was admitted, the conviction may be unsafe even though the trial judge was entitled to make the ruling on the material then available. Apparent corroboration and the internal persuasiveness of the statement do not cure an insecure foundation for dispensing with oral evidence.

Six appellants challenged convictions arising from the killing of Bala. Four had been convicted of murder; two had been convicted of conspiracy to assault. Three of those convicted of murder had also been convicted of perverting the course of justice.

The prosecution case depended critically on Selva, who had pleaded guilty to conspiracy to assault and provided a statement implicating the appellants. Selva disappeared before trial. The trial judge admitted his statement under sections 23 and 26 of the Criminal Justice Act 1988, finding that reasonable steps had been taken to find him and that he had been kept away by or for one or more defendants.

After the convictions, further information concerning Selva’s disappearance and his solicitor’s dishonesty raised the central question whether the factual foundation for admitting the statement, and therefore the safety of the convictions, remained secure.

1. Appeals allowed. The court quashed all convictions as unsafe and ordered retrials.

2. The trial judge had directed himself correctly under sections 23 and 26 of the Criminal Justice Act 1988. On the evidence then available, he had been entitled to find both that reasonable steps had been taken to find Selva and that he had been kept away by or on behalf of one or more defendants.

3. However, subsequent material made that factual foundation insecure. Selva’s later explanations for his absence were unsatisfactory. His solicitor’s proven dishonesty, together with other matters concerning Selva’s disappearance, created a real possibility that the absence had another explanation. The court could no longer regard the basis for the admission ruling as reliable.

4. The prosecution’s submission that Selva’s statement was internally convincing and corroborated could not preserve the convictions. The primary function of a trial is to obtain the best evidence. A disputed account will almost always require oral evidence capable of cross-examination. Following R v M(KJ) [2003] 2 Cr App R 322 and R v Sellick and Sellick [2005] EWCA Crim 651, admission of an essential absent witness’s statement is appropriate only in truly exceptional circumstances, where the court can be satisfied that the relevant problem was caused by the defendants or persons acting for them.

5. Under section 7 of the Criminal Appeal Act 1968, the interests of justice required a retrial of all six appellants. This included the two appellants convicted only of conspiracy to assault, notwithstanding that they had served their sentences, because they formed part of the overall account to be tried. A fresh indictment was directed and the defendants were to be re-arraigned within two months.

• Court of Appeal (Criminal Division) — Allowed the appeals, quashed all convictions, and ordered retrials: [2007] EWCA Crim 2687.

• Trial before His Honour Judge Morris QC and a jury — Four appellants were convicted of murder and two of conspiracy to assault. Selva’s written statement was admitted after he disappeared before giving evidence.