Adams, R. v

For the unavailable-witness gateway in section 116(2)(d), Criminal Justice Act 2003, reasonable practicable steps require timely and active contact. A last-working-day voicemail, followed by no meaningful attempt to contact a witness at home or work, is insufficient.

A hearsay statement which fails that gateway may nevertheless be admitted under section 114(1)(d) if admission is in the interests of justice. The court must identify the real issues. An edited statement may fairly prove an uncontentious fact, while disputed evidence requiring cross-examination may not be suitable for that course.

The appellant was convicted of possessing ecstasy and ketamine with intent to supply. At trial, a security guard who had taken possession of the drugs did not attend. The Recorder admitted an edited version of his witness statement after finding that the witness could not be found despite reasonably practicable steps.

The appellant appealed against conviction. He contended that the statutory conditions for admitting the statement had not been met and that, without it, possession could not be proved. The central questions were whether the section 116(2)(d) gateway in the Criminal Justice Act 2003 was satisfied and, if it was not, whether the statement was admissible in the interests of justice under section 114(1)(d).

1. Appeal dismissed. The Recorder was wrong to admit the statement under section 116(2)(d) of the Criminal Justice Act 2003. Although the witness could not be found on the morning of trial, the Crown had not taken reasonably practicable steps to find him. Contact had been left until the last working day, only a voicemail was left, and no adequate attempt was made to contact him at his address or workplace.

2. The court accepted that available resources may bear on what steps are reasonably practicable, consistently with R v Coughlan [1999] EWCA Crim. 553. That consideration did not assist the Crown. The further steps required here were modest and should have been taken earlier.

3. The section 116 gateway did not determine the appeal. Once a section 116 condition is met, admissibility is subject to the statutory exclusionary safeguards, rather than to the factors in section 114(2). But the Recorder's examination of the actual issues properly established that the edited statement was admissible under section 114(1)(d) in the interests of justice.

4. Possession was not genuinely disputed. The defendant's position, confirmed at trial, was that he possessed the drugs but gave an innocent explanation. The real issue was intent to supply. The editing removed contentious material, and admitting the statement to prove the uncontentious fact of possession did not reverse the burden of proof. The Crown remained required to prove every essential element. Accordingly, the conviction was not arguably unsafe.

• Court of Appeal (Criminal Division) — appeal against conviction dismissed in [2007] EWCA Crim 3025.
• Recorder — admitted an edited absent-witness statement and the appellant was convicted; no citation is stated in the judgment.