S, R. v

When deciding whether hearsay should be admitted in the interests of justice under Criminal Justice Act 2003, the judge must consider the statutory factors. Particular attention is required to the difficulty of challenging the statement and any resulting prejudice. A failure expressly to address those matters will not require exclusion where the appellate court can see that they decisively favoured admission. A concise hearsay document may properly distil admissible underlying material if it enables the jury to understand the case without unnecessary detail and the opposing party identifies no actual difficulty or prejudice.

The appellant faced trial for an alleged advance-fee fraud. The prosecution alleged that he dishonestly obtained money by representing that he could arrange substantial funding when the proposed transaction could not succeed.

He had previously been convicted of conspiracy involving an allegedly identical fraud. At a preparatory hearing, the Crown Court ruled that the conviction and its supporting circumstances were admissible as bad-character and similar-fact evidence. The prosecution then prepared a numbered document from the appellant’s earlier evidence and police interviews to present the relevant circumstances concisely.

His Honour Judge Robbins ruled that the document was admissible hearsay under section 114(1)(d) of the Criminal Justice Act 2003. The appellant sought leave to appeal that preliminary ruling, contending that he required the full material from the earlier trial before he could address the document.

1. Leave was granted, but the appeal was dismissed. The court held that the judge’s ruling admitting the prosecution’s document was correct.
2. Admission under section 114(1)(d) of the Criminal Justice Act 2003 required the judge to consider the matters in section 114(2). The judge had not expressly dealt with those matters. That was unfortunate, since consideration was mandatory, especially of the difficulty of challenging the statement and the prejudice that difficulty might cause.
3. On the facts, however, those matters admitted of only one answer. The appellant identified no particular assertion in the document that he could not challenge, and no actual prejudice arising from its use. His general wish to see all material from the earlier trial did not establish a difficulty with the proposed document.
4. The underlying evidence consisted of the appellant’s earlier testimony and police interviews. It was admissible and could have been put before the jury in full. The concise document avoided burdening the jury with unnecessary material, while leaving the appellant free to rely on any further part of the underlying evidence that assisted his defence.
5. It was therefore in the interests of justice to admit the document. The court also observed that the earlier conspiracy’s circumstances were capable of being similar-fact evidence and that the relevant bad-character gateways in Part 2 of the Criminal Justice Act 2003 were met.

• Court of Appeal (Criminal Division) — leave to appeal was granted, but the appeal against the preliminary hearsay ruling was dismissed.
• Crown Court — His Honour Judge Robbins ruled on 26 January 2007 that the prosecution’s document was admissible under section 114(1)(d) of the Criminal Justice Act 2003.