Sak v Crown Prosecution Service

The interests-of-justice discretion to admit hearsay evidence under section 114 of the Criminal Justice Act 2003 is not confined to exceptional cases or merely a safety-valve function. The court must exercise judgment after considering the statutory factors and any other relevant circumstances. It need not reach a separate conclusion on every factor. The discretion must nevertheless be exercised carefully, with particular attention to the importance of the evidence and the prejudice caused by the loss of cross-examination. A failed application to adjourn because a witness is unavailable does not prevent a subsequent application under section 114.

The claimant appealed by way of case stated against his conviction by North Somerset Magistrates for driving whilst unfit through drink or drugs. The prosecution witness, a doctor, could not attend because he was unable to arrange locum cover. The magistrates refused an adjournment but admitted the doctor’s statement under section 114 of the Criminal Justice Act 2003. The central issue was whether that decision was lawfully open to them, particularly given the claimant’s inability to cross-examine the witness and the decision in McEwan v DPP [2007] EWHC 740 (Admin).

1. The appeal was dismissed. The magistrates were correct to admit the doctor’s statement and the question stated for the court was answered affirmatively.
2. Section 114 creates a freestanding discretion. It is not restricted to exceptional cases and should not be given a general gloss by describing it as a safety valve. The court must read section 114 in the context of the statutory scheme, although the discretion must not be applied lightly.
3. The approach in R v Taylor [2006] EWCA Crim 260 was applied. The court must consider the statutory factors and any other relevant factors, assess their significance and weight, and then decide whether admission is in the interests of justice. It need not make a separate finding on every factor.
4. The magistrates had properly considered probative value, reliability, the importance of the evidence, the absence of cross-examination and possible prejudice. The prejudice could be addressed through the claimant’s own evidence, cross-examination of the police officers and submissions about the untested evidence.
5. The case was not a failed section 116 application designed to circumvent the statutory conditions. The witness’s unavailability arose at the last moment, without earlier fault by the prosecution, and the application under section 114 had been properly notified.
6. The observations in McEwan v DPP [2007] EWHC 740 (Admin) concerning the exceptional use of the discretion were confined to that case, which involved repeated prosecution failures. They were not of general application.

• North Somerset Magistrates: refused an adjournment, admitted the doctor’s statement under section 114 of the Criminal Justice Act 2003, and convicted the claimant.
• High Court (Administrative Court): dismissed the appeal by way of case stated and affirmed the magistrates’ decision.