Gibbons, R. v

Section 119 of the Criminal Justice Act 2003 principally applies where a witness maintains that a prior inconsistent statement is untrue. It permits the jury to rely on that statement, notwithstanding the witness’s refusal to adopt it at trial.

The safeguards against unfairness include section 125 and the duty to withdraw evidence where no reasonable jury properly directed could rely on it. Where there is evidence from which a properly directed jury could convict, its reliability remains a matter for the jury.

The appellant was convicted at the Crown Court at Wood Green of aggravated burglary, two robberies, and possessing a handgun with intent to cause fear or violence. The prosecution relied materially on evidence from Aiden Palmer and Lucy Watson, who had previously identified or implicated the appellant but were reluctant and equivocal at trial.

Palmer was properly declared hostile and cross-examined on his prior statement. The appellant appealed against conviction, contending that the introduction of section 119 of the Criminal Justice Act 2003 required greater caution in declaring a witness hostile and that neither witness’s evidence could safely be left to the jury.

1. Appeal dismissed. There was evidence from Palmer and Watson on which a reasonable jury, properly directed, could convict the appellant.
2. The court rejected the premise that section 119 of the Criminal Justice Act 2003 had been relied on at the trial. The trial judge had not relied on that provision when allowing the jury to hear Palmer’s evidence.
3. Section 119 principally addresses the position in which a witness maintains that a prior inconsistent statement is untrue. Its important effect is to permit the jury to treat the earlier statement as evidence of its contents despite that denial. The jury must assess all the circumstances and may conclude that the earlier statement was true, including where fear explains a witness’s retreat from it.
4. The appellant accepted that Palmer had properly been declared hostile and that his evidence could be heard. The remaining question was whether the trial judge was entitled to reject the submission that no reasonable jury properly directed could rely on it. The judge was entitled to do so. Palmer had affirmed that his signed statement contained no lies and that it recorded what was true when made, despite his asserted lack of memory at trial.
5. Watson’s subsequent uncertainty, after Palmer had told her that the appellant was not present, likewise created an issue for the jury rather than a basis for withdrawing the evidence. The jury could evaluate her earlier assertion that she recognised the appellant’s voice.
6. Section 125 and the obligation to prevent reliance on evidence which no reasonable jury properly directed could accept provided safeguards against any unfairness said to arise from section 119.

• Court of Appeal (Criminal Division) — by [2008] EWCA Crim 1574, dismissed the appeal against conviction.
• Crown Court at Wood Green — on 10 August 2007, convicted the appellant by a majority on aggravated burglary, two counts of robbery, and possessing a firearm or imitation firearm with intent to cause fear or violence.