Scorah, R. v

Multiple hearsay offered under section 121 of the Criminal Justice Act 2003 is inadmissible unless its value, having regard to the apparent reliability of the statements, is so high that the interests of justice require admission. The general interests-of-justice gateway in section 114 does not displace that additional and more onerous requirement.

Where the original source is unknown, its reliability cannot be assessed and the evidence cannot properly be challenged, the section 121 threshold is not met. Wrongly admitting such evidence, then giving the jury no guidance on its untested and multiple-hearsay character, may render a conviction unsafe even where the remaining prosecution case is strong.

The appellant was convicted at Chester Crown Court of causing grievous bodily harm with intent and sentenced to eight years’ imprisonment. The prosecution case depended substantially on recognition evidence identifying him as one of four attackers. He denied involvement and relied on an alibi supported by his girlfriend.

At the third trial, the judge admitted evidence from a police officer of remarks recorded as having been made by the appellant’s mother the day after the assault. The remarks were said to undermine the alibi, but the mother was relaying information from an unknown source. The appellant appealed against conviction, principally challenging the admission and treatment of that evidence.

The central issue was whether the evidence was inadmissible multiple hearsay and, if so, whether its admission and the summing-up made the conviction unsafe.

1. Appeal allowed. The conviction was quashed because the erroneous admission of the hearsay evidence, compounded by the summing-up, rendered it unsafe.

2. The evidence recorded by the police officer was multiple hearsay. The appellant’s mother had relayed information from an unidentified source, and the prosecution had not established that the source was the appellant. Section 121 of the Criminal Justice Act 2003 therefore applied in addition to the general admissibility provisions in section 114.

3. The judge had considered factors relevant under section 114(2), but did not apply the more onerous test in section 121(1)(c). The unknown source meant that there was no proper basis for assessing the reliability of the original statement, nor any proper means of challenging it. The prosecution, which sought to rely on the evidence, could not answer that defect by saying that the defence could call the appellant’s mother. The only reasonable conclusion was that the evidence should have been excluded.

4. The judge then repeated the evidence in the summing-up, inaccurately omitting words indicating that the mother had merely heard the information. More importantly, he gave the jury no warning about its untested multiple-hearsay character. A strong direction might not have cured the error, but no direction was given.

5. The identification evidence and weaknesses in the alibi made the prosecution case strong. The remaining complaints about directions did not independently give rise to substantial concern. Nevertheless, the court could not exclude the possibility that the jury had treated the inadmissible evidence as decisive in rejecting the alibi and placing the appellant at the scene.

6. A retrial was ordered on a fresh indictment. The appellant was to be rearraigned within two months and remanded in custody pending retrial.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed the conviction and ordered a retrial: [2008] EWCA Crim 1786.
• Chester Crown Court: On 6 August 2007, convicted the appellant of causing grievous bodily harm with intent and sentenced him to eight years’ imprisonment.