Marsh, R. v

Under the Criminal Justice Act 2003, a trial judge may exclude a purported third-party confession, despite its apparent probative value, where the truth of the reported assertion cannot properly be evaluated. The principal concern is the reliability of the assertion itself, although the reliability of its reporter may also be relevant.

Where the maker of an alleged statement can be called, the court should ordinarily consider that course before admitting hearsay. The interests of justice are public interests in a correct verdict, not interests identical to those of the accused. A disclosure failure is assessed first by whether the material might assist the defence, but a conviction is quashed only if the omission renders it unsafe. A prohibited prosecution comment on a spouse's absence may cause unfairness, but its effect depends on the trial as a whole.

Marsh was convicted on 11 June 2007, after a trial lasting five or six weeks, of conspiracy to supply cocaine. The Crown case was that he assisted arrangements for the importation and onward sale of 50 kilograms of cocaine.

Marsh accepted participation in a substantial drug transaction but maintained that he believed the substance to be cannabis. He attributed his involvement and that belief to Rosier, a neighbour with a criminal history. His appeal raised three issues: the exclusion of Bennett's hearsay account of an alleged confession by Rosier; non-disclosure of a meeting between Rosier and a person later proved to deal in cocaine; and a prosecution comment on the failure of Marsh's wife to give evidence about alleged threats.

1. The appeal was dismissed. The conviction for conspiracy to supply cocaine was safe.

2. The trial judge was entitled to refuse hearsay evidence under section 114(1)(d) of the Criminal Justice Act 2003. Although, on the statutory assumption that Rosier's alleged statement was true, it would have had obvious probative value, there was enormous difficulty in evaluating whether Rosier had made it truthfully. The relevant hearsay difficulty was principally the accuracy of Rosier's assertion rather than Bennett's credibility as its reporter, though Bennett's reliability remained relevant.

   The Court would interfere with that discretionary decision only for error of principle or a conclusion outside the proper range of decisions. The refusal was within that range. Rosier had not been called, or even approached to establish his current position. The possibility that he might claim privilege against self-incrimination did not justify assuming that he would not give evidence. The Court also held that section 114(1)(d) does not displace section 116 of the Act. The absence of Bennett's evidence did not make the conviction unsafe, given the other evidence concerning Rosier and the warning that would have been required if the hearsay had been admitted.

3. The Crown ought to have disclosed the observation of Rosier meeting Carolan. The applicable disclosure question was whether the material might assist the defence, not whether its absence would make the conviction unsafe. But the meeting was equivocal and added little to material already available about Rosier. It did not bear on the decisive question whether Rosier had deceived Marsh about the nature of the drugs.

4. The prosecutor's comment on Mrs Marsh's failure to give evidence contravened section 80A of the Police and Criminal Evidence Act 1984. Such an unjustified comment can render a conviction unsafe. Here it did not: defence counsel answered it robustly, and any judicial correction would necessarily have drawn further attention to a point on which the jury could still assess the available evidence.

• Court of Appeal (Criminal Division): dismissed Marsh's appeal against conviction in [2008] EWCA Crim 1816.
• Trial court: Marsh was convicted on 11 June 2007 of conspiracy to supply cocaine.