Bennett & Anor, R. v

An admissible previous inconsistent statement may be used as substantive evidence. Its admission will not be unfair merely because the witness claims no memory, has credibility difficulties, and the statement is important, where the defence can challenge the account and other evidence is capable of supporting it.

Criminal Justice Act 2003, section 125(1), does not impose a higher threshold than the Galbraith no-case test. It is an additional mandatory safeguard requiring withdrawal of the case where the statement evidence is so unconvincing, in light of its importance, that a conviction would be unsafe. Otherwise, reliability is ordinarily a matter for a properly directed jury.

The appellants were convicted at Maidstone Crown Court on 23 April 2007 of two counts of wounding with intent and four counts of attempting to inflict grievous bodily harm. The prosecution alleged that Turner drove a car deliberately into a group of pedestrians and that Bennett was a passenger who participated in the offending.

The principal evidence identifying their roles was Darren Jodka’s police interviews. At trial Jodka said that he could not remember the events. The Recorder admitted the interviews as previous inconsistent statements under Criminal Justice Act 2003, section 119, declined to exclude them under section 78 of the Police and Criminal Evidence Act, and rejected submissions of no case to answer.

The appeals challenged those rulings and Bennett also challenged the sufficiency of the evidence of his participation.

1. The court dismissed both appeals. The Recorder was entitled to admit Jodka’s interviews and to leave the case to the jury.

2. The section 78 challenge failed. Although Jodka asserted a lack of memory and his credibility could be attacked, both appellants could cross-examine him about the account and put their own case. The account was not isolated: Bennett had access to the car, CCTV and police evidence placed Jodka in it, and independent witnesses described occupants changing seats before the car mounted the pavement. The jury also heard the interview recordings rather than merely reading transcripts. Those matters entitled the Recorder to conclude that admission did not adversely affect trial fairness.

3. Section 125(1) of the Criminal Justice Act 2003 did not require a different result. Following the approach in Joyce and Joyce [2005] EWCA Crim 1785, the provision is not a more demanding version of the Galbraith test. It is an additional safeguard requiring acquittal where non-oral statement evidence is so unconvincing, considering its importance, that conviction would be unsafe. The interviews were capable of evaluation alongside the supporting evidence, so the statutory threshold was not met.

4. The jury had been properly warned and were entitled to accept the interviews. They could therefore be sure that both appellants were in the car in the roles described.

5. As to Bennett, the interview account permitted the inference that, when he moved to the front passenger seat and Turner resumed driving, he knew Turner intended to drive at the pedestrians or appreciated the real risk that he would do so. The jury’s finding that Bennett participated in a joint enterprise was therefore open to them.

• Court of Appeal (Criminal Division) Dismissed the appellants’ challenges to the admission of the interview evidence, the refusal of no-case submissions, and Bennett’s challenge to the sufficiency of the evidence of participation.
• Crown Court at Maidstone Convicted both appellants on 23 April 2007 of two counts of wounding with intent and four counts of attempting to inflict grievous bodily harm. Bennett received four years’ imprisonment; Turner received imprisonment for public protection with a 30-month minimum term.