Kamuhuza, R v

A professional report may be admitted as documentary hearsay under Criminal Justice Act 2003 section 117 where it was created in the course of a professional occupation by a person with personal knowledge, and the maker cannot reasonably be expected to remember the matters because of the elapsed time and circumstances. Failure to establish that reasonable steps were taken to find the maker under section 116 does not prevent admission through section 117. A failure to give the required hearsay notice may be cured where the accused knew of the issue and suffered no prejudice.

The appellant was convicted at Snaresbrook Crown Court of burglary of a dwelling. A fingerprint found on the inside of a bathroom window shortly after the burglary was matched to him several years later.

The prosecution could not locate the scenes of crime officer who had prepared the examination report. The Recorder admitted that report as hearsay. The appellant challenged the ruling, the absence of formal notice, the refusal to exclude the evidence, the summing-up, and the safety of the conviction.

1. Appeal dismissed. The conviction was safe. The appellant's fingerprint had been found on the inside of the burgled flat's bathroom window shortly after the offence. The jury were entitled to reject as wholly incredible his explanation that it might have been left during an earlier visit.
2. The prosecution ought to have given notice under the Criminal Procedure Rules. However, the Recorder could exercise the discretion under rule 34(7). The appellant had known since December 2006 that the prosecution sought to read the unavailable officer's evidence, and the delay caused no conceivable prejudice.
3. The condition in Criminal Justice Act 2003 section 116(2)(d) was not established. The police efforts to find the former scenes of crime officer were inadequate and could not be described as reasonably practicable.
4. That failure did not matter because the report was admissible under section 117. It was made in the course of the officer's professional occupation, and he had personal knowledge of the matters recorded. Given the long lapse of time and the ordinary nature of the work, the Recorder was entitled to conclude under section 117(5)(b) that the officer could not reasonably be expected to remember such details as the direction in which the window opened or whether other marks had been found.
5. It was unnecessary to determine admissibility under section 114(1)(d). Nor was exclusion under section 78 required. The appellant had not sought an adjournment to investigate the suggested matters by other means, and the Recorder dealt fairly with the difficulties caused by the age of the allegation and gave appropriate warnings in the summing-up.

• Court of Appeal (Criminal Division) In [2008] EWCA Crim 3060, dismissed the appeal against conviction.
• Snaresbrook Crown Court On 4 July 2007, convicted the appellant of burglary of a dwelling.