DT, R. v

Hearsay under section 116(2)(d) of the Criminal Justice Act 2003 is admissible only where the prosecution proves that all steps reasonably practicable to find the absent witness have been taken. The application must be determined on agreed facts or evidence. Informal assertions by counsel do not provide a proper basis for the necessary findings.

The right to confront witnesses is a longstanding common-law right reflected in Article 6(3)(d). It must not be displaced lightly. A reluctant witness should be given support, reminded of the duty to give evidence, and traced through reasonable enquiries before hearsay is admitted on the ground that the witness cannot be found.

The appellant was convicted at Portsmouth Crown Court of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861, and sentenced to five years’ imprisonment.

The prosecution alleged that he compelled MC to pour boiling water over himself. A statement by SD recorded an alleged admission by the appellant. SD did not attend trial. The prosecution obtained admission of her statement under section 116(2)(d) of the Criminal Justice Act 2003 on the basis that she could not be found after reasonably practicable steps had been taken.

The central issue was whether the statutory condition had been established when the asserted tracing steps were presented informally by counsel, without agreed facts or evidence.

1. Appeal allowed. The conviction was quashed because SD’s statement was wrongly admitted and, as was accepted, the conviction could not then be regarded as safe.

2. Section 116(2)(d) of the Criminal Justice Act 2003 requires proof that reasonably practicable steps have been taken to find the witness. Where the facts are not agreed in writing, the application cannot properly be determined without evidence of the steps taken. The judge must make findings of fact on that evidence.

3. The trial judge had only counsel’s informal account of a late attempt to serve a witness summons, an address enquiry and an unanswered telephone call. There was no evidence of earlier contact through Witness Care, support or explanation of the witness’s duty, enquiries of the witness’s mother or social security, telephone-tracing steps, or the cost and practicability of further measures. The judge made no findings of fact.

4. The right to confront a witness is longstanding at common law and is reflected in Article 6(3)(d). Following the approach in Horncastle [2009] EWCA Crim 964, all possible efforts should be made to secure attendance. The same principle applies to a reluctant and absent witness as to a witness kept from court by fear. The statutory hearsay code must be observed carefully.

5. The court ordered a retrial on the single count. It directed that the appellant be arraigned within a month and made consequential representation and reporting orders.

• Court of Appeal (Criminal Division) Allowed the appeal, quashed the conviction and ordered a retrial: [2009] EWCA Crim 1213.
• Crown Court at Portsmouth Convicted the appellant in March 2008 of causing grievous bodily harm with intent and imposed five years’ imprisonment.