Diane, R v

In a criminal trial in England and Wales, an overseas witness cannot give evidence by telephone unless Parliament has provided that power. The scheme in the Crime (International Co-operation) Act 2003 permitted telephone and television links for witnesses in the United Kingdom giving evidence overseas, but did not permit telephone evidence from a witness abroad for a domestic trial. That omission, read with the common law requirement of personal testimony and the statutory exceptions for hearsay and video evidence, excluded such a power. A conviction is unsafe where unlawfully admitted telephone evidence provided a material and hard contradiction of the accused’s account, so that its effect on the jury’s verdict cannot safely be discounted.

The appellant was convicted at the Crown Court at Croydon of conspiracy to import cocaine and was sentenced to 12 years’ imprisonment. His case was that he did not know that bottles in his luggage contained cocaine.

The Crown called a Belgian travel agent, Jenny Nagels, by telephone from Belgium. Her evidence was capable of contradicting the appellant’s account of the purchase of his ticket and his possession of his passport. The arrangements followed a supplementary letter of request which incorrectly stated that evidence could be heard in an English court by video or telephone link.

Leave was granted on the sole issue whether the trial judge had power to admit the telephone evidence and, if so, whether its admission was proper in the circumstances.

1. Appeal allowed. The court quashed the conviction and ordered a retrial. The trial judge had no power to receive the Belgian witness’s evidence by telephone.
2. Articles 10 and 11 of the Mutual Assistance Convention distinguished video evidence from telephone evidence, with telephone evidence being available only where the requesting state’s national law so provided. Parliament’s implementation in the Crime (International Co-operation) Act 2003, particularly sections 30 and 31, allowed witnesses in the United Kingdom to give evidence for use abroad by telephone or television link. It did not authorise a witness abroad to give telephone evidence in an English criminal trial. That deliberate contrast, the common law tradition of personal testimony, the hearsay provisions in the Criminal Justice Act 2003, and the statutory provisions for video links led inexorably to the conclusion that telephone evidence was not permitted.
3. The Crown’s supplementary request had wrongly represented the position in English law to the Belgian judge. The error was not corrected when it became apparent, and the material communications were not disclosed to the trial judge. The court stated that, even if a power had existed, it would have been wrong to exercise it without the true position being disclosed.
4. The evidence was material to safety. It supplied hard evidence capable of showing that the appellant had lied about retaining his passport and attending the travel agency. The court could not safely speculate that the evidence would instead have been admitted in statement form, or that the trial judge would have adjourned the trial. Although there was otherwise a strong case, the court could not conclude that the conviction was safe.
5. The appellant was to be arraigned for retrial by 17 August 2009. The judge hearing the arraignment was to consider bail, and reporting was restricted until after the retrial.

• Court of Appeal (Criminal Division): In [2009] EWCA Crim 1494, the court granted leave, allowed the appeal, quashed the conviction and ordered a retrial.
• Crown Court at Croydon: The appellant was convicted by a jury of conspiracy relating to the importation of cocaine and sentenced to 12 years’ imprisonment.