Billingham, R. v

Under section 119 of the Criminal Justice Act 2003, a witness’s previous inconsistent statement is evidence of the matters stated, provided that the statutory conditions are met. The jury must assess its truth and weight alongside the witness’s testimony.

A direction that an earlier statement is just as much evidence as testimony may mislead by suggesting equal weight. A summing-up remains adequate where it fairly identifies the inconsistencies, explains that the jury must assess reliability with care, and makes clear that the jury may decide which account is true. Where the jury are sure that the incriminating account is true, an omission to state expressly that the earlier inconsistent account is evidence will ordinarily be inconsequential.

The appellants were convicted at a retrial in Birmingham Crown Court of the murder of Michael Cutler and were each sentenced to life imprisonment with a minimum term of 17 years, less time on remand.

The prosecution principally relied on Iain Walden, who had pleaded guilty to the murder, and Theresa Blanchard. Both had previously given accounts inconsistent with their trial evidence and, in material respects, favourable to one or both appellants. The appeals challenged the judge’s directions and summing-up concerning those earlier accounts.

The central issue was whether the judge’s treatment of previous inconsistent statements under section 119 of the Criminal Justice Act 2003 rendered the convictions unsafe.

1. Appeals dismissed. The convictions were safe. The summing-up, considered as a whole, adequately directed the jury on the witnesses’ inconsistencies and the need to assess their evidence with care.

2. Section 119(1) of the Criminal Justice Act 2003 reversed the former rule under which an unadopted previous inconsistent statement was relevant only to credibility. Subject to the statutory conditions, such a statement is admissible as evidence of the matters stated.

3. The court held that a jury should not be told simply that an earlier statement is just as much evidence as the witness’s testimony. That formulation may suggest an obligation to give the two accounts equal evidential weight. The jury may reject either account, or give it no weight, according to its assessment of truth, consistency, other evidence, probability and the manner in which it was given.

4. To convict, the jury had to be sure that Walden’s and Blanchard’s incriminating trial testimony was true. If so satisfied, it necessarily rejected the truth of their previous inconsistent accounts. Although the judge did not clearly state that all earlier statements were evidence, his directions adequately allowed the jury to consider the earlier accounts and decide whether they, rather than the testimony, were true. The omission was therefore inconsequential.

5. The court accepted that the summing-up could have more clearly drawn together the respects in which earlier accounts and other evidence supported the defence. It nevertheless repeatedly highlighted the earlier exculpatory accounts, the changes in the witnesses’ versions, and the need for caution. There was no material misapprehension by the jury.

6. As guidance not affecting the result, the court considered that the standard direction should distinguish an exculpatory earlier statement: it is enough that the jury conclude that it may be true; they need not be sure that it is true before taking it into account.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed: [2009] EWCA Crim 19.
• Birmingham Crown Court: At a retrial before HHJ David Matthews and a jury, both appellants were convicted of murder and sentenced to life imprisonment with a minimum term of 17 years less time spent on remand.