Z, R. v

Under section 114(1)(d) of the Criminal Justice Act 2003, hearsay is not a broad alternative route around the statutory conditions for an unavailable witness in section 116. The residual interests-of-justice power must be applied cautiously, while retaining a limited effect in genuinely different circumstances. A judge must consider all the mandatory factors in section 114(2), including the availability of oral evidence, the difficulty of challenge and resulting prejudice.

Serious disputed bad-character allegations will only rarely be admissible as hearsay where the maker is able, but merely unwilling, to give evidence and is not kept from doing so by fear. The jury must be clearly directed that it may use such allegations only if sure they are true. Failure to apply those safeguards can render a conviction unsafe.

The appellant was convicted at Lewes Crown Court of one count of indecent assault and four counts of rape contrary to the Sexual Offences Act 1956. The prosecution had been permitted to adduce hearsay evidence of alleged sexual misconduct towards D and the appellant’s former wife, Mrs Z, as bad-character evidence.

D was alive and able to give evidence but did not wish to do so. Mrs Z had died. The trial judge admitted the material under sections 101, 114 and 116 of the Criminal Justice Act 2003, and directed the jury on hearsay. The appeal, brought with leave limited to that ruling, concerned whether the evidence was admissible and whether the directions adequately required the jury to be sure of the allegations before using them.

1. Appeal allowed. The convictions were unsafe and were quashed.

2. Section 114(1)(d) of the Criminal Justice Act 2003 was a residual interests-of-justice power. It had to be construed with section 116. It could not be used so broadly that the carefully defined statutory conditions for hearsay from an unavailable witness became nugatory. It nevertheless retained a limited role in cases materially different from those governed by section 116.

3. When deciding an application under section 114(1)(d), a judge had to consider every mandatory factor in section 114(2), though need not make a separate finding on each. The ruling should make clear that those matters had been considered. The trial judge erred by treating an application to admit disputed hearsay allegations of serious misconduct as conventional and straightforward.

4. D’s allegations were highly prejudicial if accepted. D was alive, well and able to give oral evidence. Her understandable reluctance to testify, which was not said to arise from fear, did not justify admitting the allegations as hearsay. Such admission would circumvent section 116, and cases in which evidence of that significance could properly be admitted on that basis would be very rare.

5. Mrs Z’s death satisfied section 116(2)(a), but the judge also had to consider section 116(4), particularly paragraph (b), and whether a reasonable jury could be sure that her allegation was true before it could be used as bad-character evidence. The judge had not addressed those matters adequately. In respect of both D and Mrs Z, the summing-up failed clearly to direct the jury that it could take the allegations into account only if sure of their truth. The court therefore did not need to decide the Article 6 point.

• Court of Appeal (Criminal Division): Allowed the appeal in [2009] EWCA Crim 20 and quashed the convictions as unsafe.
• Lewes Crown Court: The appellant was convicted before His Honour Judge Tain of one count of indecent assault and four counts of rape. He was sentenced to 14 years’ imprisonment.