Sadiq & Anor, R. v

Under section 114(1)(d) of the Criminal Justice Act 2003, a capable witness's unexplained refusal to testify will normally weigh strongly against admitting important evidence as hearsay. Exceptionally, however, prior trial testimony may be admitted where it was given on oath, fully cross-examined and reliably recorded, and where the loss of live demeanour causes little practical disadvantage.

The statutory assessment also permits account to be taken of other evidence, appropriate jury directions, and the public interest in the trial of serious crime. The admission of vital hearsay evidence does not of itself make a trial unfair under Article 6. An appellate court will interfere with an interests-of-justice ruling only if the judge applied a wrong principle or reached a decision outside the reasonable range.

The appellants were convicted at a retrial in Reading Crown Court of attempted murder. The first jury had been unable to agree. The victim, who had been paralysed in the shooting, had given evidence at the first trial through recorded interviews and an alphabet board and had been cross-examined over several days.

Before the retrial, the victim refused to testify again, without explaining his reasons. The Crown therefore obtained a ruling under section 114(1)(d) of the Criminal Justice Act 2003 admitting his former evidence-in-chief and the transcript of his cross-examination. The appeals challenged that ruling, contending that the evidence was vital, unreliable and unfairly untestable before the retrial jury.

Decision

1. The Court of Appeal dismissed both appeals against conviction. The trial judge had applied the relevant statutory considerations and her decision to admit the former testimony was within the range of reasonable decisions open to her.

2. An appellate court will interfere with a ruling under section 114(1)(d) of the Criminal Justice Act 2003 only where the judge applied a wrong principle or reached a decision outside the proper range. The trial judge is ordinarily best placed to assess the interests of justice in the context of the trial.

3. The court emphasised that it would not normally be in the interests of justice to admit hearsay from an important witness who is able to testify but simply refuses, without providing a good reason. That concern was substantial here, but the circumstances were exceptional.

4. The victim could not give ordinary oral evidence. His evidence-in-chief would in any event have been presented through recorded material, and his previous cross-examination had been conducted through an alphabet board. His former evidence had been sworn, verbatim recorded and fully tested. The judge, who had presided over the first trial, was entitled to conclude that the retrial jury would obtain little meaningful assistance from observing his demeanour.

5. There was other powerful circumstantial evidence. The jury received a careful warning about the limitations of the hearsay evidence. The resulting prejudice was slight and was outweighed by the public interest in trying serious crime. The admission of important hearsay did not itself breach Article 6, particularly where the evidence had previously been tested in cross-examination.

The convictions were safe. Sadiq's application concerning sentence had been withdrawn.

• Court of Appeal (Criminal Division) — dismissed the appeals against conviction: [2009] EWCA Crim 712.
• Reading Crown Court — following a retrial after the first jury failed to agree, convicted both appellants of attempted murder and imposed life sentences.