Ibrahim, R. v

Hearsay evidence should not be admitted under the interests-of-justice gateway unless the statutory assessment is real and rigorous. Under Criminal Justice Act 2003 section 114(2), particular weight must be given to whether the jury can assess reliability, whether the defendant can challenge the evidence, and whether the evidence has genuine probative value.

Where an absent witness's account is vague and cannot be tested, and its meaning depends on speculation, the interests of justice do not justify admission. However, an erroneous admission does not itself make a conviction unsafe. The appellate court must decide whether the evidence could realistically have had an adverse bearing on the verdict.

The appellant was convicted of rape at Leeds Crown Court. The issue at trial was whether sexual activity in a doorway was consensual.

The prosecution was permitted to adduce hearsay evidence from a burger-van attendant who refused to make a statement or attend court. Her reported observations and comments were said to support the complainant's account. The trial judge admitted that evidence under section 114(1)(d) of the Criminal Justice Act 2003.

On appeal, the appellant contended that the hearsay evidence should have been excluded because it was vague, untested and prejudicial, and that its admission rendered the conviction unsafe.

Disposition

1. Appeal dismissed. The trial judge was wrong to admit the hearsay evidence, but its admission did not render the conviction unsafe.
2. The court accepted that an appellate court will not readily interfere with a judge's section 114(2) assessment unless there is an error of law or approach, or the decision lies outside the reasonable range. The interests-of-justice test must nevertheless be applied fully and realistically. Hearsay will rarely be admitted merely to circumvent section 116 of the Criminal Justice Act 2003.
3. On the facts, the statutory gateway was not satisfied. The jury had no proper basis for deciding which, if any, part of the absent witness's account was reliable. The appellant could not challenge what had made her afraid or what she had actually seen. Her reported account was vague and invited speculation on the central issue of consent. By the time of the summing-up, the evidence had no probative value on that issue.
4. The court then considered the effect of the error on the verdict. The evidence as actually given was neutral. It did not tend to prejudice the jury against the appellant or assist it in deciding whether the complainant's scream followed an accident or violence during rape. There was therefore no unfairness caused by its admission, and the conviction remained safe.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and held that, although hearsay evidence had been wrongly admitted, the conviction was safe.
• Crown Court at Leeds: the appellant was convicted of rape on 23 September 2009 following a jury trial before His Honour Judge Taylor.