EED v R

The residual hearsay gateway in section 114(1)(d) of the Criminal Justice Act 2003 must be applied cautiously. It cannot ordinarily be used to bypass the statutory conditions governing an unavailable witness. Where a witness could give oral evidence but does not attend for reasons outside section 116, the court must scrutinise why oral evidence cannot be given and the accused’s ability to challenge the statement. Probative value and apparent reliability do not alone make admission fair or in the interests of justice.

Wrongful admission of hearsay does not itself require a conviction to be quashed. The appellate court must assess the trial as a whole and decide whether the error adversely affected the fairness of the trial so as to render the verdict unsafe.

At Aylesbury Crown Court, the appellant was convicted of rape, attempted rape and indecent assaults against three of his wife’s younger sisters. His case was that the allegations had been fabricated as part of a conspiracy instigated by his wife.

The prosecution obtained a statement from a former schoolfriend of one complainant, LT, recording an alleged childhood complaint of sexual assault. The witness had been warned to attend but declined because she was pregnant and had a pre-booked family holiday. The prosecution did not seek a witness order and accepted that the section 116 gateway was unavailable.

The trial judge admitted parts of the statement under section 114(1)(d) of the Criminal Justice Act 2003 to rebut the allegation of recent fabrication. The appeal concerned whether that admission was in the interests of justice and, if not, whether it made the convictions unsafe.

1. Appeal dismissed. The trial judge should not have admitted the schoolfriend’s hearsay statement under section 114(1)(d) of the Criminal Justice Act 2003, but its admission did not render the convictions unsafe.

2. Section 114(1)(d) is a residual gateway which must be applied cautiously. Following Z [2009] EWCA Crim 20, it must not be used so as to make section 116 nugatory. It nevertheless retains a limited operation where hearsay cannot be admitted under section 116, provided that admission is genuinely in the interests of justice.

3. The circumstances in which evidence from an available but reluctant witness may be admitted are tightly confined. The court must carefully examine the section 114(2) factors, including why oral evidence cannot be given, the importance and reliability of the statement, the availability of other evidence, and the accused’s opportunity to challenge it. Convenience to the party tendering the evidence, even where the evidence is important, is insufficient.

4. The statement had substantial probative value because it was capable of rebutting the allegation that LT’s account was recently fabricated. There was also some limited practical prejudice because the appellant had no personal knowledge of the alleged conversation and could use the inconsistency between LT’s and the absent witness’s accounts. However, the judge wrongly treated the witness as unavailable without adequately addressing why she could not give oral evidence. She could have attended, but the prosecution had chosen not to secure her attendance. The interests of justice therefore favoured exclusion.

5. On the safety issue, the jury’s central task was to assess the truthfulness of the three complainants and the appellant’s wife. The jury received careful directions about the disadvantages caused by the witness’s absence and the inconsistent accounts. The disputed statement was unlikely to have materially affected the verdicts. The court considered it overwhelmingly probable that the jury convicted because it accepted the complainants’ evidence, rather than because of the hearsay statement.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2010] EWCA Crim 1213.
• Aylesbury Crown Court — on 21 February 2008, convicted the appellant of rape, attempted rape and indecent assaults, and imposed 12 years’ imprisonment for rape with concurrent sentences on the remaining counts.