Fox, R. v

Anonymous hearsay evidence cannot be admitted through the interests-of-justice gateway in section 114(1)(d) where its admission would circumvent the statutory code governing witness anonymity. The statutory regime displaces the former common-law rules. Nor can the unavailability gateway assist where the maker of the statement has not been identified to the court's satisfaction.

A conviction is unsafe where such evidence was wrongly admitted and was plainly important to the prosecution case, notwithstanding an appropriate warning about its reliability.

The appellant was convicted of robbery at Birmingham Crown Court and sentenced to three years’ imprisonment. The prosecution relied on the complainant’s evidence and on a transcript of a 999 call made by a member of the public who remained anonymous to the defence and to the court.

The trial judge admitted the transcript as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. On appeal, the Crown accepted that this approach was inconsistent with the statutory regime for anonymous witnesses and with R v Mayers [2008] EWCA Crim 2989. The issue was whether the evidence was admissible and, if not, whether the conviction remained safe.

1. Appeal allowed and conviction quashed. The anonymous 999 call was wrongly admitted and the court could not regard the conviction as safe.
2. Section 1 of the Criminal Evidence (Witness Anonymity) Act 2008 introduced statutory rules for witness anonymity, while section 1(2) abolished the previous common-law rules. The statutory scheme had implications beyond witnesses called to give live evidence.
3. The court followed R v Mayers [2008] EWCA Crim 2989, which established that anonymous hearsay has no route to admissibility at common law or under the Criminal Justice Act 2003 or the 2008 Act. Section 116 could not assist because section 116(1)(b) requires the maker of the statement to be identified to the court’s satisfaction. Section 114(1)(d) could not be used as an alternative route. Its use to admit the call would undermine the statutory anonymity scheme.
4. The transcript was important prosecution evidence. The complainant had limitations as a witness, and the jury had the transcript during its retirement. Although the judge warned the jury to treat the anonymous call cautiously, its erroneous admission could not be treated as immaterial. No issue of a retrial arose.

• Court of Appeal (Criminal Division): Allowed the appeal and quashed the conviction: [2010] EWCA Crim 1280.
• Birmingham Crown Court: Convicted the appellant of robbery and imposed a sentence of three years’ imprisonment.