Freeman, R. v

The residual hearsay jurisdiction under section 114 of the Criminal Justice Act 2003 is limited. It must not routinely be used to bypass the statutory conditions for admitting an absent witness’s statement under section 116.

When deciding whether admission is in the interests of justice, the court must address all material factors, including evidence bearing on the maker’s reliability and the practical prejudice caused by the absence of cross-examination. A witness’s reluctance to attend is not itself a ground for reading the statement. Reasonable steps should be taken to secure attendance where it remains possible.

In fixing an imprisonment-for-public-protection minimum term, previous convictions should not be counted twice, both to justify the indeterminate sentence and to increase the notional determinate term.

The appellant was convicted at Bristol Crown Court of two offences of assault occasioning actual bodily harm against his partner and of blackmail. He was separately convicted of kidnap and received imprisonment for public protection with a minimum term.

At trial, the prosecution read the written statements of the complainant’s mother, who had described telephone threats demanding money. The trial judge rejected the prosecution’s claim that she was medically unfit to give evidence under section 116 of the Criminal Justice Act 2003, but admitted her statements under section 114(1)(d).

The appeal concerned whether that admission was in the interests of justice, whether the resulting blackmail conviction could stand, and whether the sentence for kidnap was lawful and proportionate.

1. The appeal against conviction was allowed in part. The conviction for blackmail was quashed. The appeals against the two convictions for assault occasioning actual bodily harm were dismissed.

2. Section 114 of the Criminal Justice Act 2003 creates a residual and limited hearsay jurisdiction. As explained in R v Horncastle [2010] 2 WLR 47, it cannot routinely be used where the prosecution has failed to satisfy a condition in section 116. R v Y [2008] EWCA Crim 10 confirmed that resort to section 114(1)(d) must not circumvent section 116.

3. The judge was entitled to find that the mother’s statements had substantial probative value. He erred, however, by assessing her reliability without addressing the contrary indicators: her surprising withdrawal of detailed accusations and her response to the witness summons. The appellant also lost the opportunity to cross-examine her about both the original statements and the withdrawal. A reluctant witness is not a statutory ground for reading a statement, as the court had emphasised in R v Z [2009] EWCA Crim 20. Once medical unfitness was rejected, the prosecution should have taken further reasonable steps to secure her attendance.

4. The error was fatal to the blackmail conviction because the statements were central to that count. It did not undermine the assault convictions. Those convictions were supported by medical evidence, independent eyewitnesses, evidence of distress during a telephone call, and forensic evidence inconsistent with the appellant’s account.

5. The imprisonment-for-public-protection sentence for kidnap was justified by the serious, premeditated and escalating violence, notwithstanding the appellant’s youth. Such an indeterminate sentence remains a last resort after consideration of an extended sentence. The minimum term was reduced from six and a half years to four and a half years because there was no proper basis to impose a materially higher notional determinate term than that imposed on the co-defendant, or to penalise the appellant’s previous convictions twice.

• Court of Appeal (Criminal Division)—In [2010] EWCA Crim 1997, quashed the blackmail conviction, upheld the assault convictions, dismissed the challenge to the imposition of imprisonment for public protection, and reduced its minimum term.
• Crown Court at Bristol—Convicted the appellant in 2008 of two assaults occasioning actual bodily harm and blackmail, and separately of kidnap. It imposed imprisonment for public protection for the kidnap with a minimum term of six and a half years.