Ford, R. v

Anonymous hearsay is inadmissible where the statutory regime provides no power to receive it. The hearsay gateways in the Criminal Justice Act 2003 do not permit the admission of a statement whose maker is both anonymous and absent unless the statutory witness-anonymity provisions authorise that course.

The admissibility of hearsay from an identified absent witness remains case-sensitive. There is no universal requirement that a statement be demonstrably reliable before admission. A defendant who, personally or through associates, has caused a witness’s fear should not ordinarily rely on resulting weaknesses in the statement as an Article 6 unfairness. A conviction dependent on wrongly admitted evidence must be quashed, but other convictions remain safe where supported by powerful independent evidence.

Following a retrial at the Inner London Crown Court, Kamahl Ford was convicted of threats to kill, firearms offences, acts tending and intended to pervert the course of public justice, and two conspiracies connected with a second shooting. He received concurrent sentences of detention for public protection with an overall minimum term of seven years.

His renewed application for leave to appeal challenged the admission of several witness statements, anonymous hearsay identifying a vehicle associated with the second shooting, telephone-directory evidence, related evidence concerning four men in that vehicle, and aspects of the summing-up. The central issue was whether the anonymous statement and the linked evidence were legally admissible, and whether any error rendered the convictions unsafe.

1. Appeal allowed in part. The anonymous woman’s statement giving the vehicle registration number, and stating that she had seen persons enter that vehicle after the second shooting, was anonymous hearsay. Although it was highly probative and apparently untainted, it was inadmissible.

2. Section 114(1) of the Criminal Justice Act 2003 permits hearsay only through one of its specified gateways. Section 114(1)(d) could not supply a power to admit a statement while preserving its maker’s anonymity. Applying R v Mayers and Others [2008] EWCA Crim 2989 and R v Horncastle and Another [2009] UKSC 14, the court held that anonymous and absent witness evidence could be admitted only if authorised by the Criminal Evidence (Witness Anonymity) Act 2008. The fact that the maker’s identity was unknown, rather than known but withheld, made no material difference.

3. The remaining challenged evidence was properly admitted. The statements of Asiatu Charm, Emma Leaburn and April Maddix fell within the applicable hearsay gateways. The court rejected an asserted universal requirement that an absent witness’s statement must be demonstrably reliable. Admissibility under the 2003 Act is case-sensitive. The evidence concerning the nickname “Killa” in Tameika Dixon’s telephone directory also gave objective support to the Crown case and was properly admitted.

4. The court added that, where a witness’s fear has been induced by or for the defendant, the defendant should not generally rely on weaknesses or inconsistencies in that witness’s statement to allege unfairness. The inability to explore those matters in cross-examination results from the intimidation and does not, in that situation, establish a breach of Article 6.

5. The conspiracy convictions concerning the second shooting could not stand because the anonymous statement and the related evidence were directly material to them. They were quashed. The remaining convictions were safe because each was supported by extremely powerful evidence independent of the inadmissible material.

6. Leave to appeal against sentence was granted. The seven-year minimum terms on counts 4 and 7 were quashed and six-year minimum terms substituted. All other concurrent sentences remained unchanged.

• Court of Appeal (Criminal Division): The appeal against conviction was allowed only in respect of the two conspiracy convictions relating to the second shooting, which were quashed. The other convictions were held safe. A late appeal against sentence was allowed to the extent of substituting six-year minimum terms on counts 4 and 7.
• Inner London Crown Court: At a retrial in September and October 2008, the applicant was convicted on the relevant counts and, on 10 December 2008, received concurrent sentences of detention for public protection with an overall minimum term of seven years.