Sullivan, R. v

Hearsay identification evidence may be admitted under Criminal Justice Act 2003, section 116 where a witness does not give evidence through genuine fear. Fear is to be construed broadly. It need not be expressed in particular terms by the witness.

Admission remains subject to the interests of justice. The court must consider the practical ability of the defence to challenge the hearsay evidence. Fairness may be preserved where the defence can rely on identification-procedure material, statements revealing inconsistencies, and available witnesses who can be examined about the procedure.

R v Sullivan concerned an appeal against a conviction at Liverpool Crown Court for conspiracy to evade the prohibition on importing Class A drugs. The prosecution alleged that Sullivan helped obtain quad bikes in Holland as cover loads for heroin concealed in pallets.

A Dutch supplier identified Sullivan in a video identification procedure. His statements and identification evidence were admitted as hearsay because the trial judge found that he was absent through fear, under section 116 of the Criminal Justice Act 2003. Sullivan challenged that ruling and, alternatively, the adequacy of the summing-up directions on the identification evidence.

1. Appeal dismissed. The trial judge was entitled to find that the Dutch witness was in genuine fear and to admit his statements and identification evidence under section 116(2)(e) of the Criminal Justice Act 2003.

2. Fear under section 116 is broadly construed. It was not necessary that the witness had expressly said that he was threatened or afraid. The judge could properly rely on the experienced Dutch police officers’ evidence of the witness’s condition and on the witness’s demeanour. The later recording made for the defence did not undermine the ruling. On the contrary, it showed a witness in obvious fear.

3. The interests-of-justice requirement in section 116(4) was also met. The defence had substantial means of testing the identification evidence despite the absence of cross-examination of the witness. It had the recordings of the video identification procedure and of its own interview with the witness, the witness’s inconsistent statements, and the opportunity to call and challenge those involved in the procedure. There was therefore no material unfairness in admitting the hearsay.

4. The identification directions were adequate. The identification was founded on claimed recognition over years of regular dealings, rather than a fleeting observation. The remaining procedural complaints added nothing of substance. The court was additionally fortified by the strength of the other evidence, including association with conspirators, references to “Sully”, travel coinciding with a co-accused and the relevant invoices, and interview evidence. The conviction was safe.

• Court of Appeal (Criminal Division): dismissed Sullivan’s appeal against conviction: [2010] EWCA Crim 2676.
• Crown Court at Liverpool: on 16 April 2009, convicted Sullivan of conspiracy to evade the prohibition on the importation of Class A drugs; on 17 April 2009, sentenced him to 18 years’ imprisonment.