Johnson, R. v

Agreement by the parties may make hearsay evidence and non-defendant bad-character evidence admissible under the Criminal Justice Act 2003. It does not, however, authorise advocates to place confidential social-services documents before a jury where the disclosure order limited their use. Wider use requires an express judicial order after the judge has balanced the interests of the parties, the social-services authority and the persons covered by the records. The court must be told promptly of any agreement about the admission and presentation of such evidence.

On an appeal against conviction, an initially unclear direction or an ill-timed judicial criticism will not make the trial unfair where the judge later gives a full and accurate direction, corrects the criticism, and the jury can properly assess the evidence.

The appellant was convicted at Cardiff Crown Court of sexual offences against four former foster children and of rape of his granddaughter. He was sentenced to 11 years’ imprisonment for the rape, with concurrent sentences for the remaining offences.

Documents disclosed from confidential social-services files were used in cross-examination and then read to the jury by agreement of counsel, although the trial judge had directed that a schedule be prepared. The judge had not been asked to rule on an application to use the documents as hearsay or bad-character evidence. On appeal, the appellant challenged the judge’s criticism of defence counsel in the jury’s presence and the adequacy of the hearsay and bad-character directions.

1. Appeal dismissed. The convictions were safe.

2. Although section 100 and section 114(1) of the Criminal Justice Act 2003 permit the admission by agreement of, respectively, non-defendant bad-character evidence and hearsay, agreement did not authorise counsel to give the jury confidential social-services documents. The disclosure order ordinarily permitted use only to take instructions and put matters in cross-examination. Wider use required an express order from the judge.

3. The judge had to control any proposed wider use of the documents. That required a fresh application and a balancing of the defence interest against public-interest immunity, confidentiality and the interests of social services and persons referred to in the documents. The judge could then consider redaction or another means of placing relevant information before the jury. Counsel were not entitled to bypass that process or disregard the direction to prepare a schedule.

4. Where admissibility is agreed without requiring an order, counsel must nevertheless inform the court at the outset, or immediately after an agreement made during trial. This permits proper management of presentation and directions.

5. The judge was entitled to criticise counsel’s conduct, although the matter would better initially have been explored without the jury. The later explanation made clear that defence counsel was not solely at fault and was not to be criticised for having made an application. The criticism therefore did not impair trial fairness.

6. The initial hearsay direction could have drawn a clearer distinction between cross-examination use and evidential use. The summing-up nevertheless gave a clear, full direction on hearsay and bad character and reminded the jury of the relevant material for each complainant. The directions disclosed no basis to challenge the safety of the convictions.

• Court of Appeal (Criminal Division): dismissed the appeal against convictions at Cardiff Crown Court.
• Crown Court at Cardiff: the appellant was convicted by a jury of 17 counts of indecent assault, seven counts of sexual activity with a child, and rape of a child under 13; he received 11 years’ imprisonment for rape with concurrent sentences for the other offences.