C & Anor, R. v

Under Criminal Justice Act 2003 section 114(1)(d), hearsay alleging serious misconduct must be admitted cautiously. The provision must not circumvent the narrower unavailability conditions in section 116. Where an identified primary witness is alive and apparently able to testify, the court must examine the reliability of the account, why oral evidence cannot be given, and the prejudice caused by inability to challenge it.

A conviction remains safe if the appellate court is sure that the jury would have convicted on powerful admissible evidence without the wrongly admitted hearsay. In a weak and isolated historical allegation tried with extensive allegations against others, the summing-up must fairly identify the particular defence and distinguish credibility from accuracy of recall. A bad-character inference also requires clear jury directions on the facts to be proved and its permitted use.

C and T appealed convictions entered at Maidstone Crown Court after a trial concerning historic sexual abuse within a family. C challenged the refusal of a stay, the admission of hearsay evidence from his daughter’s adoptive mother, and the admission of his earlier conviction for indecent assault. T, convicted of one rape count, challenged the fairness of the summing-up in a lengthy joint trial.

C had been acquitted in 1999 of different sexual allegations. The 2008 indictment was based on later disclosures, including allegations concerning victims not charged in the earlier proceedings. The central issues were whether C’s trial was unfair or his convictions unsafe, and whether the directions enabled the jury to decide T’s narrow case independently and fairly.

1. C’s appeal was dismissed. The 1999 acquittal did not create an abuse of process. The allegations tried in 2008 were different allegations, founded on later disclosures. C did not rely on autrefois acquit and could not show that refusal of a stay was outside the proper exercise of the trial judge’s discretion.
2. The judge erred in admitting the adoptive mother’s evidence under section 114(1)(d) of the Criminal Justice Act 2003. Following R v Z [2009] EWCA Crim 20, section 114(1)(d) had to be read cautiously with section 116. The judge did not sufficiently address the reliability of the alleged victim’s account, whether she could give oral evidence, or the defence difficulty in challenging the hearsay. The authorities had treated the adoptive mother as entitled to decide whether the girl would testify, without adequately investigating the girl’s own wishes or obtaining professional assessment. Once there was an indication that she might testify, the judge should at least have directed steps to establish her true view.
3. The error did not make C’s convictions unsafe. The court was sure that the jury would have convicted without the inadmissible hearsay. The principal witness gave direct eyewitness evidence. Her account had powerful support from medical evidence, admissible parts of the adoptive mother’s evidence, C’s failure to testify, and admissible propensity evidence.
4. The earlier conviction and its underlying facts were properly admitted under section 101(1)(d) of the Criminal Justice Act 2003. They bore on C’s propensity to commit sexual offences against young girls. The microfiche record was admissible as a business record under section 117. The judge had also correctly considered fairness under section 101(3) and the criteria in R v Hanson [2005] 2 Cr App R 21.
5. T’s appeal was allowed and her conviction quashed. Her case was a weak allegation of a single historic incident embedded in a much larger trial. The summing-up did not adequately assemble the defence evidence about the location and bed, or explain its relevance to the accuracy of the complainant’s recall. It also risked treating truthfulness about the other defendants as resolving the separate issue against T. The prosecution had invited an adverse propensity inference from T’s alleged knowledge of abuse by her partner, but the jury received no necessary directions on knowledge, omission, or permitted use. The court could not be sure that the verdict would have been the same with proper directions, so it was unsafe.

• Court of Appeal (Criminal Division): C’s appeal against conviction was dismissed. T’s appeal was allowed and her rape conviction was quashed. [2010] EWCA Crim 72
• Maidstone Crown Court: C was convicted of sexual offences and T was convicted of rape before HHJ Statman. C received life sentences for rape and T received eight years’ imprisonment.