Atkinson, R v

Where hearsay is sought by a defendant because a witness cannot be found, admissibility should be addressed through a structured application of the Criminal Justice Act 2003. If the statutory conditions are met, the court may nevertheless exclude the statement where the case for exclusion substantially outweighs its evidential value.

The court must make a fair, interests-of-justice balance between co-defendants. It may exclude evidence that is seriously prejudicial to one defendant and only peripheral to another, particularly where its maker cannot be cross-examined. Section 78 of the Police and Criminal Evidence Act 1984 does not supply an exclusionary discretion where the evidence is not evidence on which the prosecution proposes to rely.

The appellant and a co-defendant were tried at the Crown Court at Blackfriars for an assault on another resident of a hostel. The appellant was convicted by a majority verdict of causing grievous bodily harm with intent and received imprisonment for public protection.

His appeal concerned the trial judge’s refusal to admit the written statement or recorded police interview of an unavailable hostel resident as hearsay. The material was said to assist the appellant by failing to place him in the assault, but it was adverse to the co-defendant’s case of self-defence. The central issue was whether the exclusion of that material rendered the conviction unsafe.

1. The appeal was dismissed. The trial judge’s refusal to admit the unavailable witness’s written material was correct, notwithstanding that the application had been presented without a structured statutory analysis.

2. Under Criminal Justice Act 2003, section 116 potentially made the hearsay admissible if the witness could not be found after reasonably practicable steps. The court did not finally decide whether, where the applicant is a defendant, those steps are assessed by reference to the defendant rather than the prosecution. It proceeded on the contingent basis that the condition might have been satisfied.

3. The applicable exclusionary assessment was under section 126. Alternatively, section 114(1)(d) supplied an interests-of-justice route if section 116 did not apply. In either event, the judge could properly balance the value of the proposed evidence against the reasons for excluding it, including fairness to both defendants.

4. The co-defendant’s interest in exclusion was far weightier. The material was highly prejudicial to his defence and its maker could not be cross-examined on reliability and credibility. By contrast, it was only peripheral negative evidence for the appellant. It did not affect the important evidence that the appellant had said that he and the co-defendant had assaulted the complainant.

5. Section 78 of the Police and Criminal Evidence Act 1984 did not apply because the prosecution did not propose to rely on the hearsay. In any event, had the material wrongly been excluded, the conviction remained safe on the other evidence. The appeal therefore failed.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction in [2011] EWCA Crim 1746.
• Crown Court at Blackfriars — on 28 May 2010, the appellant was convicted by a majority verdict of causing grievous bodily harm with intent.