Burton v R

Hearsay evidence may exceptionally be admitted under section 114(1)(d) of the Criminal Justice Act 2003 where the interests of justice require it and the statutory considerations have been addressed. A child’s refusal to give evidence may justify admission, particularly where the statement records an immediate reaction, is not the sole or primary evidence, and may assist either side.

The court must treat cautiously an argument that children require protection from their feelings towards an older person, since it may assume the very exploitation alleged. An appellate court will ordinarily respect a trial judge’s discretionary ruling unless it involved legal error, omitted relevant matters, or was one no sensible judge could make.

The appellant was convicted at the Crown Court at Lincoln of sexual activity with a child. The complainant, aged 14, refused both to make a statement and to give a video interview. A police officer had recorded her account that she and the appellant had kissed and cuddled but had not had sexual intercourse.

The prosecution successfully applied to adduce that account as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. The appellant appealed against conviction on the sole ground that the trial judge should have excluded it.

1. Appeal dismissed. The trial judge was entitled to admit the hearsay evidence, and the conviction was safe.

2. This was an exceptional case for admission under section 114(1)(d) of the Criminal Justice Act 2003. X was still a child, had refused to provide a statement, and appeared to retain affection for the appellant. The jury could properly be told of her immediate response to the discovery of his letters. Her statement also denied sexual intercourse and was therefore capable of assisting the appellant.

3. The prosecution did not rely on the statement as sole or primary evidence. It was used to confirm the appellant’s admissions in interview. If X had been called by either side, her prior statement was in any event likely to have been put before the jury.

4. The court accepted that protection of children from their own feelings towards older persons must be considered with care. That rationale can assume the exploitation which the prosecution must prove. On these facts, however, the appellant’s letters and interview admissions made it a pertinent consideration.

5. Applying Z [2009] EWCA Crim 20, the court held that an appellate court should not readily disturb a section 114(1)(d) ruling. The judge had considered the matters required by section 114(2), made no legal error, and reached a conclusion open to him. The sole ground of appeal therefore failed.

6. Further, even had the evidential ruling been erroneous, the court indicated that the appellant’s belated and inherently improbable explanations of his letters and interview admissions meant that an unsafe-conviction conclusion would not necessarily have followed.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2011] EWCA Crim 1990.

• Crown Court at Lincoln: convicted the appellant of sexual activity with a child and imposed a community order.