M v R.

The residual hearsay gateway in section 114(1)(d) of the Criminal Justice Act 2003 must be applied cautiously. It must not circumvent the statutory safeguards in section 116 designed to secure a fair trial.

When considering whether admission is in the interests of justice, the court must give proper weight to whether the witness’s oral evidence could have been obtained by reasonable steps. It must also consider the importance of the hearsay evidence. It will rarely be just to admit hearsay constituting virtually the whole prosecution case where the prosecution failed to take reasonable steps to secure the witness’s attendance.

The appellant was convicted at Harrow Crown Court of assault occasioning actual bodily harm. The complainant had made a recorded 999 call and two witness statements. She later sought to withdraw her allegation.

Before the prosecution case began, the Recorder admitted the call and statements as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. The Recorder had already found that the prosecution had not taken reasonable steps to locate the complainant for the purposes of section 116(1)(d).

The appellant appealed against conviction, contending that the residual hearsay power had improperly bypassed the requirements of section 116. The central issue was whether admission of evidence that formed virtually the entire prosecution case was in the interests of justice despite that failure.

1. Appeal allowed. The court quashed the conviction. The Recorder’s decision to admit the complainant’s 999 call and statements under section 114(1)(d) of the Criminal Justice Act 2003 could not sensibly have been made.

2. The court applied R v Z [2009] EWCA Crim 20. The residual interests-of-justice gateway must be used cautiously so that it does not circumvent the conditions imposed by section 116 to protect trial fairness.

3. Reasonable steps could probably have located the complainant, enabling a witness summons to be issued and served. There was no basis to conclude that she would not comply. Accordingly, the section 114(2)(g) factor should have been answered on the basis that oral evidence could have been obtained and was unavailable only because of the prosecution’s failure to take reasonable steps.

4. The Recorder’s conclusion that the complainant would have refused through fear was speculative. Her later statement gave a different reason for withdrawing, and the prosecution had neither adduced evidence nor relied on section 116(1)(e).

5. The hearsay was virtually the entirety of the prosecution case. Proper weight was not given to that factor under section 114(2)(c). Admission of evidence of such importance after a failure to secure the witness’s attendance will be justified only in rare circumstances, if at all.

6. The prosecution received leave for a retrial. If the complainant gives oral evidence, nothing in the judgment determines that her 999 call or statements are inadmissible.

• Court of Appeal (Criminal Division): Allowed the appeal in [2011] EWCA Crim 2341, quashed the conviction, and gave the prosecution leave for a retrial.
• Crown Court at Harrow: On 8 April 2011, the appellant was convicted of assault occasioning actual bodily harm after hearsay evidence was admitted. On 23 May 2011, he received a suspended sentence order with unpaid work and non-contact requirements.