J, R v

Under section 114 of the Criminal Justice Act 2003, hearsay may be admitted in the interests of justice after all relevant statutory factors have been assessed. A child’s inconsistent and unreliable accounts require considerable weight, but do not alone compel exclusion. The court must assess probative value, other evidence, the circumstances of the statements and the defence’s ability to challenge them.

Use of an absent witness’s hearsay does not make a conviction unsafe where the prosecution case is not based solely or decisively on it. In sentencing for serious child cruelty, repeated assaults, abuse of trust and conduct causing the child to retract an account may justify a sentence at the top of the applicable guideline range.

The applicant was convicted at Wood Green Crown Court on 27 October 2011 of cruelty to a child, contrary to section 1(1) of the Children and Young Persons Act 1933, and was sentenced to four years’ imprisonment.

The child did not give evidence. The prosecution instead relied in part on accounts which he had given to his mother and grandmother, admitted as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. The accounts had been retracted or were inconsistent. The applicant challenged their admission and contended that they formed the sole or decisive basis of the case against him. He also sought leave to appeal against sentence.

The central issue was whether the hearsay ruling rendered the conviction unsafe and whether four years’ imprisonment was manifestly excessive.

1. Conviction appeal dismissed. Leave to appeal against conviction was granted, but the conviction was safe. The child’s accounts were neither the sole nor the decisive evidence against the applicant. The jury could have found that the child’s extensive injuries were non-accidental and, if it accepted the mother’s and grandmother’s evidence that neither had caused them, could have identified the applicant as responsible without relying on the hearsay accounts.

2. The court noted the revised approach under Article 6 of the Convention. A conviction based solely or decisively on an absent witness’s statement would not automatically breach Article 6, but fairness would require counterbalancing factors, including strong procedural safeguards. That issue did not determine this appeal because the hearsay was not sole or decisive evidence.

3. The judge properly applied section 114(1)(d) and section 114(2) of the Criminal Justice Act 2003. The child’s inconsistent and unreliable accounts were a significant consideration. They were not, however, conclusive against admission. The judge was entitled to balance their probative value, their importance as accounts by the alleged victim, other evidence pointing to the applicant, the possibility of coaching or retraction, and the difficulty caused to the defence by the child’s absence. R v J(S), [2009] EWCA Crim 1869, illustrated that unreliability in hearsay evidence does not of itself make it inadmissible.

4. Sentence application refused. The offence involved a series of serious assaults and fell within the relevant child-cruelty guideline category, with a starting point of three years’ custody and a range of two to five years. The applicant’s position of trust and his successful attempts to make the child withdraw accounts were aggravating features. Although four years’ imprisonment was severe, it was not too long.

• Court of Appeal (Criminal Division) — leave to appeal against conviction was granted but the appeal was dismissed; leave to appeal against sentence was refused: [2011] EWCA Crim 3021.
• Wood Green Crown Court — on 27 October 2011, the applicant was convicted of cruelty to a child contrary to section 1(1) of the Children and Young Persons Act 1933 and sentenced to four years’ imprisonment.