Rowley, R. v

Under section 116(5) of the Criminal Justice Act 2003, a party cannot rely on hearsay where that party caused the witness’s unavailability in order to prevent oral evidence. The party’s conduct need only be an effective cause of the absence; it need not be the sole or primary cause.

The provision can apply to intimidation or other conduct before criminal proceedings have begun. The material question is whether the conduct was intended to prevent the witness attending the proceedings in which the hearsay is tendered. Where the statutory conditions are not met, admissibility does not depend on judicial discretion.

The appellant was convicted of murder at Norwich Crown Court and sentenced to life imprisonment with a minimum term of 17 years. He appealed against conviction.

A potential witness, Lee Taylor, had given a police interview which the appellant later sought to adduce as hearsay. By the trial, Taylor had disappeared and was thought to be in Spain. The trial judge found that the appellant’s threatening text message had caused Taylor to avoid giving evidence and excluded the interview under section 116(5) of the Criminal Justice Act 2003.

The appeal concerned whether the threat was sufficiently causative of Taylor’s absence and whether conduct before proceedings commenced could have been done to prevent evidence in the later trial.

1. Appeal dismissed. The judge was entitled to hold that Taylor’s police interview was inadmissible in support of the appellant’s case under section 116(5) of the Criminal Justice Act 2003.

2. Section 116(2)(c) and (d) made Taylor’s hearsay prima facie admissible because he was abroad and could not be found despite reasonable steps. However, section 116(5) required those conditions to be treated as unsatisfied if the appellant had caused those circumstances in order to prevent Taylor giving oral evidence.

3. The evidence was capable of supporting the judge’s finding that the threatening text message was an effective cause of Taylor’s absence. Taylor’s decision had several causes, including fear of others and his inability to face giving evidence, but section 116(5) did not require the appellant’s conduct to be the sole cause. A sole-cause requirement would undermine the statutory policy that a person should not gain the advantage of relying on hearsay made available by that person’s deliberate conduct.

4. The appellant’s purpose could extend to preventing Taylor from giving evidence in a trial that had not yet commenced. The reference to “the proceedings” meant the proceedings in which the hearsay was tendered, but did not confine the provision to acts performed after their commencement. The relevant question was whether the act was done to prevent the witness attending those proceedings. The judge was entitled to find that the threat was sent for that purpose and remained effective when Taylor left the country.

• Court of Appeal (Criminal Division). The appellant’s appeal against conviction was dismissed.
• Crown Court at Norwich. On 24 March 2011, before His Honour Judge Jacobs, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 17 years.