Riat & Ors v R.

Hearsay remains second-hand evidence and is not to be admitted automatically under the Criminal Justice Act 2003. The judge must identify a statutory gateway, assess the risks of unreliability and the means by which reliability can be tested, and consider the importance of the evidence to the case.

There is no automatic bar on hearsay which is the sole or decisive evidence. Nor is independent verification a universal precondition of admissibility. The decisive question is whether, in the circumstances of the case, the evidence can safely be assessed and the trial remains fair.

In a fear case, every reasonable effort must be made to secure oral evidence. Under section 125, unlike the ordinary no-case procedure, the judge must stop a case if important hearsay is so unconvincing that a conviction based on it would be unsafe.

Five conjoined appeals concerned convictions following the admission of hearsay evidence in separate Crown Court trials.

Riat and Doran challenged the use of video-recorded statements from complainants who had died. Wilson challenged the reading of statements from three eye witnesses said to be unavailable through fear. Clare challenged the admission of a three-and-a-half-year-old child’s spontaneous complaint to her mother. Bennett challenged the use of his mentally ill patient’s recorded interviews and also appealed his sentence.

The court considered the statutory hearsay scheme under the Criminal Justice Act 2003, read with Horncastle & Others [2009] UKSC 14. The central issue was whether the evidence in each case was admitted and left to the jury consistently with a fair trial.

1. Disposition. Wilson’s appeal against conviction was allowed and his conviction quashed. The appeals of Riat, Doran and Clare against conviction were dismissed. Bennett’s appeals against conviction and sentence were dismissed.
2. The statutory framework. The domestic court must apply the Criminal Justice Act 2003 and follow Horncastle & Others [2009] UKSC 14. Hearsay is not first-hand evidence. Its admission requires a statutory gateway and a focused assessment of its importance, its risks, and the means available to test and assess it. Evidence need not be independently verified before admission. There is no automatic rule excluding hearsay merely because it is sole or decisive.
3. Fear and fairness. In a fear case, the court must make every reasonable effort to obtain oral testimony, including proper witness support, consideration of special measures and, where appropriate, compulsion. The evidence before the Recorder did not soundly establish that the witnesses were unavailable through fear. In any event, the untested statement identifying Wilson was a bare allegation in a confused group assault, without independent support capable of testing that identification. Its admission was not in the interests of justice under section 116(4).
4. Section 125. The ordinary Galbraith no-case approach does not govern an important hearsay case. At the stage specified by section 125, the judge must make an overall appraisal of the hearsay, its strengths and weaknesses, the available testing material, and its place in the whole case, to decide whether a conviction would be unsafe.
5. Application to the remaining appeals. In Riat, Doran, Clare and Bennett, the hearsay was sufficiently supported and sufficiently capable of assessment to permit a fair trial. The juries had material exposing weaknesses and inconsistencies, and, where relevant, substantial independent evidence. Their verdicts demonstrated a discriminating assessment of the hearsay evidence.

• Court of Appeal (Criminal Division): Heard five conjoined appeals from convictions in the Crown Courts at Gloucester, Mold sitting at Chester, Kingston, Oxford and Southampton. Wilson’s conviction appeal was allowed and his conviction quashed. The remaining appeals were dismissed.
• Crown Courts: The appellants had been convicted after hearsay evidence was admitted under the Criminal Justice Act 2003.