Fagan, R v

Untested hearsay which is sole or decisive evidence is not subject to an automatic exclusionary rule. Where it is admitted under the statutory code, the court must examine the reason for admission, the risks affecting reliability, the means by which reliability can be tested and assessed, and any counterbalancing safeguards.

For a witness's fear to be attributed to an accused, the intimidation must involve action by the accused or by persons acting with the accused's knowledge and prior approval. The court may nevertheless draw that conclusion from the evidence and permissible inferences. A failure to take every reasonable step to secure live evidence is undesirable, but it will not necessarily make admission under Criminal Justice Act 2003 section 116 unfair.

R v Fagan and Fergus concerned the kidnapping, false imprisonment, blackmail and robbery of Andre Stephens. The Crown relied on Mr Stephens's recorded accounts and identification evidence after he declined to attend trial because of threats.

At the Crown Court at Inner London, Fagan and Fergus were convicted of offences arising from the incident. Fagan appealed against his convictions for kidnapping, false imprisonment and blackmail. Fergus appealed against his sentence for kidnapping.

The central issue on the conviction appeals was whether the judge had properly admitted the absent witness's evidence under Criminal Justice Act 2003 section 116, consistently with a fair trial and the appellants' inability to cross-examine him.

1. The conviction appeals and the sentence appeal were dismissed. The trial judge's ruling admitting Mr Stephens's evidence was unimpugnable, and Fergus's six-year sentence was not manifestly excessive.

2. There was no automatic bar to hearsay merely because it was sole or decisive. The correct inquiry under the statutory framework required close scrutiny of the reason for the witness's absence, the risks of unreliability, the practical ability of the jury to test and assess the evidence, and counterbalancing safeguards. The court applied the approach explained in Riat [2012] EWCA Crim. 1509: demonstrable reliability is not an independent requirement that hearsay first be proved accurate.

3. Fear could be attributed to an accused only through involvement of the kind identified in Al-Khawaja and Tahery [2012] 54 EHRR 53. It was insufficient that an intimidator might have acted from loyalty, or that the accused would have welcomed the result. At minimum, the accused must have acted so as to communicate approval, before the intimidation, to those acting on his behalf. On the evidence and permissible inferences, the judge was entitled to find that the threats were attributable to the appellants or persons associated with them with their knowledge or approval.

4. The Crown should wisely have brought Mr Stephens to court and explored whether reassurance would enable him to testify. Its failure to do so was not fatal. The jury had the full recording of the identification procedure, could assess its development, and heard from those present. The cell-site evidence was powerful supporting evidence and undermined Fergus's alibi. The identification evidence was therefore capable of proper testing and assessment.

5. On sentence, the judge properly used the robbery guideline as assistance. The kidnapping and Fergus's relevant previous convictions justified an uplift from a four-year starting point to six years after a contested trial.

• Court of Appeal (Criminal Division): dismissed the appeals in R v Fagan and Fergus [2012] EWCA Crim 2248.

• Crown Court at Inner London: Fagan and Fergus were convicted by majority verdicts on 8 and 11 July 2011. On 2 September 2011, Fagan received an aggregate term of 10 years' detention in a young offender institution, and Fergus received three years' imprisonment for kidnapping.