Shabir, R. v

Untested hearsay from a witness said to be fearful is admissible under section 116(2)(e) only where the court is satisfied to the criminal standard that fear caused the witness’s refusal to testify. The court must rigorously explore whether oral evidence can be obtained, including through appropriate special measures. It must not give the witness an indication that an earlier statement may be read if the witness asserts fear.

Where hearsay is central to the prosecution case, its potential reliability and the practical means of testing it require especially close scrutiny. Jury directions and credibility evidence cannot cure an admission that was not in the interests of justice. Criminal Justice Act 2003, section 116(2)(e).

The appellant was convicted at Bradford Crown Court of attempted murder and two firearm offences arising from a shooting, and of assault occasioning actual bodily harm arising the following day. The prosecution was permitted to rely on two statements made by the shooting victim, Rafique, after he refused to give evidence and asserted fear of the appellant and others.

The identification in Rafique’s statements was the only unequivocal identification of the appellant as the gunman. The appeal challenged, principally, the admission of those statements as hearsay under section 116(2)(e) of the Criminal Justice Act 2003. It also raised rulings concerning hostile witnesses, disclosure of an anonymous witness’s identity, and the summing up.

1. Appeal allowed on ground one. The convictions for attempted murder and the two firearm offences were unsafe. The court quashed those convictions and granted a retrial on those counts. The appeal was dismissed on grounds two and four. The court made no further comment on ground three because the unredacted statement of witness E was unavailable and there had not been full argument.
2. Under section 116(2)(e) of the Criminal Justice Act 2003, the prosecution had to prove to the criminal standard that Rafique would not testify through fear, including a causal link between fear and refusal. The judge had to investigate rigorously whether Rafique could give oral evidence, including by special measures. The process was deficient: Rafique had been told that his original statement might be read; no further attempt was made to have him give evidence on the issue of fear; special measures were not explored; and important inconsistencies and alleged prison assaults were not investigated.
3. The interests-of-justice assessment under section 116(4) required particularly exacting scrutiny because Rafique’s untested identification was central and, contrary to the trial judge’s understanding, was the only unequivocal identification of the appellant. Rafique’s mental illness, drug use, convictions, inconsistent accounts and contradictory position about his statements created substantial doubts about their potential safe reliability.
4. Applying the framework in R v Riat [2012] EWCA Crim 1509, the court held that jury directions and the availability of credibility material under section 124 could not provide sufficient counterbalancing safeguards. There was no effective means of assessing the untested hearsay identification. Whether analysed under article 6 of the European Convention of Human Rights or section 2(1)(a) of the Criminal Appeal Act 1968, the convictions could not stand.

• Court of Appeal (Criminal Division). Allowed the appeal against the convictions on counts 1, 2 and 3, quashed them, and ordered a retrial. It dismissed grounds two and four and did not determine ground three further.
• Bradford Crown Court. Before HHJ Stewart QC, the appellant was convicted on 3 August 2011 of attempted murder, two firearm offences and assault occasioning actual bodily harm. The convictions on the first three counts followed the admission of hearsay under section 116(2)(e) of the Criminal Justice Act 2003.