Chinn, R. v

Under Criminal Justice Act 2003, section 120(3) does not admit a witness’s prior written statement for its truth where the document fails to refresh the witness’s memory. The provision presupposes that the witness’s memory has in fact been refreshed.

A prior statement satisfying section 120(4)(b) may nevertheless be admitted under section 120(5), but only to the extent that it identifies or describes a person, object or place. Context necessary to make that identification meaningful may be admitted; the wider narrative may not. Admission under section 120(6) requires a judicial ruling that the witness cannot reasonably be expected to remember the matters well enough to give oral evidence.

The appellant was convicted at Lincoln Crown Court of unlawfully wounding Meghan Davies, contrary to section 20 of the Offences Against the Person Act 1861. A third witness, Ms Inglis, had made a statement shortly after the nightclub incident identifying the appellant as the person who threw a glass bottle at Ms Davies. At trial she said that she could no longer independently remember that event, although she affirmed the truth of her earlier statement.

The trial judge allowed the jury to consider the relevant statement evidence and rejected submissions of no case to answer and to discharge the jury. The appeal concerned whether the statement was admissible for its truth under sections 120(3), 120(4)–(6) and 139(1) of the Criminal Justice Act 2003, and whether the conviction was consequently safe.

1. Appeal dismissed. The conviction was safe. The prior statement was admissible, so there was a prima facie case for the jury and no basis to discharge it.

2. Section 139(1) of the Criminal Justice Act 2003 permitted Ms Inglis to examine her statement to try to refresh her memory. It recorded her recollection shortly after the incident, when that recollection was likely to have been better. But it did not in fact refresh her memory of the central event.

3. Section 120(3) therefore did not apply. Its structure presupposes that the witness has refreshed memory from the document. It would defeat the statutory scheme to admit a statement through section 120(3) where memory has not been refreshed, without meeting the specific safeguards in section 120(4) and (6).

4. The witness had indicated, to the best of her belief, that she made the statement and that it was true. Section 120(4) and (5) accordingly admitted the parts identifying and describing the appellant, including that he was the person who threw the bottle which struck Ms Davies. Section 120(5) was not confined to bare identification. It admitted the contextual material necessary to make an identification or description meaningful, but not the statement’s wider narrative.

5. Section 120(4) and (6) could potentially have applied, but the judge had made no ruling on whether the witness could reasonably be expected to remember well enough to give oral evidence. Where admission is disputed, that issue should be investigated and determined in the jury’s absence before the statement is adduced.

6. The judge’s early intervention caused no material unfairness. His direction on the weight of the witness’s oral and statement evidence could not be criticised. An adapted identification direction was unnecessary on these particular facts, although it may be required where identification in an admitted prior statement is material.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction: [2012] EWCA Crim 501.
• Lincoln Crown Court: convicted the appellant of unlawful wounding on 7 November 2011; the judge rejected a submission of no case to answer on that count.