Ibrahim, R v

Admission of a deceased witness’s statement under Criminal Justice Act 2003 section 116 does not end the fairness enquiry. Where untested hearsay is central to the prosecution case, the judge must determine whether it can be shown to be reliable and whether adequate counterbalancing safeguards have been applied.

If central hearsay is not shown to be reliable, its admission should be excluded under section 78 of the Police and Criminal Evidence Act 1984. After the prosecution case, section 125 requires the judge, rather than the jury, to assess whether such evidence is so unconvincing, in view of its importance, that a conviction would be unsafe. The ultimate question remains whether the defendant received a fair trial under Article 6.

The appellant was convicted at Birmingham Crown Court of three rapes. Count 1 concerned Enith Walker, who died before trial. Her three police statements were admitted as hearsay. The appellant was acquitted of a related wounding count based substantially on the same evidence.

Leave was granted to challenge the conviction on count 1. The appeal concerned whether the admission and subsequent use of Ms Walker’s untested statements was compatible with a fair trial. The court also considered whether the trial judge should have excluded the statements, stopped the case under section 125 of the Criminal Justice Act 2003, or given stronger directions about the risks of hearsay evidence. Following success on count 1, the court reconsidered but did not alter the sentences for the two remaining rape convictions.

1. The appeal was allowed. The conviction on count 1 was unsafe and was quashed. The concurrent ten-year sentences for the two remaining rape convictions were not disturbed.

2. The statutory conditions in section 116(1) and section 116(2)(a) of the Criminal Justice Act 2003 were met: Ms Walker was identified, her evidence would have been admissible if given orally, and she had died before trial. That provided justification for receiving the statements, subject to the safeguards governing fairness.

3. The statements, particularly that of 7 October 2005, were central evidence without which the prosecution case on count 1 could not proceed. They had not, however, been shown to be reliable. The court identified Ms Walker’s heroin addiction, her earlier false sexual-assault allegation, her incorrect explanation for not reporting the incident, the unexplained delay in making her allegation, and the weakness of the independent supporting evidence. The purported identification was also not shown to be independent.

4. Those matters meant that the statements should have been excluded under section 78 of the Police and Criminal Evidence Act 1984. Their admission had an adverse effect on the fairness of the proceedings which required exclusion.

5. Alternatively, the judge should have stopped the case under section 125. Unlike a submission of no case under Galbraith, section 125 requires the judge to assess the importance and reliability of admitted hearsay. Central untested hearsay which is not shown to be reliable will ordinarily be so unconvincing that a conviction based on it is unsafe.

6. The counterbalancing safeguards were not properly applied. The summing up did not specifically warn of the risks of relying on untested central hearsay, invite particular scrutiny, or identify material discrepancies in the accounts. The appellant consequently did not receive a fair trial under Article 6(1) of the European Convention on Human Rights.

• Court of Appeal (Criminal Division): Allowed the appeal against the conviction on count 1 and quashed that conviction. It left undisturbed the sentences for the remaining rape convictions.
• Birmingham Crown Court: In 2006, convicted the appellant of three counts of rape and imposed concurrent sentences of ten years’ imprisonment. The deceased complainant’s statements were admitted as hearsay at trial.