Adbulle, R v

Hearsay from a witness absent through fear may be admitted under the Criminal Justice Act 2003 only after careful scrutiny of its reliability and of the safeguards available to the accused. The central question is whether a jury can safely assess the evidence, even where it may be important to the prosecution.

A police assurance that a witness will not be required to give oral evidence should not be given. It does not, however, automatically make a later hearsay statement inadmissible. Its effect on reliability must be assessed in the circumstances of the particular case, with proper directions and other counterbalancing safeguards.

The appellant was convicted by a majority at Woolwich Crown Court of violent disorder arising from a large fight between groups of youths. The prosecution relied on CCTV, independent eyewitnesses and two recorded ABE interviews of RK, a 14-year-old who refused to give oral evidence through fear.

Before the second interview, police had assured RK that he would not be required to give evidence at a further trial. The trial judge admitted both interviews as hearsay under the Criminal Justice Act 2003. The appellant appealed against conviction, principally challenging the admission of the second interview and, secondly, the absence of a specific jury direction about the lack of a formal oath.

1. Appeal dismissed. The conviction was safe. The judge was entitled to admit RK’s second ABE interview, and the trial remained fair.
2. For hearsay admitted because a witness is absent through fear, the court must apply section 116(4) of the Criminal Justice Act 2003 with caution. It must consider the evidence’s importance, possible unreliability, and whether a jury can assess its reliability safely. The inability to cross-examine requires sufficient counterbalancing safeguards. The ultimate question remains whether the jury can safely assess the evidence, including where it is potentially sole or decisive.
3. The police assurance was contrary to the general prohibition stated in Horncastle [2009] EWCA Crim. 964. The trial judge was wrong to describe such an assurance as perfectly acceptable in law. However, an assurance does not automatically require exclusion. It was relevant to reliability and had to be evaluated in its particular context. Here RK had already given a first interview without any assurance, his fear had been judicially established, there was no bad faith or trickery, and the second interview was not the sole or decisive evidence. The jury could assess it using the recordings, inconsistencies, other evidence, defence submissions and a full cautionary direction.
4. The omission of a specific direction that the second interview was not on oath was inconsequential. Although the general observation in Grant v Regina [2007] AC 1 required juries to be reminded of the limits of hearsay evidence, RK had demonstrated in the first interview that he understood the duty to tell the truth. He would not in any event have been required formally to swear an oath, and the jury could see that no oath had been administered in the second interview.

• Court of Appeal (Criminal Division). Dismissed the appellant’s appeal against conviction.
• Crown Court at Woolwich. The appellant was convicted by a majority verdict of violent disorder on 10 February 2012 and received a community sentence.