Welsh & Ors, R. v

A prior inconsistent statement proved under Criminal Procedure Act 1865 and admitted under section 119 of the Criminal Justice Act 2003 is evidence of the truth of its contents. The sufficiency of the prosecution case must therefore be assessed on the entirety of the admissible evidence, including that statement and any supporting eyewitness evidence.

A careful jury warning can permit reliance on such a statement where the witness has falsely claimed not to remember events. In sentencing for a section 18 assault, vulnerability, a sustained attack, premeditation, a weapon and deliberate targeting may justify the highest guideline category. The absence of injury serious in the context of the offence may nevertheless reduce the sentence within that category’s range.

The three appellants were convicted at Caernarfon Crown Court of causing grievous bodily harm with intent following a joint assault on Alan Haigh. The prosecution relied on an independent eyewitness, Mr Haigh’s earlier statement identifying all three appellants and describing the use of an iron bar, and his earlier accounts to emergency personnel and police.

At trial Mr Haigh said that he could not remember the assault. He was treated as hostile and his earlier statement was admitted as substantive evidence. Kieran Welsh appealed against conviction, challenging the admission of bad-character evidence and the refusal of a submission of no case to answer. All three appellants appealed against their sentences of 12 years’ imprisonment.

The central issues were whether the conviction was safe in light of Mr Haigh’s evidence and whether the sentences properly reflected the applicable sentencing guideline.

1. The appeal against conviction was dismissed. Mr Haigh’s earlier statement, once proved after he gave oral evidence, was admissible under section 119(1) of the Criminal Justice Act 2003 as evidence of its contents. The court had to assess the whole of the admissible evidence, not treat the statement as incapable of proving the facts asserted.

2. The judge was entitled to admit Kieran Welsh’s bad-character evidence. Although Mr Haigh’s account raised reliability concerns, it was substantially corroborated by the detailed evidence of an independent eyewitness and by his accounts shortly after the incident. The evidence was therefore not being used merely to bolster an otherwise weak case.

3. The judge correctly rejected the submission of no case to answer. The case did not fall within the second limb of Galbraith. The jury had sufficient evidence on which they could properly convict. The summing-up also gave an accurate and adequate warning that, if the jury concluded Mr Haigh was lying when he professed not to remember, they should approach his earlier statement with caution before acting on it.

4. The appeals against sentence were allowed. The offending properly fell within category 1 of the applicable guideline. Mr Haigh was vulnerable through mental illness, the assault was sustained, and the offenders acted with premeditation, used a weapon and deliberately targeted him.

5. However, although the injuries were serious in themselves, they were not serious in the context of an offence under section 18 of the Offences Against the Person Act. Such injury would normally be present in a category 1 case. That absence justified a reduction within the category 1 range. The 12-year sentences were quashed and replaced with sentences of 10 years’ imprisonment for each appellant.

• Court of Appeal (Criminal Division): In [2013] EWCA Crim 409, dismissed Kieran Welsh’s appeal against conviction and allowed all three appeals against sentence, substituting 10 years’ imprisonment for 12 years.

• Crown Court at Caernarfon: On 20 January 2012, Judge Hughes QC and a jury convicted each appellant of causing grievous bodily harm with intent. Each was sentenced to 12 years’ imprisonment.