Adeojo & Anor v R.

Untested hearsay which is sole or decisive evidence does not automatically make a criminal trial unfair. Its admission requires a proper statutory basis and sufficient safeguards to permit the jury to assess its reliability fairly. The greater the importance of the hearsay, the more searching the scrutiny required.

The court must examine the statement’s strengths and weaknesses, supporting or contradictory evidence, material available to challenge the witness, and tailored jury directions. A witness’s genuine fear need not arise from an explicit threat. The prosecution must first seek the witness’s attendance and consider protective measures. The Criminal Justice Act 2003 requires continuing review where admitted hearsay becomes unconvincing.

The appellants were tried at the Central Criminal Court before HHJ Pontius for murder, attempted murder and related offences arising from a gang attack at Heron House. A key victim, Sean Essuman-Dadson, had given recorded police interviews identifying the appellants, but refused to give substantive oral evidence.

At Adeojo’s first trial, the interview was admitted after the witness had adopted it as true but then refused to answer questions. Adeojo was convicted. Nyamupfukudza was retried after the first jury could not agree in his case. At the retrial, the judge found that the witness’s refusal was caused by genuine fear and admitted the interview under the statutory hearsay gateway for fearful witnesses.

Both appellants challenged the fairness and reliability of the hearsay evidence. Adeojo also appealed his 30-year minimum term.

1. The conviction appeals were dismissed. The court held that the admission of Essuman-Dadson’s untested hearsay did not render either trial unfair. Although his identification evidence was central, the juries could safely assess its reliability.

2. In Adeojo’s trial, the recorded statement was admissible under section 119(1) of the Criminal Justice Act 2003. The judge was entitled to treat its admission as a hearsay question when exercising the discretion under section 78 of the Police and Criminal Evidence Act 1984. The recorded and detailed account, the absence of a demonstrated motive for a false accusation, material damaging the witness’s credit, evidence capable of testing the identification circumstances, and independent supporting evidence provided sufficient safeguards.

3. In Nyamupfukudza’s retrial, the statutory condition for a witness who did not give evidence through fear was met. Genuine fear did not require proof of an express threat by the appellant or his associates. The witness’s attendance had been secured and special measures considered. His fear was not challenged at trial, and it was too late to challenge that factual finding on appeal.

4. Applying the approach in Al-Khawaja v United Kingdom [2012] 54 EHRR 23, Ibrahim [2012] EWCA Crim 837 and Riat and Others [2012] EWCA Crim 1509, the court held that decisive hearsay required especially close scrutiny. The judge had correctly considered statutory justification, the evidence’s importance, reliability, and counter-balancing safeguards. Directions on the need for caution and on the weaknesses in the evidence were capable of protecting fairness.

5. The violent incident involving the witness and the use of screens did not require discharge of the jury. Clear directions prevented unfair speculation. Nor was it unfair to adduce circumstantial evidence concerning the appellants’ association with the gun and each other, despite other defendants’ acquittals.

6. Adeojo’s sentence appeal was dismissed. The sentencing judge properly balanced his relative youth against the exceptional seriousness of a planned armed gang attack involving one murder and two attempted murders. A 30-year minimum term was not manifestly excessive.

• Court of Appeal (Criminal Division): Leave to appeal was granted. The appeals against conviction were dismissed, and Adeojo’s appeal against sentence was dismissed.
• Central Criminal Court: HHJ Pontius convicted Adeojo at the first trial. Nyamupfukudza was retried after the first jury could not agree in his case, and was then convicted.