Jabbar, R v

Hearsay from a fearful witness need not be shown to be demonstrably reliable before admission. The court must assess the risk of unreliability, the means by which reliability can be tested and assessed, and the evidence’s importance in the case as a whole. A statement may be admitted where it is potentially safely reliable, supported by other evidence, and accompanied by safeguards that permit a fair challenge to credibility.

The absence of independent support for historic evidence of motive does not itself require exclusion if other evidence bears on the central issues. The practical steps required to secure a fearful witness’s live evidence depend on the circumstances of the particular case.

The appellant was tried at the Central Criminal Court for the murder of his sister-in-law, who died in a fire at the family home. The Crown case was circumstantial and included evidence that the appellant had bought petrol, was near the house shortly before the fire, and had lied about the purchase.

The Crown also relied on Mohammed Tahir’s written statement. Tahir alleged that, in 2007, the appellant and his brother had discussed ways of killing the deceased. Tahir refused to give live evidence after threats were made against his family in Pakistan. The trial judge admitted his statement as hearsay under the Criminal Justice Act 2003. The appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 23 years.

On appeal, he contended that admission of the untested statement made the trial unfair and the verdict unsafe.

1. Appeal dismissed. The trial judge correctly admitted Tahir’s statement. Its admission did not render the trial unfair or the murder verdict unsafe.
2. The court applied the hearsay framework explained in R v Riat [2013] 1 Cr App R 2. Hearsay need not be demonstrably reliable before admission. The judge must instead assess the risk of unreliability, the available means of testing and assessing reliability, and the evidence’s importance in the case as a whole. The question is whether a jury can safely assess its reliability.
3. The statement was relevant to important matters in issue under section 101(1)(d) of the Criminal Justice Act 2003. It shed light on the appellant’s purchase of petrol and his presence at the house, for which he advanced innocent explanations. It was not the sole evidence against him. There was substantial circumstantial evidence concerning whether the death was murder or suicide and the identity of the killer.
4. The statement’s evidence of motive was historic and could be challenged as to its continuing significance. Although there was no other evidence of motive, that absence did not require exclusion. The appellant could give his own account, rely on substantial material affecting Tahir’s credibility, and use the protection provided by section 124. The jury also received correct directions, and section 125(1) provided a potential further safeguard at the close of the evidence.
5. R v Riat did encourage firm efforts to obtain the live evidence of a fearful witness. However, the appropriate steps vary with the facts. Given Tahir’s genuine fear, his attendance at court, the efforts made to secure his evidence, and the cross-examination on credibility during the voir dire, no procedural failing undermined the ruling.

• Court of Appeal (Criminal Division): By [2013] EWCA Crim 801, dismissed the appellant’s appeal against conviction for murder.
• Central Criminal Court: The appellant was convicted of murder and, on 8 June 2012, sentenced to life imprisonment with a minimum term of 23 years. Both defendants were acquitted of conspiracy to murder after a successful submission of no case to answer; the appellant’s brother was also acquitted of murder at that stage.