Murphy, R v

Hearsay may be admitted under section 116(2)(d) where the prosecution has taken all reasonably practicable steps to secure an absent witness. The inquiry is fact-sensitive and is primarily for the trial judge. A witness who absconds after service, contact and arrangements for attendance may properly be treated as unavailable.

A hearsay ruling need not expressly cite every factor in section 114(2) of the Criminal Justice Act 2003 if it addresses them in substance and preserves trial fairness. Evidence of a non-defendant’s bad character remains subject to Parliament’s deliberately high threshold. Material with little probative value on credibility, or which would cause a distracting satellite trial, is inadmissible.

The appellant was convicted at the Crown Court at Caernarfon of rape, two offences of sexual activity with a child, and sexual assault of a child under 13. He received a total sentence of seven years’ imprisonment.

His appeal against conviction raised two issues. First, the trial judge had admitted the statement of Thomas Bowler, a witness who failed to attend after a witness summons and a warrant for his arrest. Secondly, the judge had excluded evidence concerning MR’s background, conduct and police records, which the defence said bore on her motive and credibility.

The central questions were whether the statutory conditions for admitting the absent witness’s hearsay statement were satisfied and whether the exclusion of the proposed evidence about MR rendered the convictions unsafe.

Disposition

1. The appeal was dismissed. None of the convictions was unsafe.

2. The judge was entitled to find that the prosecution had taken such steps as were reasonably practicable to find Bowler for the purposes of section 116(2)(d) of the Criminal Justice Act 2003. Although contact shortly before trial may ordinarily be insufficient, the prosecution had served a summons, remained in telephone contact, arranged travel, and sought to execute a warrant after Bowler absconded. The question was fact-sensitive and lay primarily for the trial judge.

3. The judge was also entitled not to exclude the statement under section 78 of the Police and Criminal Evidence Act 1984. His ruling addressed in substance the relevant section 114(2) considerations: the statement’s importance and probative value, its non-exclusive character, the appellant’s ability to answer it, and the need for a warning about its untested status. The jury received an adequate hearsay direction. In any event, the statement was probably admissible in the interests of justice under section 114(1)(d).

4. On the bad-character issue, the court applied the approach in Dizaei [2013] EWCA Crim 88. The statutory gateway for a non-defendant’s bad character is deliberately demanding. An allegation, even if assumed true for relevance, does not by itself establish substantial probative value. The court must assess the whole material and the risk that a collateral inquiry will distract the jury from deciding whether the charge is proved.

5. The proposed material did not show that MR was dishonest or had made a false complaint. The reports were largely unendorsed hearsay and did not provide a sufficient basis for that inference. The judge was entitled to conclude that the material was peripheral and that its investigation would overwhelm the trial with a satellite inquiry. Self-harming was not reprehensible behaviour and, in principle, was not bad-character evidence; excessive drinking and illegal drug-taking were capable of being such evidence. Neither point affected the proper exclusion of the material relied on.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed in [2014] EWCA Crim 1457.

• Crown Court at Caernarfon: On 8 August 2013, the appellant was convicted of rape, two offences of sexual activity with a child, and sexual assault of a child under 13. He was sentenced to seven years’ imprisonment in total.