Harvey & Ors, R v

Hearsay from a witness absent through fear is not automatically admissible. Under Criminal Justice Act 2003 section 116(2)(e), the court must establish that fear causes the witness’s non-attendance, take reasonable steps to secure oral evidence, consider special measures, and decide whether admission is in the interests of justice.

The importance of the hearsay calls for greater scrutiny, but even sole or decisive hearsay is not automatically excluded. The court must assess its apparent reliability and the jury’s practical ability to test it, including through material admitted under section 124. That provision does not permit speculative or unsubstantiated allegations about an absent witness. Credibility material must be sufficiently persuasive to assist a fair-minded jury.

The four appellants were convicted at Snaresbrook Crown Court of aggravated burglary and firearms offences. Defreitas was also convicted of intimidating a witness and perverting the course of justice. The prosecution relied on signed statements by Charles and David, who did not attend trial because they were afraid of reprisals.

The trial judge admitted the statements as hearsay, found that protective measures would not overcome the witnesses’ fear, and allowed substantial material bearing on their credibility. The appellants challenged the hearsay rulings, exclusions of four further items of credibility material, the refusal to sever the additional counts against Defreitas, and the fairness of the summing up. Defreitas also renewed his application for permission to appeal his sentence.

1. Conviction appeals dismissed. The judge was entitled to find, to the criminal standard, that Charles and David were absent through fear and that reasonable efforts had been made to secure their attendance. Their fears were objectively supported by the evidence, including the background of the male appellants and subsequent telephone contact by Defreitas. Available special measures would not have addressed the witnesses’ fear of the consequences of testifying.
2. Applying the fearful-witness hearsay framework in R v Riat [2012] EWCA Crim 1509 and R v Shabir [2012] EWCA Crim 2564, the court held that the statements were properly admitted under section 116(2)(e) of the Criminal Justice Act 2003. The statements were important, but there was substantial supporting evidence. This included contemporaneous accounts, Charles’s report to the police before the firearms were found, CCTV, flight from the flat, cell-site evidence and text messages.
3. The contemporaneous accounts could properly be treated as reliable res gestae evidence. Applying R v Andrews (D.) [1987] AC 281, the relevant question was whether the possibility of concoction or distortion could be disregarded. The jury could conclude that the witnesses had no opportunity to construct a common false account while events were unfolding.
4. Section 124 permitted admissible credibility material that could have been used had the witness attended, and in some respects placed the defence in a better position. It did not displace the requirement, explained in R v Brewster and Cromwell [2010] EWCA Crim 1194, that alleged bad behaviour be sufficiently persuasive and capable of assisting a fair-minded jury. The four excluded items were unsubstantiated or speculative and had no material probative value.
5. There was no unfairness in the summing up. The jury were repeatedly directed to treat the untested hearsay with particular care and were reminded of the material capable of undermining the witnesses’ credibility. Nor was severance required: an accused should not secure a separate trial by intimidating a witness or perverting the course of justice.
6. Sentence. Defreitas’s renewed application for permission to appeal sentence was refused. His previous offending and breach of licence justified the uplift, the finding of dangerousness, the IPP minimum term and the consecutive determinate terms for witness intimidation and perverting the course of justice.

• Court of Appeal (Criminal Division). The court dismissed the appellants’ conviction appeals and refused Defreitas’s renewed application for permission to appeal sentence in [2014] EWCA Crim 54.
• Crown Court at Snaresbrook. HHJ Pardoe QC convicted the appellants on 31 May 2012 and sentenced them on 19 July 2012. He admitted the absent witnesses’ statements as hearsay and refused severance of the further counts against Defreitas.