Barney, R. v

Untested hearsay, even where decisive, is not automatically inadmissible. Under the Criminal Justice Act 2003, the court must identify a statutory gateway, assess the risks to reliability and the available means of testing it, and consider whether admission would make the trial unfair. The judge need only be satisfied that the evidence is potentially safely reliable; independent proof of its accuracy is not required.

Previous convictions may establish propensity where their underlying conduct is sufficiently similar to the charge and their admission is fair. The court must not admit them merely to bolster a dangerously weak prosecution case.

The appellant was convicted at the Crown Court at Bournemouth of burglary contrary to section 9(1)(2) of the Theft Act 1968. The victim died before trial. Her description of the burglar, her E-Fit material and her VIPER identification were therefore admitted as hearsay under section 116(2)(a) of the Criminal Justice Act 2003.

The trial judge also admitted two earlier burglary convictions and a later fraud conviction as bad-character evidence of propensity. The appellant appealed against conviction, contending that the identification evidence should have been excluded as unfair and that the convictions had impermissibly reinforced a weak case.

1. Appeal dismissed. The conviction was safe.

2. The victim’s death supplied a proper statutory gateway for her hearsay evidence under section 116(2)(a) of the Criminal Justice Act 2003. Applying the approach in R v Riat [2012] EWCA Crim 1509 and R v Friel [2012] EWCA Crim 2871, the court held that decisive hearsay is not inadmissible merely because it is decisive. The issue is whether the evidence can be treated as potentially safely reliable after considering its strengths, weaknesses, available testing material and safeguards.

3. The identification evidence met that standard. The victim had spoken with the male burglar at close range in daylight for a substantial period. She gave an immediate description, provided consistent E-Fit information shortly afterwards, and made an identification which the court did not regard as equivocal. Those materials allowed the jury to assess the reliability of her later identification despite the absence of cross-examination. The judge’s failure to conduct the later, more structured analysis in R v Riat and R v Friel did not affect the result. Admission did not have such an adverse effect on fairness as to require exclusion under section 78 of the Police and Criminal Evidence Act 1984.

4. There was no separate unfairness in the summing-up or in allowing the jury to have the VIPER documents. They were not analogous to ABE transcripts, whose use was considered in R v Sardar [2012] EWCA Crim 134.

5. The earlier burglaries and later fraud conviction were properly admitted under section 101(1)(d). Their underlying conduct was capable of showing a propensity to commit the charged type of offending: each involved targeting elderly householders, using subterfuge to gain trust or entry, and dishonesty in the home. Applying R v Hanson [2005] 2 Cr App R 21, their admission was not unjust despite the age of the earlier convictions. The identification case was sufficiently strong, and the convictions had not been used to rescue a dangerously weak prosecution case.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2014] EWCA Crim 589.
• Crown Court at Bournemouth: convicted the appellant of burglary on 13 January 2013 and sentenced him on 3 February 2013.