Burns & Anor, R v

A challenge to the admission of hearsay evidence may merit full appellate argument where the alleged error concerns the judge’s evaluation of the statutory interests-of-justice factors, rather than a misdirection as to the governing approach.

Evidence of a hearsay threat made long after the relevant events, from an unknown source and unconnected with the alleged contemporaneous threats, is irrelevant to a defendant’s state of mind at the material time. It cannot support an explanation founded on that state of mind and cannot satisfy the admissibility requirements of the Criminal Justice Act 2003.

Burns and Brierley were convicted of murder at Liverpool Crown Court. Each received life imprisonment, with minimum terms of 30 and 25 years respectively. Brierley admitted killing the victim but relied on self-defence; Burns denied participation.

They renewed applications for permission to appeal against conviction. Their principal ground challenged the admission against them of hearsay statements made by a co-accused after the killing. Brierley also challenged the exclusion of evidence of threats made during the trial. Both applicants sought to adduce fresh evidence concerning money later found at the victim’s home, and Burns renewed his application for permission to appeal against sentence.

1. Leave was granted on the hearsay ground. The applicants did not contend that the trial judge had misstated the law or failed to follow the structured approach identified in R v Riat and Others [2013] 1 Cr App R 2. Their complaint was that the judge gave insufficient weight to the relevant factors in section 114(2) of the Criminal Justice Act 2003, and wrongly concluded that admitting the statements was in the interests of justice. Having considered the ruling, the features of the statements and the authorities, the court held that this issue merited full argument before the full court.

2. Leave was refused on Brierley’s separate evidential ground. The proposed evidence concerned a hearsay threat made at the end of the trial, about 18 months after the killing. It did not concern the source of the information on which Brierley said he had acted when he killed the victim and later concealed the death. It was therefore irrelevant to his state of mind at any material time and could not logically strengthen his explanation.

3. The court held that the proposed threat evidence could not satisfy the criteria in section 114(2), nor could its admission be in the interests of justice under section 114(1)(d) of the Criminal Justice Act 2003. Its exclusion as irrelevant was correct.

4. The fresh-evidence application and Burns’s renewed sentence application were referred to the full court. Directions were given for transcripts, agreed summaries and focused skeleton arguments for the substantive appeal.

• Court of Appeal (Criminal Division): Granted leave to appeal on the hearsay ground and referred the fresh-evidence and sentence matters to the full court. Refused leave on the proposed-threat-evidence ground.

• Liverpool Crown Court: On 22 November 2012, Burns and Brierley were convicted of murder. On 23 November 2012, each was sentenced to life imprisonment with the stated minimum term.