Strotten, R. v

Under section 114(1)(d) of the Criminal Justice Act 2003, hearsay complaints may be admitted where the evidence, assessed as a whole, gives a jury sufficient means to test and assess their reliability. A young complainant’s failure to repeat an allegation in an interview does not itself prevent admission. The court must consider the supporting circumstances and whether the defence can fairly challenge the evidence.

At Lewes Crown Court, the appellant was convicted of two offences of sexual assault of a child under 13 contrary to section 7(1) of the Sexual Offences Act 2003. He received consecutive terms totalling 21 months’ imprisonment, together with a sexual offences prevention order and a victim surcharge order.

He appealed against conviction on the basis that the judge should not have admitted hearsay evidence of complaints made by one child complainant, who had not substantiated them in his ABE interviews. He also challenged the overall length of the sentence. The central issue was whether the hearsay evidence was admissible in the interests of justice under section 114(1)(d) of the Criminal Justice Act 2003.

1. The court dismissed the appeal against conviction. The trial judge was entitled to admit the hearsay complaints under section 114(1)(d) of the Criminal Justice Act 2003. The judge had assessed the relevant evidence comprehensively and the defence had adequate opportunity to challenge it.

2. The complaints did not stand alone. The court accepted that there were multiple supporting circumstances, including the consistency and timing of the complaints, other observations concerning the child, and the independent allegation by the other complainant. The nursery evidence could not identify the appellant as the source of the child’s sexualised behaviour, but the evidence as a whole was sufficient to permit the judge’s conclusion.

3. The prosecution had not relied below on res gestae. The court nevertheless observed that, in light of Ratten v the Queen [1972] AC 378, an argument for admitting the immediate observations as res gestae might have been available. If so, that could also have affected the discretionary balance concerning the remaining material. This was not necessary to the dismissal of the conviction appeal.

4. The court granted leave to appeal against sentence but held that the 21-month total was neither wrong in principle nor manifestly excessive. The trial judge had conducted the trial and had the benefit of pre-sentence and psychiatric reports. The victim surcharge order was unlawful because one offence pre-dated the relevant legislation’s non-retrospective commencement; that order was quashed. The appeal was otherwise dismissed.

• Court of Appeal (Criminal Division) — In [2015] EWCA Crim 1101, dismissed the conviction appeal and the substantive sentence appeal, but quashed the unlawful victim surcharge order.
• Crown Court at Lewes — Convicted the appellant on 12 January 2015 of two counts of sexual assault of a child under 13 and, on 27 March 2015, imposed consecutive custodial terms totalling 21 months.