Jones, R v

Admission of a complainant’s hearsay statement in a domestic-violence trial requires a properly evidenced and diligent inquiry into why oral evidence cannot be given. In applying Criminal Justice Act section 114, the court must address section 114(2)(g), including the availability of the witness and the reasons for absence.

The fact that locating a witness or delaying a trial would be difficult does not, without more, justify depriving a defendant of cross-examination. The court must consider practicable measures to secure attendance and protect the witness. A conviction based on hearsay will be unsafe where inadequate inquiry produces an unfair trial contrary to the defendant’s Article 6 rights.

The appellant was convicted of two counts of assault occasioning actual bodily harm arising from violence towards his long-term partner. The complainant made a detailed police statement but later withdrew support for the prosecution. She did not attend trial, having left her home with the parties’ children.

The prosecution applied to adduce her statement as hearsay under section 114 of the Criminal Justice Act. The trial judge granted the application without hearing evidence about the efforts to locate her or considering practical measures, including a warrant, that could have secured her attendance. The appellant appealed against conviction with leave of the single judge.

The central issue was whether the hearsay ruling had been reached through a sufficiently careful inquiry to preserve the fairness of the trial.

1. The appeal was allowed. The convictions could not safely stand because the procedure by which the complainant’s hearsay evidence was admitted was unfair.

2. Under section 114 of the Criminal Justice Act, the judge was required to conduct the statutory balancing exercise. That required proper attention to section 114(2)(g): whether oral evidence could be given and, if not, why it could not. The judge wrongly treated that matter as unnecessary.

3. A proper consideration of the complainant’s absence would have required an evidenced investigation. The court should have considered current information from the police and others, the possibility of a witness warrant, and practical steps to locate, support and protect the complainant and her children. The potential need to delay the trial or make further enquiries did not provide a sufficient basis for the hearsay application.

4. The court did not decide that the prosecution had selected the wrong statutory gateway by relying on section 114 rather than section 116. Either route required an adequate investigation of the witness’s availability and the reasons for her absence.

5. Domestic-violence cases may properly require admission of a complainant’s statement where that is necessary to do justice. A complainant being the only witness does not itself preclude admission. But the application must be properly founded and evidenced. Here, the appellant was deprived of the opportunity to have his case put to the complainant and to be present for that cross-examination. The court could not be sure that the trial had given proper effect to his Article 6 rights.

6. The Crown did not seek a retrial. The case was remitted to the Crown Court to consider a restraining order after acquittal under section 5 of the Protection from Harassment Act 1997.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction and remitted the case to the Crown Court to consider a restraining order after acquittal.

• Crown Court: Convicted the appellant on 26 February 2015 of two counts of assault occasioning actual bodily harm, imposed concurrent two-year sentences, and made a three-year restraining order under section 5 of the Protection from Harassment Act 1997.