Drinkwater v R.

Section 126 of the Criminal Justice Act 2003 permits exclusion of prima facie admissible hearsay where its limited evidential value is substantially outweighed by the danger of undue waste of time. The court should assess the statement’s importance, reliability, internal consistency, supporting material and the ability to test the absent maker’s reliability. The exclusion threshold does not differ according to whether the hearsay is tendered by the prosecution or the defence.

Drinkwater v R. concerned convictions at the Crown Court at St Albans for two rapes, two robberies and an indecent assault arising from attacks in 1984. The appellant received a total sentence of 29 years’ imprisonment.

Cold-case DNA testing identified the appellant’s DNA in seminal material from each rape. The defence contended that another man, Hopkins, might have committed one attack. Hopkins had died after making, then retracting, an unsigned admission. The trial judge admitted substantial agreed evidence about Hopkins but excluded further hearsay material under section 126 of the Criminal Justice Act 2003. The appeal challenged that ruling and the safety of the convictions.

1. Appeal against conviction dismissed. The proposed material satisfied the statutory gateway for hearsay from a deceased person, but was subject to the court’s general exclusionary discretion under section 126 of the Criminal Justice Act 2003. The court expressed a strong preliminary view that section 126 permits exclusion of hearsay lacking significant probative value. It did not finally decide the full scope of that discretion, because the evidence was properly excluded even on a narrower view.
2. The judge was entitled to treat the section 114(2) factors as a useful common-sense checklist when evaluating hearsay under section 126. The material was internally inconsistent and contradictory. Hopkins both admitted and denied responsibility, and his stated explanation for the admission undermined its reliability. It also conflicted with uncontroverted evidence about the attacker’s balaclava.
3. The hearsay added no significant evidential value. The jury already knew of Hopkins’s admission and retraction, his appearance near the scene, the relevant taxi evidence, and the items found at his home. The additional statements did not establish any salient fact not otherwise before the jury, but risked an undue waste of time. The case for exclusion therefore overwhelmingly outweighed the case for admission.
4. There is no textual or principled basis for applying a different section 126 exclusion threshold according to whether the evidence is tendered by the defence or the prosecution. The unchallenged DNA evidence was overwhelming and safely entitled the jury to reject both the alternative-suspect and contamination cases.
5. Permission to appeal against sentence refused. The total sentence was fully merited by the gravity and brutality of the rape offences.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction and refused permission to appeal against sentence: [2016] EWCA Crim 16.
• Crown Court at St Albans: convicted the appellant of two rapes, two robberies and an indecent assault, and imposed a total sentence of 29 years’ imprisonment.