McEvoy, R. v

A party relying on hearsay under section 116 of the Criminal Justice Act 2003 must prove the statutory condition of admissibility to the criminal standard. What is reasonably practicable depends in part on the importance of the evidence. Where pivotal eyewitnesses cannot be found or brought before the court, reasonable practical steps include maintaining contact and pursuing available home and university addresses.

Admission of untested eyewitness hearsay may cause potential prejudice where the defence cannot challenge discrepancies bearing on a live issue, such as whether touching was accidental. In that situation, the appeal against conviction should be allowed.

The appellant was convicted in the Crown Court at Blackfriars of sexually assaulting a child under 13, contrary to section 7(1) of the Sexual Offences Act 2003. The prosecution relied materially on written statements from two German eyewitnesses who did not attend trial. The appellant could not cross-examine them and maintained that any touching, if it occurred, was accidental while he was intoxicated.

On appeal, he challenged the admission of the statements as hearsay, the admission of the complainant’s delayed ABE interview, and the adequacy of the jury direction on intentional touching.

1. Appeal allowed. The judge erred in admitting the statements of the two absent eyewitnesses as hearsay. Their evidence was pivotal because they were the only claimed eyewitnesses and the CCTV did not show the alleged assault.
2. Under section 116 of the Criminal Justice Act 2003, the party seeking to rely on hearsay bears the criminal-standard burden of proving the relevant condition of admissibility. The importance of the evidence is relevant when deciding what steps were reasonably practicable to secure a witness’s attendance or find that witness.
3. The Crown had not discharged that burden. Although telephone calls, emails and personal messages had been tried, the German police had not visited either witness’s home or university address and had not established where they were studying. Nor had effective contact been maintained after the witnesses indicated that they could attend. The court applied the observations of Hughes LJ in R v Riat [2013] 1 All ER 349 that reasonable steps include both searching for a missing witness and keeping in contact so that the witness does not disappear.
4. The erroneous admission caused potential prejudice. Counsel could not test inconsistencies in the accounts which were capable of bearing on the defence that any touching was inadvertent and caused by intoxication.
5. The remaining grounds did not independently justify allowing the appeal. The delayed ABE interview was admissible, although it required caution and an appropriate warning on reliability. The direction on intentional touching could have been clearer, but the jury could not reasonably have understood that accidental touching could be sexual, particularly after the judge clarified the point in their presence.

• Court of Appeal (Criminal Division) In [2016] EWCA Crim 1654, the court allowed the appeal against conviction because pivotal eyewitness hearsay had been wrongly admitted.
• Crown Court at Blackfriars The appellant was convicted on 18 August 2015 and sentenced on 25 September 2015 to 12 months’ imprisonment suspended for 24 months, with unpaid work, supervision and alcohol-treatment requirements.