Juskelis, R v

Hearsay evidence under section 116 of the Criminal Justice Act 2003 is admissible only when the statutory condition of witness unavailability is established. Where a witness is abroad, the prosecution must show that securing attendance is not reasonably practicable. Where the witness cannot be found, it must show that all reasonably practicable steps have been taken to find that witness.

A broad assessment of fairness cannot replace those threshold requirements. Nor can section 114(1)(d) routinely circumvent them. The admission of a central witness’s statement without proof of the applicable section 116 condition renders the conviction unsafe.

The appellant was convicted at the Crown Court at Blackfriars of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, and was sentenced to 18 months’ imprisonment. He appealed against conviction with leave of the single judge.

The complainant, who had made a statement identifying the appellant as his attacker in a prison cell, was deported to Lithuania before trial. The prosecution applied, shortly before trial, to admit that statement as hearsay under section 116(2)(c) and (d) of the Criminal Justice Act 2003. The Recorder admitted it. The central issue was whether the prosecution had established either statutory condition of unavailability.

1. Appeal allowed. The complainant’s written statement was wrongly admitted and the resulting conviction was unsafe.

2. Section 116 of the Criminal Justice Act 2003 creates a threshold for admitting hearsay from an unavailable witness. It was not enough that the complainant had been deported and was outside the United Kingdom. Under section 116(2)(c), the prosecution had to show that it was not reasonably practicable to secure his attendance. Under section 116(2)(d), it had to show that reasonably practicable steps had been taken to find him. As explained in Riat [2013] 1 Cr.App.R 2, resort to secondhand evidence must be shown to be necessary.

3. Neither condition was established. The complainant was a central prosecution witness in a serious case. The Recorder had rightly found that more could have been done. The witness’s movements had not been properly monitored, communication between the relevant public bodies had failed, and no enquiries were made through the Lithuanian consulate or another suitable source after deportation. If he had been located, arrangements for oral evidence, including by video link if necessary, might have been possible.

4. The Recorder had wrongly approached admissibility as a broad question of fairness and had conflated the section 116 gateway, section 114 of the Criminal Justice Act 2003, and discretionary exclusion under section 78 of the Police and Criminal Evidence Act 1984. Section 114(1)(d) was neither invoked nor a routine means of avoiding the requirements of sections 116 to 118. Although the late hearsay notice did not itself require the appeal to be allowed, no statutory basis for admitting the statement had been made out. No further application was made by the Crown.

• Court of Appeal (Criminal Division) Allowed the appeal against conviction and held that the complainant’s hearsay statement had been wrongly admitted: [2016] EWCA Crim 1817.

• Crown Court at Blackfriars Convicted the appellant of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861, acquitted him of the alternative section 18 count, and sentenced him to 18 months’ imprisonment.