S v R.

Hearsay from an absent witness is not inadmissible merely because the witness has given materially inconsistent accounts. Admissibility depends on the circumstances, the statutory interests-of-justice factors and trial fairness. A later retraction does not necessarily prevent a jury from accepting an earlier account.

Where untested contradictory hearsay is admitted, the judge must give a carefully tailored warning before conviction. The jury must approach the evidence cautiously, assess the significance and explanation of the inconsistencies, and decide whether the witness is creditworthy. Section 3 of the Criminal Procedure Act 1865 does not apply where the witness gives no oral evidence at trial.

The appellant was convicted at the Crown Court at Snaresbrook of kidnapping, two rapes and false imprisonment. The complainant did not attend trial. The prosecution relied on her 999 call and her recorded ABE interview, while letters sent by her from abroad retracted her allegations and advanced an account favourable to the appellant.

The trial judge admitted the 999 call as res gestae and the ABE interview as hearsay. He refused to stop the case and allowed the letters to be placed before the jury. The appeal challenged the admissibility of the hearsay, the refusal to stop the case, and the adequacy of the jury directions on the conflicting accounts.

1. Appeal allowed. The convictions were quashed because the jury directions made the verdicts unsafe. A retrial was ordered.

2. The judge was entitled to admit the complainant’s initial accounts and to refuse to withdraw the case from the jury. There is no rule that hearsay is inadmissible simply because its maker later gives contradictory material accounts. The relevant questions are the statutory conditions, the interests of justice and fairness under section 78 of the Police and Criminal Evidence Act 1984. The court applied the approach in R v Cole; R v Keet [2007] EWCA Crim 1924. The early accounts were clear and consistent, and there was supporting evidence from the scene, injuries, clothing and DNA.

3. The later retractions did not make it impermissible for the jury to be sure that the earlier account was true. Nor was the prosecution evidence so unconvincing that section 125 of the Criminal Justice Act 2003 required the case to be stopped.

4. Section 3 of the Criminal Procedure Act 1865 regulates the use of an earlier inconsistent statement when a witness testifying in court departs from it. It has no application where the witness does not testify and hearsay is introduced instead.

5. However, the jury had to resolve wholly contradictory, untested accounts from a witness whose evidence was central to conviction. The judge had to give a precise warning to approach that evidence with caution and to evaluate the materiality, extent and possible explanation of the contradictions. The general directions given were insufficient. It may also be desirable to direct the jury to assess whether the witness is creditworthy at all, as indicated in R v Maw [1994] Crim.L.R. 842.

6. In an unusual case of this kind, the judge ought to discuss the proposed direction with counsel before closing speeches, preferably by providing a written draft. No unfairness arose from ordering a retrial. Bail was adjourned to the court below.

• Court of Appeal (Criminal Division): Allowed the appeal, quashed all four convictions and ordered a retrial: [2016] EWCA Crim 1908.
• Crown Court at Snaresbrook: The appellant was convicted unanimously of kidnapping, two counts of rape and false imprisonment, and received concurrent sentences.