Hengari-Ajufo & Anor, R. v

A witness may be treated as hostile under section 3 of the Criminal Procedure Act 1865 following a fact-sensitive assessment. Relevant matters include the witness’s ability and willingness to assist, previous accounts and demeanour. A prior inconsistent written statement or sworn evidence is not essential.

Hearsay may be admitted under section 114(1)(d) of the Criminal Justice Act 2003 where a careful interests-of-justice assessment shows that its probative value outweighs the resulting prejudice. The assessment must address reliability, corroboration and the practical means by which the defence can test the evidence. A strong jury warning about admitted hearsay does not itself undermine the ruling admitting it.

At the Central Criminal Court, the two appellants were convicted of murder by an 11-to-1 majority after the fatal stabbing of David Maxwell.

An eyewitness, Jahreal Wright, gave a deposition claiming that he had not seen the attack. The prosecution nevertheless called him. After he refused to answer questions, the trial judge permitted him to be treated as hostile. The judge also admitted, under section 114(1)(d) of the Criminal Justice Act 2003, hearsay evidence from two members of the deceased’s family about Wright’s account identifying the appellants.

The appeals challenged the hostility ruling, the admission of that hearsay, and the adequacy and consistency of the judge’s directions about it.

1. The appeals were dismissed. Nothing at trial undermined the safety of the murder convictions.
2. The prosecution was entitled to call Wright. Calling a witness does not bind the prosecution to every part of that witness’s evidence. Whether a witness is hostile under section 3 of the Criminal Procedure Act 1865 depends on the circumstances. Relevant matters include the witness’s ability and willingness to assist, previous accounts and demeanour. A previous inconsistent written statement or sworn evidence is not an essential condition. There was evidence that Wright had earlier said he saw the murder, was present at the scene, and was refusing to assist the authorities. The judge could therefore treat him as hostile.
3. The trial judge had conducted a thorough assessment under section 114(1)(d) and section 114(2) of the Criminal Justice Act 2003. The hearsay was important and had substantial probative value. The family witnesses were reliable, and Wright had supplied details capable of objective confirmation. Although Wright’s refusal to answer prevented direct testing of his asserted recognition of the appellants, the defence could explore the risks through CCTV, other eyewitnesses, admissions and evidence about Wright’s conduct and reliability. The probative value outweighed the prejudice, and admission was fair.
4. The judge’s later strong warning about Wright’s lack of integrity and the limits of the hearsay did not contradict the admissibility ruling. It was a proper attempt to protect the appellants by directing the jury to treat the evidence cautiously and to focus on the objective evidence.

• Court of Appeal (Criminal Division) — dismissed the appellants’ conviction appeals: [2016] EWCA Crim 1913.
• Central Criminal Court — on 18 May 2015, convicted both appellants of murder by an 11-to-1 majority before His Honour Judge Cooke QC.