Kiziltan v R.

Where hearsay is admitted through the unavailability gateway in section 116(2)(d) of the Criminal Justice Act 2003, there is no further discretion to refuse admission under that gateway. The court must nevertheless determine any exclusion application under section 78 of PACE. The considerations in section 114(2) may guide that fairness assessment.

Hearsay from an absent witness should be excluded where it is central to the case and circumstances surrounding the witness’s absence create a material concern about reliability. A hearsay direction must address those circumstances and their possible bearing on credibility, particularly where collusion is a central issue. A general warning and a summary of counsel’s criticism may be inadequate.

The appellant was convicted at the Crown Court at Wood Green of kidnapping and sentenced to four years’ imprisonment. The prosecution alleged that he was one of three men who entered his former partner’s flat, attacked and removed the complainant at knifepoint.

The complainant did not attend to give evidence after attending court earlier in the trial. The trial judge admitted his two witness statements as hearsay under section 116(2)(d) of the Criminal Justice Act 2003. The appellant appealed against conviction, challenging both admission of the statements and the adequacy of the jury direction on hearsay. The central issues were fairness, reliability, and the significance of possible collusion between the absent witness and the former partner.

1. Appeal allowed; conviction quashed. Although the judge was entitled, on a finely balanced factual assessment, to conclude that the section 116(2)(d) gateway had been satisfied, he adopted the wrong statutory sequence. Once that gateway was satisfied, the statements were admissible subject to any application for exclusion under section 78 of PACE. It was an error to undertake a further interests-of-justice inquiry under section 114(1)(d) of the Criminal Justice Act 2003.

2. The correct question was whether admission would be unfair under section 78 of PACE, taking account of the matters in section 114(2) of the Criminal Justice Act 2003. The statements should inevitably have been excluded. The absent complainant’s identification evidence was central. The defence alleged collusion between him and the appellant’s former partner. They had discussed the case after the former partner had given evidence, despite the judge’s warning, and the complainant then said that he did not feel right about attending. Those circumstances materially called the reliability of his identification into question.

3. The subsequent jury direction did not cure the error. The judge properly reminded the jury that they had not seen the witness and summarised the defence criticisms. However, the direction should have required them to consider whether the conversation between the two witnesses explained the complainant’s absence and whether that supported the allegation of collusion and affected the credibility of his statements. The omission rendered the hearsay direction inadequate and the conviction unsafe.

4. Where hearsay is admitted, a judge may give an immediate ruling and provide reasons later. But the detailed ruling should ordinarily be given before speeches, so that counsel can address its consequences and make submissions on the required hearsay direction.

• Court of Appeal (Criminal Division) allowed the appeal in [2017] EWCA Crim 1461 and quashed the conviction.
• Crown Court at Wood Green convicted the appellant of kidnapping on 11 November 2016 and sentenced him on 14 November 2016 to four years’ imprisonment.