Haji, R. v

A trial judge’s decision to admit hearsay under section 114(1)(d) of the Criminal Justice Act 2003 will not readily be disturbed on appeal. Intervention requires legal error, reliance on wrong matters, or a decision which could not sensibly have been made. The essential question is whether admission adversely affected the fairness of the proceedings. Prosecutorial failures before the application do not themselves make admission unfair where the judge has weighed the relevant factors, protected the defendant’s interests, and the evidence is assessed with fair jury directions.

The applicant was convicted at Leeds Crown Court of sexual offences, including rape, sexual activity with a child, meeting a child after sexual grooming, and trafficking within the United Kingdom for sexual exploitation. He received a total sentence of 19 years’ imprisonment.

In a renewed application for leave to appeal against conviction, he challenged the admission of a complainant’s statement as hearsay under section 114(1)(d) of the Criminal Justice Act 2003. He also contended that there was no case to answer on two counts. The central issues were whether admission of the statement made the proceedings unfair and whether the prosecution evidence could properly sustain those counts.

1. The renewed application for leave to appeal against conviction was refused.
2. The court accepted that the prosecution had made two errors: it should have obtained the complainant’s further evidence through an ABE interview, and it failed to use the opportunity afforded by the section 28 procedure under the Youth Justice and Criminal Evidence Act 1999 to ask questions about that evidence. Those failures did not establish an arguable error in the trial judge’s later decision to admit the statement as hearsay.
3. The trial judge had considered the relevant factors, including matters advanced for the applicant concerning both complainants, and had carefully weighed the competing considerations. He had properly considered the applicant’s interests. The statement’s admission did not have such an adverse effect on fairness that it ought to have been excluded. The applicant was in any event required to meet other evidence concerning the clothing and the scientific findings. The jury also received thorough and fair directions on its approach to the evidence.
4. The court stated that it will not readily interfere with a decision of that kind unless the judge made a legal error, took account of wrong matters, or reached a decision which could not sensibly have been made. None was arguable here.
5. On the no-case submission, the prosecution evidence relied upon at trial provided a compelling basis for the judge’s conclusion that there was a case to answer on each of the challenged counts. That ground was wholly without arguable merit.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2017] EWCA Crim 1556.
• Crown Court at Leeds: on 12 September 2016 the applicant was convicted of the relevant sexual offences. On 27 September 2016 he was sentenced to a total of 19 years’ imprisonment.