Daley, R. v

Where hearsay evidence is admitted in a criminal trial, the judge should ordinarily warn the jury before hearing it, and repeat the warning in the summing up. The jury should be directed to the limitations arising because the maker cannot be seen, was not on oath, and cannot be cross-examined. The direction should explain the evidence’s relevance and be tailored where it bears on the defendant’s character.

Omission of that direction does not automatically make a conviction unsafe. The appellate court must assess the course of the trial and the actual significance of the hearsay evidence when determining whether the omission was a material misdirection.

The appellant was convicted of murder at Chelmsford Crown Court after admitting that he inflicted the fatal injuries but contending that he had acted in fear and had lost self-control.

The prosecution adduced statements made by the deceased about the appellant’s conduct at their hostel. The statements were admitted as hearsay under Criminal Justice Act 2003, section 116. On appeal, the appellant challenged the absence of a jury direction on the limitations of hearsay evidence, particularly because the statements portrayed him as aggressive and intimidating.

The central question was whether that omission rendered the murder conviction unsafe.

Appeal dismissed. The conviction for murder was safe.

1. The admission of the deceased’s statements was not challenged. A statement by a deceased maker was admissible under section 116(1) and (2)(a) of the Criminal Justice Act 2003.

2. The court stated that, ordinarily, a judge should warn the jury before hearsay evidence is heard that the maker’s demeanour cannot be observed, the statement was not made on oath, and it cannot be tested by cross-examination. The warning should normally be repeated in the summing up, with an explanation of the evidence’s relevance. Where hearsay bears on a defendant’s bad character, the direction should be suitably tailored. This approach followed R v Horncastle and another [2010] 2 AC 373.

3. Those directions were absent. However, the omission was not material in the circumstances. Once the appellant gave evidence, the defence focused on whether his apparent hostility and aggression arose from fear and supported loss of control. The hearsay evidence became far less significant. The jury had seen and heard the appellant, had substantial non-hearsay evidence about his behaviour, and had the defence psychologist’s evidence. The court therefore held that the omission did not undermine the safety of the conviction.

4. No complaint could be made about the direction on loss of control. The suggested ground that self-defence should have been left to the jury was not arguable.

• Court of Appeal (Criminal Division) — by [2017] EWCA Crim 1971, dismissed the appeal against conviction.
• Crown Court at Chelmsford — on 19 January 2016, convicted the appellant of murder and sentenced him to life imprisonment with a minimum term of 18 years.