Fu, R. v

Where a witness does not attend through genuine fear, a judge may admit the witness’s statements under section 116 of the Criminal Justice Act 2003 if admission is in the interests of justice. The judge is not required to compel an available but fearful witness to attend where the evidence supports genuine fear and further examination is unlikely to assist. A discrepancy about the precise source of the fear will not necessarily undermine that conclusion.

Organised and violent demands for protection money are extremely serious blackmail. Where connected offences form aggravating features of the blackmail, a substantial sentence reflecting the overall course of offending may be justified.

The appellant was unanimously convicted at Birmingham Crown Court of blackmail, common assault and violent disorder. The prosecution alleged repeated demands for protection money from a hairdressing-business owner, threats, an assault, and later armed group violence at a bar.

The complainant did not attend trial. His statements were admitted under section 116(2)(e) of the Criminal Justice Act 2003 on the basis that he was fearful. The appellant appealed his convictions, principally contending that the judge should have taken further steps to secure cross-examination after the complainant was found at his business. He also renewed his application for permission to appeal a ten-year sentence for blackmail.

1. The appeal against conviction was dismissed. The court held that the trial judge was entitled to admit the complainant’s statements under section 116(2)(e) of the Criminal Justice Act 2003. It was accepted that the statutory requirements concerning fear and the interests of justice could in principle be met.
2. The evidence before the judge supported a finding of genuine and substantial fear. It included the complainant’s own statements, the officer’s evidence, and CCTV evidence of the bar incident. The possible discrepancy over whether there had been specific later threats did not undermine the conclusion that the complainant feared the appellant and those involved in the offending.
3. The judge was not required to take further steps to compel the complainant’s attendance merely because he was found to be available. He was entitled to assess whether that course would achieve anything, particularly when the witness’s fear was apparent and special measures had not reassured him. The precise source of the fear was not decisive on these facts.
4. There was no procedural unfairness. The judge dealt fairly with the statements in summing up, including by identifying discrepancies on which the defence relied to challenge the complainant’s reliability.
5. The renewed application for permission to appeal sentence was refused. The conduct was properly described as a protection racket, notwithstanding that it concerned one business. The related assault and violent disorder were severely aggravating features of the blackmail. In light of the organised threats, violence and impact on confidence in commerce and the rule of law, the ten-year sentence was not manifestly excessive.

• Court of Appeal (Criminal Division): In R v Fu, [2017] EWCA Crim 248, dismissed the appeal against conviction and refused renewed permission to appeal against sentence.
• Crown Court at Birmingham: On 26 April 2016, a jury unanimously convicted the appellant of blackmail, common assault and violent disorder. The judge imposed ten years’ imprisonment for blackmail, with concurrent sentences for the other offences.