Brown, R. v

An unidentified maker does not automatically prevent hearsay evidence being admitted. The witness-anonymity regime concerns a witness whose identity is withheld because they are unwilling to give evidence unless protected. It does not govern a potential witness who cannot be traced and has not sought anonymity.

Under Criminal Justice Act 2003, the absence of identifying details remains relevant to fairness. It will not preclude admission where the circumstances exclude any realistic challenge to the maker’s credibility. A spontaneous statement made in response to a startling event is admissible as res gestae where concoction or distortion can safely be disregarded. Ordinary risks of mistake ordinarily concern weight for the jury.

The appellant was convicted at Harrow Crown Court of wounding with intent and possessing an offensive weapon. The prosecution alleged that he stabbed the victim and relied on circumstantial evidence, including the registration number of a black Audi.

A bus passenger, Ms Ghani, reported that registration number in a 999 call immediately after the stabbing. She had read it from the mobile telephone of an unidentified passenger who had witnessed the event. Despite extensive police enquiries, that passenger could not be traced. The trial judge admitted the evidence as res gestae and in the interests of justice.

The appeal challenged that ruling. Its central issue was whether hearsay from a person whose identity was unknown was inadmissible because of the witness-anonymity legislation.

1. Appeal dismissed. The hearsay evidence was properly admitted and the convictions were safe.
2. Criminal Justice Act 2003 section 116 could not admit the statement. Although the unidentified passenger could not be found despite reasonable steps, section 116 required the maker to be identified to the court’s satisfaction. The requirement, as explained in R v Mayers [2008] EWCA Crim 2989, protects the defence’s ability to use section 124 to challenge the maker’s credibility.
3. The evidence was nevertheless admissible as res gestae under section 118. Applying Ratten v R [1972] AC 378 and R v Andrews [1987] 1 AC 281, the governing question was whether the circumstances were sufficiently spontaneous and connected with the event that concoction or distortion could be disregarded. The passenger’s recording and communication of the number immediately after witnessing a shocking stabbing met that standard. Any risk that she made an innocent error in recording the number concerned evidential weight, which the jury could assess from the surrounding evidence.
4. The witness-anonymity provisions did not prohibit admission. R v Mayers and R v Ford concerned attempts to preserve a maker’s anonymity. Here there was no indication that the passenger wished to remain anonymous or would have refused to assist unless protected; she was simply untraceable. As R v Horncastle [2009] UKSC 14 recognised, an untraceable witness is materially different from an available witness who is unwilling to testify.
5. Section 114(1)(d) therefore remained available. The inability to investigate credibility under section 124 may often make admission contrary to the interests of justice. It did not do so here, because the circumstances excluded any realistic scope for alleging concoction or deliberate distortion. The judge’s assessment under section 114(2), and his refusal to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984, disclosed no reasonable basis for challenge.

• Court of Appeal (Criminal Division) — dismissed the appeal against conviction: [2019] EWCA Crim 1143.
• Crown Court at Harrow — convicted the appellant by majority verdicts of wounding with intent and possession of an offensive weapon, after admitting the disputed hearsay evidence; no citation for the ruling was stated.