Smith & Ors, R. v

The prosecution may call a witness whose evidence it considers reliable only in part. It may adduce other evidence contradicting the part it considers inaccurate and invite the jury to reject it, without first having the witness declared hostile. The prosecution need not probe an honestly held identification merely because it submits that objective circumstances show it to be mistaken.

A judge should give appropriate cautionary directions on the dangers of identification evidence regardless of which party relies on it. An out-of-court statement adduced solely to prove that it was made, rather than the truth of its contents, is not hearsay. Its relevance and the inferences available from it are matters for the jury when considered with the evidence as a whole.

Following a jury trial before Langstaff J in the Winchester Crown Court, Smith, Livingstone-Wright and Perry were convicted of attempted murder after Jay Sibley was shot. Hodgkinson was convicted of encouraging or assisting the offence contrary to section 45 of the Serious Crime Act 2007.

The three convicted of attempted murder appealed. They contended that the trial was unfair because the prosecution called two witnesses whose identifications of other men were favourable to the defence, but then adduced evidence suggesting that those identifications were mistaken. They also challenged evidence of a statement relayed to Marie Moore and the rejection of their submission of no case to answer.

Hodgkinson's application for leave to appeal was expressly contingent on the success of the other appeals.

1. The appeals were dismissed. The convictions were safe. Hodgkinson’s contingent application for leave to appeal was consequently refused.

2. The prosecution was entitled to call Sibley and Stanhope despite considering their identification evidence to be honestly mistaken. Under section 3 of the Criminal Procedure Act 1865, properly construed in Greenough v Eccles (1859) 5 CB (NS) 786, a party may contradict an unfavourable witness by other relevant evidence without a hostile-witness ruling. R v Cairns [2002] EWCA Crim 2838 confirms that the prosecution may rely on the credible part of a witness’s evidence and contradict the part it does not accept. Without a hostile ruling, however, it may not prove the witness’s previous inconsistent statement or cross-examine the witness.

3. The prosecution was not obliged to ask the witnesses whether they might have been mistaken. Their confidence and honesty were not disputed. The prosecution case rested instead on objective reasons why their fleeting observations in poor conditions could have produced an honest mistake. The defence had the tactical choice whether to preserve the favourable evidence or test it in cross-examination. That choice created no unfairness.

4. The judge properly directed the jury to approach the identifications with caution. The Turnbull guidelines, [1977] QB 224, reflect the risk of mistaken identification even where the witness is confident. The need for caution does not depend on which party relies on the identification evidence. The judge correctly placed the burden on the prosecution to make the jury sure that the identifications were mistaken.

5. Marie Moore’s evidence of what Antrim had said was not hearsay because it was adduced only to prove that the statement had been made, not that its contents were true. The jury could assess its relevance, including whether information may have reached the appellants, against the whole body of evidence. There was ample evidence on which a reasonable jury could convict, so the case was properly left to the jury.

• Court of Appeal (Criminal Division) — dismissed the appeals against the attempted-murder convictions and refused Hodgkinson’s contingent application for leave to appeal.
• Winchester Crown Court — on 4 April 2018, following a jury trial before Langstaff J, convicted Smith, Livingstone-Wright and Perry of attempted murder and Hodgkinson of encouraging or assisting the offence contrary to section 45 of the Serious Crime Act 2007.