R v C (Rev 1)

Section 116(5)(a) of the Criminal Justice Act 2003 prevents a party from relying on hearsay where that party, or someone acting for that party, caused the witness’s absence to prevent oral evidence. It does not apply merely because the deceased witness whose evidence is relied on took their own life.

Trial judges should use the staged hearsay approach and assess reliability, the ability to test the evidence, and fairness. An appellate court will intervene only where the admissibility ruling was outside the range of legitimate decisions. A jury need not be discharged whenever potentially prejudicial material emerges. The question is whether prompt and clear directions can prevent an unsafe conviction.

The appellant was convicted at the Crown Court at Maidstone of 13 counts of sexual activity with a child, contrary to section 9(1) of the Sexual Offences Act 2003, and sentenced to nine years’ imprisonment.

One complainant had died after making an ABE interview and leaving a suicide note. The Recorder admitted both as hearsay evidence. During the trial, a juror’s note raised a possible inference from an unexplained remark by the appellant’s wife about an earlier event. The Recorder declined to discharge the jury and gave a firm direction that the remark was irrelevant and must not be speculated about.

The appeal challenged the statutory admissibility of the hearsay, the fairness of admitting the suicide note, and the decision not to discharge the jury.

1. Appeal dismissed. None of the grounds, separately or cumulatively, created a serious doubt about the safety of the convictions.
2. Under section 116(5)(a) of the Criminal Justice Act 2003, the person in support of whose case the statement is tendered is, in the context of a deceased witness under section 116(2)(a), a party to the trial, namely the defendant or a person acting on that party’s behalf. It is not the deceased maker of the statement. The complainant’s suicide therefore did not make her ABE interview or suicide note inadmissible under that provision. The Recorder was also entitled to find that she had not died in order to avoid giving evidence.
3. The Recorder properly applied the staged approach in Riat (Jaspal) and others [2013] 1 Cr App R 2. He identified the statutory gateway, considered material capable of testing the hearsay, and addressed exclusion under section 126 of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984. The section 114(2) factors were a useful checklist, not a questionnaire. His conclusion that the evidence could fairly be admitted was within the range of legitimate decisions. The emotional character of the note did not itself require its exclusion.
4. The refusal to discharge the jury was also open to the Recorder. Applying Lawson (Michael) and others [2007] 1 Cr App R 20, the court considered the importance of good character, the potentially prejudicial inference, the inadvertent manner in which the matter emerged, and the effectiveness of a judicial direction. The remark did not itself introduce bad-character evidence. The Recorder promptly directed the jury that it was irrelevant, that they must not speculate, and that the appellant remained of good character. An appellate court should not lightly interfere with that evaluative decision absent unfairness amounting to a miscarriage of justice.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2019] EWCA Crim 623.
• Crown Court at Maidstone: the appellant was convicted of 13 counts of sexual activity with a child and sentenced to nine years’ imprisonment.