Nguyen, R. v

A co-defendant’s out-of-court interview may be admitted against another defendant under section 114(1)(d) of the Criminal Justice Act 2003, including after the maker has given evidence, if admission is in the interests of justice. The court must apply the statutory factors and be satisfied that a jury could properly regard the statement as reliable. Such admission is not routine.

Section 119 makes a previous inconsistent statement evidence of its truth against its maker. It does not make it evidence against a co-defendant. A late application requires close scrutiny of actual prejudice. Appropriate jury directions may cure prejudice, and an appeal succeeds only if any error renders the conviction unsafe.

Following a jury trial at the Crown Court at Blackfriars, the appellant was convicted of two kidnappings, two false imprisonments and one offence of carrying an imitation firearm with criminal intent. He received a total sentence of 13 years’ imprisonment and appealed against conviction with the single judge’s leave.

A co-defendant, Thomas, had implicated the appellant in police interview but retracted that account at trial. After closing speeches, the trial judge admitted the interview against the appellant under sections 114(1)(d) and 119 of the Criminal Justice Act 2003, without giving a specific hearsay warning. The appeal concerned the correctness and fairness of that ruling and whether the resulting convictions were safe.

1. Appeal dismissed. The convictions were safe despite errors in the trial judge’s approach to part of the hearsay issue and to jury directions.
2. Section 114(1)(d) of the Criminal Justice Act 2003 is not confined to a prospective application. An application may be made after the maker has given evidence and has been cross-examined about the previous statement, even if the statement has already been put before the jury. The timing remains material to the interests-of-justice assessment.
3. The trial judge was wrong to regard it as artificial or illogical for the jury to reach different factual conclusions about co-defendants because an out-of-court statement was admissible against only one of them. Juries are routinely directed to compartmentalise such evidence. Nevertheless, the judge had properly assessed the section 114(2) factors. Applying the approach in R v Sliogeris [2015] EWCA Crim 22, the relevant minimum was whether the interview was properly capable of being regarded by the jury as reliable. The judge could conclude that Thomas had told the truth in interview and lied when retracting it at trial.
4. Section 119 did not provide an alternative basis for admitting Thomas’s interview against the appellant. It made the previous inconsistent statement admissible for its truth against Thomas, its maker, but did not displace the rule that it was not evidence against a co-defendant. Admission against another defendant required section 114(1)(d), consistently with R v Y [2008] EWCA Crim. 10.
5. The prosecution should have made, or at least flagged, its section 114(1)(d) application immediately after its cross-examination of Thomas. The appellant suffered some prejudice from the late application, but it was not irremediable. A warning about the limitations of the interview, Thomas’s explanation for it, and the bad-character assertions would have cured it. The better course regarding the unsupported assertion that the appellant had previously robbed cannabis grow houses was to direct the jury to ignore it. The judge should also have given the usual direction that the other defendants’ interviews were evidence only against their respective makers.
6. Those omissions did not render the verdicts unsafe. The complainants’ evidence, first-complaint evidence, police body-camera footage, the recordings of the appellant assaulting Pham, and the appellant’s changing accounts provided a strong independent case of kidnapping, detention and violence. The appeal against conviction was therefore dismissed.

• Court of Appeal (Criminal Division) Dismissed the appeal against conviction: [2020] EWCA Crim 140.
• Crown Court at Blackfriars Following a jury trial, convicted the appellant on two counts of kidnapping, two counts of false imprisonment and one count of carrying an imitation firearm with criminal intent; sentenced him to 13 years’ imprisonment.