Drummond, R. v

Witness statements read by agreement under Criminal Justice Act 1967, section 9 remain evidence for the tribunal of fact to assess. They are not agreed facts and do not require the tribunal to give them decisive or full weight. The position differs from an admission under section 10, which is conclusive of the matter admitted.

A judge may fairly direct a jury to approach variable eyewitness descriptions with caution and to consider the evidence as a whole. That remains so where the statements have been read rather than given orally, provided the direction does not wrongly depreciate the evidence because it was not tested in cross-examination.

The applicant sought to renew his application for permission to appeal against convictions for murder and violent disorder at the Central Criminal Court on 29 May 2019. His application and request for a representation order had been rejected by the single judge.

The proposed appeal challenged part of the summing-up concerning eyewitness descriptions of the assailants. The statements had been read by agreement and contained differing accounts of height and skin colour. The issue was whether the judge wrongly directed the jury to treat that evidence with caution, rather than directing that it be given full weight.

1. The court refused the renewed application for permission to appeal. The proposed grounds were wholly unarguable and did not cast doubt on the safety of the convictions.

2. The eyewitness material was evidence read by agreement, not agreed evidence or agreed facts. The parties had not accepted the accuracy of every detail in the accounts, which contained inconsistencies and arose from a fast-moving and difficult observation event. A witness account admitted under section 9 of the Criminal Justice Act 1967 may be accepted or rejected by the tribunal of fact in the same way as an account given from the witness box. Its status does not depend on whether cross-examination occurs.

3. That position differs from an admission made under section 10 of the Criminal Justice Act 1967. Such an admission is conclusive of the fact stated and cannot be rejected by the court. The authorities relied on by the applicant concerned evidence which had wrongly been discounted for lack of cross-examination, or evidence whose contents were accepted and undisputed. They were therefore inapposite.

4. The judge’s direction was proper and helpful. Having heard a partisan defence submission based on selected aspects of the descriptions, the judge was entitled to give a balanced reminder of their variation, the limitations inherent in eyewitness observation, and the need to assess the totality of the evidence. The summing-up did not tell the jury to attach little weight to the read statements because they had not been cross-examined.

5. The court concluded that the summing-up was fair and balanced and that the application for permission to appeal had to be rejected.

• Court of Appeal (Criminal Division). The court refused the renewed application for permission to appeal against conviction: [2020] EWCA Crim 267.

• Central Criminal Court. Drummond was convicted of murder and violent disorder on 29 May 2019. He was sentenced on 9 July 2019, including a mandatory life sentence pursuant to section 269(2) of the Criminal Justice Act 2003.