Smith v R.

A party seeking to introduce complex hearsay must comply with the notice requirements in the Criminal Procedure Rules. Defence silence, or proposed edits to an interview record, does not waive that requirement.

Multiple hearsay of an alleged confession should not be admitted where a competent and compellable witness can give first-hand evidence of the response to the complaint, and the evidence does not satisfy the interests-of-justice test. Where such highly prejudicial evidence may be treated by a jury as confirming guilt, clear and effective directions are required. Insufficient warnings may render the conviction unsafe.

The appellant was convicted at the Crown Court at Ipswich of indecent assault alleged to have occurred in 1969, when the complainant was eight years old. The prosecution relied on multiple hearsay evidence that the appellant had admitted the conduct to his former wife after the complainant complained to her mother.

No prosecution notice to introduce hearsay evidence was served. The trial judge did not give a clear ruling on admissibility, and the jury heard both the complainant’s and her sister’s accounts of the alleged admission. The former wife gave first-hand evidence that the appellant had denied the allegation.

The appeal concerned whether the alleged confession evidence was admissible, whether the directions cured any prejudice, and whether the conviction was safe.

1. Appeal allowed. The court quashed the conviction because the multiple hearsay evidence of an alleged confession was wrongly admitted and the resulting prejudice was not cured by the summing up.
2. The notice provisions in the Criminal Procedure Rules were mandatory. They exist to ensure that difficult questions of admissibility are properly identified and argued. The Crown could not treat the absence of an explicit defence objection, or the defence’s proposed edits to the ABE interview, as an implicit waiver of the notice requirement.
3. The judge could not admit the evidence by agreement under rule 20.4 because no notice had been served. The alleged admission did not support the consistency of the complainant’s account. At most, it was said to explain why her parents did not report the matter to the police.
4. There was no proper basis to admit either hearsay account of the alleged admission. The appellant’s former wife was available and compellable to give first-hand evidence of what she had been told and of the appellant’s response. The multiple hearsay evidence could not satisfy the interests-of-justice test in section 121(C) of the Criminal Justice Act 2003.
5. The evidence was highly prejudicial because the jury could treat it as confirmation of guilt. The judge gave no clear direction that its content was irrelevant or that the jury must not rely on it. The conviction was therefore unsafe. A retrial was not in the interests of justice, given the passage of more than 50 years, the non-custodial sentence and the completed work requirement. The notification requirements, listing consequence, restraining order and costs order were quashed.

• Court of Appeal (Criminal Division) — by [2020] EWCA Crim 777, allowed the appeal, quashed the conviction and declined to order a retrial.
• Crown Court at Ipswich — convicted the appellant on 6 November 2017 of indecent assault and imposed a suspended sentence of two years’ imprisonment.