Barnes, R. v

For the hearsay gateways in section 116(2) of the Criminal Justice Act 2003, reasonable practicability and fear are assessed in their practical context. A court may act on necessarily incomplete evidence where a reluctant witness cannot be found or is in fear.

Admission remains subject to a careful interests-of-justice balance. Corroborative hearsay with real probative value need not be excluded merely because the maker cannot be cross-examined, provided the defence can expose the limitations of the evidence and the jury receives clear warnings. The adequacy of a summing-up is assessed as a whole. It is not unfair where it fairly identifies both consistencies and differences in the evidence.

Following a jury trial in the Crown Court at Canterbury, Oliver Barnes was convicted of aggravated burglary, wounding with intent, attempted burglary and burglary. He received a total sentence of nine years’ imprisonment.

The prosecution had relied on the hearsay statement of Rosanna Hilton, who was unavailable to give oral evidence. The trial judge admitted the statement under section 116(2)(d) and section 116(2)(e) of the Criminal Justice Act 2003, with deletions. Barnes appealed against conviction with leave of the single judge.

The appeal challenged both the admission of the hearsay statement and the fairness of the judge’s summing-up. The central issues were whether the statutory hearsay conditions and interests-of-justice safeguard had been satisfied, and whether the jury directions were unbalanced.

1. Appeal dismissed. The trial judge was entitled to admit Rosanna Hilton’s statement as hearsay.

2. The section 116(2)(d) gateway was satisfied. The reasonable-practicability inquiry was contextual. The police had kept in contact with the witness, initially sought to secure her attendance through reassurance, obtained a witness summons once she refused to attend, and made reasonable direct and indirect efforts to locate her. There was no basis for saying that contact during the period after the first trial had been adjourned would have altered the position.

3. The section 116(2)(e) gateway was also satisfied. In a fast-moving situation, a court cannot always obtain medical or similarly detailed evidence analysing a witness’s fear. It must assess the available evidence. The witness’s repeated references to fear and her circumstances entitled the judge to find that she was in fear. Fear did not need to be referable to a particular defendant.

4. Admission was in the interests of justice. The statement had substantial probative value because it corroborated unusual aspects of the victims’ evidence, the alleged joint enterprise and the disposal of the hammer. It was not decisive evidence and did not amount to a confession by the appellant. The defence could challenge the witness’s motives, reliability and discrepancies in her statements before the jury. The judge therefore properly conducted the statutory balancing exercise, consistently with the guidance in R v Shabir [2012] EWCA Crim 2564.

5. The jury received an appropriate and careful warning about the limitations of hearsay evidence. The summing-up did not undermine it. Read fairly, the judge identified both points of consistency between the hearsay statement and other evidence, and points of difference. The summing-up was balanced and fair.

• Court of Appeal (Criminal Division): Dismissed Barnes’s appeal against conviction: [2020] EWCA Crim 959.
• Crown Court at Canterbury: On 17 December 2019, a jury convicted Barnes of aggravated burglary, wounding with intent, attempted burglary and burglary. He was sentenced to nine years’ imprisonment in total.