Muldoon, R. v

A prior witness statement is not admissible under section 119(1) of the Criminal Justice Act 2003 merely because a hostile witness remains silent after giving only preliminary evidence. Silence does not create an inconsistent statement capable of proof under section 3 of the Criminal Procedure Act 1865.

However, section 114(1)(d) may exceptionally admit the statement where the interests of justice so require. The court must exercise great care, avoid circumventing other hearsay gateways, and assess all relevant circumstances under section 114(2). A witness’s availability and unwillingness to testify are important considerations, but do not create an inflexible bar.

The appellant was convicted in the Crown Court at Bolton of causing grievous bodily harm, possessing a bladed article and criminal damage. The prosecution case included written statements by the injured man and his former partner identifying the appellant and describing the attack, threats and damage.

At trial, both witnesses attended but, after confirming limited preliminary matters, substantially refused to answer questions. The judge treated them as hostile, permitted their statements to be put to them, and admitted the statements as evidence of their contents. He found substantial independent support for the accounts and directed the jury to approach them with caution.

The appeal challenged the admissibility of the statements. The central issues were whether their silence satisfied section 119 of the Criminal Justice Act 2003 and, if not, whether admission was nevertheless in the interests of justice under section 114(1)(d).

Appeal dismissed. Although the trial judge was wrong to admit the witnesses’ statements through section 119, the statements were properly admissible under section 114(1)(d) of the Criminal Justice Act 2003. The convictions were therefore safe.

1. Section 119(1) requires the witness to have given oral evidence in the context of a previous inconsistent statement. Neither witness gave an account inconsistent with the earlier statements. Apart from preliminary matters, each simply refused to answer. Their essentially nonexistent testimony could not be inconsistent with their earlier accounts, and section 3 of the Criminal Procedure Act 1865 could not prove an inconsistent statement for section 119(1)(b).

2. The common law nevertheless permits a judge to allow cross-examination of an adverse witness who, having answered preliminary questions, refuses to give evidence. This distinction was material. It would be anomalous if a hostile witness cross-examined under the statutory route could have a prior statement admitted under section 119, but an equally hostile silent witness cross-examined under the common law could never have the statement admitted through the residual interests-of-justice gateway.

3. Section 114(1)(d) is a limited residual power and must be used with great care. It must not circumvent the restrictions on hearsay evidence. Yet it must retain practical effect, and the circumstances of individual cases cannot be governed by an inflexible rule excluding statements from available but unwilling witnesses.

4. The judge’s assessment of the section 114(2) factors was exemplary and could not be faulted. The statements were highly probative and important. Their making was formally evidenced, their contents had significant independent support, and the defence retained means of challenge. The witnesses had appeared before the jury, which could assess their demeanour, and cautionary directions reduced any prejudice. The fact that oral evidence could have been given, and that the witnesses were not shown to be afraid, required particular care but did not preclude admission.

• Court of Appeal (Criminal Division) — Dismissed the appeal against conviction and held that, notwithstanding the erroneous reliance on section 119, the witness statements were admissible under section 114(1)(d) of the Criminal Justice Act 2003.
• Crown Court at Bolton — On 14 September 2020, the appellant was convicted of causing grievous bodily harm, possessing a bladed article and criminal damage. On 17 September 2020, he received nine years’ imprisonment for the grievous bodily harm offence, with concurrent shorter sentences on the remaining counts.