R v Kyi-Riece Sylvester

Admission of anonymous hearsay under section 114(1)(d) of the Criminal Justice Act 2003 requires a holistic interests-of-justice assessment. The court must consider all the statutory factors, rather than probative value alone. Where the maker cannot be identified, the inability to test credibility under section 124 may be a powerful or decisive reason to exclude the evidence, particularly where the opposing party cannot fairly address it and the jury has no proper basis to assess reliability.

An increased sentencing starting point did not engage article 7 where the mandatory maximum sentence remained detention for life. A sentencing rule introduced before sentence may govern the minimum-term exercise, subject to the prohibition on lex gravior.

The appellant was convicted at the Central Criminal Court of murder committed when he was 16. The prosecution alleged that, during an intended robbery, he stabbed the deceased with a knife. The appellant maintained that the deceased produced a knife and that he acted in self-defence.

The trial judge refused to admit hearsay from two unidentified alleged eyewitnesses who had reportedly seen the deceased waving a knife. The appellant appealed against conviction on the ground that the evidence should have been admitted under section 114(1)(d) of the Criminal Justice Act 2003.

He also renewed, out of time, an application for leave to appeal his minimum term. He contended that applying paragraph 5A of Schedule 21 to the Sentencing Act 2020, inserted after the offence, breached article 7 of the European Convention on Human Rights. The issues were whether the hearsay ruling was wrong and whether the revised starting point was retrospectively punitive.

1. The appeal against conviction was dismissed. The trial judge had properly undertaken the evaluative exercise required by section 114(1)(d) and section 114(2) of the Criminal Justice Act 2003. The assessment was not confined to the statement's potential probative value.

2. The anonymous sources could not be identified or tested. The Crown could not fairly investigate or challenge their credibility, and the jury would have had no real basis on which to assess the reliability of their account. The absence of the section 124 credibility safeguard was therefore capable of being decisive. The judge was entitled to exclude the evidence in the interests of justice.

3. The court applied the approach in R v Brown [2019] EWCA Crim 1143. The admission decision was evaluative, and no error of principle or flawed assessment by the trial judge had been demonstrated. The conviction was not unsafe.

4. The renewed application for leave to appeal against sentence was refused. The mandatory sentence remained detention during His Majesty's pleasure. Paragraph 5A of Schedule 21 to the Sentencing Act 2020 altered sentencing starting points only; it did not increase the maximum penalty. Article 7 was therefore not engaged. Applying the new starting point at a sentence imposed after its introduction was consistent with R v Docherty [2016] UKSC 62, subject to avoiding lex gravior.

• Court of Appeal (Criminal Division) — In [2023] EWCA Crim 1546, dismissed the appeal against conviction and refused the renewed application for leave to appeal against sentence.
• Central Criminal Court — Convicted the appellant of murder on 29 November 2022. On 20 January 2023, imposed detention during His Majesty's pleasure with a 19-year minimum term, and concurrent sentences for robbery offences.