R v BOB & Ors

Hearsay evidence that is not demonstrably reliable may nevertheless be admitted where its reliability can be safely tested and assessed by the jury. The court must assess both the risk of unreliability and the available material for testing it. That material includes credibility evidence under section 124, inconsistent accounts, and independent supporting or dovetailing evidence.

The assessment must address the issues actually in dispute and the importance of the hearsay. Apparent weaknesses may assist jury assessment rather than require exclusion. In important prosecution hearsay cases, full credibility enquiries and disclosure are required. Section 125 remains a mandatory safeguard after all the evidence, supported by a tailored jury direction.

The prosecution appealed against a Crown Court ruling of 18 July 2024 that excluded as inadmissible hearsay a series of statements made by two witnesses who had died before trial. The jury was discharged after that ruling.

The statements included identifications of the respondents. Their reliability was challenged because the witnesses had changed aspects of their accounts and had significant credibility material. The prosecution contended that the accounts could nevertheless be tested by reference to disclosure material, the defence case, and substantial independent evidence.

The central issue was whether the trial judge had wrongly concluded that the statements’ reliability could not be safely assessed, and had correctly excluded them under the hearsay framework and the exclusionary powers.

1. Appeal allowed. Applying section 67 of the Criminal Justice Act 2003, the Court held that the ruling was wrong and was not one the judge could reasonably have made. The hearsay statements were admissible.

2. The governing question for hearsay that is not demonstrably reliable is whether its reliability can be properly tested and assessed. That requires consideration both of the risk of unreliability and of all material capable of testing it. Material under section 124, inconsistent statements, spontaneity, and independent dovetailing or supporting evidence may enable a jury safely to assess reliability.

3. The judge had concentrated on flaws in the witnesses’ accounts without properly considering the substantial agreed and independent evidence, the issues actually in dispute, and the fact that apparent flaws could be tested before the jury. A defence statement may properly inform the admissibility decision, although it is not evidence before the jury. Hearsay may be sole or decisive evidence, but requires particularly intense scrutiny.

4. The Court reaffirmed the disclosure requirement in R v Riat [2012] EWCA Crim 1509. Where the prosecution relies on important hearsay, it must make very full credibility enquiries and disclose all relevant material. The prosecution’s failures were serious, although the appeal had to be determined by reference to the ruling actually made.

5. Once the court has found that reliability can be safely tested and assessed, exclusion under section 78 of the Police and Criminal Evidence Act 1984 or section 126 of the Criminal Justice Act 2003 requires a proper independent reason. A judge may rule through more than one route, but cannot simply repeat reasons that presuppose the evidence was inadmissible.

6. Section 125 is a mandatory later safeguard. The trial judge must consider it after all the evidence, ordinarily with a tailored hearsay direction in view. The retrial was to take place before a different judge, who must conduct that assessment without any indication from this Court as to its result.

• Court of Appeal (Criminal Division) — the prosecution appeal was allowed in [2024] EWCA Crim 1494. The Court held the hearsay statements admissible and directed a retrial before a different judge.

• Crown Court — on 18 July 2024, the judge ruled that statements by two deceased witnesses were inadmissible hearsay. The jury was discharged. No citation for the ruling was stated.