R v Peter Brown

Where a hearsay gateway is established because the maker is dead, the judge must assess whether the evidence can potentially be held safely reliable. The assessment considers its strengths and weaknesses, the tools available to the jury for testing it, and its importance to the case. Independent complete verification is unnecessary. Recorded interviews may allow the jury to assess demeanour, while delay, convictions, mental illness and inconsistencies may be explored at trial. If later developments weaken the evidence, the judge must review whether it has become so unconvincing that a conviction would be unsafe. Abandoned counts do not necessarily require discharge of the jury where directions can remove their relevance. A trial may continue in a defendant’s involuntary absence once no further evidence is to be called, with suitable directions.

The applicant was convicted at the Crown Court at Luton of four sexual offences against P, alleged to have occurred between 1979 and 1984. The Crown relied on hearsay evidence from P and his deceased sister Q, together with evidence of the applicant’s previous sexual convictions. The Crown later offered no further evidence on three image-related counts, and the applicant became ill during the trial. The recorder continued the trial in his absence and the jury convicted on counts 1 to 4.

The applicant applied 95 days out of time for leave to appeal. He challenged the admission of hearsay and bad character evidence, the refusal to stop the case, the decision not to discharge the jury, and the continuation of the trial in his absence. The central issues were whether there was good reason to extend time and whether the proposed grounds disclosed an arguable unsafe conviction.

Outcome. The application for an extension of time was refused and leave to appeal against conviction was refused. The proposed grounds did not make it arguable that the convictions were unsafe.

1. Hearsay evidence. The deaths of P and Q satisfied the statutory gateway under the Criminal Justice Act 2003. Applying the staged approach in Riat [2013] 1 WLR 2592, the recorder was entitled to focus on whether P’s evidence was potentially safely reliable and whether it should nevertheless be excluded under sections 78 and 126. The assessment required consideration of the evidence’s strengths and weaknesses, the tools available to the jury and its importance to the case. Independent complete verification was not required.
2. P’s recorded interviews enabled the jury to assess his demeanour. His delay in complaining, convictions, mental illness and inconsistencies could be explored at trial. The recorder was also entitled to consider evidence providing some support for his account. Although it would have been preferable to decide the hearsay and bad character applications together, the later admission of the convictions meant that no unfairness resulted.
3. Q’s evidence could have been used as a previous inconsistent statement under section 124(2)(c) of the 2003 Act. In any event, it was admissible in its own right as potentially safely reliable evidence of an earlier complaint.
4. Bad character. The applicant’s previous convictions were sufficiently similar to be capable of supporting a finding of propensity to commit sexual offences against boys or of rebutting coincidence. The recorder’s decision was open to her and had proper regard to fairness.
5. Stopping the case and discharging the jury. After the Crown abandoned counts 5 to 7, the recorder reviewed the effect of the changed evidence. She was entitled to conclude that the remaining hearsay was not so unconvincing, having regard to its importance, that a conviction would be unsafe under section 125 of the 2003 Act. Directions could remove the abandoned allegations from the jury’s consideration.
6. Absence of the applicant. Once no further evidence was to be called, it was open to the recorder to complete the trial even though the applicant’s absence was involuntary. Any risk of prejudice could be addressed by suitable directions, and the court would not assume that the jury failed to follow them.

• Court of Appeal (Criminal Division) — [2024] EWCA Crim 1763: refused an extension of time and refused leave to appeal against conviction.
• Crown Court at Luton — convicted the applicant on 28 April 2023 and sentenced him on 4 August 2023.