“From Intermediaries to Hearsay” – How Claffey, R. v ([2025] EWCA Crim 852) Clarifies the Scope of s.98(b) CJA 2003 and the Threshold for Self-Defence Directions

Introduction

Claffey, R. v and Roach, R. v ([2025] EWCA Crim 852) is a decision of the Court of Appeal (Criminal Division) delivered by Lord Justice Dingemans on 19 June 2025. The case arises from a botched armed robbery in Southampton which led to the tragic death of a wholly uninvolved resident, Mark Noke. Seven men, including the two applicants, faced trial for various offences ranging from conspiracy to rob to murder.

After convictions were returned on 8 March 2024, both Declan Claffey (convicted of murder and conspiracy to rob) and Justin Roach (convicted of conspiracy to rob and murder) sought leave to appeal. Their renewed applications challenged, inter alia, (i) admission of hearsay evidence, (ii) refusal of a “no-case-to-answer” submission, (iii) exclusion of evidence said to undermine a co-defendant’s credibility, and (iv) the judge’s decision not to leave self-defence to the jury.

The Court of Appeal refused leave on all grounds; yet in doing so it delivered a detailed ruling that significantly sharpens the law in three areas:

1. What constitutes “misconduct in connection with the investigation or prosecution of an offence” for the purposes of the s.98(b) Criminal Justice Act 2003 exemption from the bad-character regime;
2. The correct approach to assessing “substantial probative value” under s.101(1)(e) CJA 2003 where credibility of a co-defendant is in issue;
3. The evidential threshold for a trial judge to leave self-defence to a jury where the factual foundation is speculative.

Summary of the Judgment

The Court dismissed each of the four proposed grounds of appeal:

• Roach – Hearsay Ground: The trial judge had properly admitted Crystal O’Dell’s account (of her brother’s confession implicating Roach) under s.114(1)(d) CJA 2003; the Court found no misdirection in the balancing exercise required by s.114(2).
• Roach – No-Case-to-Answer: Applying R v Galbraith, there was sufficient evidence—particularly Ms Dickinson’s evidence and CCTV/phone data—for the case to be left to the jury.
• Claffey – Bad-Character of Morgan: Attempting to deceive a psychologist to obtain an intermediary was not “misconduct in connection with the investigation or prosecution” under s.98(b), therefore was caught by the bad-character regime. However, the evidence lacked “substantial probative value” given the availability of other material on Morgan’s credibility; the judge’s exclusion was upheld.
• Claffey – Self-Defence Direction: There was no evidential basis beyond speculation; thus, no duty on the judge to leave self-defence to the jury.

Analysis

Precedents Cited & Their Influence

• R v Galbraith [1981] 1 WLR 1039 – The classic two-limb test for no-case submissions. Dingemans LJ reiterated that if, taken at its highest, the prosecution evidence could lead a properly directed jury to convict, the matter must go to the jury.
• R v Hunter & Ors [2015] EWCA Crim 631 – Re-affirmed that “substantial probative value” for s.101(1)(e) is an intentionally high threshold designed to prevent satellite litigation. Although not expressly cited in the judgment, the Court’s reasoning mirrors Hunter.
• R v Z [2000] 2 AC 483 (House of Lords) – Grounded the modern policy approach to propensity and credibility evidence; informs the Court’s readiness to exclude marginally probative bad-character material.

Legal Reasoning

1. The s.114(1)(d) “Interests of Justice” Hearsay Gateway

The Court accepted that Crystal O’Dell was a vulnerable witness with mental-health challenges, but stressed that unreliability risk is managed by (i) cross-examination surrogates (s.124 CJA 2003) and (ii) the trial judge’s discretion to give Lucas-style directions. Given the “freshness” of the conversation (days after the incident) and the absence of motive to fabricate, Dingemans LJ held the admission squarely within the statutory factors of s.114(2).

2. No-Case-to-Answer & the Evidential Mosaic

Dingemans LJ emphasised that weak or inconsistent strands of evidence can, in combination, form an evidential “mosaic” sufficient to go to the jury. The presence of Roach near the crime scene (taxi data, phone location, the Golf’s movements) coupled with Ms Dickinson’s partial admissions (“wrong place, wrong time”) comfortably cleared Galbraith limb 1.

3. Redefining s.98(b) Boundaries

The Court drew an important distinction between:

• Conduct that forms part of the commission of, or is integral to, the offence/investigation (automatically admissible under s.98(a)–(c)); and
• Post-charge deception aimed at trial convenience (attempting to secure an intermediary).

Dingemans LJ ruled that the latter does not fall within “in connection with the investigation or prosecution” for s.98(b). Consequently, it is bad-character evidence and must satisfy s.101(1)(e). This clarifies an area previously considered uncertain, filling a gap left since R v Bovell [2005] UKHL 31 (where fabrication of an alibi was held admissible without recourse to s.101 because it related directly to the investigation).

4. “Substantial Probative Value” and Avoiding Satellite Issues

Even where credibility is “an important matter in issue”, the Court insisted the proposed evidence must have weighty probative force—over and above material already available (e.g., Morgan’s previous convictions). Small marginal gains do not pass the statutory bar, particularly where admission invites mini-trials (here: duelling psychologists).

5. Self-Defence: Speculation vs Evidential Foundation

The Court reaffirmed that a self-defence direction is mandatory only where some evidence, from whatever source, could permit a jury to find:

1. An honest belief in the need for defensive force; and
2. Use of reasonable force (subjectively assessed but objectively evaluated for honesty).

The single remark “I haven’t meant to do it” lacked any concrete indication of perceived threat. The Court characterised the defence submission as “speculation upon speculation”, and not even the “widest latitude” could conjure a real evidential basis.

Impact of the Judgment

While the appeals were unsuccessful, the judgment sets a pragmatic precedent likely to influence trial practice in three ways:

1. Narrowing s.98(b): Defence or prosecution strategies that involve collateral deceit (e.g., malingering, exploiting procedural accommodations) will ordinarily constitute bad-character, demanding the s.101 gate-keeping exercise.
2. Raising the Evidential Bar for Self-Defence Directions: Trial judges can be confident in refusing to leave self-defence where the narrative is built on layering conjecture rather than concrete evidence.
3. Affirming Robust Hearsay Analysis: The Court’s endorsement of a meticulous, factor-by-factor approach under s.114(2) will encourage judges to produce similar detailed rulings, reducing grounds for appeal.

Complex Concepts Simplified

• Bad-Character Evidence: Information showing a defendant’s past misconduct or propensity to behave in a certain way. Generally inadmissible unless it passes one of the statutory “gateways” in s.101 CJA 2003.
• s.98(b) CJA 2003: An exclusion that allows evidence of misconduct “in connection with the investigation or prosecution” to bypass the bad-character regime. Claffey narrows this to conduct that directly affects evidence-gathering (e.g., threatening a witness), not convenience ploys at trial.
• Hearsay Evidence: A statement made out of court presented to prove the truth of its contents. Generally excluded but may be admitted through statutory gateways like s.114(1)(d) if “in the interests of justice.”
• Galbraith Submission: A defence application at the close of the prosecution case asking the judge to rule there is no case to answer. The judge applies a two-limb test focusing on whether any reasonable jury could convict on the evidence.
• Self-Defence Direction: The judge’s instruction to the jury explaining the legal test for self-defence; only required where there is some evidential basis for the jury to consider it.

Conclusion

Claffey, R. v and Roach, R. v underscores the Court of Appeal’s continuing role in refining the Criminal Justice Act 2003 architecture. By declaring that manipulative attempts to obtain an intermediary fall outside s.98(b), the Court ensures that such behaviour is rigorously scrutinised for probative worth before reaching the jury. Additionally, the judgment offers trial judges clearer guidance on when self-defence directions are—and are not—required, and re-affirms that seemingly disparate strands of evidence may cumulatively justify leaving a case to the jury. Practitioners should therefore treat the decision as a touchstone on the admissibility of peripheral misconduct and the evidential sufficiency for defensive directions, making Claffey a citation likely to feature prominently in criminal litigation henceforth.