Admissibility of Hearsay in Historic Sexual Offences: Wilson v R [2022] EWCA Crim 1438

1. Introduction

The case of Wilson v R ([2022] EWCA Crim 1438) adjudicated by the England and Wales Court of Appeal (Criminal Division) on November 3, 2022, presents pivotal insights into the admissibility of hearsay evidence in historic sexual offence cases. The appellant, convicted of multiple sexual offences against his stepdaughter, challenged his conviction and sentence on several grounds, including the exclusion of specific evidence and the introduction of fresh evidence. This commentary delves into the court's reasoning, the legal principles applied, and the implications of the judgment for future jurisprudence in the realm of criminal law, particularly concerning sexual offences.

2. Summary of the Judgment

The appellant, aged 59, was convicted in the Crown Court at Newcastle Upon Tyne for indecent assault and rape against his stepdaughter, referred to as W. The offences spanned from 1982 to 1984, during which W was aged 14 and 15. The appellant received a sentence of 17 years imprisonment. Upon appeal, the Court of Appeal examined three grounds: the exclusion of a letter from Mr. Bullough, evidence regarding attendance at a police station, and fresh evidence from a cousin, Maxine Wilson. The appellate court upheld the conviction, affirming the admissibility of the hearsay letter and rejecting the appellant’s claims regarding the other pieces of evidence. Additionally, the court upheld the sentence, finding it just and proportionate.

3. Analysis

3.1. Precedents Cited

The judgment extensively references previous case law to underpin its decisions. Notably:

R v Canavan [1998] 1 Cr App R 79 – Addressing limitations on sentencing based on the number of offences.
R v A [2015] EWCA Crim 177 – Further elucidating on sentencing boundaries.
R v Riat [2012] EWCA Crim 1509 – Discussing the exclusion of evidence under section 78 of PACE.
R v Beresford [1971] 56 Cr App 143 – Pertaining to the admissibility of fresh evidence.
R v Nabarro [1972] Crim LR 497 – On reasonable explanations for not adducing evidence.
R v Scott [2009] EWCA Crim 2457 – Relating to the probative value of evidence.
R v Clarke [2015] EWCA Crim 350 – Highlighting identification evidence as highly probative.
R v Cairns [2000] Crim LR 473 – Discussing the interests of justice in admitting fresh evidence.

These precedents were instrumental in shaping the court’s approach to evidence admissibility, particularly in the context of hearsay and fresh evidence in sexual offence cases.

3.2. Legal Reasoning

The core of the court’s reasoning centered on the admissibility of Mr. Bullough’s letter, considered hearsay under sections 116(2) and 117 of the Criminal Justice Act 2003, and the handling of other evidence regarding W’s attendance at a police station and fresh evidence from Maxine Wilson.

3.2.1. Admissibility of Mr. Bullough’s Letter

The court assessed whether the letter fell within exceptions permitting hearsay evidence. It concluded that the letter was admissible as it was a document created in the course of Mr. Bullough's business and provided contemporaneous observations supporting W's case. The court distinguished the letter from opinion evidence, emphasizing that it contained factual observations rather than subjective interpretations.

3.2.2. Handling of Evidence on Police Station Attendance

The appellant challenged the exclusion of evidence regarding W’s attendance at a police station, arguing it was inconsistent with her allegations and thus pertinent. The court, however, found that this evidence, treated under bad character provisions, lacked substantial probative value and was not materially significant to the case’s overall context.

3.2.3. Assessment of Fresh Evidence from Maxine Wilson

The appellant introduced fresh evidence from his cousin, Maxine Wilson, seeking to challenge W’s credibility. The court scrutinized this evidence under section 23 of the Criminal Appeal Act 1968, determining that there was no reasonable explanation for its absence at trial and that it did not significantly impact the established facts supporting the conviction.

3.3. Impact

This judgment reinforces the judiciary's stance on the admissibility of hearsay evidence, especially in historic sexual offence cases where corroborative evidence is pivotal. It underscores the necessity of a robust evidentiary framework to support convictions in cases involving vulnerable victims and emphasizes the limited scope for introducing fresh evidence post-trial unless it significantly alters the foundational facts of the case.

Additionally, the affirmation of the sentencing aligns with established guidelines, reinforcing judicial discretion in cases of severe harm and repeated offences. This sets a precedent for maintaining stringent sentencing standards in the context of systemic abuse.

4. Complex Concepts Simplified

Hearsay Evidence: Testimony or evidence presented in court that is based on what someone else said outside the courtroom, rather than on personal knowledge. Generally inadmissible unless it falls under specific exceptions.
Section 116(2) and 117 of the Criminal Justice Act 2003: Legal provisions that allow for certain types of hearsay evidence to be admitted under specific circumstances, such as when a witness is unavailable.
Bad Character Evidence: Information about a defendant’s past conduct used to suggest they have a propensity to commit offences, which is typically excluded unless it directly relates to the case at hand.
Section 23 of the Criminal Appeal Act 1968: Governs the procedures for introducing fresh evidence in appeals, setting criteria for its admissibility based on belief, potential grounds for appeal, admissibility at trial, and the reason for its absence from the original trial.
Wednesbury Unreasonableness: A legal benchmark from Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, used to determine whether a court’s decision is so unreasonable that no reasonable judge could have made it.

5. Conclusion

The Wilson v R [2022] EWCA Crim 1438 judgment stands as a robust affirmation of the courts' approach to balancing evidentiary integrity with fairness in criminal proceedings, particularly in the sensitive context of historic sexual offences. By upholding the admissibility of the hearsay letter and dismissing challenges to other pieces of evidence, the court emphasizes the importance of corroborative and contemporaneous evidence in securing convictions. Furthermore, the affirmation of the judicial sentencing decision underscores the judiciary’s commitment to proportionate punishment in cases involving severe and repeated abuse. This judgment is likely to influence future cases by reinforcing established legal principles concerning hearsay evidence and the criteria for admitting fresh evidence in appeal processes.