Factual and Procedural Background
The Registrar referred two separate applications for permission to appeal against conviction to be heard together. In both cases, the trial judges allowed the Crown to adduce hearsay evidence pursuant to section 116 of the Criminal Justice Act 2003. This hearsay evidence was critical to at least one count on which each defendant was convicted. The appeals raise a significant issue of principle regarding the admissibility of hearsay evidence and its compatibility with a fair trial under Article 6 of the European Convention on Human Rights (ECHR).
One appellant ("Appellant A") was convicted of attempting to obtain property by deception and damaging property, with the prosecution relying heavily on the hearsay evidence of an elderly witness who was no longer fit to give oral evidence. The appellant appealed on grounds including the wrongful admission of this hearsay evidence and the inconsistency of verdicts.
The other appellant ("Appellant B") was convicted of assault occasioning actual bodily harm on three counts. The prosecution case included both direct eyewitness testimony and hearsay statements from various witnesses about the deceased's treatment prior to her suicide. The hearsay evidence was admitted despite the prosecution's late application and the appellant challenged its admissibility and the sufficiency of the evidence on some counts.
Legal Issues Presented
- Whether the admission of hearsay evidence under section 116 of the Criminal Justice Act 2003, when the witness is unavailable, is compatible with the right to a fair trial under Article 6 of the ECHR.
- Whether hearsay evidence that is the sole or decisive evidence against a defendant can be admitted without violating Article 6.
- The extent to which the court’s discretion under section 114(1)(d) to admit hearsay evidence in the interests of justice should be exercised.
- Whether late applications to admit hearsay evidence should be permitted in the interests of justice.
- Whether convictions are unsafe due to inconsistencies in verdicts where some counts rely on hearsay evidence.
- Whether a no case to answer submission should be upheld where a count is based exclusively or largely on hearsay evidence.
Arguments of the Parties
Appellant A's Arguments
- The admission of the hearsay statement of the unavailable witness was unfair and violated Article 6.3(d) of the ECHR because the appellant was denied the opportunity to cross-examine the witness.
- The conviction on Count 3 was inconsistent with acquittals on Counts 1 and 2, rendering the conviction unsafe.
Appellant B's Arguments
- The prosecution’s application to adduce hearsay evidence was made 17 months late and should have been refused.
- The hearsay evidence should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 (PACE) due to unfairness in the trial.
- There was no case to answer on Counts 2 and 3 due to reliance on hearsay and circumstantial evidence.
- The appellant was mentally ill-equipped to give evidence to rebut the hearsay evidence, which prejudiced his right to a fair trial.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Blastland [1985] 2 All ER 1095 |
Explanation of the rationale for the exclusion of hearsay evidence due to difficulties in assessing reliability and probative value. |
Used to illustrate the historical rule against hearsay and its rationale, highlighting the difficulties for jurors in assessing untested statements. |
| R v Xhabri [2005] EWCA Crim 3135; [2006] 1 Cr App R 26 |
Confirmed that hearsay provisions of the 2003 Act comply with Article 6 ECHR and that the court must ensure a fair trial. |
Supported the proposition that hearsay evidence can be admitted if consistent with a fair trial under Article 6. |
| Luca v Italy (2003) EHRR 46 |
Held that Article 6(1) and (3)(d) were violated where the accused was denied a proper opportunity to challenge a witness whose statement was decisive evidence. |
Distinguished on the basis that the witness was available but not cross-examinable; not authority for excluding hearsay where the witness is unavailable. |
| R v KM [2003] EWCA Crim 357 |
Rejected the absolute rule that convictions based solely or mainly on hearsay evidence necessarily violate Article 6. |
Adopted as domestic authority establishing that admissibility depends on the facts of each case. |
| R v Sellick [2005] EWCA Crim 651; [2005] 2 Cr App R 15 |
Set out principles on hearsay admissibility, the importance of opportunity to challenge witnesses, and the fairness of trials involving hearsay. |
Confirmed that no absolute rule excludes hearsay where witnesses are kept away through fear and that fairness is assessed on a case-by-case basis. |
| R v Al-Khawaja [2006] 1 Cr App R 184 |
Confirmed that admission of hearsay evidence from a deceased witness does not necessarily violate Article 6 if the trial as a whole is fair. |
Applied to uphold admission of hearsay evidence from a deceased complainant in a sexual assault case. |
| Doorson v The Netherlands (1996) 22 EHRR 330 |
Relevant to assessing the fairness of proceedings where hearsay evidence is admitted. |
Referenced in support of the principle that the fairness of the entire proceedings is determinative under Article 6. |
| Grant v The Queen [2007] 1 AC 1 |
Affirmed that Article 6 rights are balanced against community interests and that hearsay evidence may be admitted if it does not cause unfairness. |
Used to emphasize the need for a fair balance between individual rights and public interest in admitting hearsay evidence. |
Court's Reasoning and Analysis
The court began by reviewing the historical and statutory context of hearsay evidence, emphasizing the reforms introduced by the Criminal Justice Act 2003, which allows hearsay evidence to be admitted when it is in the interests of justice and subject to safeguards. The court carefully analyzed the factors set out in section 114(2) of the Act, which guide the exercise of discretion to admit hearsay evidence.
Regarding the compatibility with Article 6 of the ECHR, the court rejected an absolute rule that hearsay evidence cannot be admitted if the witness is unavailable and the evidence is decisive. The court distinguished the Strasbourg decision in Luca v Italy, noting that it concerned a witness who was available but not cross-examinable, whereas the present cases involved unavailable witnesses. The court recognized that the fundamental question is whether the admission of hearsay evidence is compatible with a fair trial overall.
In Appellant A’s case, the court found that the hearsay statement was critical, reliable, and made by a rational witness at the time of making it. The appellant was able to challenge the evidence and testify in his own defense. The court also noted the public interest in prosecuting offenses targeting vulnerable elderly victims, making the admission of hearsay evidence an important prosecutorial tool.
Regarding the inconsistency of verdicts, the court held that different verdicts on separate counts are permissible where the jury is properly directed to consider each count independently, and where the evidence supports those verdicts. The conviction on the count supported by other evidence was not unsafe.
In Appellant B’s case, the court acknowledged the prosecution’s serious delay in applying to admit hearsay evidence but found no prejudice to the defense and held that the interests of justice justified allowing the late application. The court accepted that the appellant was mentally capable of giving coherent evidence to rebut the hearsay but chose not to do so. The hearsay evidence formed part of a coherent and compelling overall picture, supported by direct evidence.
The court rejected the submission that there was no case to answer on counts relying on hearsay, holding that the jury could properly convict after appropriate directions on how to approach hearsay evidence.
Holding and Implications
DISMISSED
The court dismissed both appeals against conviction. It held that the admission of hearsay evidence under section 116 of the Criminal Justice Act 2003 does not violate the right to a fair trial under Article 6 of the ECHR, provided the trial as a whole is fair and the court carefully exercises its discretion considering the statutory factors. The court reaffirmed that no absolute rule precludes the admission of hearsay evidence where the witness is unavailable and that the fairness of the entire proceedings is the governing criterion.
The decision underscores the importance of a flexible, fact-sensitive approach to hearsay evidence in criminal trials, balancing the rights of defendants with the interests of justice and public protection, especially in cases involving vulnerable witnesses. The ruling clarifies that late applications to admit hearsay evidence may be allowed if no prejudice arises and the interests of justice are served. It also confirms that inconsistent verdicts on separate counts are not necessarily unsafe if the jury has been properly directed.
No new precedent was established beyond clarifying the application of existing principles and statutory provisions in the context of hearsay evidence and fair trial rights.