EED v REGINA, England and Wales Court of Appeal (Criminal Division), Judgment, Law, casemine.com

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Advocates

Francis Lloyd (instructed by Dexter & Port - Solicitors) for the Appellant
Amjad Malik QC (instructed by CPS Aylesbury) for the Respondent

Judges

LORD JUSTICE PITCHFORD
MRS JUSTICE RAFFERTY

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EED v. REGINA

Smart Summary

Factual and Procedural Background

This appeal arises from the conviction of the Appellant at Aylesbury Crown Court on multiple counts involving sexual offences against three sisters of the Appellant's wife, all under the age of 16 at the time of the alleged offences. The convictions followed a trial before Deputy Judge Maher and a jury on 21 February 2008. The Appellant was sentenced to 12 years imprisonment for the principal count of rape and concurrent lesser sentences for other counts.

The case involved allegations made many years after the events, triggered when the Appellant's son was admitted to hospital with injuries, prompting one sister to disclose a historic sexual assault. The prosecution relied on statements from the complainants and a witness, referred to as ML, who was an old school friend of one complainant. ML's hearsay evidence was admitted despite her failure to attend court, raising the central legal issue on appeal.

Legal Issues Presented

Whether it is in the interests of justice, within the meaning of Section 114(1)(d) of the Criminal Justice Act 2003, to admit hearsay evidence from a witness who has been warned but failed to attend court for reasons personal to herself, not engaging the Section 116 gateways for hearsay admissibility.
The proper application and interpretation of Section 114(1)(d) in circumstances where a witness is available but not called by the prosecution, and the impact of such admission on the fairness of the trial.
The extent to which the interests of justice test under Section 114(1)(d) should be cautiously applied to avoid circumventing the stricter admissibility criteria under Section 116.

Arguments of the Parties

Appellant's Arguments

The admission of ML's hearsay evidence was unfair because the Appellant was deprived of the opportunity to cross-examine ML, who was manifestly available but not called by the prosecution.
The trial judge failed to properly apply the criteria under Section 114(2), especially the requirement to consider whether oral evidence could be given and, if not, why it could not.
The admission of the hearsay evidence circumvented the safeguards intended by Section 116 and undermined the fairness of the trial.

Prosecution's Position (as represented by Counsel at trial)

The hearsay evidence was admitted under Section 114(1)(d) as it was important to rebut the defence allegation of recent fabrication by showing a contemporaneous complaint made many years earlier.
The witness ML was not served with a witness order due to her pregnancy and family commitments, and an application under Section 116 was unlikely to succeed.
The statement had significant probative value and was fair to admit in the interests of justice, especially as the defence could challenge the statement's reliability and inconsistencies before the jury.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Z [2009] EWCA Crim 20	Cautious application of Section 114(1)(d) to avoid circumventing Section 116; hearsay from available but uncalled witnesses should be scrutinised.	Used to emphasize that hearsay evidence should not be admitted merely for convenience and that the interests of justice require careful assessment of witness availability and fairness.
L (2008) EWCA Crim 973	Admission of hearsay evidence under Section 114(1)(d) when a witness refuses to give evidence and the evidence passes the interests of justice test.	Distinguished the case where a witness voluntarily refuses to give evidence from one where the witness is available but not called; supported the principle that hearsay may be admitted if fair and in interests of justice.
Adams (2007) EWCA Crim 3025	Admissibility of hearsay under Section 114(1)(d) despite prosecution fault in witness non-attendance; technical evidence not central to dispute.	Referenced to show limited circumstances where hearsay from an absent witness may be admitted without undermining fairness.
Musone [2007] EWCA Crim 1237	Admission of hearsay evidence under Section 114(1)(d) where witness refused to give evidence despite prosecution efforts; evaluation of reliability and fairness.	Supported the principle that hearsay may be admitted when a witness is unavailable through refusal, with proper judicial scrutiny of fairness and reliability.
Horncastle and Others (2009) UK SC 14	Common law right of defendant to confront witnesses; hearsay admissibility only in strictly circumscribed circumstances; trial judge as gatekeeper.	Reinforced the need for careful application of hearsay exceptions and the trial judge's role in safeguarding trial fairness.
O'Hare (2006) EWCA Crim 2512	Section 114 cannot be applied so as to render Section 116 nugatory; importance of preserving statutory hierarchy of hearsay admissibility.	Quoted to emphasize that Section 114(1)(d) is a residual power and must be applied with caution to avoid undermining Section 116 safeguards.

Court's Reasoning and Analysis

The court carefully examined the trial judge's decision to admit ML's hearsay statement under Section 114(1)(d). The judge had found the evidence to have significant probative value, particularly to rebut the defence allegation of recent fabrication by showing a contemporaneous complaint made many years earlier. The judge also considered the reliability of the witness and the context of the statement, noting the defence could challenge inconsistencies before the jury and that the witness was unavailable through no fault of the prosecution.

However, the appellate court identified a critical error in the trial judge's analysis: the failure to properly consider why oral evidence from ML could not be given, as required by Section 114(2)(g). The prosecution had made a deliberate decision not to call an available witness, and the witness's absence was due to personal reasons rather than unavailability under Section 116. This meant the admission of the hearsay evidence circumvented the stricter admissibility criteria of Section 116, which the court cautioned against based on established precedent.

The court acknowledged that while hearsay evidence may be admitted in the interests of justice under Section 114(1)(d), such admission must be approached with caution to preserve the defendant's right to a fair trial and opportunity to challenge evidence. The court further noted that the evidence was not so prejudicial as to affect the safety of the verdicts, given the jury's assessment of all complainants' credibility and the defence's ability to challenge the hearsay through inconsistencies.

Holding and Implications

The court held that the hearsay evidence of the witness ML should not have been admitted under Section 114(1)(d) because the witness was available but not called, and the prosecution failed to justify the absence under the statutory criteria. This admission circumvented the safeguards of Section 116 and was therefore erroneous.

DISMISSED: Despite this error, the court found no miscarriage of justice as the evidence did not have a prejudicial effect sufficient to render the verdicts unsafe. The jury's verdicts were based on the overall assessment of the complainants' credibility rather than the hearsay statement alone. No new precedent was established, but the decision reinforces the limited circumstances in which hearsay evidence from an available but uncalled witness may be admitted in criminal trials.