McGlinchey, R. v

Factual and Procedural Background

The Appellant, sole director of Company A, was convicted by a jury at trial held between 6 March 2023 and 20 March 2023 of three offences related to unlawfully depositing and keeping controlled waste between 9 September 2012 and 14 October 2013. The convictions resulted in a sentence of 18 months' custody suspended for three years for each count. The Appellant’s application for leave to appeal against conviction was granted only in respect of Count 1, concerning unlawful depositing of waste between 9 September 2012 and 13 October 2013, on the ground that the trial judge arguably erred in admitting into evidence a hearsay statement of a deceased witness, hereinafter referred to as "L".

The Appellant was originally tried alongside two others: F, the driver of the lorry depositing waste, and L, the landowner of the site where the waste was deposited. Prosecution of L was severed and subsequently discontinued, resulting in his acquittal, and F was acquitted of the charges against him. The Appellant was returned for trial at Derry Crown Court in 2017, pleaded not guilty, and following two aborted trials in 2019 and 2020, was convicted at the 2023 trial.

The prosecution case was that Company A, directed by the Appellant, unlawfully deposited controlled waste at the site owned by L without a valid waste management licence. A licensing agreement existed between Company A and L from 7 September 2012, signed by the Appellant and L. On 14 October 2013, inspectors from the Northern Ireland Environment Agency (NIEA) observed illegal waste being deposited and concealed with inert top dressing. L had provided a statement before his death, admitted under hearsay provisions, describing his knowledge and observations of the site and Company A’s activities. The Appellant was not interviewed prior to prosecution.

The trial judge admitted L’s statement under statutory hearsay provisions and refused the Appellant’s no case to answer application, considering there was circumstantial evidence against the Appellant, particularly regarding his duty as a company director under section 20(2) of the Interpretation Act (NI) 1954.

Legal Issues Presented

1. Whether the trial judge erred in admitting the hearsay statement of the deceased witness L into evidence.
2. Whether the trial judge failed to give an adequate care warning to the jury regarding the hearsay evidence of L.
3. Whether the trial judge erred in refusing the Appellant’s application for a direction of no case to answer.

Arguments of the Parties

Appellant's Arguments

• The admission of L’s statement was erroneous because of L’s status as a deceased co-accused and the unreliability of the statement.
• The trial judge inadequately directed the jury on the limitations and discrepancies in L’s statement, failing to mention L’s interview under caution or relevant dates, and did not properly apply the statutory checklist under Article 18(2) of the Criminal Justice (Evidence) (Northern Ireland) Order 2004.
• The trial judge’s refusal to grant a no case to answer direction was incorrect given the evidential deficiencies.
• The Appellant contended the statement should have been excluded under Article 30 of the 2004 Order and/or Article 76 of PACE, considering the interests of justice and fairness of the proceedings.
• There was a submission that a Makanjuola (care) direction should have been given to the jury regarding the hearsay evidence.

Respondent's Arguments

• The statement of L was admissible under Articles 18(1)(a) and 20(2) of the 2004 Order, given L was deceased.
• The trial judge was not obliged to explicitly apply all factors under Article 18(2) but exercised discretion appropriately, considering the trial process and jury directions to mitigate any unfairness.
• The jury was properly directed on how to assess L’s statement, including its limitations and discrepancies, and the Appellant had opportunity to challenge the evidence but did not do so.
• The no case to answer application was properly refused given sufficient circumstantial evidence against the Appellant as a director under section 20(2) of the Interpretation Act (NI) 1954.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the admissibility of L’s hearsay statement under the statutory framework of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 and the Police and Criminal Evidence (NI) Order 1989 (PACE). It acknowledged that L’s statement was admissible under Articles 18(1)(a) and 20(2) by reason of L’s death.

The court rejected the Appellant’s argument that the trial judge erred by not explicitly applying the Article 18(2) checklist, noting that this checklist applies only when the court admits hearsay evidence under the “interests of justice” gateway, which was not the case here. The trial judge’s brief oral ruling was a trial management decision, respected by the appellate court, and was accompanied by an intention to maintain the ruling under review and to address the matter fully in jury directions.

The court found the jury directions on L’s statement were orthodox and adequately cautioned the jury about the limitations of the hearsay evidence, including the lack of cross-examination, discrepancies between L’s statement and earlier interview, and L’s prior status as a co-accused whose prosecution was discontinued. The court concluded that the jury was properly equipped to assess the reliability and weight of the hearsay evidence.

Regarding the no case to answer application, the court agreed with the trial judge and the single judge that sufficient circumstantial evidence existed, including the legal principle that a company director may be liable if he consented to, connived at, or failed to exercise reasonable diligence to prevent the offence. The court deferred to the trial judge’s margin of appreciation in this context.

The court further noted that the Appellant had an opportunity to challenge L’s statement by adducing evidence but chose not to do so, and emphasized that the presence of incriminating evidence absent any vitiating factor does not render a trial unfair.

Holding and Implications

The court refused leave to appeal in respect of the second and third grounds and dismissed the appeal in relation to the first ground.

The direct consequence is that the convictions and sentences entered against the Appellant stand. The court did not set any new precedent but reaffirmed established principles regarding hearsay evidence admissibility, jury directions, and the evaluation of circumstantial evidence against company directors. The decision underscores the trial judge’s discretion in managing hearsay rulings and the appellate court’s deference to such discretion absent clear error.