Discretion to Exclude Hearsay Evidence under s. 126 Criminal Justice Act 2003
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/0022018316646633 |
| Subject Matter | Court of Appeal |
2016, Vol. 80(3) 154–172
Court of Appeal
ª The Author(s) 2016
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DOI: 10.1177/0022018316646633
clj.sagepub.com
Discretion to Exclude Hearsay Evidence
under s. 126 Criminal Justice Act 2003
R v Drinkwater [2016] EWCA Crim 16
Keywords
Criminal evidence, hearsay, exclusionary discretion, s. 126 Criminal Justice Act 2003
D, the appellant, was convicted of two counts of rape, two of robbery and one of indecent assault. He
appealed on the ground that the trial judge should have permitted him to adduce hearsay evidence under
s. 116(2)(a) of the Criminal Justice Act 2003 rather than excluding the evidence in the exercise of her
discretion under s. 126 of the 2003 Act. The case concerned separate brutal attacks on three young
women in Berkhamsted on two different occasions in 1984 (the latter incident relating to two victims).
The attacks, by a man with a large knife who was wearing a balaclava, took place late at night when the
women were walking home. There were striking similarities between the three attacks and the jury had
been properly directed that it was entitled to conclude that the same man had committed all of the
attacks, the issue being whether D was the man. The main hearsay evidence took the form of a confession
made to the police by H, who had died 7 years before D’s trial. The confession had not been mechani-
cally recorded and H, who had sought to retract the confession immediately after making it, had refused
to sign a statement that had been typed out for him to sign.
D had been interviewed as part of the original police investigation in 1985. In 2012, when the attacks
were reinvestigated, specimens from the victims were re-tested and their DNA profiles were found to
match D’s DNA profile. D denied that he had committed the offences, asserted that he had no idea how
DNA matching his profile had been present (if it was his DNA that was present) and suggested that (if it
was his DNA) its presence in the samples must have been a result of contamination from samples taken
from different victims in relation to different incidents. (D already had a number of convictions by the
time of the original investigation in 1985 and had regularly ‘visited’ Berkhamsted police station.) The
defence did not adduce any scientific evidence in support of the suggestion of contamination and did not
challenge the DNA evidence adduced by the prosecution. In particular, the defence did not challenge the
prosecution’s evidence in relation to the re-testing of a sample taken from H that there was no support for
the view that H had contributed his DNA to the results.
The defence asserted that there was a credible possibility that H might have perpetrated the second
attack (the attack on two victims). H had appeared at a hotel about half a mile from the scene of the
attack, wet, covered in mud and claiming that he had been in a fight. He had asked the taxi driver who
had taken him home not to tell the police about him. When interviewed by the police he had admitted
being...
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