Out of Time Appeals

Date01 June 2016
Publication Date01 June 2016
AuthorAndrew Beetham
SubjectCourt of Appeal
As was indicated above, the Court of Appeal in Drinkwater at [40], whilst accepting that ‘the exact
scope of the discretion to exclude hearsay evidence under section 126 CJA 2003 may need further
consideration, if and when the point arises’ held the ‘strong preliminary view [that] in order to prevent
the potential admission of barely relevant evidence, section 126 permits the court to exclude hearsay
evidence which lacks significant probative value’. The court also agreed with counsel for the appellant
that the guidance in Riat relating to s. 126 was ‘very persuasive...[T]he section relates to evidence
which is prima facie admissible and relevant ...[and] as the Court said in Riat ... the wording of the
section gives the court the power to assess the value of such ‘‘out-of-court’’ statements when determin-
ing whether to exclude them’ (at [42]).
The Court of Appeal in Riat suggested that, ‘[t]he non-exhaustive considerations listed in s 114(2) as
directly applicable to an application made under s 114(1)(d) are useful aides memoire for any judge
considering the admissibility of hearsay evidence, whether under that subsection or under s 78 PACE, or
otherwise’ (Riat at [22]). Similarly, the Court of Appeal in the present case agreed with counsel for the
appellant that, ‘the section 114(2) factors are a helpful common sense checklist which assists the court in
assessing their value and ther efore in deciding whether they s hould be excluded or not’ (at [42]) .
Fundamentally, the Court considered that, upon the facts, ‘the case for exclusion ‘‘taking account of
the danger that to admit it would result in undue waste of time ...taking account of the value of the
evidence’’ was overwhelming’ (at [50]).
Whilst the Court of Appeal in both Riat and Drinkwater was not prepared to come to a final
conclusion as regards the scope of the exclusionary discretion conferred by s. 126(1) of the 2003 Act,
when read together these cases have, for practical purposes, provided guidance which should enable the
criminal courts to exercise their exclusionary discretion so as to exclude marginally relevant hearsay
evidence, whether tendered by the prosecution or the defence, the admission of which would unduly
waste the court’s time.
Michael Stockdale
Out of Time Appeals
RvRoberts (Mark) & Others [2016] EWCA Crim 71
Imprisonment for public protection, role of Court of Appeal, extension of time, arbitrary detention, Parole Board
Applications were made by Roberts and 12 other applicants for permission to appeal against sen-
tence or to renew an application to the Full Court having had permission refused by the single judge.
In each case the applicants had been sentenced to imprisonment for public protection (IPP) and
sought extensions of time for their appeals of between 6–9 years. In light of the applications for such
lengthy extensions of time the applications were referred by the single judge or the registrar to the
Full Court.
The applicants submitted that: (i) ‘whatever may have been the position at the time the sentences of
IPP were passed, the court had power under s.11 of the Criminal Appeal Act 1968 to pass sentences that,
Court of Appeal 157

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