R v Riat (Jaspal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] EWCA Crim 1509 |
| Docket Number | Case No: 201105786B3, 201201183B3, 201105973B1, 201201705B2, 201200074D2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 July 2012 |
[2012] EWCA Crim 1509
Lord Justice Hughes
Mrs Justice Dobbs DBE
and
Mr Justice Globe
Case No: 201105786B3, 201201183B3, 201105973B1, 201201705B2, 201200074D2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Crown Court at Gloucester, (H.H.J. Tabor QC) T20117018 & 073 (Riat)
The Crown Court at Mold sitting at Chester (H.H.J Dafydd Hughes) T20117235 (Doran)
The Crown Court at Kingston (Mr Recorder Holland QC) T20117009 (Wilson)
The Crown Court at Oxford (H.H.J. Eccles QC) T20110332 (Claire)
The Crown Court at Southampton (H.H.J. Hope) T20107228 (Bennett)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr D. Mason QC and Mr G. Henson (instructed by Messrs Kangs) for the Appellant Riat
Mr H.C. Hills (instructed by Messrs Humphrys & Co) for the Appellant Doran
Mr O. Weetch for the Appellant Wilson
Mr G. Logan (instructed by Messrs Reeds) for the Appellant Clare
Mr C. Baur for the Appellant Bennett
Mr A. Kent QC (instructed by the Crown Prosecution Service) for the Respondent
Hearing dates: 27th and 28th June 2012
We have heard consecutively five cases which involved the admission of hearsay evidence. They provide a further opportunity for this court to consider the correct approach in English law to such cases under the decision of the Supreme Court in Horncastle & Others [2010] 2 AC 373; [2009] UKSC 14, read, as Lord Phillips explains at [13] that it must be, together with the judgment of this court in the same case (also [2010] 2 AC 373, and [2009] EWCA Crim 964).
The Strasbourg jurisprudence
As is well known by now, Horncastle involved, both in this court and subsequently in the Supreme Court, careful analysis of the impact on English law of the Strasbourg jurisprudence relating to Article 6(3)(d) of the European Convention on Human Rights. Since the decision of the Supreme Court there has been a further development at Strasbourg, because the ECtHR's chamber decision in Al-Khawaja & Tahery v United Kingdom has been further considered by the Grand Chamber: 26766/05, [2011] ECHR 2127. There is a thorough analysis of the relationship between Horncastle and Al Khawaja & Tahery in the judgment of this court in Ibrahim [2012] EWCA Crim 837, to which we pay grateful tribute; it would not be helpful to repeat it. For the purposes of a Crown Court in England and Wales dealing day to day with cases of this kind, five propositions are central:
i) the law is, and must be accepted to be, as stated in UK statute, viz the Criminal Justice Act 2003 (" CJA 03");
ii) if there be any difference, on close analysis, between the judgment of the Supreme Court in Horncastle and that of the ECtHR in Al-Khawaja & Tahery, the obligation of a domestic court is to follow the former: see R(RJM) v SSWP [2009] 1 AC 311 at [64] and Ibrahim at [87];
iii) there are indeed differences in the way in which principle is stated, but these may well be more of form than of substance; in particular, the importance of the hearsay evidence to the case is undoubtedly a vital consideration when deciding upon its admissibility and treatment, but there is no over-arching rule, either in the ECtHR or in English law, that a piece of hearsay evidence which is 'sole or decisive' is for that reason automatically inadmissible;
iv) therefore, both because of point (ii) and because of point (iii), the Crown Court judge need not ordinarily concern himself any further with close analysis of the relationship between the two strands of jurisprudence and need generally look no further than the statute and Horncastle; we endeavour to set out below the principal questions which must be addressed;
v) however, neither under the statute, nor under Horncastle, can hearsay simply be treated as if it were first hand evidence and automatically admissible.
Hearsay: the framework
As everybody knows, the CJA 03 gave effect to the report of the Law Commission, itself the product of long consultation and deliberation. The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previously was, this does not make it the same as first-hand evidence. It is not. It is necessarily second-hand and for that reason very often second-best. Because it is second-hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness' interview, that person cannot be asked a single exploratory or challenging question about what is said. From the point of view of a defendant, the loss of the ability to confront one's accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interests of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe.
In Horncastle in this court there are a number of references to hearsay evidence which is either "demonstrably reliable" or is "capable of proper testing". The two expressions are several times used in tandem. The clearest use of the language is [57] where this court said:
"57. Where the evidence before the court is that of an identified but absent witness, we can see no reason for a further absolute rule that no counterbalancing measures can be sufficient where the statement of the absent witness is the sole or decisive evidence against the defendant. That would include cases where the hearsay evidence was demonstrably reliable or its reliability was capable of proper testing and assessment, thus protecting the rights of the defence and providing sufficient counterbalancing measures."
The two expressions also appear elsewhere in the judgment, for example at [45], [79] and (in the context of fear cases) [86].
The written arguments in several of the cases now before us suggest that this language may be being understood to mean that hearsay evidence must be demonstrated to be reliable (i.e. accurate) before it can be admitted. That is plainly not what these passages from Horncastle say. The issue in both this court and the Supreme Court in Horncastle was whether English law knew an overarching general rule that hearsay which could be described as the sole or decisive evidence was not to be admitted, or would inevitably result in an unfair trial if it was. In answering 'no', this court pointed out repeatedly that any such inflexible rule would exclude hearsay which was perfectly fair because either it did not suffer from the dangers of unreliability which often may attend such evidence, or (if it did) there were sufficient tools safely to assess its reliability. This court was far from laying down any general rule that hearsay evidence has to be shown (or "demonstrated") to be reliable before it can be admitted, or before it can be left to the jury. That is to take only half of the paired expressions as if it represented a separate and universal rule. If that had been the rule adopted, the appeals under consideration in Horncastle would probably not have been dismissed. Nor can that be the rule, for it would mean that hearsay evidence has to be independently verified before it can be admitted or left to the jury. That would be to re-introduce the abolished rules for corroboration, which the Law Commission expressly, and Parliament implicitly, rejected; indeed in some cases it would render the evidence admissible only when it was unnecessary.
The true position is that in working through the statutory framework in a hearsay case (below), the court is concerned at several stages with both (i) the extent of risk of unreliability and (ii) the extent to which the reliability of the evidence can safely be tested and assessed. We give simple examples only, which are in no sense exhaustive. The circumstances of the making of the hearsay statement may be such as to reduce the risk of unreliability, for example if it is spontaneous: a very clear illustration is given in Horncastle in this court at [61]. The disinterest of the maker of the statement may reduce the risk of deliberate untruth. Independent dovetailing evidence may reduce the risk both of deliberate untruth and of innocent mistake: an illustration is given in Horncastle by the Supreme Court at [91]. The availability of good testing material (admissible under section 124) concerning the reliability of the witness may show that the evidence can properly be tested and assessed. So may independent supporting evidence.
The statutory framework provided for hearsay evidence by the CJA 03 can usefully be considered in these successive steps.
i) Is there a specific statutory justification (or 'gateway') permitting the admission of hearsay evidence (s 116–118) ?
ii) What material is there which can help to test or assess the hearsay (s 124) ?
iii) Is there a specific 'interests of justice' test at the admissibility stage ?
iv) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is,...
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