Court of Appeal
Regina v S
[2016] EWCA Crim 1908
2016 Dec 6; 16
Fulford LJ, Wyn Williams J, Judge Lucraft QC
CrimeEvidenceHearsayContradictory accounts given by witness who did not testify in personGuidance as to appropriate directions to jury

When a witness who does not testify in person has provided two contradictory accounts on material issues, which have been introduced during the trial as hearsay evidence, the judge must give a precisely formulated warning to the jury on the need for care, given the inconsistencies, before they convict, if only in part, on the basis of that evidence. This applies regardless of whether there is other evidence that supports the prosecution case. The precise terms of the direction will necessarily depend on all the circumstances, but it is likely that the jury ought to be told that if a witness has given seemingly inconsistent accounts on material issues which have not been tested by questioning, they will need to approach the evidence with caution. It will be for the jury to consider whether the contradictions are significant; if they are insignificant, the jury should ignore them. The strength and the nature of the warning will be tailored to meet the facts of the case and the circumstances of the witness, and it may include such features as (i) the importance of the issues about which the witness has provided differing accounts, (ii) the factors that are relevant to quality of the witness’s evidence, (iii) the content of the evidence, (iv) the extent to which the evidence has changed or developed and (v) the reason or reasons that are suggested for the inconsistencies. It may well be desirable to direct the jury that they must consider whether the witness is someone who should be treated as creditworthy at all before going on to consider what parts of the witness’s evidence they can accept. The judge should discuss the directions he proposes to give on these issues with counsel, before their speeches or his summing up. The most convenient means of doing this is for the judge to provide counsel before closing speeches with a written or typed draft of the relevant proposed direction (paras 52, 54).

R v Maw [1994] Crim LR 841, CA considered.

Jonathan Goldberg QC and Senghin Kong (assigned by the Registrar of Criminal Appeals) for the defendant.

Alan Kent QC and Charlotte Newell (instructed by Crown Prosecution Service, Special Crime Division, Appeals Unit) for the Crown.

Georgina Orde, Barrister

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