June 9
After the complainant saw the first and second defendants insult his friend in a pub bar he pushed the first defendant and the argument escalated into a fight. The defendants were asked to leave and when the complainant left shortly afterwards they attacked him in the pub car park, one punching him in the face and both punching and kicking him as he lay unconscious on the ground before they fled the scene. The defendants were charged with causing grievous bodily harm with intent contrary to section 18 of the Offences against the Person Act 1861. The Crown relied, inter alia, on evidence from the complainant that when he left the pub with his then girlfriend he saw the defendants run towards him in the car park then attack him before he was rendered unconscious. It also relied on the witness statement evidence of the complainant’s girlfriend in which she stated she heard the second defendant threaten the complainant before he punched him and a fight broke out. After the defendants were asked to leave they decided to but the first defendant ran towards them and punched the complainant knocking him to the ground and continued to punch and kick him. The second defendant joined in and they took it in turns to punch and kick the complainant until a bystander broke up the fight and the defendants fled the scene. When that witness failed to attend court counsel for the Crown said he would apply for the case to proceed. Defence counsel told the court he had heard at the plea and trial preparation hearing that the witness no longer supported the Crown. Counsel for the second defendant told the court that the witness had approached her client to apologise for lying to the police in her statement. The witness attended court in a distressed state with a letter requesting that her statement be withdrawn and asked to address the recorder privately which she did without his recording the conversation or making notes. The recorder concluded that the witness was unfit to go into the witness box or give evidence and the Crown applied to admit her statement as hearsay evidence under section 116(2)(b) of the Criminal Justice Act 2003 on the basis that the conditions that she was unfit were met. The second defendant opposed the application on the ground that the witness’s statement was untrue for the additional reasons that a note in the occurrence enquiry log (“OEL”) disclosed the day before that a witness care officer (“WCO”) contacted the police in February 2022 to say the witness requested contact with the officer in the case (“OIC”) to tell him there were things in her original statement which were untrue and in her letter to the court she had said she could not confirm the statement as she had no clear recollection of events. The first defendant submitted there should be proper medical evidence before the court in order for it to conclude that the witness was not fit to give evidence. The recorder admitted the statement in the interests of justice and concluded he did not need medical evidence to be sure the witness was incapable of giving evidence. He also ruled the OEL entry should be before the jury and the witness’s original statement, her supplementary statement letter and the OEL entry were read to them as part of the Crown’s evidence. He did not give the jury any direction to introduce the evidence that was read to them generally or more specifically about its limitations or how to approach the apparent differences between the first statement and either the second statement or the OEL or both. When the OIC was cross-examined he said that the witness told him she then stood by the contents of her original statement but the conversation had not been recorded. When the defendants sought the disclosure of the e-mails sent by witness care which triggered the relevant log entry the first of which had not been brought to the attention of the Crown until day five of the trial informed the OIC that the witness had said she had separated from the complainant and no longer wished to support the case and witness care invited the OIC to contact the witness and take a retraction statement. In the second statement which was not disclosed until day five, the WCO informed the OIC as to the witness’s concern that the complainant made her put things in her statement that were untrue which was why she no longer wanted to support the prosecution. The e-mail asked the OIC to contact the witness to discuss her issues in case she wished to make a further statement. When counsel for the Crown told the recorder that the day before the witness had told him the complainant asked her to say the second defendant threw the first punch inside the pub the second defendant applied for the recorder to discharge the jury pursuant to section 125 of the 2003 Act on the basis that the statement should never have been admitted and it seriously prejudiced the defence. The recorder ruled he would direct the jury to disregard the witness’s evidence, that the complainant should be recalled and the Crown Prosecution Service should lodge an explanation for the delay in disclosing the e-mails but he did not inform the jury to ignore the witness’s evidence until his summing-up at the end of the trial. Although the complainant was cross-examined in detail about the witness the recorder still did not say anything to the jury about the status of her evidence or the relevance of the cross-examination. In his summing-up the recorder told the jury to put the witness and her two statements out of their mind in light of the subsequent disclosure that she had told witness care the complainant asked her to put lies in her statement and she no longer wished to give evidence. He told them to attach no weight to her evidence in the case because the Crown could no longer rely on it. Since it was the defence case that the evidence of the three independent witnesses was unreliable having been contaminated by discussions amongst themselves and with the central witness in the case the defendants applied to play the body-worn footage to the jury. The recorder refused on the basis it had no probative value. The defendants were convicted and appealed against conviction on the grounds that (i) the recorder erred in deciding to admit the main witness’s evidence without her being called, (ii) having been given further information about the unreliability of her witness statement the recorder should have discharged the jury and (iii) the failures in relation to the main witness’s evidence were compounded by the recorder’s refusal to admit the body-worn footage from the car park after the incident.
On the appeal—
Held, appeal allowed. The occurrence enquiry log (“OEL”), the e-mails from witness support and the contents of counsel for the Crown’s conversation with the witness should all have been disclosed promptly but had not been which evidenced a failure to understand the obligations on the part of the police, the Crown Prosecution Service and counsel for the Crown. A note or other formal record should have been kept of the conversation during the witness’s visit to the police station to explain the continuing non-disclosure of the e-mails. Counsel for the Crown should not have seen the witness alone and should have kept a note or other record of his conversations. The recorder’s reaction after being appraised of the material not previously provided to him when he admitted the witness’s written evidence demonstrated that those fundamental failures of disclosure were instrumental in causing her evidence to go before the jury. He should have realised almost as soon as he met the witness that he could go no further than introduce himself to her and offer a few words of comfort about the course her evidence would take. His failure to proceed in the presence of the parties and rely on an undocumented assessment of the witness based on a conversation to which there was no other witness was fundamental. Neither counsel informed him of the applicable general principles. A judge who was being asked to admit hearsay evidence because the witness was unfit should have reliable independent evidence on which to base his or her decision. A judge who relied solely on his or her own meeting with a potential witness as the foundation for an assessment of the witness’s fitness to give evidence only had a very limited evidence base which might be far removed from the full picture. Making an assessment on such a base would normally be suspect and should be avoided if possible. Since counsel for the Crown had said that he would apply for the case to proceed in the witness’s absence if she did not appear the recorder had no reason to follow the course that he did and it should have been clear that the Crown had a strong evidential case without any contribution from her. There had been no imperative in the interests of justice to make a snap decision to admit her written evidence as part of the Crown’s case. There were a number of complicating features going to the fairness of the trial process in the present case each increasing the risk that the convictions were unsafe. The jury had been read the witness’s first statement, the terms of the OEL and her second statement or letter and there was a clear tension between them which could not be explained in the absence of the witness and was not explained to the jury. The recorder omitted to give any direction to the jury about the admission of the hearsay evidence and its limitations or about the complainant having thrown the first punch to dispel the jury’s confusion as to the status of the evidence and assist them as to how to approach it. It would have been good practice to inform the jury immediately when he decided to direct them to ignore the witness’s evidence which had been read to them the previous day. The effect of the failures was that the case progressed beyond the close of the Crown’s case without the jury having been told to ignore the witness’s evidence and the recorder should have considered the provisions of section 125 of the Criminal Justice Act 2003. The case against the defendants was based in part on the witness’s written statement since she had been closest to and most closely involved with the complainant and had her evidence been convincing it would have been an important part of the Crown’s case. If section 125 been considered it might have led to the conclusion the jury should be discharged. Section 125 and the steps it required were an important procedural safeguard which had not been implemented when it should have been. When the recorder directed the jury to disregard the witness’s evidence he gave no explanation or reasons for his decision which left the field open for speculation by the jury as to the real reason for the exclusion of her evidence. The witness’s evidence went to the primary facts of the incident and the question of contamination which was a necessary and important part of the defendants’ case. Although less weighty than the difficulties emerging from the treatment of the witness’s evidence, the body-worn footage was relevant and admissible and the recorder’s assessment that it had no probative value was wrong. The combined effect of the errors rendered the trial process unfair such that the convictions should be set aside and had the errors not been made the jury might have reached different verdicts (paras 59–71).
Sean Sullivan (assigned by the Registrar of Criminal Appeals) for the first defendant.
Hannah Hurley (assigned by the Registrar of Criminal Appeals) for the second defendant.
Ben Lloyd (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.