EWJ FEB 59 2025 web - Flipbook - Page 82
contents of the statements of the two witnesses […]
were largely agreed by the defence and were supported in most respects by very strong independent
supporting or dovetailing evidence.” Consequently, he
had erred in rendering the evidence inadmissible
through the application of the Riat steps. The judge
had been able to address the flaws in the statements
which allowed their reliability to be tested and assessed. This must then have been suitable to be left to
the jury.
vi) if the evidence is admitted, then should the case
subsequently be stopped under s.125?”
Riat also refers to the importance of disclosure in cases
involving a hearsay application, particularly where the
evidence is not “demonstrably reliable”. Hughes LJ
explained that a hearsay application where the evidence is important requires that “very full enquiries
have been made as to the witness’ credibility and all
relevant material disclosed”.
Circumstances of the Case
The appeal concerned the witness statements of two
prosecution witnesses, both of whom had died before
the commencement of the trial. The witnesses had initially alleged that the defendants had burst into their
home and attacked them with knives. Three defendants had denied participation and the fourth, whose
DNA had been found on a knife, had said that he was
acting under duress.
Instead, he had excluded the evidence based on the
alternative information that witness 2 had given in his
last statement regarding the possible motive of the defendants. This material could have undermined the
witnesses’ credibility and was inconsistent. But the
Court of Appeal pointed out that, if this were invariably used as a reason for excluding the statement, it
would render the consideration of section 124 unnecessary. The court also considered that the final account of witness 2 could have been perceived by the
jury as being the one that is more likely to be honest,
given the unattractive nature of the context that
was being accepted by him. It did not necessarily
follow that the inconsistency led to a conclusion of
unreliability.
There were, however, a number of elements that were
not disputed. It was agreed that an attack of that type
had taken place. It was not disputed that the defendants had travelled from London a few days earlier
and had been staying in the witnesses’ flat. Video
recordings also supported this. Additionally, there was
evidence that the defendants had dealt drugs from
the. There was also strong evidence that the two
witnesses were drug users.
The judge had also given no good reason as to why
the evidence should be excluded by step 5. If he had
already decided that the evidence did not make it past
step 2, he had erred in bringing step 5 into play at all.
In witness 2’s last statement before his death, made
when witness 1 had already died, his account changed
significantly, and he stated that they had both allowed
the defendants to carry out drug dealing within their
house.
Furthermore, the judge was not assisted in his
decision by the consideration of the material, such as
the witnesses’ first accounts and the body worn
footage, that was not disclosed. Some of the accounts
had been volunteered very soon after the events, indicating spontaneity that could have gone towards
supporting reliability. There had also been inadequate
disclosure regarding the circumstances in which the
last account of witness 2 had been given.
The trial judge made the decision not to admit
their evidence and a significant reason for this was a
change in their account as to potential motives of the
defendants.
His reasons for doing so related to steps 2 (relating to
section 124 of the 2003 Act) and 5 (referring to section
78 or 126) of the Riat test:
The court noted that, overall, the trial judge did not
appear to have explored the issue of proper disclosure in making his decision. They highlighted the absence of this in the Riat steps and accordingly
considered a reformulation of those steps, adding a
specific step for consideration of disclosure, and
expanding on steps 3 and 7:
“Overall, I have come to the view that their reliability cannot
be safely assessed, and for that reason I am not persuaded, at
step two, that I should admit the statements. “If I’m wrong
about my assessment of step two then for the similar reasons
that I have already given I would refuse admission of the statements either under section 78 or under section 126 of the
Criminal Justice Act 2003 at step five in the test.”
“The statutory framework provided for hearsay evidence by
the CJA 2003 can usefully be considered in these successive
steps:
The Crown had failed to comply with its disclosure
duties to the extent that the Court of Appeal described
its efforts as “nugatory”. The first accounts of the two
witnesses concerned had been recorded on body worn
video. However, they had not formed part of the prosecution case. There was also no evidence before the
court about the circumstances in which the final statement of witness 2 had been made.
1. is the court satisfied that the prosecution has adduced all relevant evidence, and disclosed all relevant unused material to
enable the court to assess the extent to which the hearsay evidence is demonstrably reliable and, if not, the extent to which
it can be safely assessed and tested? If not, should the court
simply refuse the application or do the interests of justice
require directions for a proper disclosure process?
The Ruling
The Court of Appeal ruled in favour of the Crown and
allowed the appeal, deciding that “the critical flaw in
the decision of the trial judge in this case was his
failure to take properly into account the fact that the
EXPERT WITNESS JOURNAL
2. is there a specific statutory justification (or “gateway”)
permitting the admission of hearsay evidence (ss.116–118)?
3. what material is there which can help to test or assess the
hearsay? This may be undermining evidence admitted under
s.124, or other inconsistent evidence and it may also be inde80
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