| CRIME — Evidence — Hearsay — Witness unavailable at trial — Hearsay evidence sole or decisive evidence against defendant — Whether admissible — Whether compatible with right to fair trial — Human Rights Act 1998, Sch 1, Pt I, art 6 — Criminal Justice Act 2003, s 116
R v Cole; R v Keets [2007] EWCA Crim 1924
CA: Lord Phillips of Worth Matravers CJ, Elias and Griffith Williams JJ: 30 July 2007
The hearsay evidence of a witness who was not available at trial was admissible even if it was the sole or the decisive evidence against a defendant if that was compatible with a fair trial.
The Court of Appeal (Criminal Division) so held in dismissing appeals by the defendant, Konrad Cole, against his conviction on 12 December 2006 at the Crown Court at Basildon (Judge Taylor and a jury) on three counts of assault occasioning actual bodily harm; and by the defendant, Rocky Keet, against his conviction on 19 April 2007 at the Crown Court at Winchester (Mr Recorder Vaitilingam and a jury) of attempting to obtain property by deception and damaging property.
The Convention for the Protection of Human Rights and Fundamental Freedoms provides, by art 6(3): “Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him ... ”
LORD PHILLIPS OF WORTH MATRAVERS C J, giving the judgment of the court, said that in each case the trial judge had acceded to applications by the Crown to adduce hearsay evidence, pursuant to s 116 of the Criminal Justice Act 2003, which dealt with cases where a witness was unavailable. That evidence was critical in relation to at least one of the counts on which each defendant was convicted. Was hearsay evidence of a witness who could not be cross-examined precluded when it was the sole, or the decisive, evidence against a defendant? Luca v Italy (2001) 36 EHRR 807 might suggest so. However, once one moved away, as both the European Court of Human Rights and domestic jurisprudence clearly had, from the proposition that there was an absolute rule that evidence of a statement could not be adduced in evidence unless the defendant had an opportunity to examine the maker, it seemed that there could be only one governing criterion: was the admission of the evidence compatible with a fair trial? It was that question alone with which art 6 of the Convention was concerned. There were many reasons why it might be impossible to call a witness. Where the defendant was himself responsible for that fact, he was in no position to complain that he had been denied a fair trial if a statement from that witness were admitted. Where the witness was dead, or could not be called for some other reason, the question of whether the admission of a statement from that witness would impair the fairness of the trial would depend on the facts of the particular case. Factors which would be likely to be of concern to the court were identified in s 114(2) of the 2003 Act. Their Lordships considered the appeals on the basis that art 6 imposed no absolute embargo on the admission of the hearsay evidence adduced by the prosecution in either case and concluded that both appeals should be dismissed.
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Appearances: Michael House (assigned by the Registrar of Criminal Appeals) for the defendant Cole; Tayo Adebayo (Crown Prosecution Service, Headquarters) for the Crown; Robert Bryan (assigned by the Registrar of Criminal Appeals) for the defendant Keets; Michael Butt (Crown Prosecution Service, Eastleigh) for the Crown.
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