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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Xhabri, R v  EWCA Crim 3135 (07 December 2005)
Cite as:  EWCA Crim 3135,  1 All ER 776
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SNARESBROOK CROWN COURT
HHJ REYNOLDS QC
Strand, London, WC2A 2LL
B e f o r e :
MRS JUSTICE RAFFERTY
MR JUSTICE MACKAY
|- and -
R J LIVINGSTON for the Respondent
Hearing dates : 2 November 2005
Crown Copyright ©
LORD PHILLIPS, CJ :
Duress or consent?
The evidence under challenge
Hearsay Provisions of the Criminal Justice Act 2003
"Admissibility of hearsay evidence
(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if-
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant):
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it."
"Other previous statements of witnesses
(1) This section applies where a person (the witness) is called to give evidence in criminal proceedings.
(2) If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.
(4) A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if-
(a) any of the following three conditions is satisfied, and
(b) while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.
(5) The first condition is that the statement identifies or describes a person, object or place.
(6) The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings.
(7) The third condition is that-
(a) the witness claims to be a person against whom an offence has been committed,
(b) the offence is one to which the proceedings relate,
(c) the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
(d) the complaint was made as soon as could reasonably be expected after the alleged conduct,
(e) the complaint was not made as a result of a threat or a promise, and
(f) before the statement is adduced the witness gives oral evidence in connection with its subject matter."
"Additional requirement for admissibility of multiple hearsay
(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless-
(a) either of the statements is admissible under section 117, 119 or 120,
(b) all parties to the proceedings so agree, or
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
(2) In this section "hearsay statement" means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it."
"Court's general discretion to exclude evidence
(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if-
(a) the statement was made otherwise than in oral evidence in the proceedings, and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
(2) Nothing in this Chapter prejudices-
(a) any power of a court to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 (c. 60) (exclusion of unfair evidence), or
(b) any other power of a court to exclude evidence at its discretion (whether by preventing questions from being put or otherwise)."
The evidence to which objection was made
Mrs 'L''s evidence
Mr 'L''s Evidence
The Police Evidence
The Judge's Ruling
Submissions made to us
What of the evidence of those who received 'L''s communications?
(a) 'L' claimed to be a person against whom an offence had been committed.
(b) The offence was one to which the proceedings related.
(c) The complaint was about conduct which would, if proved, constitute part of the offence.
(d) The complaint was made as soon as could reasonably be expected after the alleged conduct. The complaints were, in fact, made while the alleged conduct was continuing.
(e) The complaint was not made as a result of a threat or promise.
(f) 'L' was expected to give evidence before the material evidence relating to her previous statements was adduced.
The evidence of PC Brandon
The Human Rights Act
3. Everyone charged with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him
Mr Offenbach submitted that because section 114 permitted the court to adduce in evidence a hearsay statement by a witness who was not available for cross-examination, that section was incompatible with Article 6 of the Convention. There is no merit in that argument. The discretion granted by section 114 is not restricted to the admission of a hearsay statement the maker of which is not available for cross-examination. To the extent that Article 6 would be infringed by admitting such evidence, the court has a power to exclude the evidence under section 126 and a duty so to do by virtue of the Human Rights Act. There can thus be no question of section 114 being incompatible with the Convention.