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Cite as: [2006] EWCA Crim 1410

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Neutral Citation Number: [2006] EWCA Crim 1410
No. 2006/02087/D5


Royal Courts of Justice
The Strand
24 May 2006

B e f o r e :

(Sitting as a Judge of the Court of Appeal Criminal Division)


- v -


Computer Aided Transcription by
Smith Bernal, 190 Fleet Street, London EC4
Telephone 020-7421 4040
(Official Shorthand Writers to the Court)


appeared on behalf of THE APPELLANT (CPS DURHAM)
appeared on behalf of THE RESPONDENT (CE)



Crown Copyright ©


  1. Article 6 of the European Convention on Human Rights is headed "Right to a Fair Trial". By Article 6(3) everyone charged with a criminal offence has a number of minimum rights. These include the right to examine or have examined witnesses against him. By section 6 of the Human Rights Act 1998 it is unlawful for a public authority, which includes a court, to act in a way which is incompatible with a Convention right. The Crown Court at Newcastle upon Tyne was therefore obliged to afford the respondent to this appeal by the prosecution the minimum right to examine or have examined witnesses against him. By section 3 of the Human Rights Act 1998 the court was, so far as possible, obliged to read and give effect to primary and subordinate legislation in a way which is compatible with the respondent's Convention rights. That was of general relevance to the legislation the subject of this appeal.
  2. The European Court of Human Rights has considered the ambit of Article 6(1) and Article 6(3)(d) in a number of cases. These include Luca v Italy (2003) 36 EHRR 46. The judgment in that case includes at paragraph 40 the following:
  3. ".... If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6.1 and 3(d). The corollary of that, however, is that where the conviction is both solely or to a decisive degree based on depositions that had been made by a person whom the accused has had no opportunity to examine or have examined, whether during the investigation or the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6."

    The reference to "depositions", that is to say statements made during an investigative stage compatible with Article 6, especially when the witness refuses to repeat his deposition in public owing to fear for his safety. The Court held at paragraph 40 that if the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not contravene Article 6.1 and 3(d).

  4. This court has held that the obvious principle of basic fairness, which the passage in Luca v Italy articulates, is not absolute. In R v Sellick [2005] EWCA Crim 651, this court considered that neither Luca nor any of the other authorities to which the court referred in detail were concerned with a case in which the witness was kept away from giving evidence at the trial by fear induced by the defendant himself. The court could and should take counterbalancing measures which would allow the statement to be read. The defendant could not deny himself the opportunity of cross-examining the witness and then complain of an infringement of Article 6. Such matters, said the court, are fact specific.
  5. In the present case the respondent was charged with two counts of rape. Count 1 alleged vaginal rape; count 2, anal rape. The prosecution have since accepted that there is insufficient evidence to proceed on count 2. As to count 1, they have some supporting evidence, but that evidence is insufficient in itself. The main evidence on which they wish to rely is a video-recorded, out-of-court interview of the complainant who will not attend court to give evidence at the trial and be cross-examined. The prosecution accept that the case against the respondent is solely, or at least to a decisive degree, based on this evidence. They cannot and will not proceed if the video, uncross-examined, is not admitted.
  6. The prosecution applied to the trial judge, His Honour Judge Wood, to have the video evidence admitted. On 26 April 2006, the judge made a terminating ruling refusing the application. This is the prosecution's appeal against that ruling with the leave of the judge (see section 57 and those following of the Criminal Justice Act 2003). By section 67 of the 2003 Act, this court may not reverse a ruling on an appeal such as this unless the court is satisfied that the ruling was wrong in law, that it involved an error of law or principle, or that the ruling was one which it was not reasonable for the judge to have made.
  7. The application was to admit hearsay evidence within Chapter 2 of the 2003 Act (see section 114 and those following of the 2003 Act). We have taken particular note of the matters in section 114(2), to which the court must have regard.
  8. The judge was satisfied on medical evidence that the complainant was unfit to be a witness because of her bodily or mental condition (section 116(2)(b)) and that she would not give oral evidence in the proceedings through fear (section 116(2)(e)). The latter of these requires the court's leave for the statement to be given in evidence. The former was also subject to an exclusionary discretion, if nowhere else under section 78 of the Police and Criminal Evidence Act 1984, as tempered by the Human Rights Act and Article 6 of the Convention.
  9. The court's power to give leave under section 116(2)(e) is limited by section 116(4). Leave may only be given if the court considers that the statement ought to be admitted in the interests of justice, having regard to a number of matters, including the statement's contents, any risk that its admission or exclusion would result in unfairness, and any other relevant circumstances.
  10. In reaching his decision, the judge had regard to the contents of the video. At page 2 of the transcript he said:
  11. "5. .... I have viewed the video, which is some 71 minutes long. It does not mention anal rape either, but it does describe a consensual relationship which deteriorated to the point where the complainant was a virtual prisoner in her friend's house, and subjected, she alleges, to violent and non-consensual sexual intercourse over a prolonged period. Having said that, it is also a video that raises a large number of issues about the question of consent which any defence lawyer would wish to explore. These are set out in the defence skeleton argument at paragraph 14 and I think for the purpose of the transcript it is worthwhile repeating them."

    The judge then did indeed repeat them. They are a large list of obvious subject matters which anyone defending the respondent in a case such as this would naturally expect and wish to be able to deal with in cross-examination. They are to be found at paragraph 6 of the judge's ruling. He then went on to say:

    "7. To be fair to the officers who were conducting the interview, they did agree in evidence that there were issues that they might have wished to explore further with the complainant, but having taken medical advice and given what the complainant's medical state was, they thought they should not seek to challenge her in any way and should simply record her complaints as she gave them."

    At a later stage in his ruling the judge said:

    "17. Having decided the conditions of section 116(2)(b) and (e) are met, I must therefore go on to consider section 116(4) and also the provisions of Article 6(3). The video evidence is in effect the sole and decisive evidence. The sole issue in the case is consent, both whether the complainant did consent and whether the defendant reasonably believed that she did. Having viewed the video, it is plain that the witness, the complainant, did then and does now have problems with her mental health and with alcoholism. She has severe problems with memory loss and her sense of time. It is in my view very unclear as to when the violent and abusive relationship became a non-consensual one, and whether the defendant was ever aware of or informed of this change. There are grave practical difficulties over the complainant's assertion that she was, in effect, a prisoner in a house occupied by her friends, visited by her relatives and equipped with a mobile phone. To say, as the Crown do, that these are jury points deprives the defendant in my view of obtaining any kind of real explanation as to these difficulties. In my judgment, borrowing the expression from R v M the complainant is potentially a completely flawed witness."

  12. Mr Bruce Houlder QC suggested that we might see the video for ourselves. We have not, in fact, done so, but we have, and have considered, a transcript of it. The judge's assessment of it and the nature of its contents is not, except in some points of detail, challenged and we do not see it as part of our function to re-assess it by watching it all over again. It is plain that its contents are problematic, confused perhaps, and that they cry out for examination by way of cross-examination. We are quite confident that detailed forensic points with reference to the transcript or the video itself would not alter that general conclusion, nor the conclusion to which, in our judgment, the judge legitimately came as to the nature of this evidence.
  13. It was accepted before the judge that, although the complainant would not give evidence at a trial through fear, the fear had not been intentionally induced by the defendant so as to keep her away. The possible qualification of Luca v Italy which this court considered in Sellick did not arise therefore, although Mr Houlder makes the general point that the case is one where the complainant would not give evidence through fear of the respondent. The prosecution have attempted to stand back from that in this court by seeking to introduce two letters written from prison by the respondent to the complainant. Mr Houlder made clear that the reliance on the letters was more on the subject of credibility than on the subject of the respondent having put the complainant in fear. We are not impressed by this. The longer of the two letters was available to the prosecution in October 2005, and no persuasive reason is offered to us for not introducing it before the judge. Neither of the letters bears on the question that the complainant will not give evidence through fear. The longer one is no more than foul-mouthed and offensive general abuse of a sexually explicit nature.
  14. The judge directed himself correctly as to the law and at some length. He expressed his decision as follows:
  15. "18. I do not rely on the view in Luca v Italy that simply because her evidence is the sole and decisive evidence the defendant cannot have a fair trial if she is not called. I do, however, rely on the provisions of section 116(4) that it would result in unfairness to this defendant, given how difficult it would be to challenge the statement, if the relevant person did not give oral evidence, and having regard to all the other circumstances to which I have referred. In that sense, therefore, I do find that admitting the video evidence without calling the witness would be a breach of Article 6(3). I am also satisfied that it would be unfair to admit the video evidence, having regard to the provisions of section 116(4)."

  16. The central basis of the prosecution's appeal is that the judge acted unreasonably in exercising his discretion to exclude the video statement. Reference is made in Mr Houlder's written skeleton to Wednesbury unreasonableness. That is a reference to Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. Wednesbury unreasonableness is often expressed as perversity, recognising that appellate courts do not overturn discretionary decisions made on correct legal principles simply because another view might have been taken. So, too, we think with section 67(3) of the 2003 Act. It is said that the judge failed sufficiently to take account of the interests of the complainant and the public in seeing that cases such as this are considered by a jury whenever possible: the interests of the complainant in having her case by some means or other brought before a court. It is said that the judge failed properly to consider that it was possible for the respondent to contradict the complainant's evidence if he wished. It is also said that the judge failed to take full account of a number of detailed points. These include the suggestion that Parliament intended to find means whereby the evidence of vulnerable witnesses might be received. The judge had power to stop the case if the evidence was unconvincing. Reference is made to section 125 of the 2003 Act and to section 124 of the 2003 Act, which gives the opportunity to lead evidence as to the credibility of evidence which is not called orally. The power under section 125 is one which in substance, we observe, the judge exercised in this case (albeit not at the time that that section anticipates). Reference is also made to the importance of the evidence to the case, the circumstances of the taking of the video, the comparative reliability (so it is said) of the complainant, the fact that the respondent could himself give evidence, and the judge's power and obligation to direct the jury in strong terms. Certain other points are made about the detail of the judge's view of the video evidence and the terms of the judge's decision. It is further said that the defence have not served a defence statement. That may or may not be correct. The defence would have the opportunity to make points in relation to the video in argument to the jury. The judge, it is said, was wrong to say that recent complaint was not independent evidence.
  17. We do not find these submissions persuasive. What is more, they tend, in our judgment, to obscure the main point. The sole or decisive evidence against the respondent was this hearsay, uncross-examined and untested video statement. The proposal was to adduce this as evidence without calling the complainant. She would not give evidence in part through fear, but not fear relevantly induced by the respondent. To admit this evidence would, we think, be a breach of Article 6.3 of the Convention, denying the respondent his minimum right and a breach by the court of section 6 of the Human Rights Act 1998. Subject to this, the judge had a discretion under section 116(4) of the 2003 Act, which was evaluative and fact sensitive. We are quite unpersuaded that his decision was unreasonable, let alone perverse. Indeed, we think that a conviction on the basis of this hearsay evidence, uncross-examined, was likely to result in a successful appeal against conviction, if conviction there were. The respondent would have been denied an important component of his minimum rights to a fair trial.
  18. In reaching this conclusion, we take fully into account Mr Houlder's submission that on the evidence the complainant was terrified of the respondent and that it was his conduct that put her in fear, and his submission that the circumstances were grave and that the victim was entitled to be heard. But we consider among other things that her reasons for not giving evidence were not limited to her fear of giving evidence, and we consider, importantly, that in the end this was a discretionary decision made by the judge upon correct principles, which we are unable to find was unreasonable or indeed perverse.
  19. For these reasons this appeal is dismissed.
  20. MR LODGE: My Lord, may I refer to section 61(3) of the Act, which is in the bundle prepared by the appellant?
  21. LORD JUSTICE MAY: "Where the Court of Appeal confirms the ruling ..."?
  22. MR LODGE: My Lord, yes. "Where the Court of Appeal confirms the ruling it must in respect of the offence, for each offence which is the subject of the appeal, order that the defendant shall in relation to that offence be acquitted of that offence." We would invite you, in the light of your Lordships' judgment, to make that order.
  23. LORD JUSTICE MAY: Mr Houlder?
  24. MR HOULDER: We cannot oppose that.
  25. LORD JUSTICE MAY: The court accordingly orders that the respondent be acquitted in relation to the offence on count 1 of the indictment.
  26. MR HOULDER: There is one further matter on which I would seek the court's assistance. It is section 71. It is a matter that has been raised by those in the court from the press who are concerned with reporting this matter. Section 71 of the Act provides that no publication of a report of anything done under section 58 (and other sections as well) shall be published, but the Court of Appeal may order that that section is not to apply to a specific extent to a report of an appeal to the Court of Appeal under this Part of the Act. That is subsection (3). A defendant is given a right by subsection (5) to make any representations -- I will read it. "Where there is only one defendant and he objects to the making of an order under subsection (2)" -- that is an order that the section or reporting is not to apply -- "if the defendant objects to the making of that order, the judge, the Court of Appeal or the House of Lords are to make the order if and only if satisfied after hearing the representations of the defendant that it is in the interests of justice to do so. The order, if made, is not to apply to the extent that the report deals with any such objection or representation." So there is a right for the defence to be heard on the matter. I understand, at least from those in court, that the interest in reporting is not to do more than to report the point of law and the circumstances which gave rise to the appeal itself -- no wider than that. But I agree that any order made by this court cannot bind any other member of the press unless the order is confined within subsection (5) of section 71.
  27. LORD JUSTICE MAY: Mr Lodge, what about it?
  28. MR LODGE: My Lord, I must confess that we have not considered this matter, and before my learned friend's reading out of the section we had no observations to make.
  29. LORD JUSTICE MAY: I would have thought that a report in the nature of a law report which did not identify the people concerned would be unobjectionable, except that this is an ex tempore judgment and I would query whether anyone would want to report it. Is there any objection to that?
  30. MR LODGE: My Lord, no. It could be referred to simply by initials as it appears on the court list at the moment.
  31. LORD JUSTICE MAY: Bearing in mind that this was an ex tempore judgement, and therefore query whether it is reportable, the court indicates that section 71(1) of the 2003 Act is not to apply to any report in the nature of a law report, provided that the identity of those concerned is not revealed. Is that sufficient?
  32. MR HOULDER: Yes, I think it is.
  33. LORD JUSTICE MAY: Thank you very much.
  34. MR LODGE: My Lord, may I mention one matter?
  36. MR LODGE: This is for the benefit of the respondent, and particularly those who have his care at Holme House Prison in Stockton-on-Tees. As a result of the decision of this court, he must now be released. As a result of the previous conviction in 1998 he is subject to registration under the Sexual Offenders provisions. He was arrested for a breach of those provisions in May of last year in the City of London. He is no longer being detained in Holme House as a result of those provisions. He is being held in Holme House, up until now, having been arrested for these offences of rape. I mention this so that those who are currently in charge of him know that there is now no longer any reason for him to be detained. But I understand, and I will need to speak to the respondent about this, that there is concern about where he is going to have his registered address under the provisions that apply to him, and he may need some assistance in being brought to an address because he is not a resident or a native of the north-east. So I would welcome an opportunity to speak, through the video, to those holding him and to the respondent himself immediately the court rises.
  37. LORD JUSTICE MAY: Anything that happens in that respect is a matter of executive responsibility, but no doubt the authorities will know that this court has directed his acquittal of count 1 of this indictment. The consequences of that are a matter for them, not for this court. As to speaking with the respondent, as far as the court is concerned, you may certainly do so by means of the video.
  38. (The court adjourned)

    (Later, in the absence of counsel)

  39. LORD JUSTICE MAY: The prosecution's appeal related only to count 1 of the indictment. The court was told, and prosecuting counsel confirmed, that the prosecution did not propose to proceed with count 2. It was the court's understanding that in those circumstances the result of the appeal, which we ordered, was that a not guilty verdict should be entered on count 1. We did this on the understanding that that disposed of the indictment. We are now informed that technically count 2 has not been disposed of. We are further informed that counsel both for the prosecution and the defence are content, indeed ask, for this court to direct that a not guilty verdict is entered on count 2 as well as count 1, and this we do.
  40. ___________________________

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