Lord Justice Pitchford :
- These two applicants were tried at the Central Criminal Court before HHJ Pontius between October and December 2011 upon an indictment alleging murder, attempted murder, and firearms and weapons offences. On 9 December 2011 the jury returned verdicts of guilty by a majority of 11:1 in respect of the applicant Sodiq Adeojo upon the following counts:
Count 1: Murder of Sylvester Akapalara
Count 2: Attempted murder of Sean Essuman-Dadson
Count 3: Attempted murder of Abdul Ullah
Count 6: Possessing a firearm with intent to endanger life, and
Count 7: Having an offensive weapon.
On 16 February 2012 the trial judge sentenced Adeojo to custody for life for murder. He imposed a minimum term of 30 years less 409 days spent in remand in custody. The judge imposed lesser concurrent terms of detention in a young offender institution upon the remaining counts.
- The jury found the applicant David Nyamupfukudza not guilty upon count 6, possessing a firearm with intent to endanger life, but could not agree upon the remaining counts in his case. The judge ordered a re-trial. That trial took place in May 2012, also at the Central Criminal Court before HHJ Pontius. The indictment contained 3 counts:
Count 1: Murder of Sylvester Akapalara
Count 2: Attempted murder of Sean Essuman-Dadson,
and as an alternative to count 2,
Count 3: Wounding with intent.
On 29 May the jury returned unanimous verdicts of guilty upon count 1 and count 2. They were discharged from further consideration of count 3. On 30 May 2012 the trial judge sentenced Nyamupfukudza to custody for life for murder and imposed a minimum term of 26 years less 508 days spent on remand. He sentenced the applicant to 20 years detention in a young offender institution concurrent upon count 2.
- Both applicants seek leave to appeal against their convictions on the principal ground that the sole or decisive evidence against them was the hearsay evidence of Sean Essuman-Dadson, the victim named in count 2 of both indictments. The court heard argument in both appeals on 17 January 2013. It is convenient that the court should give its decisions and reasons in a single judgment. Both applicants assert that the hearsay should not have been admitted by the trial judge, either because the prosecution failed to justify its admission under Part 11, Chapter 2, Criminal Justice Act 2003, or because the evidence should have been excluded as unfairly prejudicial under section 78 Police and Criminal Evidence Act 1984. The applicant Adeojo also seeks leave to appeal against sentence. All three applications have been referred to the full court by the Registrar of Criminal Appeals. The applications for leave to appeal against conviction raise arguable and important matters of law. We shall grant leave and henceforth will refer to the appellants. We are required, by reason of the importance of the hearsay evidence to both trials and the absence of the maker of the statements concerned from the witness box, to examine the proceedings in both trials in some detail.
Trial One: The evidence
- It was not in dispute that on the afternoon of 29 December 2010 two young males, Sean Essuman-Dadson (street name Cookie), then aged 18 years, and Abdul Ullah (street name Mantis) visited Heron House on the Pelican Estate in Peckham to meet the deceased, Sylvester Akapalara (street name Vesta), aged 17.
- The prosecution case, largely derived from the hearsay account of Essuman-Dadson, given in a significant witness interview, was that a group of youths, members of or associated with a Peckham gang calling themselves the GMG, arrived at Heron House pretending to be the Gas Gang from Brixton and wanting to know if any GMG members were present. Shouts were exchanged between the 8th floor and the group approaching at ground level. Essuman-Dadson and Akapalara went from the 8th to the ground floor where they were confronted by the group, one of whom, Adeojo, lifted his shirt to expose a gun in his trouser band. Essuman-Dadson and Akapalara fled upstairs to rejoin Ullah. They were followed by Adeojo and Nyamupfukudza travelling in a lift. Essuman-Dadson, Ullah and Akapalara proceeded to run down the central staircase pursued on foot by Adeojo and Nyamupfukudza. In the lead was Essuman-Dadson, followed by Ullah, with Akapalara bringing up the rear. By this time Akapalara had produced a lock-knife from his trousers. During the course of his flight Essuman-Dadson heard Akapalara saying, "What, what, what?", followed by a gunshot. When he reached the ground floor only Ullah was with him and their way out was being blocked by others including Adeojo's younger brother, Qudus.
- Adeojo and Nyamupfukudza followed to the ground floor stairwell. By now Nyamupfukudza was in possession of the hand-gun. Adeojo shouted to Nyamupfukudza, "Shoot him". Nyamupfukudza took aim and attempted to fire but could not because the gun had jammed. On being told by Nyamupfukudza, "My stick's jammed", Adeojo came at Essuman-Dadson with a knife. Some of the blows were deflected by Essuman-Dadson's woolly jumper. Essuman-Dadson kicked out and fought back but suffered a cut to his arm/hand. He then made his escape through a door using the release button but as he left he was stabbed in the back. Outside the block Essuman-Dadson saw Qudus and three others all armed with knives. He managed to run away and arrived as a no. 12 bus stopped on the main road nearby. The bus took Essuman-Dadson to the Clifton estate to the home of a friend where he later met his brother who conveyed him to hospital.
- The account which we have just summarised was given by Essuman-Dadson during a recorded police interview commencing at 7 pm on 30 December 2010, the day after the incident, which followed earlier interviews under caution. All three interviews were consistent one with the other. The circumstances in which he came to give this account we shall need to examine in more detail later in our judgment.
- Abdul Ullah gave evidence at the first trial. He said that he and Essuman-Dadson went to the 4th floor of Heron House. He estimated that between 15 and 20 males approached. He said that the deceased, Essuman-Dadson and he were going down one flight of stairs as a group of males wearing hoods were climbing up another. Half-way down the stairs Ullah described seeing a masked man with a gun run behind Akapalara and shoot at him. The gunman was followed by a second man. The same gunman attempted to shoot Ullah on the ground floor but the gun jammed. The second man, he said, did not follow to the ground floor. He believed that Essuman-Dadson engaged and fought with the man he called the gunman, which provided Ullah with the opportunity to escape. As he left, he too was stabbed in the back. He could not identify the gunman or anyone else in the group. Their faces were covered, he said. It follows that there were significant differences between Ullah's evidence and the account given by Essuman-Dadson in his interviews.
- The emergency services were called to the scene. The first message was received by police officers who attended the scene at 4.30 pm. PC Andrews arrived at 4.32 pm. He went into Heron House and up to the 8th floor. He then walked down the central stairwell to the 5th floor where he discovered the first signs of blood. He proceeded down to the next, 4th, floor and there found the deceased's body. There was a knife by his right side. When analysed, the knife produced a mixed DNA profile from the handle. It contained the full profile of Sylvester Akapalara. The same profile was recovered from the blade.
- The ambulance service arrived at 4.39 pm some seven minutes after the police. The evidence of Sean Costello, a paramedic, was read. He found Ullah who told him that he had been stabbed but Ullah would not reveal where the incident had occurred and told Mr Costello that he did not know his attackers. Mr Costello found Mr Akapalara's body on the staircase at the 4th floor of Heron House, lying in a pool of blood. Subsequent examination by a pathologist established that the deceased had been killed by a single gunshot. The bullet had entered his body at an angle of about 45°, penetrating the right jugular vein, windpipe, aorta and left lung, lodging in the ribs. The deceased would not have survived the catastrophic loss of blood which almost immediately followed the gunshot.
- On 2 February 2011 officers attended 75 Chandler Way, the home of Emmanuel and Gabriel Asare-Ofosu, both co-accused, in relation to an entirely separate matter. They carried out a search of the house and the surrounding area. In the space between the shed in the garden of no. 73, the adjoining house, and the boundary fence between no. 73 and no. 75, the police found a large shopping bag containing a rucksack and other items. One of them was a jacket from whose pocket was recovered a white JD drawstring sports bag. Inside the bag was a sock which contained a handgun, a 9mm pistol, with its magazine and ammunition attached. The pistol had been manufactured as a weapon, subsequently deactivated and, later still, restored to fire ammunition. In order to fire it the gun required manual cocking. During test-firings it frequently jammed and the fired cartridge case required manual removal. The unfired cartridges in the magazine were visually similar to the bullet recovered from the deceased's body. Test firing demonstrated some detailed bullet markings which corresponded with the fatal bullet taken from Akapalara's body but not complete agreement between the two. This was a consequence, in the opinion of the expert examiner, Alice Walters, of the fact that the barrel of the re-activated weapon was smooth-bore. She could only say that "this gun could have fired the missile taken from the deceased's body … I was unable entirely to discount the possibility that another gun was used to fire it". When tested, the jacket from which the gun was recovered produced a mixed DNA profile which contained the full major profile of a young man called Jordan Williams who lived at 71 Chandler Way. He was a friend of the appellant Adeojo. From the collar a mixed profile containing the full major profile of Emmanuel Asare-Ofosu was found.
- Lee Shufflebottom, a forensic scientist, examined clothing taken from David Nyamupfukudza on his arrest on 6 January 2011. From the left sleeve of his sweatshirt Mr Shufflebottom recovered a mixed DNA specimen. It contained the full major profile of the appellant Adeojo. From Adeojo's own T-shirt was recovered a mixed profile which contained Adeojo's full profile. Nyamupfukudza gave evidence in the first trial while Adeojo did not. Nyamupfukudza accepted that Adeojo's blood was on the sweatshirt he was wearing at the time of his arrest. He said that he and Sodiq occasionally exchanged clothing. He claimed that his friend Adeojo had been stabbed in the back at a party before Christmas 2010.
- The jury received other evidence describing events at Heron House from witnesses who could make no identification. Patrick Wakefield lived in Heron House and could see the ground floor stairwell. He heard a gunshot and the sound of people running down the stairs. At ground level he saw a black male in profile who, the prosecution asserted, was the appellant Nyamupfukudza, cocking a gun. There was, he said, some lighting in the stairwell by which he was able to make his observation. Rory Taylor lived nearby. He heard a gunshot and looked towards Heron House. He saw some males outside the entrance to Heron House at ground floor level and two males being chased down the stairs inside by two others. Catherine Gaffney heard the gunshot. She saw a group of boys with knives around the door of Heron House on the ground floor. She telephoned the police. Peter O'Farrell's evidence was read. He lived in Heron House. He heard the gunshot. He was joined by his uncle on the communal walkway and saw one of the entrance doors at the foot of the stairwell banged open and a number of black males running away. Marie Kelly's evidence was read. She heard the gunshot. She looked out of her window to see what appeared to be some people trying to get out of the door and one person trying to get in. Suddenly the person on the outside gave up and about six people in total ran towards Peckham High Road. James Durham was in Pelican House. He heard a gunshot from the direction of Heron House. When he looked out of his window he saw four boys. One had a gun in his hand and the other had a knife. A third ran back to Heron House and picked up a small object from the floor. The man with the gun seemed about 17 or 18 years old and about 5'2" in height. He was wearing a white JD type drawstring sports bag over his shoulder. Mr Durham was unable to identify anyone at the identification procedure.
- Adeojo was arrested in the early hours of 31 December. He was wearing a bloodied bandage around his right upper arm which he discarded in the police van conveying him into custody. DC Amitrano asked Adeojo about it. He was shown a fresh cut to the inside of Adeojo's right upper arm, about 1" – 2" in length. Adeojo told Dr Durston at the police station that he had incurred the injury on 27 December. Mr Simon Withey, a consultant surgeon specialising in plastic and reconstructive surgery, was shown photographs of the injury taken at 1.00 pm on 31 December. It was his opinion that the wound was between 1 and 3 days old and was definitely not older than 3 days, which would encompass 29 December but not 27 December.
- In support of the case against the appellant Adeojo the prosecution relied upon the following further evidence:
i) A telephone conversation which took place between Adeojo and Jordan Williams, a co-accused, on 4 February 2011 at a time when Adeojo was in custody following his arrest (see paragraph 77 below). Williams, depending upon the jury's view, was informing Adeojo of the recovery of the gun in the garden of 73 Chandler Way. If so, the inference available was that both men knew its significance and were discussing the implications of the discovery.
ii) A good deal of circumstantial evidence tended to implicate Adeojo and support the evidence of Essuman-Dadson. First, the evidence of bystanders tended to confirm Essuman-Dadson's account of the chase down the middle staircase at Heron House, the gunshot and the attempted escape through the ground floor exit. Second, Adeojo had been injured by a knife. One of the pursuing males exiting Heron House after the incident, captured by CCTV evidence, could be seen holding his arm across his chest as though the arm was injured. Qudus Adeojo's phone was used at the home of a co-accused Kenny Imafidon to order a taxi to take someone at that address to hospital. The taxi was later cancelled. The jury were invited to infer that Adeojo lied to the doctor about the date when and circumstances in which his admitted injured had been sustained. The evidence of Mr Durham that the gunman was carrying a white coloured JD drawstring bag was coincidental with the fact that the gun recovered from 73 Chandler Way was found in such a bag. We have already referred to the features of the gun recovered which compared with the description of that used in the ground floor stairwell. Telephone evidence placed Adeojo in the vicinity of Heron House at the time of the murder and, the prosecution submitted, with his co-accused before, during and after the murder.
- In count 1, Sodiq Adeojo, Qudus Adeojo, David Nyamupfukudza, Jordan Williams and Kenny Imafidon were charged with murder. The prosecution accepted that it could not identify the gunman who killed Mr Akapalara and the case depended upon proof of a joint enterprise to kill or to cause really serious harm by shooting between two or more of the defendants. The case against Williams and Imafidon was wholly circumstantial since no-one identified them at the scene.
- In count 2 the same defendants were charged with the attempted murder of Sean Essuman-Dadson and in count 3 with the attempted murder of Abdul Ullah. The prosecution case was that David Nyamupfukudza, with the express encouragement of Sodiq Adeojo, attempted to shoot Essuman-Dadson and Ullah and one or both attacked them with knives as they tried to leave the building. The case against the others was circumstantial and depended upon the finding of participation in a joint enterprise. Counts 4 and 5, which charged the same defendants with wounding with intent Essuman-Dadson and Ullah respectively, were alternatives to Counts 2 and 3.
- In Count 6 the same defendants were charged with possession of a firearm with intent to endanger life. The learned judge left count 6 to the jury on the following terms:
"Are we sure that at the time the attackers entered Heron House, the defendant whose case we are considering was in possession of a firearm or knew that one of his companions had a firearm in his possession, and are we sure that at that time he intended that it should be used to put human life in danger?"
It follows that the jury was not invited to consider convicting the appellant Nyamupfukudza solely on the basis of his alleged personal possession of the gun on the ground floor of Heron House at the conclusion of the incident. As we have said, the jury returned a verdict of not guilty upon this count in his case.
- In count 7 the same defendants were charged with possession of an offensive weapon, namely a knife. In count 8 Gabriel and Emmanuel Asare-Ofosu were charged with possession of a firearm with intent to enable another person to endanger life. The prosecution relied upon circumstantial evidence to establish that they were in possession of the gun as minders. In count 9 they were also charged with simple possession of the same prohibited weapon. Finally, in count 10 the Asare-Ofosu brothers were charged with assisting Jordan Williams, whom they knew or believed to be guilty of murder, by disposing of the gun with intent to avoid Williams' apprehension or prosecution. At the close of the prosecution case the judge acceded to a submission of no case to answer made on behalf of Kenny Imafidon. He was therefore discharged in respect of Counts 1 – 7.
- In the course of his evidence Nyamupfukudza accepted that he was in the general area of the Pelican Estate; his telephone records and the cell-site evidence appeared to establish this. He denied however that he was one of the gang in or near Heron House at the time of the murder. Save for the association between Nyamupfukudza and Adeojo, established by means of the sweatshirt worn by Nyamupfukudza at the time of his arrest, and unspecific cell site evidence, there was no supporting evidence to identify Nyamupfukudza at Heron House.
- The jury returned not guilty verdicts in respect of the counts concerning the cases of Jordan Williams, Emmanuel and Gabriel Asare-Ofosu and Qudus Adeojo.
Trial One: The admission of hearsay evidence
- We turn to describe the circumstances which led to the prosecution's application to HHJ Pontius to admit in evidence the hearsay evidence of Sean Essuman-Dadson. The witness was called to court to give evidence on the morning of 20 October 2011. He took the oath and thereafter remained silent. He would not respond to questions from Mr Duncan Penny for the prosecution, not even to acknowledge his name, nor to the judge's warning that a refusal to comply with his oath might amount to a contempt of court. The judge concluded that the witness was determined not to co-operate in the slightest degree. That afternoon the witness was recalled to court in the absence of the jury when the judge gave him the opportunity to explain his refusal to speak. The judge had been informed that during the lunch adjournment the witness had expressed concern that he would be identified in news reports of the proceedings. The judge was prepared to deal with that concern by making an order that his name should not be published. The judge asked the witness whether he was silent through fear and he replied, "No". However, the silence continued and no such order was made. When the jury returned to court Mr Penny made another attempt. This time Essuman-Dadson began to answer questions about events which preceded the incident in Heron House, although he refused to name Ullah or to explain their presence. During the course of his answers Essuman-Dadson agreed that he had told the truth to the police in his interviews on 30 December. As soon as Mr Penny moved to the critical events the witness resorted to silence and would not budge. Mr Penny then made an application in the absence of the jury to treat the witness as hostile.
- At common law it is for the judge to assess whether a witness is hostile (i.e. in the sense that the witness is adverse to the party calling him). A refusal to answer questions may be sufficient to demonstrate that hostility and to trigger the right to cross-examine, including upon previous statements made by the witness (see Thompson  64 Cr. AppR 96). By section 3 of the Criminal Procedure Act 1865 a previous statement inconsistent with the witness's current testimony may be proved. If the statement is so proved, by section 119 (1) Criminal Justice Act 2003:
"(1) If in criminal proceedings a person gives oral evidence and –
(a) he admits making a previous inconsistent statement, or
(b) a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865,
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible."
- The judge concluded, having observed the witness's behaviour and demeanour in the witness box, that there was no doubt he was hostile to the prosecution in the legal sense. The defence objected to the application not because his hostility was disputed but because the result would be to enable the prosecution to examine the witness upon his previous statements. The witness was likely to refuse to respond to questions put on behalf of the defendants and the result would be that the defence would be deprived of the opportunity directly to challenge him upon his account.
- The judge granted the application to treat Essuman-Dadson as a hostile witness, observing that the jury should, in the interests of justice, hear all relevant and admissible evidence. It was, subject to exclusion on the grounds of fairness, for the jury to assess the weight to be attached to that evidence. The defence would be permitted to adduce evidence under section 124 going to the credit of the witness if that became necessary due to his continued recalcitrance. The judge also acceded to a request that relevant parts of the audio recording of the witness's significant witness interview should be replayed to him in the presence of the jury. The judge ruled that this should be permitted since it would provide the jury with a better opportunity to assess the reliability and therefore the weight to be given to the witness's evidence.
- Sean Essuman-Dadson was recalled to the witness box. As the interview recording was played to him he sat with his head bowed and did not engage with the proceedings. He then, without warning, got up from the witness box and attempted to leave court. At this time Mr Essuman-Dadson was in custody on remand in respect of another matter. The judge asked him to return to the witness box. Police officers intervened and a violent struggle took place which required the assistance of prison officers from the dock. All this was observed by the jury. When the jury left court an application was made for their discharge. The judge declined to discharge the jury. He recognised that the jury would have been affected by the incident but he concluded that the defendant's interests could be properly and adequately protected by firm directions from him. It was not clear why the witness had behaved as he did. Certainly he had not given any reason. The jury received a firm direction by the judge not only on their return to court but also during the summing up.
- There remained the question what was to be the status, if any, of the evidence of Sean Essuman-Dadson. The jury had heard the witness adopt his interview with the police as the truth but he declined to be present when the prosecution was permitted to ask him questions about the content of that interview. He had not been, and could not be, in the circumstances cross-examined by any counsel for the defence. The prosecution applied for the statements made by the witness in his significant witness interview to be admitted as hearsay evidence. Mr Penny first relied upon section 119(1) to which we have already referred. Mr Penny contended that the previous statement of the witness could be and had been proved as permitted by section 3. It thereupon became admissible in proof of any matter stated pursuant to section 119(1)(b) of the 2003 Act.
- Secondly, Mr Penny submitted that the interview was admissible under section 120. The previous statement was made by a witness for the purpose of section 120(1). It was a previous statement of which his oral evidence would have been admissible for the purpose of section 120(4). It qualified because (section 120(4)(b)) the witness had indicated that to the best of his belief he made the statement and it was true. Further, the statement met two of the three conditions, any one of which would have satisfied section 120(4)(a). First, the statement identified and described a person, object or place (section 120(5). Second, the witness claimed to be a person against whom an offence had been committed; the offence was one to which the proceedings related; the statement consisted of a complaint made by the witness about conduct which would, if proved, constitute the offence or part of the offence; the complaint was not made as a result of a threat; and before the statement was adduced the witness gave oral evidence in connection with its subject matter. Mr Penny conceded that the witness could not properly be said to have given oral evidence of identification nor of the part played by those identified but, to the extent that the statement repeated the uncontroversial matters to which the witness had made reference in his evidence, the statement, he submitted, was admissible. Mr Penny's concession was in our view rightly made. The purpose of section 120(4) is to admit in evidence, in certain circumstances, previous consistent statements. Finally, Mr Penny submitted that the evidence should be received in the interests of justice under section 114(1)(d) of the 2003 Act.
- The defence submitted that the hearsay evidence, even if it qualified under the gateways provided by section 119 and section 120, should nevertheless be excluded. It should not be admitted in the interests of justice under section 114(1)(d) and should be excluded under section 78 Police and Criminal Evidence Act 1984.
- It appears to have been accepted that the statement was admissible under section 119(1) since the statements of Essuman-Dadson had been proved under section 3 of the 1865 Act. However, the judge, in his ruling on Monday, 24 October 2011, adopted the approach of considering each of the factors identified in section 114(2) as one measure by which to test whether the evidence should be excluded because it would be unfair to the defence under section 78 to admit it. As to section 114(2)(a), the judge concluded that the evidence, assuming it to be true, was highly probative. The witness identified three participants in the attack, these two appellants and Mr Adeojo's brother, Qudus. As to section 114(2)(b), and section 114(2)(g), the judge acknowledged that Essuman-Dadson was the only witness capable by oral evidence of identifying one or more of the participants. Implicit in the judge's ruling is the acknowledgement that the witness himself refused for reasons unknown to give oral evidence in accordance with his statement. As to section 114(1)(c), the judge regarded the evidence as of "very considerable importance in the context of the case as a whole" since it was the only direct evidence of identification of any of the attackers. He considered section 114 (1)(d), (e) and (f) together, namely the circumstances in which the statement was made, the reliability of the maker of the statement and the reliability of the making of the statement. The making of the statement was reliable because it was recorded. The judge considered that there was, on the face of it, no reason to doubt that the witness was providing the police with a truthful account of an incident in respect of which he was one of the victims. Truth and reliability were matters which ordinarily would have been the subject of searching cross-examination. Nonetheless, the jury had seen the witness and had observed his behaviour in the witness box. They could hear his response to questions by the police. There was, therefore, an opportunity limited though it was, for the jury to make an assessment of the reliability of the maker of the statement. The judge turned, finally, to section 114(2)(h) and (i), the amount of difficulty which the defence faced in challenging the statement and the extent to which that difficulty would be likely to prejudice the party facing it. The judge acknowledged that this was the principal ground for resistance by the defendants to the admission of the statement. He recognised the defendant's right to examine witnesses called to give evidence against them. A defendant denied that opportunity faced a very considerable handicap when the evidence was of identification. The defence would be unable to put to the witness himself material which might affect the truthfulness of his identification. The defence would be unable to explore with the witness the circumstances in which the identification was made. On the other hand, these matters could be explored with Mr Ullah who was expected to attend to give evidence and could speak not only to his knowledge of Essuman-Dadson but also to conditions in the stairwell of Heron Court. The jury would hear details of Essuman-Dadson's previous convictions and character and would be directed to approach his evidence with "a particularly high degree of caution". The judge concluded:
"… whilst recognising fully the extent of the handicap faced by the defence in challenging the content of the recorded interview, the jury, I am confident, providing a full and careful direction about their approaches given, will examine Sean Essuman-Dadson's evidence with the greatest care and with all relevant factors and circumstances affecting its credibility and reliability in the forefront of their minds. Accordingly, I am firmly of the view that the interests of justice require that the content of Sean Essuman-Dadson's interviews put before the jury. Having considered the defence submissions and all relevant circumstances, I have no doubt that those interests outweigh the risk of prejudice to the defendants arising from their inability to question him directly. It will ultimately be for the jury, well aware of the handicap under which the defence must in consequence conduct the case, to determine to what extent, if at all, they accept that evidence."
- The judge did not refer in his ruling to the observations of the court in Z  EWCA Crim 20,  1 Cr App R 34 (Stanley Burnton LJ, Gross and Royce JJ). There the prosecution wished to establish relevant bad character by adducing the evidence of a previous victim of a sexual offence, D. D was reluctant to give evidence because she did not wish to relive the experience. The judge permitted the prosecution to adduce her evidence in hearsay form under section 114(1)(d). The judge had not, however, demonstrated that he had considered the relevant factors under section 114(2). The court deprecated the use of section 114(1)(d) to circumvent the inconvenience of establishing a gateway to admissibility under section 116. At paragraph 24, Stanley Burnton LJ said:
"… cases must be rare indeed in which such significant potentially prejudicial evidence as that of D should be admitted as hearsay where the maker of the statement is alive and well and able, although reluctant, to testify, and her reluctance is not due to fear (i.e. the condition in section 116(2)(e) is not satisfied)."
- In his written argument, Mr Penny drew the judge's attention both to Z and the later decision of the court in Seton  EWCA Crim 450 (Stanley Burnton LJ, Collins and Davis J, as he then was). The defendant had been charged with murder. He served a late defence statement blaming the murder on a man called Pearlman who was already serving a sentence of life imprisonment for murder. Pearlman refused to respond to police enquiries of him, but in telephone calls he made abundantly clear to members of his family his indignation towards the false allegation. Having considered all the relevant section 114(2) factors the judge permitted the prosecution to adduce in evidence recordings of Pearlman's telephone conversations. The conviction was upheld not only because the judge had carried out a full analysis of the interests of justice but also because the prosecution case against the defence was otherwise a powerful one.
- In his summing up, to which we shall return later in this judgment, the judge reminded the jury that the account given by Essuman-Dadson in interview was adopted by the witness as true. Strictly speaking, he said, his evidence of the incident was not second-hand. However, his subsequent behaviour in the witness box had removed the opportunity that the defendant should have enjoyed to test that account in cross-examination.
Trial Two: The evidence
- At the appellant Nyamupfukudza's second trial, the prosecution proceeded only upon counts charging him as a joint participant in the murder of Sylvester Akapalara, and the attempted murder of Sean Essuman-Dadson, with wounding with intent in the alternative. Evidence of Adeojo's convictions was admitted under section 74 Police and Criminal Evidence Act 1984 and the acquittals of the other defendants were admitted by agreement. The prosecution relied nonetheless on the same circumstantial case which it had presented at the first trial. The prosecution decided, having considered Ullah's evidence in the first trial, that Ullah could not be advanced as a witness of truth. However, Ullah's evidence was of importance to the defence of the appellant Nyamupfukudza and the judge required Ullah to be called to provide the defence with the opportunity to cross-examine him.
- There had, since the first trial, been a development in the mobile telephone cell-site evidence. In the first trial, Nyamupfukudza had given evidence that, shortly before the killing, he received two calls, numbers 84 and 91, at least one of which was from his grandmother. When he received the call he was at his girlfriend Misha's flat at 31 Cronin Street. As he was conversing with his grandmother he walked to the park at the junction between Cronin Street and Sumner Street where the call was completed. A best server survey was, between the first and second trials, carried out at the home of Adeojo, 70 Shurland Gardens, and in the Cronin Street area. The two calls received by Nyamupfukudza's phone used the Cater Street server. Cater Street was the only server which served the interior of 70 Shurland Gardens and Cater Street did not serve the vicinity of Cronin Street. The prosecution asserted to the jury that Nyamupfukudza well knew the prosecution case presented at the first trial that mobile phone traffic was consistent with his presence in the company of his co-accused Adeojo and others near Heron House shortly before the killing. In an attempt to distance himself from Adeojo he had, in his first trial, lied about his whereabouts. At the second trial the appellant said he had not lied; he had merely been mistaken.
Trial Two: The hearsay evidence
- On the first day of the second trial, 8 May 2012, the witness Essuman-Dadson was brought to court in custody having been arrested that morning. The judge was engaged in considering pre-trial legal argument. Essuman-Dadson was produced before the judge at 4.15 pm, represented by counsel, Mr Corsellis, assigned by the judge to assist him in the contempt proceedings taken as a result of Essuman-Dadson's behaviour in the first trial. We owe our description of what followed to a commendably full agreed note taken by a member of the prosecution team. Ms Gudrun Young was junior counsel to Ms Sonia Woodley QC appearing for Mr Nyamupfukudza at the second trial. Mr Courtenay Griffiths QC was instructed in place of Ms Woodley following the service of the appellant's original grounds of appeal, but Ms Young remains junior counsel in the appeal. The judge was provided with witness statements made by Essuman-Dadson following the first trial and before the second. Counsel informed the judge that the witness was resolute in his intention not to attend court and, if he was produced, not to give evidence before the jury. The reasons for this state of mind were, he said, set out in the statements which the judge had seen. The judge enquired whether, since the first trial, any threat or attack had taken place. He was informed that it had not. The judge observed that the witness's evidence was important and that it was "vitally important" that the jury should hear and assess it. The judge observed that in view of events during and since the first trial the witness would be remanded in custody.
- On the following morning, 9 May, the judge continued to hear legal submissions from trial counsel. At 2.40 pm the jury was empanelled and the prosecution's opening commenced. It resumed at 2.00 pm on 10 May and was completed at 4.00 pm. Ms Woodley QC, on behalf of Mr Nyamupfukudza invited the judge to persuade the prosecution to make an application to admit the evidence of Essuman-Dadson under section 116(2)(e) of the 2003 Act as a witness who was not available through fear of the consequences of giving evidence. The defence had been provided with copies of Essuman-Dadson's statements and counsel had observed the opening of the contempt proceedings. Both Mr Penny and the judge had considered that such an application was pre-mature. First, screens would be erected in order that the witness could be provided with a measure of privacy while the importance of giving evidence was again explained to him. The appropriate course was, Mr Penny submitted, to approach the witness's evidence step-by-step. A special measures direction was made by the judge pursuant to the Youth Justice and Criminal Evidence Act 1999.
- The witness was produced in court before the jury behind screens at 10.35 am on Friday, 11 May 2012, and sworn. The following passage occurred:
" Mr Penny: are you Sean Essuman-Dadson?
A: No answer.
Q: 2 years ago in 2010, just after Christmas time, were you friends with a boy called Vesta?
A: No answer.
Q: Did you get stabbed just after Christmas time when with Vesta and another boy called Abdul or Mantis? Were you there when Vesta was shot?
A: No answer.
Q: (shown a photograph) Do you recognise that building?
A: No answer.
Judge: You must answer the question.
Q: Have you heard of Heron House? Have you ever been there?
A: No answer.
Judge: We know from what Mr Penny has told us that you were present at Heron House when an incident occurred and that you were a witness to what happened that day? Amongst other things a friend of yours was shot dead and there is someone in the dock who is charged with responsibility for that. It is important that the jury have all available evidence so they can decide whether the man in the dock played any part in that. Do you understand how important that is? … Can you answer me please?
A: No answer.
Judge: There is an obligation on you and any other witness to provide any evidence they can. You duty is to answer questions and to assist the jury.
A: No answer.
Q: Did you end up in hospital having your injuries tended to - to your arm and your back? Did you tell the police officer the truth during the interviews on the afternoon of 30 December?
A: No answer.
Judge: What is the answer?
A: No answer."
- The witness and the jury were asked to leave court. It was submitted by Mr Penny that it was clear the witness would not give oral evidence. As in the first trial the witness had looked at the floor and would not engage even with questions which were uncontroversial. The prosecution was aware of its right to seek to treat the witness as hostile but the witness had now made several statements which established that he was not giving evidence through fear. Mr Penny reminded the judge that the witness had first made a statement explaining his reluctance to co-operate with the investigation on 20 April 2011. He had attended an identification procedure for the purpose of identifying, if he could, Sodiq and Qudus Adeojo. He did not do so but told the officer that this was deliberate. In his statement dated 20 April 2011 the witness said:
"The reason I didn't pick out Sodiq and Qudus was because their cousin had intimidated me, I saw them in the ID parade, Sodiq was in position 3 and Qudus in position 2. I am currently in HMP Highdown where their cousin is an inmate. I have not seen him since the ID parade and I feel safe in HMP Highdown. I will feel unsafe if I am moved to another prison."
No use of this evidence was made by any party in the first trial.
- On 21 March 2012 the witness was visited by two police officers who wished to ascertain whether he was willing to give evidence in the re-trial. In a statement of that date he said this:
"… I have previously attended the Central Criminal Court and gave evidence against my will. I didn't want to give evidence then as I feared for my personal safety and that of my immediate family, my mother and two brothers. The threat at the time was such that the police moved the family out of our home in Peckham overnight and the family have lived in temporary accommodation since. I have been visited by DC Cotton and DC Medford and have been informed that there is shortly to be a re-trial in this case and that I am required to give evidence in court again. I absolutely refuse to attend court and give evidence again. The threat to my family is still there and friends of the man who is on trial are still out there. DC Cotton has explained that I can be summoned to attend court and possibly arrested but I still refuse to come for the reasons I have stated."
- The judge was provided with a statement from a police officer who attended the witness's current address at 7.15 am on 8 May 2012 to serve a witness summons upon him. The officers were admitted by means of a master key. The witness was in the company of his younger brother. When the officers informed him that they were in possession of a summons backed with a warrant for his arrest the witness became violent and could only be arrested and removed in handcuffs with the assistance of other officers. Mr Essuman-Dadson made a further statement of 8 May following his arrival at court. In it he said this:
"In 2010 I was stabbed repeatedly and attempts were made to pull the trigger of a handgun pointing at my head. I feel lucky to still be alive. The person responsible for trying to kill me were/are members of a criminal gang (GMG). There are many members of this gang. Apart from when they tried [to] kill me I have not been threatened by them about this case. However, they know me and members of my family and I have no doubt they will attack either myself or younger members of my family if I come to court. I am particularly concerned for my younger brother … What I told the police was the truth but I cannot come into court and say it due to the repercussions that would follow. The reason that I ran out of court on the last occasion was because of my fear of these people and the fact [that] my tape interview was being played in front of them."
We have omitted from this quotation as unnecessary the witness's reason for asserting that his younger brother was, by reason of his personal circumstances, exposed to the risk of reprisal.
- On the following day, 9 May, presumably on advice tendered to him by counsel assigned to him, Mr Essuman-Dadson made a further, and final, statement. He said:
"I, Sean Essuman-Dadson would like to be screened from the defendant and public gallery should I be asked to come into court to either answer questions from the learned judge or to give evidence. I would like to explain that I do not intend to answer any questions in evidence. The reason I am going to do this is because of my fears for my family and in particular for my brother … as set out in my previous statement of 8/5/12. I am [sorry] for acting in this way but I cannot see any other alternative due to the risk of harm to myself and family. I understand that it is possible for the court to imprison me due to my actions."
- Mr Penny was alive to the need to secure if he could the presence in court of the witness for cross-examination on behalf of the appellant. Ms Woodley QC submitted to the judge that it was plain, as Mr Penny submitted, that the witness was hostile. He was not however hostile out of malice towards the prosecution. As Ms Woodley put it:
"It is plain he is not going to answer questions and it is through fear. "
In those circumstances the appropriate gateway for the admission of the evidence was, she submitted, not section 119(1) but section 116(2)(e). She continued that the defence "saw no point" in a course which kept the witness in the witness box while the audio-recording of the significant witness interview was played. The judge observed that the court did not know at that stage what might be the witness's response to questions in cross-examination. Ms Woodley submitted that the appropriate course was to ask the witness in the absence of the jury whether he would answer questions in cross-examination. The judge acceded to that request.
- Sean Essuman-Dadson was brought into court at 11.10 am in the absence of the jury and the following exchange occurred:
"Judge: I have read recent statements made to the police setting out your reasons for not wishing to answer any questions in this trial. You have heard me earlier explaining to the jury how important it is to answer questions. The trial involves very serious allegations … in due course if the content of your police interviews are put before the jury and the defence ask questions will you respond to defence questions?
A: No answer.
Q: The duty of the defence is to put questions on behalf of the defendant to you fairly and squarely … so the defence would want an opportunity to put questions in particular about evidence which makes your identification less reliable? Will you be willing to answer such questions put on behalf of the defendant? Yes or no will do.
A: No sir.
Q: No questions at all?
The witness then left court.
- No application was made by defence counsel either to question the witness or to invite the judge to put questions to the witness on the issue of the genuineness of his fear and, in submissions that followed, Ms Woodley QC again conceded that the witness was, at least in part, motivated by fear of the consequences of giving evidence, although that was a "question mark" which the judge must resolve, and the admissibility of the evidence as hearsay was not conceded. The judge, in his ruling of 11 May 2012, noted Ms Woodley's subtle change of stance and set out the history which we have just described. He also noted that no specific threat had been made to the witness since the first trial. He had, however, since his release from prison after the first trial been housed at a secret address with some members of his family. The judge concluded that there was "no way that his whereabouts at that address can be discovered by anyone, whether defendants or associates of the defendants". On the other hand, it was right to observe that even those members of his family who were housed at that address could not be expected to be there 24 hours a day and there were grounds for accepting that the witness's younger brother was, by reason of his circumstances, in an exposed position should a threat or attack be contemplated. The judge concluded that Sean Essuman-Dadson was "certainly in fear". He reached that conclusion notwithstanding the witness's assertion at the first trial that he was not. There were now grounds for doubting the truthfulness of that response in the first trial, but the consequence had been that there were then no grounds for an application for admission of the evidence under section 116. The judge continued:
"Now, as I have made plain, I have an abundance of material which satisfies me that this witness is genuinely in fear for himself and for his family."
That, however, was not the end of the matter. The judge recognised that he was still bound to examine the requirements of fairness in a criminal trial in England and Wales according to the guidance given by this court in Ibrahim  EWCA Crim 837,  2 Cr App R 32 (Aikens, LJ, Field J and HHJ Cooke QC) following the decision of the Supreme Court in Horncastle  UKSC 14,  2 AC 373, and of the Grand Chamber of ECtHR in Al Khawaja v United Kingdom  54 EHRR 23 (page 807).
- The judge recognised the need to examine the requirements of section 116 together with the existence of counter balancing measures, the importance of the statements and the reliability of the statements. He concluded that Essuman-Dadson's evidence was central to the prosecution case. There was no other witness who could identify the defendant at the scene. The witness was identified and there was a wealth of material with which the defence could challenge the credit of the witness. Furthermore, the defence was in a position to challenge the accuracy of the identification by exploring with other witnesses, particularly Ullah, the circumstances in which it was made. The jury would be directed to exercise caution in their approach to the hearsay evidence, as had the jury in the first trial. As to the reliability of the witness this was not a mere statement of identification; the hearsay account was laden with circumstantial details. The judge concluded that it was in the interests of justice that the evidence should be admitted.
Sodiq Adeojo (Trial One): Grounds of Appeal
- Mr Andrew Hall QC, on behalf of the appellant Adeojo, conceded that the adoption by Essuman-Dadson of the contents of his significant witness interview as the truth and/or the proof of that inconsistent account under section 3 Criminal Procedure Act 1865 rendered admissible Essuman-Dadson's interview either as direct evidence or as hearsay evidence under section 119(1) of the 2003 Act. Mr Hall was not disposed to challenge the admissibility of the evidence but directed his submissions to section 78 Police and Criminal Evidence Act 1984.
- The judge's approach, for the purpose of examining the question whether the evidence should be admitted, was rightly, in our view, to treat the evidence as hearsay. Oral evidence is not in a criminal trial in England and Wales received by the production of a witness statement and an oral attestation of its truth. Mr Hall correctly identifies the essential question for resolution by the judge as whether a fair trial was possible in the absence of any ability by the appellant to challenge the critical witness's evidence in cross-examination. First, Mr Hall submitted that the evidence of Essuman-Dadson was demonstrably unreliable. The witness was a career criminal who was proved to have lied to implicate others on previous occasions. He gave no indication that he knew the identity of his attackers until he was interviewed as a suspect. The account he gave was wholly undermined by his friend Ullah. Second, the issue was one of identification by recognition. The defence was unable to cross-examine the witness upon the circumstances of his identification, his opportunity to make that identification and his prior familiarity with Adeojo which enabled him to claim that he knew him. Robust directions to the jury could not cure the disadvantage to the appellant.
- The second ground of appeal is that the judge should have discharged the jury following Essuman-Dadson's violent confrontation with the police and prison officers in court. The jury was palpably horrified by the incident. Screens had been erected to prevent members of the public gallery seeing the witness. The possibility could not be excluded that the jury would feel sympathy for the witness or animosity towards the defendants. The risk that the jury would, without justification, conclude that Essuman-Dadson did not give evidence through fear also tainted their consideration of the evidence of Ullah. The danger was that Ullah's reluctant evidence would be diminished in the eyes of the jury by Essuman-Dadson's presumed fear of the defendant.
- Thirdly, Mr Hall contends that the judge's summary of the evidence of Essuman-Dadson and Ullah was unbalanced. The former's evidence occupies some 24 pages of the transcript of the judge's summing up (Vol III p 93-117). The latter's evidence was summarised in 7 pages (Vol IIIa p 3-9). The judge did not carry out for the jury a comparative analysis for the purpose of demonstrating how Ullah's evidence undermined the hearsay account of Essuman-Dadson. According to Ullah there was no journey to the ground floor when a gunman confronted them; there was no confrontation outside the lift on the 8th floor; when Essuman-Dadson left the building, the second man had not yet arrived at the ground floor of the stairwell.
Ground 1: Article 6 ECHR
- Article 6 (1) and (3) (d) of the Convention reads:
"1. In the determination of his civil rights and obligations or of a criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …
3. Everyone charged with a criminal offence has the following minimum rights:
(d) To examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him."
In Luca v Italy (application no 33354/96, 27 May 2001) the First Section of the ECtHR identified at paragraph 40 of its judgment what became known as the "sole and decisive" rule in European jurisprudence:
"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 a conviction is based solely or to a decisive degree on depositions that had been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that it is incompatible with the guarantees provided by Article 6."
- In the judgment of the Grand Chamber in Al-Khawaja v.United Kingdom (published 15 December 2011), the court signalled a more fact sensitive approach to the fairness of the proceedings:
"127 … the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. This principle requires not merely that the defendant should know the identity of his accusers so that he is in a position to challenge their probity of credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence, either at the time the witness was made the statement or at some later stage of the proceedings."
At paragraph 139, the court rejected the Government's argument that the sole or decisive rule assumed that all hearsay evidence which is crucial to a case is unreliable or incapable of a proper assessment unless tested by cross-examination. The court continued:
"139 … rather, it is predicated on the principle that the greater the importance of the evidence, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous or to be absent from the trial and the greater the need for safeguards to ensure that the evidence is demonstrably reliable or that the reliability can properly be tested and assessed."
- In an important passage at paragraph 147 of its judgment the court acknowledged that the sole and decisive test was not an absolute rule and that some room for flexibility was essential:
"147. The court therefore concludes that, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6(1). At the same time where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales, to use the words of Lord Mance in R v Davis, and one which requires sufficient counter-balancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counter-balancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance in the case."
- This court examined the effect of the decision of the Grand Chamber in Ibrahim. The court concluded that in order to assess the question of whether a defendant has received a fair trial it was necessary to resolve (1) whether there was proper justification for admitting the untested hearsay evidence of the complainant under domestic law (in that case under section 116(1) and (2)(a) Criminal Justice Act 2003); (2) how important the statements were in relation to the Crown's case; (3) whether the statements were demonstrably reliable; and (4) whether counter-balancing safeguards had been properly applied. The more central the untested hearsay evidence, the greater the need for scrutiny of the reliability of the evidence and the proper application of counter-balancing safeguards.
- In Riat and Others  EWCA Crim 1509,  1 Cr App R 2 (Vice President, Hughes LJ, Dobbs and Globe JJ), the court considered five appeals in which the conviction followed the admission of hearsay evidence. In his judgment of behalf of the court, the Vice President identified the principle underlying domestic jurisprudence which judges in England and Wales were bound to follow, in paragraph 3:
"3. As everybody knows, the Criminal Justice Act 2003 gave effect to the report of the Law Commission, itself the product of long consultation and deliberation. The common law prohibition on the admission of hearsay evidence remains the default rule but the categories of hearsay which may be admitted are widened. It is essential to remember that although hearsay is thereby made admissible in more circumstances than it previous was, this does not make it the same as first hand evidence. It is not. It is necessarily second hand and for that reason very often second best. Because it is second hand, it is that much more difficult to test and assess. The jury frequently never sees the person whose word is being relied upon. Even if there is a video recording of the witness's interview, that person cannot be asked a single exploratory or challenging question about what it said. From the point of view of a defendant, the loss of the ability to confront one's accusers is an important disadvantage. Those very real risks of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to its management. Sometimes it is necessary in the interest of justice for it to be admitted. It may not suffer from the risks of unreliability which often attend such evidence, or its reliability can realistically be assessed. Equally, however, sometimes it is necessary in the interests of justice either that it should not be admitted at all, or that a trial depending upon it should not be allowed to proceed to the jury because any conviction would not be safe."
- The Vice President said, however, that it was not to be understood that in Horncastle the Supreme Court decided that hearsay evidence must be demonstrated to be reliable (that is, accurate) before it could be admitted. The requirement was that either the evidence "did not suffer from the dangers of unreliability which often may attend such evidence, or (if it did) there were sufficient tools safely to assess its reliability" (paragraph 5, Riat and Others). It followed that the court is concerned with:
(1) The extent of unreliability identified;
(2) The extent to which the reliability of the evidence can safely be tested by the jury;
An examination of these questions would involve, for example, the circumstances in which the statement was made, the disinterest (or otherwise) of the maker, evidence independent of the maker which dovetailed with the maker's statement, the availability of material (perhaps under section 124 CJA 2003) which went to the jury's ability to test the reliability of the witness, and independent evidence which supported the truth and accuracy of the statement (paragraph 6, Riat and Others).
- At paragraph 32 the Vice President defined the ultimate question for the trial judge as follows:
"32 … The job of the judge is not to look for independent complete verification. It is to ensure that the hearsay can safely be held to be reliable. That means looking, in the manner we have endeavoured to set out, at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole." [original emphasis]
- Reflecting several previous decisions of the court the Vice President confirmed that the interests of justice test provided by section 114(1)(d) should not be a route by which the prosecutor sought to subvert the express gateways provided in sections 116 – 118 (paragraph 20 Riat and Others). When considering an argument that hearsay evidence should be excluded under section 78 Police and Criminal Evidence Act 1984 the Vice President suggested that the factors identified in section 114(2) of the 2003 Act provided a useful summary of factors which the judge would wish to examine before reaching a conclusion upon the issue whether "the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it" (paragraph 22 Riat and Others). Section 125 of the 2003 Act provided an important safeguard. The judge was required to consider whether the hearsay evidence, once admitted, was so unconvincing that any conviction based upon it would be unsafe. That required consideration of its strengths and weaknesses, and the issue of reliability needed to be kept under review throughout the trial (paragraph 29, Riat and Others).
- The trial judge, HHJ Pontius, did not have the advantage of that guidance from this court at the time when he was required to make the important decision whether, notwithstanding the inability of the appellant to test Essuman-Dadson's evidence in cross-examination, the evidence should be admitted, or whether, on the grounds of the prejudice which would otherwise arise, the evidence should be excluded. Nonetheless, when considering the exercise of his judgment under section 78 the judge did adopt the course of testing the section 78 issue by an examination of the section 114(2) factors and he resolved that it was in the interests of justice that the evidence should be received. We now turn to consider the material available to the judge.
Reliability of the Statement
- On 16 April 2008 Essuman-Dadson pleaded guilty to possession of an offensive weapon, a lock knife. He was made the subject of a referral order. While under referral, on 18 December 2008 he was arrested for attempted robbery of a security van in SE 18. He claimed to have been "forced into" the robbery by another man. He gave a circumstantial account of being threatened by "Jarvis" whose Alfa Romeo car Essuman-Dadson had accidentally scratched. He said he was driven to the scene of the robbery under compulsion from Jarvis. Essuman-Dadson was bailed while enquiries were made. On 12 January 2009 he took part in a further robbery of a security officer in NW 10. Essuman-Dadson was arrested when an Alfa Romeo car to which the proceeds had been transferred was stopped by the police. Essuman-Dadson again claimed that he had been compelled to commit the offence to re-pay a debt, this time by a co-accused, Kirk Yarboi, who was arrested with him. Essuman-Dadson pleaded guilty to attempted robbery and robbery on 28 January and 19 June 2009 respectively. He was sentenced to 3 years detention. On 15 December 2009 he received 2 years detention concurrent upon his admission to the commission of 3 further transit robberies. He said that he had confessed so that "I can start my life again". While held on remand at HMP Cookham Wood on 16 and 17 March 2010 Essuman-Dadson, during recorded telephone conversations, attempted to organise the purchase of a firearm for another inmate. He involved his younger brother and girlfriend. Further conversations about the acquisition and capability of firearms took place on 31 March, 5 April and 9 April 2010. On 14 December 2010 he was released from his sentence of detention. On 25 January 2011 Essuman-Dadson was arrested for possession of class A drugs heroin and cocaine when he was believed to be assisting another to make delivery of drugs in Yeovil. However, the case against Essuman-Dadson depended upon the evidence of the other man which was deemed unreliable. Essuman-Dadson was discharged and released from prison on 19 December 2011.
Behaviour before arrest
- The witness could have gone, but did not go, to Peckham Police Station to report that he was the victim of a murderous attack. Instead he was taken to hospital by his brother. Both they and friends who accompanied them were spoken to by police officers at the hospital but no one volunteered the identity of any of Sean Essuman-Dadson's attackers. Nathan Essuman-Dadson did, however, say in a statement made subsequently that Sean told him he recognised at least some of his attackers as Peckham boys. Following treatment Sean Essuman-Dadson was himself arrested on suspicion of murder and taken to Peckham Police Station where he was interviewed under caution from 4.36 pm to 5.21 pm on 30 December 2010. After a break of 1 ½ hours his status changed. At 7.00 pm he was interviewed as a significant witness and it was this interview which was adduced in evidence before the jury at the first trial. No-one at the first trial suggested that Essuman-Dadson was a suspect in the murder of Mr Akapalara. The issue was, therefore, whether he had any motive to make false accusations against the appellant Adeojo.
Ullah's inconsistent evidence
- Ullah gave evidence which, if true, completely undermined Essuman-Dadson's identification of their attackers. In particular, it was his evidence that he was unable to make any identification, not least because the attackers' faces were covered by clothing, balaclavas, masks or scarves.
Essuman-Dadson's behaviour in court
- Essuman-Dadson had shown himself to be a witness who was not prepared to give evidence either about events within Heron House or about the identity of his attackers. While he had grudgingly accepted that he had told the truth to the police in interview he was not prepared to support that account in evidence. He specifically denied that his silence was motivated by fear of the consequences of giving evidence. The danger was that, conscious that his account to the police was untrue or inaccurate, the witness was not prepared to give evidence in support of it.
The hearsay account
- Essuman-Dadson's account to the police emerged as follows. He was cautioned and DC Partridge ensured that he understood the caution. He declined the services of a solicitor. DC Partridge asked him to relate what had happened the day before. Essuman-Dadson informed the officer in an uninterrupted passage how he and his friend Ullah had gone to the Pelican Estate to meet Sylvester Akapalara, whom he knew as Vesta, to buy some 'weed'. He described the arrival of three boys who claimed to be the Gas Gang looking for members of GMG. The witness said he and Vesta went downstairs where Essuman-Dadson recognised one of the boys who were pointing at him. He and Vesta ran back up the stairs. They were panicking. They knew someone who lived in the block and made a phone call but he was not in. They could see that the lift was coming up the block, so decided to run. They saw the lift door open and people come out who were right behind them. Vesta pulled out a knife. As they were running Essuman-Dadson heard Vesta say, "What, what, what", and a gunshot, which he described as a big bang. When they (i.e. Essuman-Dadson and Ullah) reached the foot of the stairs they could not leave the block because others outside were preventing them by pushing the doors. Two of their pursuers came down the stairs; one had a gun and the other a knife. The one with the knife said, "Shoot him". The one with the gun said, "No, the stick is jammed". The man with the knife went for Essuman-Dadson who tried to grab the knife. As a result Essuman-Dadson received a cut to his hand. Essuman-Dadson kicked out and pushed the exit button. This time it opened. As he left he was stabbed in the back.
- DC Partridge told Essuman-Dadson that he would start from the beginning and take matters in stages. Essuman-Dadson explained that they went to the 8th floor because that is where he agreed to meet Vesta. He understood that a stash of weed was kept in a disused washing machine on that floor. Vesta agreed to "bail" Ullah for the weed until the next day. The cost would be £10. The other boys arrived within 5 minutes. Three boys were walking towards the block and words were exchanged between the 8th floor and the ground. Then four more boys arrived. They then appeared to walk away from the block. Essuman-Dadson said that he called all the lifts up so that the arriving group could not use them. He placed a bottle in one lift door to jam it open. He then made a phone call to someone who lived in the block but he was not at home. He shouted down, "Who are you?" They replied "Gas Gang". He asked who they were looking for. They said "GMG". Essuman-Dadson replied that GMG was not there. They might find them in the "yellow block". At this stage the boys were still outside the block. Essuman-Dadson realised that they were not the Gas Gang at all but GMG. Asked how he knew that, Essuman-Dadson said that he went downstairs and recognised one of them. Vesta and he went downstairs and "we saw their face and they showed us the thing". Vesta and he ran back upstairs. When they arrived on the 8th floor Ullah told them that he had released the lift and they could see that someone was coming up in the lift. All three prepared to run back down the stairs but as they did they saw people emerging from the lift.
- DC Partridge asked Essuman-Dadson to go back to the moment when was shown "the thing" which Essuman-Dadson explained was a gun. Essuman-Dadson was asked to describe that person. The following passage occurred:
"Essuman-Dadson: he's like … a bit lighter than me. I am like … yeah …
DC Partridge: we'll go back to that. What do you know him as … what?
Essuman-Dadson: I know his real name but I don't know his last name.
DC Partridge: What's his real name then?
DC Partridge: Sodiq, anything else … Sodiq?
DC Partridge: You don't know his street name?
DC Partridge: What's his street name?
He went on to explain that Jungle was one of the main faces in Peckham. He knew him from Michael Ramsey School where Jungle was a year older than Essuman-Dadson. He told DC Partridge that his country of origin was Nigeria. He was wearing a light grey hoodie. He had a round face and was wearing black woolly gloves. The gun was in the waistband of his trousers. Essuman-Dadson said that he also saw Jungle's brother, Qudus, standing behind him. He was in Essuman-Dadson's year at school. Essuman-Dadson described him. In the past they had been friends. The two brothers lived in North Peckham on the Shurland Estate. He could not name the address but he would be able to show the police the house. It was not suggested at the first trial that Essuman-Dadson had incorrectly named or described his knowledge of the Adeojo brothers.
- DC Partridge then asked Essuman-Dadson to describe the chase downstairs. He repeated that he had heard the gunshot. When he got downstairs Ullah was in the corner. He then saw Sodiq, who by this time did not have the gun. The boy with Sodiq, whom Essuman-Dadson knew as David, then had the gun. Sodiq was saying, "Shoot him", and David said that he could not because the stick was jammed. Sodiq tried to cut him with the knife. Essuman-Dadson showed DC Partridge the resultant injury. He repeated that as he went through the door "they" stabbed him in the back.
- DC Partridge asked Essuman-Dadson to describe who had come out of the lift before the chase downstairs. He replied "Sodiq and David". Essuman-Dadson described David (who was black) as having light skin and an egg-shaped head. He thought he was either his own age or a year older. He knew him because he had been talking to him after the carnival in 2008. He gave some circumstantial detail of that encounter. David was known as "Tiny Nutty". He lived behind the police station. He was between 5'8" and 5'10" in height. Nyamupfukudza is in fact 5'9" in height.
- Essuman-Dadson said that when he heard the bang he looked behind him. Momentarily, he thought Vesta was still with him but realised that the arm he saw must have belonged to a pursuer. At the foot of the stairs Qudus was one of those holding the doors from outside. Essuman-Dadson gave a detailed description of Sodiq's knife. He said he was himself stabbed in the left forearm. He described and demonstrated what David was doing with the gun. In short, he was trying to cock it. When Essuman-Dadson escaped he was stabbed in the back. Ullah was still in the block. When the interview continued at 5.21 pm Essuman-Dadson confirmed that he had two knife wounds to the back but had only felt one. There were four boys outside who had let go of the door. He ran to the bus stop on the main road in front of a petrol station. The no. 12 bus was at the stop and he boarded it. He received a call from his friend Jordan Antoine and told him what happened. Antoine told him to go to hospital. Essuman-Dadson responded that he was going home first but afterwards changed his mind. By this time he was feeling dizzy. He got off at Clifton, called at Adam Allan's house, and phoned his brother who took him to Kings College Hospital.
- Essuman-Dadson said that at hospital he was told to remove his clothes and he was then give morphine. His brother stayed in the waiting room. Essuman-Dadson was told that he would need a scan because it was not known how deep the wounds were. After the scan he received stitches and the cut to his arm was stapled.
- Essuman-Dadson was asked whether he belonged to any gangs and he denied it. He volunteered that before he was detained he had belonged to the Crane Block, a Pelican Estate gang, as did Vesta and Ullah. He claimed he had not belonged to a gang since his release. He thought that it was David who killed his friend, Vesta, but only because it was David who had the gun at the bottom of the stairs. Essuman-Dadson thought the gun was not like a revolver but was more like a semi-automatic pistol.
- Towards the end of the interview Essuman-Dadson asked if he could say something. He said he could show the police all the people he could recognise because there were YouTube videos in which they appeared. He said:
"See, I could show you them. Well would you help me move my family out of Peckham?"
He was told that he was in custody for murder. Once it was decided whether he was still a suspect and, if not, the identification procedure was complete, they would sort out his request. He was asked whether everything he had said was the truth and he confirmed that it was. He insisted that he would be able to recognise Sodiq, Qudus and David again. Between 7.00 pm and 7.50 pm Essuman-Dadson was interviewed as a significant witness. He gave the same account which he had given as a suspect under caution. At the conclusion of the interview Essuman-Dadson signed the tapes and confirmed that the contents were true. He had made his statement knowing that if it was tendered in evidence he would be liable to prosecution if he had wilfully stated in it anything which he knew to be false or did not believe to be true. It was the significant witness interview which was admitted in evidence before the first jury. The defence did not request that the earlier interviews should also be admitted.
Refusal to identify the appellant
- Essuman-Dadson, on 1 April 2011, identified David Nyamupfukudza at an identification procedure. However, as we have earlier noted, on 4 April he deliberately did not identify Sodiq and Qudus Adeojo because he said he felt intimidated by the fact that their cousin was in custody with him.
Emergence of motive for silence
- During the second trial of David Nyamupfukudza the judge reached the firm conclusion that Essuman-Dadson's refusal to give evidence was induced by fear of the consequences to himself or his family if he did.
Counter-balancing measures: Could the jury safely adjudicate upon the reliability and accuracy of Essuman-Dadson's hearsay statement?
- The witness was of course known to the court. To the extent that it was suggested that he could be motivated to make an allegation against Sodiq Adeojo which was untrue, the prosecution was able to make disclosure of, and make admissions with regard to, his antecedents and intelligence received as to behaviour which had not led to his conviction for any offence. There was no doubt, as the judge made clear, that Essuman-Dadson's credit as a witness was damaged by his antecedent history during which he had displayed no reluctance to lie when it was to his own advantage to do so. The issue was whether Essuman-Dadson may have had any such reason on the present occasion.
- Ullah was able to give evidence and did give evidence for the prosecution. He was a reluctant and unsatisfactory witness. However, he had made a witness statement which the defence was able to utilise in cross-examination for the purpose of demonstrating either that Essuman-Dadson was lying or that his evidence identifying Adeojo was unreliable. There was, on the other hand, a body of evidence from bystanders against which the jury could test the accounts respectively of Essuman-Dadson and Ullah of events following the gunshot. As to the general circumstances in which Essuman-Dadson was able to recognise his attackers several professional witnesses attended the scene shortly after the shooting and could speak, if required, as to lighting conditions and sightlines.
- As to the jury's ability to assess the correctness of Essuman-Dadson's identification of Adeojo there was supporting evidence:
(1) On 4 February 2011, a telephone conversation took place between Adeojo in custody and Jordan Williams, to whose connection with the gun found in the garden of 73 Chandler Way we have already referred. Williams said in the course of that conversation:
"Williams: Oi, Jungle, some bad news, you know.
Williams: Man's just been stressed Brov.
Adeojo: What, you lost it?
Williams: My other day … the other day, no, he got raid Brov.
Williams: The Don son.
Williams: Yeah, two days ago. Forensic have just been at his house for the whole day on that.
Adeojo: They found it?
Adeojo: They found it?
Williams; Yeah, but he said … no comment.
Adeojo: Where they find it, in the where. Where was it?
Williams: In his garden, cos they got a chance to just you know …
Adeojo: Where? Just in his garden?
Adeojo: Just in the garden?
Williams: Yeah, just in the garden, so it should … be alright, init …"
We have already described the coincidence between the properties of the 9mm pistol recovered from the garden of no. 73 and the attempts described by both Essuman-Dadson and Mr Wakefield of the gunman to cock the weapon. We have referred to the evidence that Mr Durham saw a gunman carrying a white JD sports bag and that the gun recovered from no. 73 was contained within such a bag. According to Essuman-Dadson, "David" complained that the gun had jammed. The gun found at no. 73 had a tendency to jam. Test firings indicated that the exhibit could well have fired the fatal bullet although the expert could not exclude another weapon. It was a powerful inference available to the jury that Williams was, in his conversation with Adeojo, referring to the search at nos. 73 and 75 on 2 February 2011, and that Adeojo knew exactly what weapon he was referring to. If that was the jury's conclusion an association was made between Adeojo and the murder weapon which lent support to Essuman-Dadson's evidence that he had carried the gun into Heron House in the waistband of his trousers.
(2) Sodiq Adeojo suffered a cut injury to his arm which was fresh when it was examined and photographed. On the evening of 29 December his brother's phone was used to summon a taxi to take someone to hospital. It was subsequently cancelled. Adeojo's cut did not receive expert treatment and was still gaping when he was examined. Expert opinion was that the injury was not more than three days old. A man was to be seen exiting Heron House holding an apparently injured arm. An inference was available to the jury that Adeojo had suffered his wound in the course of the confrontation either during the chase downstairs or in the stairwell at ground level and that he had lied about it to conceal that fact from Dr Durston. If the jury so concluded it was powerful support for Essuman-Dadson's identification of the man with whom he tussled on the ground floor of Heron House.
(3) The prosecution adduced a telephone sequence and cell-site chart which it was submitted demonstrated that all five defendants had been together at the home address of the Adeojo brothers immediately before the shooting; that they made their way southwards in the direction of Heron House; that following the murder they made their way to the home address of Kenny Imafidon from which Qudus Adeojo's phone was used to phone the taxi service to take someone to Lewisham Hospital. If the jury accepted the general thrust of the cell-site evidence for which the prosecution contended, the appellant Adeojo's presence in the vicinity of Heron House tended to support, but to a limited extent, Essuman-Dadson's identification of him.
Directions to the jury
- An important measure available to the judge in providing a counter-balance to the inability of the defence to challenge a decisive witness is his ability to give directions to the jury founded upon the specific facts of the case. Commencing at page 87 of transcript volume III of his summing up, the judge gave an unequivocal warning to the jury as to the care required before they acted upon the evidence of a witness who could not be cross-examined. They had seen him. He was sullen, unco-operative and thoroughly obstructive. His criminal history, with which the jury was provided in detail, was important (p.88 F). The interview of 30 December should be considered carefully. However, the defence faced a real difficulty from Essuman-Dadson's failure to remain in the witness box (p.90 B). He could not be challenged about the accuracy of his identification. Had he remained he would have been asked searching questions. As it was, the defence could only use indirect methods of challenging his evidence, for example by utilising the evidence of Abdul Ullah, and Ullah himself had given limited evidence (p.90 G).
- As to the quality of the identification evidence the judge gave to the jury the full Turnbull direction (p.48 D). He referred (p.51 B) to the need to consider what opportunity, if any, Essuman-Dadson had to make his identification of the appellant. They would have to consider, among other things, whether his view was of the face and, if so, whether it was full or partial. In particular, in an implicit reference to the evidence of Abdul Ullah, the judge instructed the jury to consider whether the face may have been covered by clothing, for example a hood or a scarf. They should consider the description which Essuman-Dadson had given to the police in interview. At page 53D the judge instructed the jury to consider any features of the evidence which tended to support Essuman-Dadson's identification but also any evidence which tended to cast doubt upon its reliability. The judge informed the jury (p.54 D) that he would (as he did) summarise the evidence in both categories. He concluded with the words:
"You must consider any identification recognition evidence with great care, taking account of all the circumstances. Having done so, you will act upon the evidence only if you are sure that the evidence is not merely truthful but also accurate and reliable."
Ground 1: admission of the hearsay statement
- We accept Mr Hall QC's submission that in the absence of an opportunity for the defence to cross-examine the decisive witness against the appellant Adeojo the admission of the evidence was not to be permitted unless the jury could safely conclude that it was reliable (per the Vice President, Hughes LJ, in Riat and Others at paragraph 32).
- In our judgment, the judge was correct in his conclusion that the safeguards and counter balancing measures present were such that the jury could safely conclude that Essuman-Dadson's evidence was reliable and accurate, notwithstanding the inability of the defence to challenge the witness directly. We reach that view for essentially the same reasons as did the judge. First, we consider motive. Mr Hall had no instructions from Mr Adeojo upon which he could have suggested that the witness was motivated by malice. True it is that the witness was a young man with a relevant bad character. Mr Hall argued persuasively that Essuman-Dadson had in the past, when accused, sought falsely to blame others. It could not, however, be suggested with any seriousness that Essuman-Dadson was in danger of being charged with murder himself once the relationship between the three victims had been established. It was not suggested by any party to the trial that Essuman-Dadson was anything other than a victim and that his friend Akapalara had been murdered. It is noteworthy that the witness told the officer he could show him on YouTube the men he recognised; he did not claim to be able to identify all of the attackers. He did not claim to be able to identify the man who had shot Akapalara. In our view, the jury was armed with the information it needed to consider whether it was nevertheless possible that Essuman-Dadson was simply and falsely casting blame elsewhere. Second, important both to the issue of honesty and to the issue of reliability of the identification was the manner in which the account emerged during the course of Essuman-Dadson's interviews. This was far from a bare allegation. It was redolent with circumstantial detail which could be tested against other evidence. Third, there could be no challenge about the reliability of the making of the statement. It was recorded. The jury was able to consider not just the words recorded but the manner in which the witness responded to questions and provided the circumstantial detail to which we have referred. The jury could properly assess the account given against Essuman-Dadson's immediate circumstances, namely that he had himself been arrested following medical treatment for significant injuries when he had not, so far, identified his attackers. Fourth, as to the accuracy of the identification, there were several witnesses who could speak to the conditions in which the identification by Essuman-Dadson was made. The jury was directed to consider whether there was any support for the identification made by Essuman-Dadson and, equally important, whether there was evidence which was capable of undermining it.
- We turn to examine the supporting evidence. The quality of the supporting evidence is in our view of particular relevance to the ultimate assessment whether, as the ECtHR put it at paragraph 139 of Alkawaja, the safeguards were such that the reliability of the evidence could properly be tested and assessed. In our judgment, depending upon the opinion of the jury, the evidence of Adeojo's conversation with Williams about the recovery of "it" from "the garden" and the finding of a fresh cut upon his arm were capable of providing powerful support for Essuman-Dadson's evidence that Adeojo brought the gun to Heron House and fought with Essuman-Dadson before his escape.
- Mr Hall sought to make a comparison between the quality of Essuman-Dadson as a witness and Edith Walker, in Ibrahim, whose evidence the court decided should not have been admitted (Ibrahim paragraphs 102-104). We do not accept this argument. Ms Walker's statement was both unreliable and entirely untested, and should have been, even if admitted, later withdrawn from the jury under section 125 of the 2003 Act as "unconvincing". This is not perhaps a surprise because the charge in respect of which the statement was admitted was one of rape when no supporting evidence was present. Further, we do not accept that the evidence of Essuman-Dadson can be equated with that of Patricia Lawless in Riat and Other (see paragraph 61). Ms Lawless's evidence amounted to a bare assertion against the defendant unsupported by "dovetailing" or other evidence.
Ground 2: Application to discharge the jury
- We do not accept that the jury's experience of Essuman-Dadson's violence or the erection of screens in the public gallery was capable of causing unfair prejudice to the appellant. The judge instructed the jury at the time that they must not allow the incident to colour their examination of the evidence and, more particularly, he told them that in no sense could the defendants be held responsible for Essuman-Dadson's behaviour. He repeated that direction in his summing up (Volume III page 92 D). It would be wrong, unjust and simply unfair to the defendants, he said, to act upon any contrary speculation.
Ground 3: Unbalanced summary of the evidence
- We do not accept that the judge's summary of the evidence was unbalanced. It was inevitable that his summary of Essuman-Dadson's significant witness interview would occupy more of the jury's time than his summary of Ullah's evidence. Ullah was himself a somewhat taciturn witness who would say little without encouragement. The judge was plainly aware of the significance of Ullah's evidence and emphasised to the jury the importance of their consideration of the other evidence they had heard relevant to Essuman-Dadson's claim to have recognised Adeojo and Nyamupfukudza. He specifically instructed them to consider whether the faces of his attackers may have been covered. The judge gave the jury a summary of Ullah's evidence and at Mr Hall's request, reminded them of a further passage relevant, on Ullah's account, to Essuman-Dadson's opportunity to make an identification of the appellant in the ground floor stairwell just before they exited the door.
- At the conclusion of the prosecution case no submission was made either under Galbraith or under section 125 of the 2003 Act. This is not surprising since, by then, the evidence which we have described as supporting Essuman-Dadson's account had been adduced. Mr Adeojo elected not to give evidence to challenge the identification made by Essuman-Dadson. In our view, the judge was justified in leaving the evidence to the jury because they could safely conclude, notwithstanding the absence of direct challenge to the witness at trial, that Essuman-Dadson's evidence of identification was reliable. It seems to us, as it did to the judge during the sentence hearing, that the jury was faithful to his directions as to the need to look for supporting or contrary evidence. There was no supporting evidence of the case against Qudus Adeojo, properly so called, and the jury distinguished between his position and that of his brother. We conclude that the verdicts of the jury are safe and the appeal against conviction is dismissed.
David Nyamupfukudza (Trial Two): Grounds of Appeal
- Mr Courtenay Griffiths QC sought to support Mr Adeojo's case in relation to the first trial at the conclusion of which the jury could not reach a verdict in Mr Nyamupfukudza's case. Mr Griffiths recognised, however, that the appellant could only appeal against his conviction in the second trial.
- In her advice and grounds of appeal, Ms Sonia Woodley QC did not argue that HHJ Pontius could not properly find that Essuman-Dadson did not give evidence through fear. She submitted only that although the evidence was admissible under section 116(2)(e) the judge should have exercised his discretion under section 78 Police and Criminal Evidence Act 1984 to exclude it. That approach was consistent with her concession made at the time the issue arose that Essuman-Dadson was to a material degree motivated to remain silent by fear of the consequences if he did not. We have described in detail the circumstances in which that concession was made earlier in this judgment.
- However, the appellant sought to change his position when in his supplemental advice and grounds dated 25 September 2012, Mr Griffiths QC argued that there was no evidence upon which the judge could properly have come to the conclusion he did. No evidence was tendered of any explicit threat made to Essuman-Dadson, either by the defendant or anyone on his behalf. The witness was secretly housed and his whereabouts with members of his family could not be discovered. He had in the first trial denied being silent through fear and the witness was not challenged in the second trial as to the reason for his change of mind. It might be that the witness, a criminal himself, was motivated solely by a desire not to be viewed by the criminal fraternity as "a grass".
- Thirdly, Mr Griffiths argues that Essuman-Dadson's evidence was unreliable for reasons similar to those advanced on behalf of the appellant Adeojo with one discrete addition.
- Fourthly, Mr Griffiths submits that the prosecution should not have been permitted to adduce the circumstantial evidence upon which they had relied in the cases not only of Adeojo and Nyamupfukudza but also against defendants who had been acquitted in the first trial. This evidence included telephone and cell-site evidence and the recovery of the gun from Chandler Way. Mr Griffiths submits that the evidence can only have had a prejudicial effect in the appellant's case because it implied that notwithstanding the verdicts returned in the first trial the other defendants had been guilty.
- The relevant parts of section 116 Criminal Justice Act 2003 read as follows:
"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if –
(a) Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) The person who made the statement (the relevant person) is identified to the court's satisfaction, and
(c) Any of the 5 conditions mentioned in sub-section (2) is satisfied.
(2) The conditions are –
(d) That through fear the relevant person does not given (or does not continue to give) oral evidence in the proceedings either at all or in connection with the subject matter of the statement and the court gives leave for the statement to be given in evidence.
(3) For the purposes of sub-section (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.
(4) Leave may be given under sub-section 2 (e) only if the court considers that the statement ought to be admitted in the interest of justice, having regard –
(a) to the statement's contents
(b) to any risk that its admission or exclusion will result in unfairness to any part in the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence);
(c) In appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person; and
(d) to any other relevant circumstances …"
- At paragraph 16 of Riat and Others the Vice President emphasised the importance of the observations of the Supreme Court in Horncastle concerning cases in which the prosecution seek the admission of the evidence under section 116(2)(e), and appended the relevant part of their Lordships' judgment. The prosecution's primary responsibility was to secure the attendance of the witness. That would involve consideration of special measures, relocation and protection. But it might happen that, notwithstanding these measures, the evidence of the witness is unavailable for the purposes of section 116. The witness's fear need not be induced by specific threats uttered by or on behalf of the defendant, provided it is genuine. Even if the evidence is provisionally admissible under section 116(2)(e) the court is still required to consider whether the evidence can be demonstrated to be reliable or, alternatively, a jury have the tools by which the reliability of the evidence can be safely tested and assessed. It is this requirement which was explained and emphasised by the Vice President in Riat and Others.
- In the present case the prosecution did secure the attendance of the witness at court with the results that we have described earlier in this judgment. It was of some concern to this court, until we were taken through the agreed note of the proceedings, that no challenge was made to the witness's assertion that he did not give evidence through fear. Having considered in detail events at the second trial, it is clear to us that it was plain to all present that Essuman-Dadson was indeed in real fear for the safety, in particular, of his brother, notwithstanding the efforts made to provide secure accommodation, and Ms Woodley QC made a considered decision not to challenge his assertion. It is not suggested that Ms Woodley's decision was anything other than professionally justifiable and in our opinion it is now far too late for the appellant to seek to put the matter in issue.
- Just as he had in the first trial, the judge examined the section 114(2) factors in order to arrive at a conclusion whether, despite its provisional admissibility, the evidence should be excluded under section 116(4) or section 78. By this time the judge had the advantage of reading the judgment in Ibrahim which had emphasised the importance of testing the reliability of the hearsay evidence. The judge in answering the four Ibrahim questions concluded that:
(1) He was in no doubt at all that Sean Essuman-Dadson was a witness who through fear did not give oral evidence,
(2) The hearsay represented the central corpus of evidence against the appellant,
(3) As to the reliability of the evidence the judge was aware of the strength of the supporting material which in the first trial had clearly influenced the jury to convict Mr Adeojo but to acquit other defendants in whose cases the supporting evidence did not exist,
(4) The same counter-balancing measures were available in the second trial which would compensate for the inability of the appellant to cross-examine the witness.
- In common with Mr Hall QC, Mr Griffiths QC also sought to make a comparison between the position of Essuman-Dadson and that of Ms Lawless in the case of Wilson, one of the conjoined appeals in Riat and Others. For the same reason as we have identified in Mr Adeojo's appeal, we reject the attempt to draw the comparison. Mr Griffiths sought to make a further comparison between the task in which the court is presently engaged and that of the court in Shabbir  EWCA Crim 2564 (Aikens LJ, Andrew Smith J and HHJ Rook QC). There, the hearsay evidence came from a witness who had been inconsistent in his identification of his assailant and the trial judge had erroneously assumed that three witnesses gave evidence supporting the hearsay identification on which the prosecution relied. There were other factors present in Shabbir's appeal which are not present in this. In our view no sensible comparison is to be made between the two cases.
- Mr Griffiths sought to undermine the reliability of Essuman-Dadson's evidence by pointing to his description, at page 37 of his first interview under caution, of Mr Nyamupfukudza as a man of "light" skin. Essuman-Dadson was of course giving a comparative description. Both he and Nyamupfukudza are black men. Both men were seen by the jury at trial. Far from establishing unreliability, it seems to us that Mr Griffiths had identified one advantage to Nyamupfukudza of having the witness present at trial to enable the jury to make an evaluation of the point made.
- Mr Griffiths argued that the supporting evidence was of modest value to the jury when compared with the other evidence in the case of Fagan and Fergus  EWCA Crim 2248. We have made the comparison and we do not accept the argument. The evaluation of the strength of the other evidence will vary according to the nature of the issue at stake and the facts of the particular case. It will rarely be that the prosecution can prove to the judge by independent evidence the utter reliability of the hearsay. If that were so it would usually be unnecessary to rely on the hearsay. The court will be examining the twin pillars which go to the issue whether the evidence can be admitted safely, notwithstanding the absence of direct challenge of the witness, namely (1) the apparent reliability of the evidence and (2) the counter-balancing measures which the jury can deploy to make the decision whether the evidence is reliable. The weaker the supporting evidence the more jealous will be the court to ensure that the hearsay is capable of meaningful challenge. It needs to be at the forefront of the court's mind that the right to confront the witness represents a cornerstone of a fair trial at common law and under Article 6. If it is to be denied to a defendant it must be only upon a compensatory guarantee of fairness. The means by which that fairness will be achieved will depend upon the sensitive balance between the apparent reliability of the evidence and the measures available to compensate for the lack of direct challenge. As section 125 anticipates, the reliability of the evidence as assessed by the judge, when making the decision whether to admit hearsay, may, for a variety of reasons, turn out to be misplaced and/or the counter-balancing measures to test the reliability of the hearsay may turn out to be inadequate. In either event the judge will need to intervene to ensure the fairness of the trial. In our judgment, for the reasons we have given in the case of the appellant Adeojo, the judge correctly identified the balance required. It seems to us that as the trial progressed the reliability of the hearsay became even more apparent.
- As to Mr Griffith's fourth ground, we do not accept that any unfairness arose. The prosecution was entitled to prove if it could the association between Adeojo and the gun and the association between Nyamupfukudza and Adeojo on the day of the murder. Such proof did not require or encourage the jury to presume the guilt of those who had been acquitted. Indeed the judge directed the jury that in the eyes of the law they were innocent. Further it must have been abundantly clear to the jury that only the Adeojo brothers and Nyamupfukudza were identified as being present at Heron House and taking a specific role, and that there was no evidence explicitly supporting Essuman-Dadson's identification of Qudus.
- In our judgment it is not established that the verdict of the jury in the case of the appellant Nyamupfukudza is unsafe. For that reason his appeal against conviction is dismissed.
Appeal against sentence: Sodiq Adeojo
- Mr Andrew Hall QC recognised on behalf of Adeojo that the starting point for the assessment of the appropriate minimum term was 30 years, by reason of the application of paragraph 5 of schedule 21 to the Criminal Justice Act 2003. He emphasised that Adeojo's 18th birthday fell on 20 January 2010. Mr Adeojo was therefore aged 18 years 11 months at the time of the offence. Had the appellant been 11 months younger the starting point would have been 12 years. Mr Hall points out that an uplift of 18 years attracted by the crossing of the age qualification represented a dramatic step change for an offender of a comparatively young age. He had no relevant previous convictions.
- In Peters and Others  EWCA Crim 605, the then deputy Lord Chief Justice, Judge LJ, drew attention to the fact that paragraph 11 of schedule 21 required the sentencing court to take account of the age of the offender. It was the view of the court that the passage of a birthday may not reveal anything about the offender's true level of maturity, insight and understanding. Sentencing decisions could not be prescribed by accidents of time. When appropriate, a substantial discount may be required to reflect the young age of the offender. That principle has since been applied by the court, as the court observed in Martin  1 Cr App R (S) 38 and Taylor  1 Cr App R (S) 4. The judge in his sentencing remarks referred to the mindless gang violence which had led to the murder of a promising young man. It was this appellant who brought the gun and a knife to Heron House. It was a planned operation. Whether or not he fired the gun and whether Sylvester Akapalara was the intended victim, there was no doubt that the appellant intended the death, and participated in an attempt to kill, three young men. The judge considered whether, in order properly to reflect the seriousness of the appellant's offending, he should raise the starting point beyond 30 years. The judge weighed both the aggravating features identified and the comparatively young age of the offender. He concluded that the appropriate course was to impose a minimum term of 30 years.
- In our opinion, these offences were exceptionally serious. While we recognise the force of Mr Hall's argument, we are satisfied that the judge gave full and proper consideration both to the appellant's personal circumstances and to the extreme violence for which he was responsible. This appellant was leading an armed gang on an excursion to seek out its opponents. He came across the three victims whom he intended to kill. He succeeded in killing one of them and attempted to kill the two others. In none of the cases cited to us did the sentencing judge have to assess the culpability of a defendant convicted of two further offences of attempted murder with a gun and a knife. We cannot conclude that the outcome of this balance produced a sentence which, despite the appellant's young age, was manifestly excessive. For this reason the appeal against sentence must be dismissed.