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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Al-Khawaja v R [2005] EWCA Crim 2697 (03 November 2005) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2005/2697.html Cite as: [2006] 1 WLR 1078, [2006] WLR 1078, [2005] EWCA Crim 2697 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWIS CROWN COURT
HHJ HAYWARD
T20040060
Strand, London, WC2A 2LL |
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B e f o r e :
HON. MR. JUSTICE JACK
and
HON. MR. JUSTICE DAVID CLARKE
____________________
Imad Al-Khawaja |
Appellant |
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- and - |
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Regina |
Respondent |
____________________
Miss Sonia Woodley QC for the Respondent
Hearing date : 6 September 2005
____________________
Crown Copyright ©
Mr Justice Jack :
Introduction
The admission of the statement.
"…… a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if-
(i) the requirements of one of the paragraphs of subsection (2) below are satisfied;or
(ii) the requirements of subsection (3) below are satisfied.
(2) The requirements mentioned in subsection (1)(i) above are-
(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;
(b) that-(i) the person who made the statement is outside the United Kingdom; and(ii) it is not reasonably practicable to secure his attendance; or
(c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found
(3) to (5) ……."
Subsection (3) related to persons not giving evidence through fear.
"25(1) If, having regard to all the circumstances-
(a) the Crown Court
(i) on a trial on indictment;(ii) to (iv) …….
(b) …….
(c) …….
is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted, it may direct that the statement shall not be admitted.
(2) Without prejudice to the generality of subsection (1) above, it shall be the duty of the court to have regard-(a) to the nature and source of the document containing the statement and to whether or not, having regard to its nature and source and to any other circumstances that appear to the court to be relevant, it is likely that the document is authentic;
(b) to the extent to which the statement appears to supply evidence which would otherwise not be available;
(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and
(d) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them."
However, where section 26 applied, section 25 would largely be superceded in practical effect by the provisions of section 26.
15. Section 26 related to documents prepared for criminal proceedings. It provided:
"26. Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, ……., for the purposes-
(a) of pending or contemplated criminal proceedings; or
(b) of a criminal investigation,
the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard-
(i) to the contents of the statement;
(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness in the accused or, if there is more that one, to any of them; and
(iii) to any other circumstances that appear to the court to be relevant.
……."
Schedule 2 to the Act is given effect to by section 28(2) to supplement the foregoing provisions. It provides in particular for the credibility of the maker of a statement to be challenged.
"(3) Everyone charge with a criminal offence has the following minimum rights:
(d) to examine or have examined witnesses against him and to obtain the attendance of and examination of witnesses on his behalf under the same conditions as witnesses against him."
"As a rule, these [Article 6] rights require that an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."
Kostovski had been convicted of armed robbery on the basis of the evidence of anonymous witnesses whom he had no opportunity to question, and, not knowing who they were, he could not attack their credibility.
"As the Court has stated on a number of occasions, it may prove necessary in certain circumstances to refer to depositions made during investigative stage (in particular, where a witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). 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 Art.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 have 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 is incompatible with the guarantees provided by Article 6."
Luca had been convicted on the basis of statement made to the police by a fellow drug dealer who had exercised his right of silence when brought to court.
"i) The admissibility of evidence is primarily for the national law;
ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;
iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.
iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair."
"66. As the requirements of Article 6(3) are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6(1) the Court will examine the complaints under Article 6(1) and (3)(d) taken together.
67. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair."
The direction to the jury
"If a statement of a critical witness is to be read to a jury, perhaps especially in an alibi case where identification is the true issue, it must be incumbent on the trial judge to ensure that the jury realise the drawbacks which are imposed on the defence if the prosecution statement is read to them. It is not enough simply to say that counsel has not had the opportunity of cross-examining. The lay jury may not appreciate the significance of that fact. The judge must at least explain that it means that they may feel quite unable to attach anything like as much weight to the evidence in the statement, as they might if it were tested in cross-examination; and where appropriate it would be necessary, certainly desirable, for the judge also to indicate to the jury by way of illustration the sort of matters that might well be put in cross-examination in the particular case. None of that was done in this case."
The need for an appropriate direction was also emphasised in Sellick, where the direction given at the trial by Butterfield J is set out in paragraph 67 of the judgment.
"Count 1 concerns Susan Tampsett. Her statement was, of course, read to you. As I explained at the time, normally witnesses have to come to court to give evidence, particularly if that evidence is very much in dispute, but there are circumstances or reasons when a witness's statement can be read. The death of the witness is one of those reasons. We know, tragically, that Miss Tampsett committed suicide. She had become increasingly depressed about the multiple sclerosis, the MS that she was suffering from, and the increasing disability it was causing to her.
It is very important that you bear in mind when considering her evidence that you have not seen her give evidence; you have not heard her give evidence; and you have not heard her evidence tested in cross-examination by Mr Seabrook who would, undoubtedly, have had a number of questions to put to her."
and:
"So far as Count 1 is concerned, members of the jury, the alleged assault, the touching of Miss Tampsett's lips, her mouth, her breasts and her bottom for the defendant's sexual gratification, bear in mind, as I said, that this evidence was read to you. The allegation is completely denied, and as I have said, Mr Seabrook would have had a number of questions for Miss Tampsett, and you must take that into account when considering her evidence. The prosecution suggest that her evidence is supported by the evidence of Miss Upton, Miss Koster and Miss Dudeney."