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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hamberger, R. v [2017] EWCA Crim 273 (14 March 2017)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/273.html
Cite as: [2017] EWCA Crim 273, [2017] WLR(D) 182, [2017] 2 Cr App R 9, (2017) 181 JP 449, 181 JP 449, [2017] 4 WLR 77, [2017] Crim LR 708

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Neutral Citation Number: [2017] EWCA Crim 273
Case No: 201602405/C1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL
14 March 2017

B e f o r e :

THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
(SIR BRIAN LEVESON)
MR JUSTICE HOLROYDE
MR JUSTICE ANDREW BAKER

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R E G I N A
v
MARTIN HAMBERGER

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Computer Aided Transcript of the Stenograph Notes of
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____________________

Mr A Kane QC appeared on behalf of the Appellant
Mr T Nicholson appeared on behalf of the Crown

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HTML VERSION OF JUDGMENT (APPROVED)
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Crown Copyright ©

  1. MR JUSTICE HOLROYDE: On 26 April 2016, in the Crown Court at Southwark, this applicant was convicted in his absence of an offence of conspiracy to supply cannabis, contrary to section 1 of the Criminal Law Act 1977. He was later sentenced by the trial judge, HHJ Robbins, to four-and-a-half years' imprisonment. He now appeals against his conviction by leave of the full court.
  2. In view of the issues raised by the grounds of appeal, we can summarise the facts very briefly. The appellant was jointly charged with Kelly Hogger, Thomas Selby and Lee Sheehan. The prosecution case was that in July 2012 Kelly Hogger, using the false name of "Sarah Peters", instructed hauliers to carry a crate from Malaga to a warehouse in Rainham, Essex. The crate was delivered to the warehouse on 9 August 20l2. The next day, it was collected by Lee Sheehan. He was using a van, and the appellant and Thomas Selby were travelling in a car in convoy with the van. Both vehicles were stopped by the police. The crate was found to contain 842 bars of cannabis resin, weighing more than 200 kilogrammes, with an estimated street value of £840,000. The appellant made no reply in interview, and said nothing when two days later, on 11th August 2012, he was charged with the offence.
  3. The case against the appellant was circumstantial, and depended largely on the inference to be drawn from observations made during a police surveillance operation. In the weeks leading up to the seizure, he had often met Kelly Hogger. On the day of the seizure itself, he had met Lee Sheehan in a car park in Dagenham. They had then travelled in convoy to the warehouse, and away from the warehouse after the crate had been collected.
  4. All four accused were sent to the Crown Court for trial. The appellant failed to serve a defence statement despite his statutory obligation to do so.
  5. It is common ground that the appellant suffers from chronic angina. His condition was summarised by the judge, in one of the rulings to which we refer below, in the following terms:
  6. "It is accepted by all parties that Mr Hamberger has an acute cardiac condition. He underwent a triple heart bypass operation in 2007 and he suffers with angina and diabetes, diabetic neuropathy, high blood pressure, high cholesterol, chronic pancreatitis, diverticular disease and blindness in the right eye. He has been assessed as suffering a psychological reaction to his chronic physical ill health and depressive illness."
  7. Issues arising from the appellant's ill health lie at the heart of this appeal, and were also critical to the chronology of proceedings below. In summary, that chronology was as follows.
  8. On 9 May 2013, the appellant made a written application to the Attorney General to exercise his exceptional jurisdiction to enter a nolle prosequi in respect of this prosecution. By a letter dated 21 May 2013, the defence were notified that the application had been refused, essentially upon the grounds that the matters relied upon were being raised in an application before the court for an order that the proceedings be stayed on the ground that the appellant was not fit to stand his trial.
  9. In relation to that application, and subsequent applications, the court was assisted by expert evidence from four consultant cardiologists: Dr Byrne instructed by the prosecution and Professor Coats, Dr Deaner and Dr Forbat, each of whom was instructed by the defence. They all confirmed that the appellant suffers from chronic ischaemic heart disease. They each gave an opinion as to the risks posed by the stress of court proceedings. For convenience, we summarise at this stage the overall effect of those opinions. Professor Coats in his report of 13 December 2012, advised that that it was "highly likely" that the appellant would suffer further angina episodes, which could be life threatening; that the likelihood would be increased by the stress of attendance at court; but that there was a low but not insignificant risk that such attendance could precipitate a heart attack or death. Accordingly, it was his opinion that the appellant was medically unfit to attend court and would not become sufficiently fit in the future. But Professor Coats did not consider the possible effect of various steps which might be taken to lessen the stress of the court process.
  10. Dr Byrne, in his report of 15 February 2013, advised that there was a "reasonable risk" that the applicant would suffer further episodes of unstable angina as a result of stress brought on by court proceedings. He disagreed that such episodes would be life threatening, taking the view that those episodes might require hospital admission and would be deleterious to the appellant's long-term health. Accordingly, it was his opinion that the appellant was not fit to withstand court arrangements and would be unlikely to do so in the future. But he too did not consider, or recommend, steps which might be taken to lessen the stress of the court process.
  11. At later stages of the proceedings, Dr Deaner and Dr Forbat expressed similar concerns about the prospect of the appellant attending trial or giving evidence remotely. Therefore, although there were differences in opinion as to the nature and extent of the risk, they all agreed that the appellant could not withstand the rigours of his physical attendance throughout a normal trial.
  12. The initial application to stay the proceedings was determined by HHJ Robbins on 31 May 2013. The application was based upon the provisions of section 4 of the Criminal Procedure (Insanity) Act 1964. On the appellant's behalf, it was submitted that the medical evidence showed he would suffer serious and irreparable harm to his health and danger to his life if he were to undergo the stress of a trial, and that he was therefore under a disability which constituted a bar to his being tried. The prosecution submitted that on an application of the criteria laid down in R v Pritchard (1836) 7 C & P 303, and in R v M [2003] EWCA Crim 3452, the medical evidence did not remotely begin to establish that the appellant was unfit for trial. There was nothing to suggest that he did not have sufficient intellect to comprehend the trial proceedings or make a proper defence. The prosecution argued that his cardiac condition was not a bar to the appellant being tried and the trial process could be adapted by the use of special measures, including, if necessary, his presence by remote link, perhaps even a live link from his home.
  13. The judge, having considered the medical evidence which was before the court at that stage, refused the application. Applying the Pritchard criteria, he concluded that the appellant was fit to plead and to stand his trial. He observed that there was no suggestion that the appellant's intellect was impaired and that physically, the appellant was able to go out shopping and drive a car. The court had long experience of trying defendants with various physical conditions and there were many measures which could be taken to enable them to stand trial. There is no appeal against that decision. Mr Kane QC, on behalf of the appellant, does however criticise observations made by the judge to the effect that he would, if it became necessary in the course of the trial, give a direction under section 33A of the Youth Justice and Criminal Evidence Act 1999 permitting the appellant to give evidence by live link. We return to this issue below.
  14. The trial of all four accused was listed in June 2013. Shortly before it began the appellant was admitted to hospital. The evidence established that he was then physically unfit to stand trial. As a result, he was severed from the indictment, to stand trial at a later date. The trial of the other accused proceeded. Kelly Hogger was convicted. Sheehan and Selby, who had given evidence to the effect that they were duped by the others, were acquitted.
  15. In 2014, an application was made for judicial review of the prosecution's decision to continue with the case against the appellant in light of the medical evidence. That application was renewed before the Administrative Court (Treacy LJ and Nicol J) and refused (R (on the application of Hamberger) v CPS [2014] EWHC 2814 (Admin)). Also refused were subsequent applications for permission to appeal to the Supreme Court and indeed to the European Court of Human Rights.
  16. Meanwhile the criminal trial was adjourned several times, pending the determination of these various applications. It was eventually listed to begin on 18 April 20l6. The appellant, who until this point had been on bail and had never attended any court hearing, was brought before the Crown Court on 7 April 2016 and was remanded in custody.
  17. On 18 April 2016 the appellant was brought to court for his trial, but complained of chest pains. He was examined at court by Dr Forbat, one of the defence expert witnesses, and transferred to hospital by ambulance. The appellant was discharged from hospital at some point on the following day and transferred back to prison. On 19 April 2016 the defence applied to stay the proceedings as an abuse of process and the prosecution applied to proceed with the trial in the appellant's absence. The prosecution adduced evidence of covert observations of the appellant in March 2016 when he had been seen walking for up to 4 miles, and driving. The defence adduced further evidence from Dr Forbat, who said that those observations were consistent with the advice he had given the appellant that he should take regular walks and that he could drive if he was not suffering from angina. Dr Forbat's evidence emphasised that the risk of angina arose from the effect of psychological stressors in the trial process, rather than physical stressors. He had therefore advised the appellant to avoid stressful situations as they were likely to raise his blood pressure and provoke an angina attack.
  18. Having heard evidence from Dr Forbat, and further argument, the judge refused to stay the proceedings. He noted that the case had been waiting for trial for about 4 years, and referred to the general public interest in trials taking place within a reasonable time. He noted that the appellant was represented by leading and junior counsel, who had confirmed that they had received instructions from the appellant and would be able to challenge the prosecution case to the extent which was necessary. The judge then considered the criteria for trial in absence stated by this court in R v Haywood, Jones and Purvis [2001] QB 862 and endorsed by the House of Lords in R v Jones [2003] 1 AC 1, and ruled that this was a rare and exceptional case in which the trial could proceed without the appellant being present. The judge accepted that the overriding concern for a trial in absence was to ensure that it was as fair as circumstances permitted and led to a just outcome having regard to the criteria set out in Jones. While fairness to the defence was of primary importance, fairness to the prosecution also had to be taken into account, as did the general public interest. He further ruled that the question of whether the proceedings amounted to an abuse of process would be revisited at the conclusion of the prosecution case, as would the question of how the appellant could present his account if he was not able to attend court. The judge indicated that the jury would be directed that the defendant was not present because of his medical condition and that no adverse inference should be drawn from his absence.
  19. On 20 April 20l6, the appellant was produced from custody for trial but again complained of chest pains; he was transferred to hospital by ambulance and the trial proceeded in his absence.
  20. By 22 April 2016, the appellant had been discharged from hospital and transferred back to prison. He did not however come to court. At the conclusion of the prosecution case, a further application was made by the appellant for the proceedings to be stayed as an abuse of the process. In his ruling rejecting that application, the judge accepted that the appellant was suffering from chronic angina, and accepted that it was rare for a trial to proceed when a defendant was involuntarily absent through ill health. The important issue however, was the extent to which the appellant was prejudiced in his defence. The judge reiterated that counsel were able to challenge the prosecution case on the appellant's behalf. He noted two decisions of this court confirming that a finding that a defendant is involuntarily absent, by reason of ill health, does not necessarily preclude the trial proceeding in his absence: the case of Purvis, one of the three appellants in Haywood, Jones & Purvis, to which we have referred; and R v Taylor [2008] EWCA Crim 680.
  21. The judge considered what arrangements could be made to assist the appellant in giving evidence, though he noted that all the indications were that the appellant would not in fact wish to do so. The judge expressed his willingness to assist in any way which would make it easier for the appellant to give evidence, eg by permitting him to sit or to lie down whilst giving evidence, or by making arrangements for a doctor to be present and a defibrillator to be available. He indicated that the court could direct that the jury be given a copy of any defence statement in accordance with section 16(4) of the Criminal Procedure and Investigations Act 1996. The prosecution had said they would agree to this. The prosecution would also agree to the contents of the defence statement being used in accordance with the hearsay provisions of the Criminal Justice Act 2003. Furthermore, the judge said a video or audio recording of the appellant's account could be admitted in accordance with the court's discretion under section 1(4) of the Criminal Evidence Act 1898. He added that neither the court nor the prosecution proposed that any direction should be given permitting an adverse inference to be drawn from the appellant's decision not to answer questions in interview or not to give evidence.
  22. The judge further ruled that the appellant could apply under section 33A of the Youth Justice and Criminal Evidence Act l999 to give evidence by live link. As to this the judge said at pages 11H-12E of his ruling of 22 April 2016:
  23. "I do find as a fact that he is suffering from a mental disorder based upon the evidence that I heard at the first hearing as to whether he was unfit or not but he is not for that reason unable to participate as a witness giving evidence in court.
    The use of oral evidence would help him to participate more effectively (inaudible) as a witness whether by improving the quality of his evidence or otherwise and last but not least it is in the interest of justice were he to give evidence via a live link.
    So, it would be open to the defence as an option to apply for such a measure. I am satisfied that that would be a stress relieving measure and it would assist in all the circumstances."
  24. The judge concluded that these various measures would protect the appellant's Convention rights and would ensure a fair trial. There was therefore no ground to order a stay. If the appellant did not wish to take advantage of any of the measures that was a matter for him.
  25. The trial proceeded. The appellant did not make any further application or seek to take advantage of any of the measures canvassed by the judge. He was convicted, and subsequently sentenced as we have indicated.
  26. The grounds of appeal are that the judge, having found that the appellant was involuntarily absent from court by reason of his ill health, should have found that the appellant could not have a fair trial (as he could not effectively participate in the proceedings, and in particular could not present his account or give an explanation for his actions at the material times), and should not have permitted the trial to proceed in the appellant's absence.
  27. Mr Kane emphasises that all of the expert witnesses were agreed that there was a risk that the stress of court proceedings would result in the appellant suffering angina attacks such as to require him to be hospitalised, and the defence experts opined that there was a lesser risk that such angina attacks could prove fatal. He submits that in the light of that evidence, the judge's finding that the appellant was involuntarily absent from the proceedings was inevitable. Thus it was clear that the appellant could not attend his trial, and could not give oral evidence in court. Although the judge considered various alternative ways in which the defendant could be assisted to give his account of events, Mr Kane submits that upon proper analysis there was no lawful means by which that could be done. He accordingly argues that it was impossible for the appellant to receive a fair trial.
  28. Mr Kane's submissions make it necessary for us to consider the various measures considered by the judge as means of assisting the appellant to give his account to the jury. We consider first the judge's ruling that an application could be made under section 33A of the Youth Justice and Criminal Evidence Act 1999.
  29. Part II Chapter l of that Act provides for special measures directions for vulnerable and intimidated witnesses. Section 16 defines the witnesses who are eligible for protection in terms which exclude the accused. Thus measures such as a live link under section 24, or video-recorded evidence in chief under sections 27 or 28, are not available for a defendant. In R v Ukpabio [2008] 1 Cr App R 6 this court held that the special measures provisions of the 1999 Act provided a complete statutory scheme by which evidence could be given by video link. Thus the court's case management powers do not enable the court to permit a defendant to give evidence by video link in circumstances where the 1999 Act does not allow him to do so.
  30. By an amendment which came into effect on 1 January 2007, and therefore after the date of the trial in Ukpabio, limited provision was made for a live link in the case of some accused. Section 33A of the 1999 Act, so far as material for present purposes, provides:
  31. "(1) This section applies to any proceedings (whether in a magistrates' court or before the Crown Court) against a person for an offence.
    (2) The court may, on the application of the accused, give a live link direction if it is satisfied
    (a) that the conditions in subsection (4) or, as the case may be, subsection (5)are met in relation to the accused, and
    (b) that it is in the interests of justice for the accused to give evidence through a live link.
    (3) A live link direction is a direction that any oral evidence to be given before the court by the accused is to be given through a live link.
    (4)…
    (5) Where the accused has attained the age of 18 at that time, the conditions are that
    (a) he suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social function
    (b) he is for that reason unable to participate effectively in the proceedings as a witness giving oral evidence in court, and
    (c) use of a live link would enable him to participate more effectively in the proceedings as a witness (whether by improving the quality of his evidence or otherwise)."
  32. It is also relevant to note that by section 33C:
  33. "Nothing in this Chapter affects -
    (a) any power of a court to make an order, give directions or give leave of any description in relation to any witness (including an accused), or (b) the operation of any rule of law relating to evidence in criminal proceedings."
  34. The judge, as we have indicated, took the view that this appellant was able to make an application for a live link pursuant to section 33A. Mr Kane submits that the judge was wrong so to rule, for three reasons:
  35. i) Having found the appellant fit to plead and stand his trial, the judge could not properly find that the appellant nonetheless "suffers from a mental disorder (within the meaning of the Mental Health Act 1983) or otherwise has a significant impairment of intelligence and social functioning" within the meaning of subsection 5(a).
  36. ii) Even if the subsection 5(a) criterion were satisfied, subsection 5(b) was not, because there was no causal link between any mental disorder or relevant impairment and the appellant's inability to give oral evidence: the cause of that inability was his angina.
  37. iii) The judge had accepted the medical evidence as showing that the appellant could not attend court and give oral evidence. He failed however to recognise that the medical evidence in fact went further than that because it established that the appellant would equally be at risk of an angina attack, and its possible consequences, if he gave evidence by live link rather than in a court room. Thus even if the live link procedure were available in law, it was not available in practice, and the appellant could not fairly be expected to apply to give his evidence in a way which exposed him to risk of ill health or even death.
  38. For the prosecution, Mr Nicholson submits that the appellant's severe dyslexia, which renders him unable to read or write, is a significant impairment of intelligence and social function, and that section 33A is accordingly engaged. He acknowledges that what he referred to as "a broad measure of interpretation" is necessary if the criteria in subsection (5)(b) and (c) are to be met, but suggests that the judge was entitled in this regard to take into account the evidence of the appellant's depressive illness. If that suggestion does not commend itself to the court, he submits in the alternative that any error made by the judge as to the ambit of section 33A is irrelevant because the appellant did not in the event make any application under that section.
  39. In our judgment, the judge did fall into error in his consideration of the ambit of section 33A. With all respect to him, the passage which we have quoted above from his ruling is less than clear. It may be that a negative has either been omitted or has been inserted at the wrong point; but be that as it may, the judge has not sufficiently explained the basis on which he felt able to find that the appellant suffered from a mental disorder despite his earlier ruling as to fitness to stand trial. Moreover, even if that finding could be sustained, we accept Mr Kane's submission that the causal link required by subsection 5(b) is absent. We conclude therefore that as a matter of law, it was not open to the appellant to make an application under section 33A of the 1999 Act. That being so, it is not necessary for us to consider Mr Kane's third point, which would only arise if the appellant was able to make such an application.
  40. We do not however regard this error as fatal to the judge's overall rulings on the applications to stay the proceedings. The possibility of a live link application was only one of the measures considered by the judge, and it was not a measure on which the appellant sought to rely.
  41. Turning to the other grounds of appeal advanced by Mr Kane, they are all founded upon his core submission that none of the other measures considered by the judge could lawfully be deployed to assist the appellant. That core submission is founded upon section 72 of the Criminal Justice Act 1982 which provides as follows:
  42. "(1)Subject to subsections (2) and (3) below, in any criminal proceedings the accused shall not be entitled to make a statement without being sworn, and accordingly, if he gives evidence, he shall do so (subject to sections 55 and 56 of the Youth Justice and Criminal Evidence Act 1999) on oath and be liable to cross-examination; but this section shall not affect the right of the accused, if not represented by counsel or a solicitor, to address the court or jury otherwise than on oath on any matter on which, if he were so represented, counsel or a solicitor could address the court or jury on his behalf."
  43. It is not necessary to recite either subsection (2), which is of no application to the facts of this case, or subsection (3), which has been repealed.
  44. Mr Kane submits that the effect of that provision is that a defendant in criminal proceedings may not give evidence unless it is possible for him to be cross examined. He therefore argues that the various other measures which were considered by the judge would, if adopted, have amounted to an unlawful departure from the absolute requirement in section 72 of the 1982 Act.
  45. The first part of that submission is correct. The argument developed from it is however, based upon a misunderstanding. Section 72 of the 1982 Act is headed "Abolition of right of accused to make unsworn statement". The purpose of the provision was to abolish the former right of a defendant to choose to make an unsworn statement from the dock, upon which he could not be cross examined, rather than to enter the witness box and give sworn testimony upon which he could be cross examined. Section 72 was therefore directed to a situation in which a defendant could give oral testimony, but preferred not to do so. The effect of the provision, in our judgment, is that a defendant who wishes to be a witness in his own defence must do so by giving oral testimony on oath and must face cross examination. That is so whether the oral testimony is given in the usual way from the witness box, or from some other place pursuant to an order made under section 1(4) of the Criminal Evidence Act 1898, or by video link where the provisions of section 33A of the 1999 Act permit such a link. It does not, however, follow that it is not permissible for a defendant's account of events to be given in any other way. Section 72 of the 1982 Act must in our judgement now be read in the light of, and subject to, the hearsay provisions contained in the Criminal Justice Act 2003. Hearsay evidence admitted under those provisions is, by definition, evidence of a statement not made in oral evidence in the proceedings. The key point therefore, is that if hearsay evidence is given of a statement made out of court by a person, as admissible evidence of the truth of what he said, that person is not a witness at trial: he does not thereby give evidence. Where that person is the defendant, therefore, adducing otherwise admissible hearsay evidence of a statement made by him is not within the ambit of section 72 of the 1982 Act at all.
  46. The hearsay provisions contained in the 2003 Act apply to both prosecution and defence witnesses, including an accused person. By section 114(1):
  47. "(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
    (a)any provision of this Chapter or any other statutory provision makes it admissible
    (b)any rule of law preserved by section 118 makes it admissible
    (c)all parties to the proceedings agree to it being admissible, or
    (d)the court is satisfied that it is in the interests of justice for it to be admissible."

    Section 116, so far as material, provides:

    "(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 five conditions mentioned in subsection (2) is satisfied.
    (2) The conditions are ...
    (b) that the relevant person is unfit to be a witness because of his bodily or mental condition..."
  48. The judge in his rulings made it clear that he saw no obstacle to the appellant's account being given by way of hearsay evidence pursuant to sections 1l4 and 116. He contemplated that that might be done in relation to a belated defence statement setting out the appellant's defence; or a written statement of his account; or an audio or video recording of the appellant giving his account. He noted that the prosecution had expressed willingness to agree to hearsay evidence being adduced if a proper application were made.
  49. Mr Kane submits that such a course would amount to an impermissible and unlawful attempt to side-step the provisions of section 72 of the 1982 Act. We do not agree. We have no doubt that it will only be in exceptional circumstances that the court could be expected to allow an application by a defendant to give his account, not by way of oral testimony, but by way of a hearsay statement in written or recorded form. Where (as here) a defendant who made no reply to any questions in interview has for a long time been in flagrant breach of his statutory obligation to serve a defence statement, and where (as may be the case here) a defendant has for a long period failed to commit himself to a signed proof of evidence, it is to be expected that the late provision of such documents, as part of an application to adduce hearsay evidence, will attract the most careful scrutiny by the court to ensure that the defendant is not seeking to manipulate the proceedings in an improper way. Moreover, the ability of the court to regulate its procedure in ways which make it easier for a defendant to give his evidence, for example by permitting him to give his evidence from a place other than the witness box or by allowing frequent breaks or by restricting the duration or terms of cross-examination, means that there will be few cases in which a court will conclude that it is simply not possible for a defendant to give evidence because of his ill health. For those and other reasons, cases in which such a hearsay application by a defendant will succeed will indeed be rare and exceptional. But as a matter of principle the terms of sections 114 and 116 are in our judgment sufficiently wide to enable the court to permit a defendant who is genuinely unable to give oral testimony to put his account before the jury by way of hearsay.
  50. To illustrate the point, it is pertinent to consider a hypothetical example. Suppose a defendant who (whether or not he had answered questions in interview) had filed a timely and comprehensive defence statement, and had at an early stage of proceedings provided his solicitors with a signed proof of evidence containing relevant and admissible evidence. Suppose further that at a pre-trial hearing counsel in discussing the timetable of the case had made it clear that the defendant would wish to give evidence in his own defence. Suppose then that shortly before the trial is due to commence the defendant suffers a freak accident or rare medical condition which has the result that he is for the foreseeable future deprived of the physical power of speech. We cannot accept that section 72 of the 1982 Act renders the court powerless to assist the defendant to put his account of events before the jury even though he cannot give sworn testimony and cannot be cross-examined. We can see no reason why in such circumstances, upon proper application being made, a judge would not be entitled to admit the defence statement and/or the proof of evidence as hearsay evidence pursuant to section 116(2)(b) of the 2003 Act. If hearsay evidence were so admitted, section 124 of the 2003 Act would enable the prosecution to adduce evidence relevant to the credibility of the defendant as a witness.
  51. Returning to the present case, the judge as we have said made clear that he was willing to entertain a hearsay application. But none was made by the appellant. There were therefore no submissions as to precisely what statement might be adduced by way of hearsay, or as to the directions which would be given to the jury as to their approach to that hearsay evidence. Nor was the judge invited to reconsider any aspect of his ruling on the basis that one or more of the measures which he had considered had been attempted by the defence but had proved to be impossible.
  52. We should add that Mr Kane has made submissions today about various respects in which the appellant's ill health made it impracticable or impossible for a statement setting out his account of events to be prepared or a recording made. We do not doubt that there were difficulties, but we find it difficult to understand why, eg, the written instructions which had been provided by the appellant could not form the basis of a statement of his account of events, as given to his solicitor, which could then be the subject of a hearsay application.
  53. The judge therefore had to consider the fairness of a trial in which the defendant, although involuntarily absent, was represented by counsel who were able to challenge the prosecution evidence so far as necessary, and was able - if he wished to put an affirmative case before the jury - to do so by taking advantage of the hearsay provisions of the 2003 Act. It would have been preferable, of course, if the appellant had been able to give oral testimony in the ordinary way. The judge however had to take into account the strong public interest in this serious charge being considered by a jury. In our judgment he was entitled in those circumstances to conclude that there was no abuse of the process, and that the appellant could and would receive a fair trial. He was therefore entitled to reject the applications for a stay on grounds of abuse of process. The judge was also entitled to rule that this was one of the rare and exceptional cases in which the trial could properly proceed notwithstanding the involuntary absence of the appellant.
  54. In the event, it appears that the appellant did not wish to put any affirmative account before the jury. That was his choice. His trial was nonetheless fair and in our judgment his conviction is safe.
  55. For those reasons this appeal fails and is dismissed.
  56. MR KANE: My Lord, could I invite the court to allow me seven days to consider and digest the consequence of the ruling the court has very kindly given, so as to consider whether it is proper to invite the court to certify whether there may be a question of law of general public importance arising from the resolution of what I have submitted to be the tension between section 72 of the 2002 Act and the 2003 Act?
  57. PRESIDENT OF THE QUEEN'S BENCH DIVISION: Of course Mr Kane, you can have seven days. There is undeniably a point of law that arises; whether it is a point of general public importance is however a very different matter.


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