Neutral Citation Number: [2009] EWCA Crim 20
Case No: 200801492 B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM LEWES CROWN COURT
HIS HONOUR JUDGE TAIN

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/01/2009
Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE GROSS
and
MR JUSTICE ROYCE
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Between :

	THE QUEEN	Respondent	
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	Z	Appellant 	
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(Transcript of the Handed Down Judgment of
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Isobel Ascherson for the Appellant
Gillian Etherton (instructed by the CPS) for the Respondent

Hearing date : 11 December 2008
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Judgment

Lord Justice Stanley Burnton : 
Introduction 
1.	This is another case in which the Court of Appeal has to consider what are probably unintended and unanticipated consequences of the hearsay provisions of the Criminal Justice Act 2003.
2.	On 19 February 2008 at the Crown Court at Lewes before His Honour Judge Tain and a jury the Appellant was convicted of one count of indecent assault (count 1) and four counts of rape (counts 2-5) contrary to the Sexual Offences Act 1956. On 7 April before the same judge he was sentenced to a total of 14 years’ imprisonment. Having been convicted of an offence listed in Schedule 3 of the Sexual Offences Act 2003, he was required to comply with the provisions of Part 2 of the Act (Notification to the police) indefinitely.
3.	He appeals against his conviction with leave of the single judge, restricted to the decision of the trial judge to admit hearsay bad character evidence.
The facts
4.	The detailed facts of the case are not material to the issues raised on this appeal. This is an historic rape case. The complainant gave evidence that between 1985 and 1989, when she was aged between 9 and 13, the Appellant, a frequent visitor to her family home, regularly raped her. The counts in the indictment were sample counts to reflect the rapes and indecent assaults that he was alleged to have committed. 
5.	There was additional evidence called by the prosecution, broadly supportive of the complainant’s, and in one case directly supportive.
6.	The Appellant’s case was that he had never raped or indecently assaulted the complainant.
7.	At the beginning of the trial, the prosecution applied to adduce hearsay evidence of the Appellant’s bad character. For present purposes, it is sufficient to refer to the evidence concerning a lady to whom we shall refer as D and that concerning the Appellant’s former wife, to whom we shall refer as Mrs Z. D had alleged that she had been sexually abused and raped by the Appellant when she was young. Mrs Z had alleged that he had raped her. D was unwilling to give evidence, and had explained why to the prosecution. Mrs Z was dead. The prosecution relied on sections 101, 114 and 116 of the Criminal Justice Act 2003. The defence objected to the admission of this evidence.
8.	Ruling that the prosecution would be permitted to adduce this evidence, the judge said:
“[This] is a straightforward application by the Crown in respect of bad character; though of course in the nature of things, in this instance it has attached to it an application, effectively, for hearsay rulings … so they are a composite of the two applications, all of which fall to be dealt with under the Criminal Justice Act 2003, and to that extent are fairly conventional applications dealing with issues that are found fairly commonly in this type of case, particularly the historic type of case.”
The judge referred to the basis of the Crown's application to adduce the evidence of the Appellant's bad character, namely that it provided important  explanatory evidence, went to propensity, and also corrected a false impression given by the Appellant, namely, that he was a perfectly ordinary, respectable, straightforward family man. He summarised the objections of the defence, that the allegations of D could have been dealt with by live evidence, and that the allegations of bad character had to be proved so as to make the jury sure, and that the evidence proposed was incapable of satisfying that requirement. The judge continued:
“As far as I'm concerned, the position is, on the face of it, straightforward and I propose to deal with it in the following way. I have no disquiet about the evidence in relation to the alleged improper behaviour towards [D]. It seems to me that is a perfectly straightforward case that can properly be adduced, under the provisions referred to, to enable the jury to be aware that at the same time there was a similar type of allegation being made by a different person, and on the grounds made by the Crown. That will then, in due course, be followed by appropriate observations by defence counsel to the jury about it, and by me, assuming we get to that stage, in directions relating expressly to the reservations that they might have in regard to hearsay evidence.”
9.	As a result of this ruling, a doctor gave evidence that in 1993 D had made an allegation of repeated sexual abuse, falling short of rape, when she was a young girl. She had named the appellant as the perpetrator. In addition, the officer in the case testified that during the investigation into these matters police spoke to D, who said that the appellant had raped her or had sexual intercourse with her on three occasions. She had not wished to make a formal complaint about these allegations. The officer in the case also gave evidence that the police had been called to the home address of Mrs Z on 5 August 1994. The Appellant had been visiting and a siege situation had developed involving him and his daughter. Ultimately the Appellant was sedated by his doctor. Mrs Z subsequently made an allegation of rape against the Appellant.  Her statement had been recorded contemporaneously in social services' records. She had not wanted to make a formal complaint of rape to the police, and her allegation was never pursued. Mrs Z had died some years before the trial.
10.	The Appellant gave evidence denying the allegations made by the complainant and those made by D and his former wife, and he called witnesses.
11.	In his summing up, the judge referred to the hearsay evidence concerning D and Mrs Z and said:
“Why have you been given this information, which is separate from the present matters? You have been told of these matters for two reasons. In the first place, they may be of assistance to you in deciding whether the defendant has a propensity for committing acts of sexual abuse generally or in relation to children. In the second place, the defendant is a person who in his interview, which you have before you, portrayed himself as somebody who would not do such a thing. You will need to determine whether he is giving a false impression there, and it may be that this information could be of assistance to you in deciding that question.
It is important to keep in mind that those other allegations are denied by the defendant; they never came to the court, resulting in a finding; and that information is delivered to you otherwise than from the original complainants, something about which I will comment further in a moment.
How may you use this information? You may use it to assist you to resolve the issues mentioned already , but you should have it firmly in your mind that this information alone does not prove that the defendant is guilty of the present matters, and you must not find him guilty because he has had unproven allegations made against him in the past. If you regard it as appropriate, and if you regard the Crown case as being a strong one independently of this information, then you may regard this information as supportive of the Crown case against Mr Smith. Otherwise, you must not take it into account that all.”
12.	The judge then gave a full conventional hearsay direction, concluding:
“Although it is for you to decide what weight, if any, you attach to the above mentioned evidence, you should examine it with particular care, bearing well in mind that it does have certain limitations which I must draw to your attention. You have not had the opportunity of seeing and hearing either of these people in the witness box and of making your assessment of them as witnesses. When you do see and hear eyewitness you may get a much clearer idea of whether that person's evidence is honest and accurate. [D]'s and [Mrs Z]'s statements were not made or verified on oath. Their evidence has not been tested under cross-examination, and you have not had the opportunity of seeing how their evidence survived this formal challenge. Their complaints form only a part of the evidence and it must be considered in the light of all the other evidence in the case. He must reach your verdicts having considered all of the evidence.”
The parties’ contentions
13.	Before this Court, Miss Ascherson on behalf of the Appellant repeated the submissions she had made to the judge when objecting to the admission of this hearsay evidence. She submitted that its importance and prejudicial effect were such as to require the allegations to be included as counts in the indictment; at the very least the evidence relating to D should have been given by her in person, so that the Appellant could have challenged it; otherwise, it should have been excluded. The difficulties of the Appellant in challenging allegations relating to events long past were compounded by the difficulties of challenging hearsay evidence. She relied on what Toulson LJ had said in McKenzie [2008] EWCA Crim 758 at paragraph 25:
“It has also to be borne in mind that if the allegations of misconduct have not given rise to any previous investigation, the evidence is liable to be stale and incomplete. The defendant may also be prejudiced in trying to meet it, for lapse of time and inability to pinpoint details (e.g. of time and place) may result in such allegations being hard to repel and the jury may be left thinking that there is no smoke without fire.”
The evidence of the allegation of rape made by Mrs Z should not have been admitted: it was no more than an untested allegation, and of less direct relevance. Miss Ascherson submitted that this evidence could only be relevant if the jury were sure that the allegations made by D and Mrs Z were true. The hearsay evidence admitted by the judge was not capable of satisfying this burden; and in any event the summing up was defective in not making it clear to the jury that this evidence was irrelevant unless they were sure that the allegations were true. Lastly, Miss Ascherson submitted that the trial had been unfair and had infringed the Appellant’s rights under Article 6 of the European Convention on Human Rights. 
14.	For the prosecution, Miss Etherton submitted that section 114(1)(d) permitted the hearsay evidence of bad character to be admitted. This provision was intended to permit hearsay evidence to be adduced in cases other than those falling within section 116. D had refused to give evidence for good reasons that the Court should understand: she wanted to put her abuse at the hands of the Appellant behind her; she did not want to relive her experiences. Miss Etherton submitted that it was unnecessary for the bad character allegations to be charged in the indictment, but accepted that it was necessary for the prosecution to prove them so that the jury were sure that they were true. This hearsay evidence was credible and of high quality and the jury could have been sure that it was true: D’s allegations, in particular, had not been made in order to vilify the Appellant, but in private, to a doctor, who had a contemporaneous record of what she had told him. The evidence of the allegations made by Mrs Z had been properly admitted in order to rebut the impression sought to be made by the Appellant that he was a family man and a kind and sympathetic partner and father. The summing up, read as a whole, made it clear to the jury that they could take the hearsay allegations into account only if they were sure that they were true. The trial had been fair and the Appellant's conviction was safe.
Discussion
15.	It is convenient to consider first the evidence of the allegations made by D, since those were potentially far more damaging to the defence than the allegation of rape made by Mrs Z. 
16.	If D had given live evidence, there could have been no complaint as to its admission. Her evidence was clearly relevant to establish propensity and to correct the impression given by the Appellant of a good family man. The problems that have arisen in this case arise more from the admission of the allegations made by D (and, as we shall see that made by Mrs Z) as hearsay evidence. 
17.	In relation to the evidence concerning D, the only applicable provision on which the prosecution could and did rely was section 114(1)(d) of the Criminal Justice Act 2003. The section is 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, 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. 
(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)– 
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; 
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); 
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; 
(d) the circumstances in which the statement was made; 
(e) how reliable the maker of the statement appears to be; 
(f) how reliable the evidence of the making of the statement appears to be; 
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot; 
(h) the amount of difficulty involved in challenging the statement; 
(i) the extent to which that difficulty would be likely to prejudice the party facing it. 
18.	It can be seen that subsection (1) comprehensively restricts the circumstances in which hearsay evidence may be admitted in criminal proceedings to those set out in its four paragraphs. Paragraph (d) is the only paragraph having positive substantive effect: the other paragraphs of subsection (1) simply refer to other provisions or rules of law permitting such evidence to be admitted.  Paragraph (d) is unhelpfully drafted. It has been referred to as creating a residual power or as a safety valve; considered in isolation, it might be given a wide or a narrow application.
19.	However, section 114(1)(d) must be construed and applied in its statutory context. In particular, in a case such as the present, where the evidence in question is of a statement making an allegation of misconduct, it must be read together with section 116. That section is narrowly drawn. It is headed “Cases where a witness is unavailable”, which would not include the case of D. The conditions for the admission of hearsay under section 116(1) are set out in subsection (2):
“(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (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.”
None of these applied to D. 
20.	In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented. As Scott Baker LJ said in O’Hare [2006] EWCA Crim 2512 at paragraph 30:
“We think it important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.”
But section 114(1)(d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116, as in Isichei [2006] EWCA Crim 1815, where it was admitted “as part of the story of a common sense series of events, the one leading from the other” and Xhabri [2005] EWCA Crim 3135, [2006] 1 Cr. App. R. 26. Both of those were very different cases from the present: the hearsay statements admitted were part of the incidents that were the subject of the trials. 
21.	Section 114(2) contains a list of matters which it is mandatory for the court to take into account when deciding whether to admit hearsay evidence under subsection (1). Since these considerations are mandatory, the judge should, when giving his ruling on an application under subsection (1)(d), make it clear that he has taken them into account. This does not mean that he must refer to and express a conclusion on each of them. In Taylor [2006] EWCA Crim 260, Rose LJ said:
“38 As it seems to us, the first and crucial issue raised by this appeal is as to what is meant in s. 114(2) by the words ‘the court must have regard to the following factors’. If Mr Sinclair is correct and those words denote an obligation on a trial judge to embark on an investigation, resulting in some cases in the hearing of evidence, in order that he may reach a conclusion established by reference to each of the nine factors, it is apparent that trials are likely to be considerably elongated. Proper investigation of each of those factors, if carried out in that way, may well be a very lengthy process.
39 But do the words in the section require that course to be followed? In our judgment, they do not. They do not impose an obligation on the judge to reach a conclusion. What is required of him is the exercise of judgment, in the light of the factors identified in the subsection. What is required of him is to give consideration to those factors. There is nothing in the wording of the statute to require him to reach a specific conclusion in relation to each or any of them. He must give consideration to those identified factors and any others which he considers relevant (as expressed in s.114(2) before the nine factors are listed). It is then his task to assess the significance of those factors, both in relation to each other and having regard to such weight as, in his judgment, they bear individually and in relation to each other. Having approached the matter in that way, he will be able, as it seems to us, in accordance with the words of the statute, to reach a proper conclusion as to whether or not the oral evidence should be admitted.”
22.	In R v Y  [2008] EWCA Crim 10, Hughes LJ said:
55. What is now s 114(1)(d) appeared in the Commission's draft bill in a slightly different form: 
‘9. In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if the court is satisfied that, despite the difficulties there may be in challenging the statement, its probative value is such that the interests of justice require it to be admissible.’
56. Although section 114(1)(d) as enacted does not contain the cautionary reminder, which draft clause 9 did, namely that the probative value of the out-of-court statement must outweigh the difficulties of challenging it before it will be in the interests of justice for it to be admitted, the statute as enacted is not less rigorous. That is because section 114(2) lists specific factors which must, together with any other relevant matter, be considered before addressing the question whether it is in the interests of justice for the hearsay statement to be admitted. 
…
As this court explained in Taylor [2006] EWCA Crim 260, section 114(2) does not mean that the Judge must hear evidence on, and make specific findings of fact about, each factor seriatim; but he must exercise his judgment in the light of consideration of all of them. Then, after those factors, and any other relevant to the particular case have been evaluated, the Judge must stand back and ask whether it is in the interests of justice that the statement be admitted. In doing so, he will of course remember that the statute does not render hearsay automatically admissible, and the reasons why it is not. Put broadly, they are that hearsay is necessarily second best evidence, and that it is for that reason much more difficult to test and to assess. The jury never sees the person whose word is being relied upon. That person cannot be asked a single exploratory or challenging question about what he said. Those very real disadvantages of hearsay evidence, which underlay the common law rule generally excluding it, remain critical to the assessment of whether the interests of justice call for its admission. …
23.	When he gave his ruling permitting the admission of the hearsay evidence of the allegations of D and Mrs Z, HH Judge Tain did not make it clear that he had taken into account the matters listed in section 114(2). His error, in our judgment, was to treat the prosecution’s application as “fairly conventional” and “straightforward”. An application to adduce undisputed evidence of misconduct, such as admitted convictions for relevant crimes, would indeed be fairly conventional. An application to call as witnesses the victims of the defendant’s misconduct as evidence of his bad character might be straightforward. But in our judgment an application to adduce in evidence hearsay evidence of disputed serious misconduct as bad character evidence was most certainly not conventional, and it should not have been treated as straightforward. 
24.	If the judge had considered the matters listed in section 114(2), he would have had to consider in particular paragraphs (a), (g), (h) and (i). As to (a), this evidence was of very considerable importance; if accepted by the jury, it would undermine the defence and point powerfully to a conviction. This made the other factors even more significant, and in particular (g). It is important to note that paragraph (g) refers to the inability of the witness to give evidence, not her reluctance or unwillingness, understandable though her attitude may be. That is consistent with the restrictions in section 116. 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).
25.	The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1)(d). It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made. The Court will be more willing to interfere with his decision if he has not taken into account, or has not shown that he took into account, relevant matters listed in subsection (2). This is such a case. In our judgment, the judge clearly erred in admitting hearsay evidence of D’s allegations. In the present case, the reluctance or apparent but untested unwillingness of D to testify did not justify its admission. This was a case in which the restrictions on hearsay in section 116 were being circumvented. As we indicated in the preceding paragraph of our judgment, the effect of the admission of this evidence was potentially very damaging; and it was very difficult for the Appellant to deal with it other than by a simple denial. We need not consider what the position would have been if D had been served with a witness summons and refused to attend or to testify: that did not happen.
26.	Furthermore, the judge did not make it clear in his summing up that the jury had to be sure that H’s allegations were true before they could take them into account. The references to "unproven allegations" and to "complaints" may well have led the jury to believe that they could take these allegations into account without first determining whether they were sure that they were true. Moreover, in many cases it may well be difficult for a jury to be sure of the truth of allegations supported only by hearsay evidence. In our judgment, therefore, the error made by the judge in allowing the evidence of H's allegations to be admitted in evidence by hearsay was compounded by the lack of an appropriate and clear direction requiring the jury to be sure that those allegations were true before taking them into account. 
27.	We are also troubled by the admission of the hearsay evidence concerning Mrs Z. Leaving aside the question whether it should have been admitted under sections 98 to 112, and focusing solely on its admission as hearsay, it satisfied the condition in section 116(2)(a). However, section 116(4), and in particular paragraph (b), fell to be considered. Moreover, since it was sought to admit it as evidence of bad character, it had to be sufficiently cogent for a reasonable jury to be able to be sure of its truth. Thus, if the judge was minded to admit the evidence under section 101, he had then to consider whether the jury would reasonably be able to be sure of its truth. When he gave his ruling, he did not state whether he considered that they would be able to do so. In any event, however, as we have already stated, the judge in his summing up did not make it clear to the jury that this evidence could be taken into account only if they were sure of the truth of Mrs Z’s allegation.
28.	Although, as we have mentioned, there was evidence other than that of the complainant that might have been viewed by the jury as supporting the prosecution case, Miss Etherton, wisely in our view, did not submit that the convictions could be regarded as safe if we concluded that the hearsay evidence of D’s allegations should not have been admitted, or if the direction to the jury as to D’s and Mrs Z’s evidence was defective.
29.	It follows that the convictions were unsafe and must be quashed. 
30.	In these circumstances, it is unnecessary to consider the Appellant’s contentions under Article 6 of the Convention.