![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Criminal Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Muldoon, R. v [2021] EWCA Crim 381 (18 March 2021) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2021/381.html Cite as: [2021] 1 WLR 4925, [2021] WLR(D) 191, [2021] 2 Cr App R 8, [2021] WLR 4925, [2021] EWCA Crim 381, [2021] Crim LR 788 |
[New search] [Printable PDF version] [View ICLR summary: [2021] WLR(D) 191] [Buy ICLR report: [2021] 1 WLR 4925] [Help]
ON APPEAL FROM THE CROWN COURT BOLTON
Recorder Geoffrey Payne
T20197314
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE JEREMY BAKER
and
MR JUSTICE GRIFFITHS
____________________
Jake MULDOON |
Appellant |
|
- and - |
||
REGINA |
Respondent |
____________________
Copies of this transcript are available from:
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7414 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Mark Rhind (instructed by CPS Appeals Unit) for the Respondent
Hearing dates : 9th March 2021
____________________
Crown Copyright ©
Lord Justice Fulford V.P. :
Introduction
The Facts
The position of Declan Prescott and Stacey Round at trial
Section 119 Inconsistent statements
"(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 (c. 18),
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
(2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible."
"Admissibility of hearsay evidence
(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.
(3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings."
"33. Therefore, although there is difficulty in challenging the statements, I conclude that challenge remains possible in the ways I have set out. That reduces the level of prejudice. The prejudice will be reduced further by the directions that will be given to the jury. They will include the need to approach the evidence of both witnesses with caution. I add, although I do not place undue reliance upon it, that Mr Muldoon can, of course, give evidence if he wishes and challenge the statements directly.
[…]
35. The allegations in this case are very serious indeed and it is clearly in the interests of justice that they be fairly considered by a jury, full appraised of all relevant evidence, if that is at all possible. Applying the factors in section 114(2), and after having given consideration to the authorities to which I have been referred, my judgment is that the balance falls squarely in favour of the admission of the evidence of the statements."
"Now a direction on what we lawyers call hearsay from Declan Prescot and Stacey Round. Hearsay is simply a statement that is given outside of court. You will remember I said to you that evidence comes from within this room. There are some exceptions. Hearsay evidence are statements that were made outside court, but repeated here. Although the prosecution called Declan Prescot and Stacey Round to give evidence, the evidence that they gave did not support the prosecution case. In fact, bar answering some very basic questions, neither of them said anything at all and made it clear they were not prepared to answer questions. Now because of that the prosecution was allowed to cross-examine them both and put to them what they had said in their witness statements that were taken by the police. You should look very carefully at everything that they said, both in their police statements and in the witness box. You should also look at how they reacted when they were reminded of what they said originally; that is all evidence for you to consider. It is up to you to decide what, if anything, of their evidence you accept. Now you do not have their police statements in writing. Juries are not normally given witness statements, because they might unwittingly give them undue prominence, as against the rest of the evidence. There is nothing abnormal there, remembering always that the prosecution must prove the case. If you are sure that the contents of one or more of the police statements that either or both of them gave is true then you can act on it. So you have to be sure that the contents of one or more of those police statements is true and then you can act on it."
The Submissions on the Appeal
Discussion
"3. How far witness may be discredited by the party producing.
A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character; but he may, in case the witness shall in the opinion of the judge prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a statement inconsistent with his present testimony; but before such last-mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement."
"21. Each of these decisions demonstrates, in our view, how limited are the circumstances in which the evidence of an available but reluctant witness may be admitted in the interest of justice. […] Lord Phillips reminded us in Horncastle and Others (2009) UK SC14 at paras 15-26 and 53, it is our common law tradition that the defendant is entitled to examine the witnesses against him and only in strictly circumscribed circumstances will a hearsay statement be admitted in the interest of justice. The trial judge is the gatekeeper responsible for the fairness of the trial (see paragraph 38 of Horncastle), and the examination of the factors set out in section 114(2) and any other relevant factors must be performed with caution when the object is to fill a gap caused by the non-attendance of a live witness on grounds which do not fall within section 116."
44. In a similar vein, we have borne in mind the warning in R v Sajid Ali Sadiq [2009] EWCA Crim 712 at [24], a case in which the witness did not attend court at all, that "[…] this court simply cannot be seen as regarding it as normally in the interests of justice that an important witness's evidence should be given under the hearsay provisions of the 2003 Act when he simply refuses to testify and will not provide a good reason for his refusal when he is available and capable of giving evidence" (critical also in this regard are the decisions in R v Ibrahim [2010] EWCA Crim 1176 at [11] and R v Riat [2012] EWCA Crim 1509 at [20]) . Furthermore, in Lawrence [2013] EWCA Crim 708; [2014] 1 Cr App R 5 (33), this court suggested that the reasons for refusal to give evidence at a retrial would have to be considered as carefully as in fear cases under section 116. We note, however, that in Sajid Ali Sadiq and Lawrence the provisions of section 3 Criminal Procedure Act 1865 were not invoked.