Practice and Procedure

Criminal evidence

PUBLISHED May 22, 2012

Hearsay - Document - Whether conviction on count 1 unsafe

R v Ibrahim: Court of Appeal, Criminal Division (Lord Justice Aikens, Mr Justice Field and Judge Nicholas Cooke QC): 27 April 2012

In August 2006, the defendant was sentenced to 10 years' imprisonment for a number of rapes in the Birmingham area. The first two counts on the indictment arose out of the same circumstances, which had taken place in March 2003. It was alleged that the appellant had raped a prostitute, W (count 1). W made a central statement in which, inter alia, she claimed to have shouted 'rape' after being attacked. That was confirmed by the statement of a witness, T, who lived nearby and had heard W. Otherwise, W's account was not directly supported. W died in 2006, before the trial.

Her statement was admitted at trial. At the close of the prosecution case, the defendant submitted that the judge should either withdraw counts 1 and 2 from the jury or should direct the jury to acquit the defendant on those counts pursuant to section 125(1)(b) of the Criminal Justice Act 2003 (the 2003 act). The judge rejected the submissions and decided that, in relation to counts 1 and 2, those were matters for the jury to decide. The defendant was found guilty. He appealed.

The defendant contended that the admission of the three hearsay statements of W pursuant to section 116(2)(a) of the 2003 Act had caused the trial to be unfair and contrary to his rights in article 6(1) of the European Convention on Human Rights. He submitted, inter alia, that first, the judge should have excluded the three statements pursuant to section 78 of the Police and Criminal Evidence Act 1984 (PACE). Secondly, he submitted that at the latest by the conclusion of all the evidence in the case the judge should have stopped the case and directed the jury to return a verdict of not guilty in relation to count 1, pursuant to section 125 of the 2003 act. Thirdly, he submitted the judge had failed to adequately direct the jury on the dangers of relying on hearsay evidence. Consideration was given to R v Horncastle [2009] All ER (D) 88 (Dec) (Horncastle) and the cases of Al-Khawaja and Tahery v the United Kingdom [2011] ECHR 2127 (Al-Khawaja).

The court ruled: (1) The clear effect of the judgments of the Court of Appeal and Supreme Court in Horncastle and Al-Khawaja was that it was a precondition that the untested hearsay evidence be shown to be potentially safely reliable before it could be admitted. That was a matter for the judge to rule on, either at the admission stage or after the close of the prosecution case pursuant to section 125 of the 2003 act (see [107] of the judgment).

The question in the instant case was whether, on the central issue of whether the defendant had had non-consentual sexual intercourse with W on the evening in question, her principal statement could be shown to be reliable. It could not be considered as such. Had counsel for the defendant possessed the benefit of the judgments in Horncastle and Al-Khawaja, he would have been bound to make a submission that even though W's hearsay statements satisfied the conditions in sections 116(1) and (2)(a) of the 2003 act, the court ought to have exercised its power to exclude them under section 78 of PACE (see [104]-[106] of the judgment).

The question of reliability and the credibility of W's evidence ought not to have been left to the jury (see [111] of the judgment). R v Horncastle; R v Marquis [2009] All ER (D) 88 (Dec) applied; Al-Khawaja v United Kingdom (Applications 26766/05 and 22228/06) [2009] All ER (D) 132 (Jan) considered.

(2) If an untested hearsay statement was not shown to be reliable and it was a statement that was part of the central corpus of evidence without which the case on the relevant count could not proceed, the effect of the decisions in Horncastle and Al-Khawaja was that the statement was almost bound to be 'unconvincing' such that a conviction based on it would be unsafe. Under section 125 of the 2003 act, given the case law, the judge was duty bound to make his assessment of reliability and importance of the hearsay evidence that had been admitted, before making his decision on whether to let the case proceed or not (see [109], [110] of the judgment).

In the instant case, if the court was incorrect in respect of issue one, the trial judge ought to have acceded to the defence submission made pursuant to section 125 of the 2003 act. In any event, the judge had erred in stating that the evaluation of W's untested hearsay evidence was a matter for the jury. Under section 125(1)(a), the judge had had a duty to decide whether the case in count 1 was based wholly or partly on W's statements. It had plainly been based on the statements. Secondly, under section 125(1)(b) the judge had then to decide whether the evidence was so unconvincing that, considering its importance to the case against the defendant on count 1, his conviction of the offence would be unsafe (see [108] of the judgment).

The principal statement of W, untested hearsay that it was, was sufficiently unconvincing that, considering its importance to the case against the defendant on count 1, his conviction on that count would be unsafe (see [109] of the judgment).

(3) It was established practice that a jury be reminded that a hearsay statement admitted under chapter 2 of part 11 of the 2003 act would not usually have been verified on oath and would not have been tested by cross-examination. The judge had to identify and point out the specific risks of relying on that evidence and ought to invite the jury to scrutinise it with particular care. The jury's attention in particular needed to be drawn to the context in which the statement had been made and to all the other evidence in relation to it. If there were discrepancies between the hearsay statement and the evidence of other witnesses the jury's attention had to be drawn specifically to them (see [112] of the judgment).

On the evidence, the judge had not invited the jury to scrutinise the evidence in the hearsay statements with particular care. He had not pointed out specifically the risks of relying on untested hearsay statements which were central to the prosecution case on count 1. In all the above respects, the 'counterbalancing measures' in chapter 2 of part 11 of the 2003 act and in the common law had not been properly applied in the instant case. The defendant had not received a fair trial and his rights under article 6(1) of the Convention had been infringed (see [113], [114] of the judgment). The appeal would be allowed and the conviction on count 1 would be quashed (see [109] of the judgment).

R v Horncastle; R v Marquis [2009] All ER (D) 88 (Dec) applied; Al-Khawaja v United Kingdom (Applications 26766/05 and 22228/06) [2009] All ER (D) 132 (Jan) considered.

D Cooper (instructed by Julian Young & Co) for the claimant; A J Jackson (instructed by Crown Prosecution Service) for the Crown.