Where the entirety of the Crown's evidence was contained in a witness statement that had been read to the jury, and the defendant had not had the opportunity to cross-examine that witness, the admission of the evidence had breached the defendant's right to a fair trial and destroyed the safety of the jury's determination.Appeal against a finding that the appellant ('D'), had done the act charged against him, namely murder, under s.4A Criminal Procedure (Insanity) Act 1964. As a result of that finding D had been made the subject of a hospital order under s.5 of the 1964 act. The judge had previously found that D was unfit to be tried. D had been part of a group that had chased its 12-year-old victim ('V'). At some point during the chase V had sustained six stab wounds to his chest, two of which pierced V's heart. V died as a result of the stabbing. The other members of the group had admitted being in the group. In relation to D, the Crown had relied on evidence that: (i) he had been present in the group; (ii) he was seen afterwards with a knife which he had wiped clean; and (iii) D made comments amounting to an admission that he had taken part in the stabbing. The evidence to that effect was contained in the statement of a witness ('W'), which had been read to the jury as the entire basis for the prosecution's case. On appeal D submitted that: (a) the judge had erred in rulings on crucial issues relating to the trial of the "act" within the meaning of s.4(A)of the act; and (b) the judge ought not to have allowed W's evidence to be read as the only or decisive evidence in terms of the act or acts constituting murder.HELD: (1) There was no error on the part of the judge in directing that for the purposes of deciding whether D had done the act of murder the jury had to be satisfied either that: (i) D himself was the stabber; (ii) D was one of a number of stabbers; (iii) D was a person that had taken part in what he knew at the time to be a knife attack. If the jury was satisfied that either of these possibilities was the case then the act of murder had properly been established for the purposes of s.4(A)(2) of the 1964 act. (2) The judge ought not to have exercised his discretion so as to admit W's statement. D had been denied the opportunity of cross-examining a witness on whose evidence the entire prosecution case had rested. The judge had expressly recognised the risk of unfairness to D but had failed to attach proper weight to the fact of D's disability. The admission of W's evidence amounted to a breach of Art.6European Convention on Human Rights and plainly destroyed the safety of the jury's determination.Appeal allowed. Jury's finding quashed. Acquittal verdict recorded.

[2003] EWCA Crim 357

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