30th June, 2020

Hearsay and the Criminal Procedure Rules article - Jonathan Savage

Jonathan Savage provides this useful summary of the recent decision in R -v- Smith EWCA Crim 777, which served as a useful reminder of the importance of adhering the Criminal Procedure Rules when seeking to adduce hearsay evidence.

Smith v R [2020] EWCA Crim 777

Practical example of why the CPR’s "aren’t just for decoration" and some salutary lessons for prosecutors and defence advocates.

The appellant successfully appealed his conviction for sexually assaulting his young neighbour nearly 50 years earlier whilst babysitting. Part of the evidence adduced by the prosecution included the complainant’s account that after telling her mother what had happened, she was told the defendant had admitted the assault to his wife. The complainant said in her ABE interview "I'm only going by mum now and my mum said that he admitted it to her, his wife…" The complainant's mother had since died.

The prosecution had included what was clearly multiple hearsay in the edited ABE interview, which the defence had agreed. No hearsay notice had been served as required by Criminal Procedure Rule 20.2 and the evidence had gone before the jury.

The appellant appealed the conviction on the grounds that the admission of inadmissible multiple hearsay, and the trial judge’s failure to adequately direct the jury how to approach it, rendered the conviction unsafe.

It was submitted that hearsay evidence from the complainant was not rendered admissible pursuant to section 121(1) (a) or (c) Criminal Justice Act 2003 in circumstances where the person to whom the original statement had been made (the appellant’s now former wife) was competent, compellable, and available to give evidence as a witness. This evidence was not admissible by agreement. There had been no written notice of hearsay in breach of CPR 20.2, and this failure resulted in the trial judge being deprived of adequate submissions as to the effect of section 121. Had this happened, he would have found the evidence was not admissible by any potential route and excluded it under section 78 Police and Criminal Evidence Act 1984. As it was, the learned judge failed to direct the jury to place no reliance on the content of the alleged confession.

The Court of Appeal agreed. The court said at paragraph 50 –

"Criminal Procedure Rules are not decorative. They are there for a reason. The structure and language of the rules, if complied with, should ensure that tricky questions of procedure or evidence are addressed by the parties in time, so that, where dispute arises, the parties have developed positions which can be laid clearly before the judge who must resolve the problem. That is the point of the Rules…"

And at paragraph 51 –

"It is simply not sufficient, where complex hearsay evidence is sought to be introduced, for the Crown to remark that the evidence was in a record of an ABE interview or in a witness statement and that no explicit objection has been taken by the defence upon whom such evidence has been served…Here it is clear there was a procedural failure by the Crown, compounded by less than rigorous thinking by whichever defence representative considered the text of the ABE interview, left uncorrected by (the trial advocate)."

In relation to the summing up, the court said at paragraph 58 –

"The judge could have directed the jury in clear terms that the content of the alleged confession was irrelevant and that they must not rely upon it…"

There are a number of salutary lessons to be drawn from this case. If prosecuting, it assists everybody when the CPR’s are followed. Had the prosecution followed the CPR, one would hope that having been made to address its mind to the admissibility of the multiple hearsay, it would have concluded it wasn’t, and edited it from the ABE. When defending, apart from the obvious point that the contents of an ABE require careful scrutiny, it assists all parties to insist the prosecution comply with the CPR and served appropriate notices.

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