A multitude of errors in the approach taken to multiple hearsay
July 16, 2020
A discussion of R v Alec John Smith  EWCA Crim 777
The Court of Appeal considered the issue of multiple hearsay where there had been no written application, and therefore a breach of the Criminal Procedure Rules. This failure was subsequently compounded by the approach taken at trial by the advocates, who failed to properly identify the issues and argue them, and allowed contentious evidence to be adduced without agreement or ruling.
The appellant was convicted in 2017 of an indecent assault 48 years earlier. The complainant, KH, was then aged 8 and lived next door to the appellant. One evening the appellant was babysitting KH in his own home. His wife (T) was out. When KH returned home she immediately told her mother that the appellant had touched her vagina. Her mother then contacted T and told her this. T then challenged the appellant, who was said (by KH) to have made a confession. No complaint was made to the police at the time. The reason advanced by KH was that her parents decided not to prosecute, the appellant’s admission sufficing, coupled with concern regarding the consequences of conviction upon his sons.
The appellant denied the assault. He recalled babysitting KH, who was upset. He sat with her on the sofa and patted her leg, in an attempt to comfort her. He agreed that T had visited next door, then returned home upset, but said she did not mention the allegation to him.
The prosecution case included multiple hearsay. KH’s parents were now deceased. In her ABE she said her mother had told her of a conversation with T, during which T reported challenging the appellant, and he admitting it. KH’s sister described having had the same conversation with their mother. No hearsay application was made prior to trial by the prosecution, in breach of CPR 20.2(2).
At the start of the trial there was discussion regarding the hearsay confession sought to be adduced from KH. The prosecution suggested it established an immediate complaint; the defence objected to it. The judge identified it as hearsay and pointed out that there was no application. The prosecution stated that it was agreed by the defence, as it had not been edited out of the ABE. No ruling was made, and KH then gave evidence. The hearsay confession was adduced, both in ABE and in cross examination. The next morning submissions were made regarding the hearsay evidence from KH’s sister. The judge described the evidence as ‘triple hearsay’ and remarked that there was no way in which it could be tested. [Note – this applied equally to KH’s evidence, which had already been heard]. The judge indicated that on first principles he refused the admission of the sister’s hearsay evidence. The defence said that T had been summonsed to attend court later that day, and a statement would be taken from her. Although defence counsel contended that the evidence from both witnesses as to the hearsay confession should have been excluded, he then appeared to accept it as admissible, it having already been adduced. The sister then gave the hearsay evidence. Although the judge was asked to rule, in fact he never did. T gave evidence that the appellant denied the allegation when she told him of it.
Summing up, the judge directed the jury that what was said by KH’s mother to T may be in dispute, though something was clearly said. T had given evidence of the conversation – that she was told that the appellant had put his hand up KH’s skirt, and that he denied everything. After a few weeks of questioning, he then said he had put his hand on KH’s knee, thigh or leg. He warned the jury to be careful about the evidence, as KH’s mother was not available as a witness; and that when her mother told KH that the appellant had admitted it, they did not know what the mother had said to T. They could not know what he was admitting to – the indecent assault, or touching her leg. He said that the evidence had been adduced to demonstrate the fact of the complaint, and the appellant’s response to it.
The confession evidence comprised hearsay statements within s115, and multiple hearsay within s121(1) and (2). It was not rendered admissible in circumstances where the person to whom the original statement had been made (T) was competent and compellable. It was not admissible by agreement. The failure to serve a hearsay application meant that there was no defence written response. The discussions on day 1 of trial were ill-considered and inadequate, and no ruling was made before KH’s evidence was adduced. Had the judge heard detailed argument, he would have inevitably excluded the evidence under s78 PACE, its prejudicial effect outweighing its probative value. Neither should the sister’s hearsay evidence have been admitted, and it was improper for defence counsel to have conceded its admission.
The Criminal Procedure Rules are not decorative, they are there for a reason, and when complied with ensure that tricky questions of evidence or procedure are addressed by the parties in time, so that where a dispute arises, the parties have developed positions which can be laid clearly before the judge. It is not sufficient, where complex hearsay evidence is sought to be adduced, for the Crown to remark that it was in the ABE, and had not been included in the defence editing proposals, or that no specific objection had been made. The notice requirement on the Crown is not implicitly waived by defence silence, or even where there have been editing proposals.
The judge was in a difficult position. Had he received articulated argument, he could not have admitted the confession evidence in reliance upon CPR 20.4, there having been no written application. The Crown said that it was adduced to show consistency of complaint – it did not. At best, it might provide a reason why it was not reported to the police at the time. T’s evidence was as to the critical matter – that KH’s parents had raised a problem about the appellant’s behaviour that evening. As T was able to give this evidence, there was no proper basis upon which the multiple hearsay evidence of confession should have been adduced. It could not pass the test in s121(C) (interests of justice test).
The judge could have directed the jury that the content of the alleged confession was irrelevant and they must not rely upon it, and that its only relevance was as recent complaint. The conviction was unsafe. This was highly prejudicial evidence which should not have been admitted.
This case highlights the perils of failing to comply with the CPR, and the serious consequences which may flow. Whether prosecuting or defending, care needs to be taken at an early stage to identify hearsay, and decide whether to apply to adduce it, or to seek to exclude it. ABE interviews frequently contain multiple sources of hearsay. If counsel are not in agreement as to admissibility, a judicial ruling will be required, which usually only happens at trial, unless a trial judge has earlier been identified and is prepared to hear argument at a PTR or FCMH. It may be that two alternate versions of the ABE have to be prepared. It is an obvious point that issues regarding hearsay must be raised prior to calling the witness, and a ruling obtained – but this was not done in this case. The judge should be reminded to give a ruling if this is not forthcoming.