Admissibility – Hearsay evidence - Witnesses – Need for evidence to show reasonable steps taken

R v T(D): CA (Crim Div) (Lord Justice Thomas, Mr Justice King, Judge Moss QC): 4 June 2009

The appellant (T) appealed against a conviction for grievous bodily harm with intent.

A witness (X) had stated that T had confessed the incident to her immediately after it had happened.

At the conclusion of her statement, she had said that she was leaving the area the following day and would not have made the statement otherwise, out of fear. She also stated that she would not attend court to give evidence.

At a preliminary hearing it was made clear that X would be needed for the trial, and a witness summons was issued to the address she had ­provided. At that address, officers were informed that X had moved. X's mobile phone was also called, but it was switched off.

At the trial, the judge held that the Crown had taken reasonably practical steps to locate X and he allowed her statement to be read pursuant to section 116(2)(a) of the Criminal Justice Act 2003 .

Held: All efforts should be made to get witnesses to court with all the necessary support, R v Horncastle (Michael Christopher) [2009] EWCA Crim 964, Times, 3 June, 2009 applied. There was a long-standing right to confrontation in article 6 of the European Convention on Human Rights 1950, which should not be departed from lightly, and the act needed to be observed carefully. Unless there was an agreed statement of fact, a hearsay application should not proceed without evidence. In the present case, matters proceeded informally, and no attempt was made to explain what steps the Crown had taken to locate X.

Therefore, there was no evidence on which the judge could have properly made a finding. If cost had been a problem, that also should have been dealt with by evidence, but there was no such evidence.

The hearsay evidence was wrongly admitted. The conviction was unsafe and would be quashed. A retrial would be ordered.

Appeal allowed.

M Heyward for the appellant; I Wicks for the Crown.