Admissibility - Cases where witness is unavailable - Sexual offence

R v Burton: Court of Appeal, Criminal Division (Lord Justice Brunton, Mr Justice Cooke, Mr Justice Blake): 11 August 2011

The defendant was aged between 26 and 27 at the time of the alleged offence. X was aged 14. X's mother found some love letters which she believed were from the defendant. The letters included passages such as: 'when we lay together and kiss I want this all the time with you by my side…' and 'the way you hold me in your arms and kiss me makes me go weak at the knees'. X's mother contacted the police.

A police officer spoke with X and made a record of their conversation. The officer recorded that she asked X how she knew the defendant, to which X had replied: 'he was my boyfriend some months ago and we have remained good friends'.

Asked whether she had had a sexual relationship with him she replied: 'No, I have not slept with him, but we have kissed and cuddled'. It was also recorded that X had said that the defendant had bought her alcohol and a phone. X had not been prepared to say anything further.

She refused to provide either a statement or a video interview to the police. The defendant was arrested. In interview he appeared to suggest that he and X were boyfriend and girlfriend. He said that they had kissed and cuddled whilst they had been in a relationship.

He further explained that they had 'snogged' with tongues. He said that he had feelings of love towards her.

The defendant was charged with sexual activity with a child. X refused to give evidence in the proceedings and the prosecution decided not to compel her to attend. The prosecution applied to adduce the hearsay evidence of what X had said to the officer under s 114(1)(d) of the Criminal Justice Act 2003 (the Act).

The defendant objected, on the ground that the provision was being used to circumvent the restrictions on hearsay evidence in s 116 of the Act concerning admissibility of evidence where a witness was unavailable. The judge concluded that the evidence should be admitted as it was in the interests of justice to do so. The defendant was convicted of sexual activity with a child. He appealed against conviction.

The defendant submitted that the judge should not have allowed hearsay evidence to go before the jury. The appeal would be dismissed.

The instant case was exceptional. The judge had taken into account the matters required to be taken into account under s 114(2) of the Act and his ruling was not marred by legal error (see [16]-[20] of the judgment).

Timothy Palmer (instructed by Andrew Jay & Co) for the defendant. Stephen Lowne (instructed by the Crown Prosecution Service) for the Crown.