Court of Appeal, Criminal Division
Published October 2, 2007
Regina v Cole
Regina v Keets
Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Elias and Mr Justice Griffith Williams
Judgment July 30, 2007

The hearsay evidence of a witness who could not be cross-examined could be admitted in evidence, even where it was the sole or the decisive evidence against a defendant, if that was compatible with a fair trial.

The Court of Appeal, Criminal Division, so held in a reserved judgment, dismissing appeals by:

(i) Konrad Cole against his conviction on December 12, 2006 at Basildon Crown Court (Judge Taylor and a jury) on three counts of assault occasioning actual bodily harm; and

(ii) Rocky Keet against his conviction on April 19, 2007 at Winchester Crown Court (Mr Recorder Vaitilingam and a jury) of attempting to obtain property by deception and damaging property.

Mr Michael House, assigned by the Registrar of Criminal Appeals, for Cole; Mr Tayo Adebayo for the Crown.

Mr Robert Bryan, assigned by the Registrar of Criminal Appeals, for Keets; Mr Michael Butt for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that in each case the trial judge had acceded to applications by the Crown to adduce hearsay evidence, under section 116 of the Criminal Justice Act 2003, which dealt with cases where a witness was unavailable.

That evidence was critical in relation to at least one of the counts on which each defendant was convicted.

The defendants argued that the right to examine witnesses in the fair trial provision of article 6.3 of the European Convention on Human Rights was infringed by the admission of the hearsay evidence, having particular regard to the fact that the Crown’s case was essentially founded on the hearsay evidence.

Was hearsay evidence of a witness who could not be cross-examined precluded when it was the sole, or the decisive evidence against a defendant? Luca v Italy ((2001) 36 EHRR 807) might suggest so.

However, once one moved away, as both Strasbourg and domestic jurisprudence clearly had, from the proposition that there was an absolute rule that evidence of a statement could not be adduced in evidence unless the defendant had an opportunity to examine the maker, it seemed that there could be only one governing criterion.

Was the admission of the evidence compatible with a fair trial? It was that question alone with which article 6 was concerned.

There were many reasons why it might be impossible to call a witness. Where the defendant was himself responsible for that fact, he was in no position to complain that he had been denied a fair trial if a statement from that witness was admitted.

Where the witness was dead, or could not be called for some other reason, the question of whether the admission of a statement from that witness would impair the fairness of the trial would depend on the facts of the particular case.

Factors that would be likely to be of concern to the court were identified in section 114(2) of the 2003 Act.

Their Lordships considered the appeals on the basis that article 6 imposed no absolute embargo on the admission of the hearsay evidence adduced by the prosecution in either case and concluded that both appeals should be dismissed.

Solicitors: Crown Prosecution Service, Headquarters.
Crown Prosecution Service, Eastleigh.

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