Court of Appeal, Criminal Division

Published October 26, 2007

Regina v Chal

Before Lord Justice Toulson, Mr Justice Gibbs and Mr Justice Andrew Smith

Judgment October 5, 2007

The provisions concerning admissibility of hearsay evidence in a criminal trial applied to proceedings to determine whether a person under a disability did the act or made the omission in the offence with which he was charged.

The Court of Appeal, Criminal Division, so held when dismissing an appeal by Amolok Singh Chal against a finding made at Coventry Crown Court (Judge Eccles and a jury) on March 16, 2007, during proceedings under section 4A of the Criminal Procedure (Insanity) Act 1964, as inserted by section 2 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, that he did the act in the offence with which he was charged.

The accused had been charged with grevious bodily harm, contrary to section 18 of the Offences against the Person Act 1861, and found unfit to stand trial by reason of his disability.

Mr Andrew Baker, assigned by the Registrar of Criminal Appeals, for the accused; Mr Simon Phillips for the Crown.

LORD JUSTICE TOULSON, delivering the judgment of the court, said that the prosecution alleged that the defendant attacked the victim with a sledgehammer, and relied on a statement by an eye witness to that effect.

The witness did not attend trial and could not be located. The prosecution applied to admit his statement as hearsay evidence pursuant to section 116(2)(d) of the Criminal Justice Act 2003.

The accused sought to exclude it on the basis that the hearing was not a proceeding to which section 116 of the 2003 Act applied, as defined by section 134(1) of that Act as “criminal proceedings in relation to which the strict rules of evidence apply".

He relied on the ruling of the House of Lords in R v H ([2003] 1 WLR 411) that a jury trial under section 4A(2) of the 1964 Act did not constitute the determination of a criminal charge so as to engage article 6 of the European Convention on Human Rights, as it did not result in determination of criminal guilt or imposition of a penalty.

The judge, rejecting those submissions, held that the hearsay provisions did apply to the proceedings and admitted the statement.

His Lordship said that it was imperative that the same rules of evidence that applied to a criminal trial in the strict sense applied to section 4A proceedings. The issue of unfitness might be raised before or during the course of a trial.

If raised during the course of a trial, its determination was to be made on evidence already adduced and it could not be contemplated that different evidential rules would apply to evidence adduced before and after that determination of incapacity.

As the purpose of section 4A of the 1964 Act was to mirror as closely as possible the fact-finding process in a criminal trial, there was every reason why the court should not be limited to the common law rules of criminal evidence.

The judge had power to admit the statement on the basis that section 116 applied as a matter of statutory interpretation, or if it did not, on the basis that the court should adopt the same evidential rules as applied to criminal proceedings.

It was unnecessary to decide whether section 4A proceedings were “criminal proceedings” for one purpose but not another.

Solicitors: Crown Prosecution Service, Coventry

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