Dovetailing and Disclosure – Exploring the Clarification of Hearsay Provisions in R v BOB, BYY, AEN, and BEK [2024] EWCA Crim 1494

Georgia-Mae Chung examines the Court of Appeal’s decision in R v BOB, BYY, AEN, and BEK [2024] EWCA Crim 1494. Members of Chambers, Sophie Evans and Abigail Penny acted for two of the four respondents.

Overview

This case concerned an appeal by the prosecution in a matter where two of their witnesses had died before trial. The Crown had applied to admit their witness statements into evidence through the hearsay provisions. However, the trial judge had ruled that they were inadmissible.

The Court of Appeal’s judgment involved the application of established principles to the facts of the case rather than any development of law. However, it produces welcome clarity regarding considerations of disclosure and the jury’s function in assessing the reliability of hearsay evidence. It does so through its reformulation of those established principles outlined in R v Riat [2012] EWCA Crim 1509; [2013] Cr. App. R. 2.

Relevant Provisions

The law on admissibility of hearsay is governed by the provisions of the Criminal Justice Act 2003, further developed by R v Horncastle [2009] UKSC 14; [2010] 1 Cr. App. R. 17.  

Horncastle assists with the principle that hearsay evidence may be admitted if it is either “demonstrably reliable” or its reliability is “capable of proper testing and assessment”. The court in Riat described this as two “paired expressions”. If evidence is demonstrably reliable, there is, unsurprisingly, less difficulty in considering its admissibility.

In contrast, the second of the paired expressions often necessitates the application of a more complex exercise. If the judge rules that the evidence is nevertheless capable of proper testing and assessment, then that testing and assessment will be a function of the jury.

Section 124(2) of the 2003 act facilitates this testing and assessment by enabling evidence which tends to undermine the reliability of a hearsay statement to be adduced before the jury. This is described in Riat as “independent dovetailing evidence”:

124 Credibility

(1) This section applies if in criminal proceedings—

(a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and

(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.

(2) In such a case—

(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;

(b) evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party;

(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.

(3) If as a result of evidence admitted under this section an allegation is made against the maker of a statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.

(4) In the case of a statement in a document which is admitted as evidence under section 117 each person who, in order for the statement to be admissible, must have supplied or received the information concerned or created or received the document or part concerned is to be treated as the maker of the statement for the purposes of subsections (1) to (3) above.

Riat provides “practical guidance” that acts to flesh out this and other considerations involved in deciding the outcome of applications relating to hearsay. This guidance is in the form of six steps that were outlined by Hughes LJ as follows:

“The statutory framework provided for hearsay evidence by the CJA 2003 can usefully be considered in these successive steps:

i) is there a specific statutory justification (or “gateway”) permitting the admission of hearsay evidence (ss.116–118)?

ii) what material is there which can help to test or assess the hearsay (s.124)?

iii) is there a specific “interests of justice” test at the admissibility stage?

iv) if there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s.114(1)(d))?

v) even if prima facie admissible, ought the evidence to be ruled inadmissible (s.78 of the Police and Criminal Evidence Act 1984 (PACE) and/or s.126 of the CJA 2003)?

vi) if the evidence is admitted, then should the case subsequently be stopped under s.125?”

Riat also refers to the importance of disclosure in cases involving a hearsay application, particularly where the evidence is not “demonstrably reliable”. Hughes LJ explained that a hearsay application where the evidence is important requires that “very full enquiries have been made as to the witness’ credibility and all relevant material disclosed”.

Circumstances of the Case

The appeal concerned the witness statements of two prosecution witnesses, both of whom had died before the commencement of the trial. The witnesses had initially alleged that the defendants had burst into their home and attacked them with knives. Three defendants had denied participation and the fourth, whose DNA had been found on a knife, had said that he was acting under duress.

There were, however, a number of elements that were not disputed. It was agreed that an attack of that type had taken place. It was not disputed that the defendants had travelled from London a few days earlier and had been staying in the witnesses’ flat. Video recordings also supported this. Additionally, there was evidence that the defendants had dealt drugs from the. There was also strong evidence that the two witnesses were drug users.

In witness 2’s last statement before his death, made when witness 1 had already died, his account changed significantly, and he stated that they had both allowed the defendants to carry out drug dealing within their house.

The trial judge made the decision not to admit their evidence and a significant reason for this was a change in their account as to potential motives of the defendants.

His reasons for doing so related to steps 2 (relating to section 124 of the 2003 Act) and 5 (referring to section 78 or 126) of the Riat test:

“Overall, I have come to the view that their reliability cannot be safely assessed, and for that reason I am not persuaded, at step two, that I should admit the statements. “If I’m wrong about my assessment of step two then for the similar reasons that I have already given I would refuse admission of the statements either under section 78 or under section 126 of the Criminal Justice Act 2003 at step five in the test.”

The Crown had failed to comply with its disclosure duties to the extent that the Court of Appeal described its efforts as “nugatory”. The first accounts of the two witnesses concerned had been recorded on body worn video. However, they had not formed part of the prosecution case. There was also no evidence before the court about the circumstances in which the final statement of witness 2 had been made.

The Ruling

The Court of Appeal ruled in favour of the Crown and allowed the appeal, deciding that “the critical flaw in the decision of the trial judge in this case was his failure to take properly into account the fact that the contents of the statements of the two witnesses […] were largely agreed by the defence and were supported in most respects by very strong independent supporting or dovetailing evidence.” Consequently, he had erred in rendering the evidence inadmissible through the application of the Riat steps. The judge had been able to address the flaws in the statements which allowed their reliability to be tested and assessed. This must then have been suitable to be left to the jury.

Instead, he had excluded the evidence based on the alternative information that witness 2 had given in his last statement regarding the possible motive of the defendants. This material could have undermined the witnesses’ credibility and was inconsistent. But the Court of Appeal pointed out that, if this were invariably used as a reason for excluding the statement, it would render the consideration of section 124 unnecessary.  The court also considered that the final account of witness 2 could have been perceived by the jury as being the one that is more likely to be honest, given the unattractive nature of the context that was being accepted by him. It did not necessarily follow that the inconsistency led to a conclusion of unreliability.

The judge had also given no good reason as to why the evidence should be excluded by step 5. If he had already decided that the evidence did not make it past step 2, he had erred in bringing step 5 into play at all.

Furthermore, the judge was not assisted in his decision by the consideration of the material, such as the witnesses’ first accounts and the body worn footage, that was not disclosed. Some of the accounts had been volunteered very soon after the events, indicating spontaneity that could have gone towards supporting reliability. There had also been inadequate disclosure regarding the circumstances in which the last account of witness 2 had been given.

The court noted that, overall, the trial judge did not appear to have explored the issue of proper disclosure in making his decision. They highlighted the absence of this in the Riat steps and accordingly considered a reformulation of those steps, adding a specific step for consideration of disclosure, and expanding on steps 3 and 7:

“The statutory framework provided for hearsay evidence by the CJA 2003 can usefully be considered in these successive steps:

1. is the court satisfied that the prosecution has adduced all relevant evidence, and disclosed all relevant unused material to enable the court to assess the extent to which the hearsay evidence is demonstrably reliable and, if not, the extent to which it can be safely assessed and tested? If not, should the court simply refuse the application or do the interests of justice require directions for a proper disclosure process?

2. is there a specific statutory justification (or “gateway”) permitting the admission of hearsay evidence (ss.116–118)?

3. what material is there which can help to test or assess the hearsay? This may be undermining evidence admitted under s.124, or other inconsistent evidence and it may also be independent dovetailing or supporting evidence. The court is required to make a judgment on the basis of all the evidence, having regard to the issues in the case and the importance of the hearsay to those issues.

4. is there a specific “interests of justice” test at the admissibility stage?

5. if there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s.114(1)(d))?

6. even if admissible, ought the evidence to be ruled inadmissible (s.78 of the Police and Criminal Evidence Act 1984 (PACE) and/or s.126 of the CJA 2003)?

7. if the evidence is admitted, then should the case subsequently be stopped under s.125? This safeguard should be considered in all cases where it applies, at the initiative of the court if the parties do not raise it. It will generally be best determined at the conclusion of all the evidence. This is reinforced by the fact that this is the stage when the judge is likely to have drafted legal directions and to be consulting counsel about them. In a case of this kind, where the prosecution seeks to prove an important and disputed fact by relying on hearsay, the judge is required to give a careful and tailored direction to assist the jury in deciding whether they can safely rely on the hearsay or not. Its sufficiency will be relevant to the safety of any resulting conviction and it will be helpful for the judge to have regard to it when carrying out the assessment required by section 125.”

Conclusion

BOB and Others affirms the Criminal Courts’ increasingly accommodating attitude towards the admission of prosecution hearsay evidence. But its guidance is helpful from a practical perspective, offering further clarification as to the importance of comprehensive disclosure as the first hurdle.