Case No: 201102783 B1
Neutral Citation Number: [2011] EWCA Crim 2341
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT HARROW
MR RECORDER WEST
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 20/10/2011
Before :

LORD JUSTICE STANLEY BURNTON
MR JUSTICE SPENCER
and
THE HONORARY RECORDER OF MANCHESTER
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Between :

	M	Appellant	
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	THE QUEEN	Respondent	

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Michael Attenborough for the Appellant 
Serena Gates (instructed by the CPS) for the Respondent 

Hearing date : 6 October 2011
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Judgment

Lord Justice Stanley Burnton : 
Introduction 
1.	On 8th April 2011 in the Crown Court at Harrow before Mr. Recorder West and a jury the appellant was convicted of assault occasioning actual bodily harm. On 23rd May 2011 he was sentenced to a suspended sentence order of 30 weeks imprisonment suspended for 24 months with an unpaid work requirement of 180 hours and a requirement that the appellant refrain from participating in contacting or approaching the complainant or going within half a mile of any address it is believed she may be residing for 2 years.   
2.	He appealed against his conviction with leave of the single judge, on the ground that hearsay evidence of the complainant, the victim of the alleged assault, should not have been allowed to be adduced in evidence. Having heard the submissions of counsel, we allowed his appeal and quashed the conviction. We said that we should give our reasons in writing, and we now do so.
The facts in issue in summary
3.	The appellant and the complainant had been involved in a relationship in the earlier part of 2010.  On 15 November 2010, she was 6 months pregnant with the appellant’s child. The prosecution case was that at about 9 am on that day the appellant arrived at the complainant’s address, kicked the door in and shouted at her about her having an abortion, before he assaulted her causing injury to her inner lip, face and arm. After he left, she made a 999 call to the police, which was recorded. Later that day she made a witness statement on the same day describing the alleged assault.
4.	In January 2011 the complainant made a further witness statement, in which she reaffirmed the contents of her original statement, but said that she wished to withdraw her allegation “because I want to put this matter behind me. I have moved away with my family. The main reason for my withdrawing from this case is that I am concerned for Mr M’s children, should he be given a custodial sentence. I don’t want to break his family up or cause problems for his children, as he’s the only carer for his son with whom he lives. He is also responsible for his other children. I don’t want them deprived of a father.”
5.	The defence case was that the appellant had been invited by the complainant to her address to discuss her pregnancy, an arrangement that had been made that morning by telephone conversations and text message. She had allowed him into the flat, where they had argued.  As the appellant tried to leave, she had grabbed his collar and turned him around.  She remonstrated with him, waving her arms about.  He told her to calm down and restrained her arms before placing her on her bed.  He had not assaulted her or caused her injuries.
The hearsay application
6.	Prior to the start of the Crown’s case the prosecution applied for the recording of the 999 call and the complainant’s statements to be adduced as hearsay evidence. The application was made on three bases: under section 116(1)(d)  of the Criminal Justice Act 2003, under section 114(1)(d) of that Act , in relation to the 999 call  only, as res gestae.  
7.	In relation to section 116(1)(d), the Recorder found that the prosecution’s attempts to locate the complainant had fallen well below what was to be considered reasonable. Accordingly, the application made under that paragraph failed. In fact, no request had been made to her to attend the trial had been made until after the trial had started. No attempts had been made to persuade her to change her mind. 
8.	In relation to the application made under s.114, the Recorder reminded himself of the wording of the provision and considered each of the relevant factors.  He considered that the 999 call did have a high probative value and that it was in the interests of justice that this be admitted as evidence. The Recorder considered the potential unfairness to the appellant should the call be admitted.  The evidence was consistent with that given by a police officer who attended the scene and described the demeanour of the complainant.  It the 999 call provided was reliable and credible evidence.  Oral evidence could not be given as the complainant could not be found and had refused to come to Court, although the Recorder bore in mind that not all reasonable steps had been taken to find her.  However, even if these steps had been taken it was unlikely that she would have been persuaded to give evidence in view of the fear she had expressed about doing so.  Any application made under s.116 (1)(e) Criminal Justice Act (witness refusing to give evidence through fear) would have a reasonable chance of success had the complainant been at Court and refused to give evidence through fear.  The Recorder further considered the difficulty faced by the appellant in not being able to cross-examine the complainant, however, the appellant could cross-examine the police officer in regards to the damage and injuries observed by the officer and would also be able to give evidence himself.  The appellant’s interview had demonstrated that he was an articulate man, able to give a coherent and chronological version of the incident.  Weighing up all the factors the Recorder was satisfied that the 999 call and the complainant’s statement should be admitted under s.114 Criminal Justice Act 2003.  There was no need to consider the issue of res gestae in light of that ruling.
The parties’ submissions
9.	For the appellant, it was submitted that this was a case in which the requirements of section 116 had been circumvented. It could not have been right to allow in hearsay evidence under section 114(1)(d) in circumstances where proper conduct on the part of the prosecution could have led to the live evidence of the complainant being put before the jury. 
10.	For the prosecution, it was submitted that the Recorder had been entitled to allow in the evidence for the reasons he had given. He had carefully considered the matters required to be considered under section 114(2) and had reached a decision with which this Court should not interfere.
Discussion
11.	In R v Z [2009] EWCA Crim 20; [2009] 1 Cr. App. R. 34 this Court, differently constituted, considered the relationship between section 114 and section 116. At paragraph 20, the Court said:
“In our judgment, s.114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in s.116 would be circumvented.”
12.	In our judgment, this is a case in which the conditions laid down by Parliament in section 116, which have been imposed to ensure the fairness of the trial, were circumvented. It was a case in which the live evidence of the complainant could have been available at the trial. It follows from the Recorder’s finding to which we have referred that if reasonable steps had been taken, she could in all probability have been located and a witness summons issued and served. There was no reason to believe that the complainant would not have complied with a witness summons.
13.	Thus the important factor set out in section 114(2)(g) should have led to the response that the oral evidence of the complainant could have been given, and if it was unavailable that was through the failure of the prosecution to take reasonable steps to secure the attendance of the complainant. 
14.	The judge did refer to this factor. He said:
“I also have to consider whether oral evidence could be given and if not, why not. It could not be given in this case because the witness had refused to come to court and could not be traced, although I do bear in mind that all reasonable steps have been taken on as I had earlier said. But I have grave doubts that, even if those steps had been taken, the witness would, in fact, have been persuaded to attend court. It is likely, in my view, in view of the fear expressed by her of the witness the fear expressed by her that the matter would have been followed by an application to put in some cases, under section 116 (1)(e) 'That she was in fear '. ”
15.	There is some confusion in this passage. There was no evidence that the complainant could not be traced: the implication of the finding that no reasonable steps had been taken to trace her was that she could have been traced. In stating that she would in any event have refused to give evidence through fear of the appellant the judge was speculating. That was not the reason for the complainant not wishing to testify given by her in her second statement. We do not think it was open to the judge to take her possible fear into account in circumstances in which the prosecution had adduced no evidence for the purposes of section 116(1)(e) and had not sought to rely on that paragraph.
16.	It was also necessary for the judge to consider paragraph (c) of section 114(2). The evidence in question could not have been more important in the context of the case as a whole. Without it the prosecution could not continue. It was virtually the entirety of the prosecution case. Only in rare circumstances, if any, can it be right to allow evidence of this importance to be adduced when there has been a failure to take reasonable steps to secure the attendance of the witness. There was no justification for it to be admitted in the present case.
17.	In Z, the Court said:
“25. The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under s.114(1)(d). It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made. The court will be more willing to interfere with his decision if he has not taken into account, or has not shown that he took into account, relevant matters listed in subs.(2).”
18.	In our judgment, the judge failed to place proper weight on the matter listed in section 114(c) and his consideration of the factor in paragraph (g) was flawed. We also consider that the decision to admit the hearsay in the circumstances as they were when the prosecution made the application was one that could not sensibly have been made.
19.	We gave the prosecution leave for a retrial. Nothing in this judgment should be taken to suggest that in the event of a retrial, if the complainant is called to give oral evidence, her 999 call and her witness statements would be inadmissible.