No: 20163960 C4 
Neutral Citation Number: [2016] EWCA Crim 1817
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Tuesday 8 November 2016

B e f o r e: 
LORD JUSTICE DAVIS 

MR JUSTICE GLOBE  

HIS HONOUR JUDGE TOPOLKSI QC 
(Sitting as a Judge of the CACD) 

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R E G I N A 

V 

TOMAS JUSKELIS

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Mr B Eaton appeared on behalf of the Appellant
Miss S Crane appeared on behalf of the Crown

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J U D G M E N T
1.	LORD JUSTICE DAVIS:  
Introduction 
2.	On 22nd July 2016 after a trial at the Crown Court at Blackfriars before a Recorder and a jury, the appellant was convicted of a count of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861.  He was acquitted on count 1 of the indictment which was a count of causing grievous bodily harm with intent.  In due course he was sentenced by the Recorder to a term of 18 months' imprisonment.  He appeals against his conviction by leave of the single judge.
3.	The appeal raises as its central point ‑ although other points are also raised ‑ a question of whether the written statement of a witness was properly held by the trial judge to be admissible in evidence by an application of the facts of the case to the provisions of section 116(2)(c) and/or (d) of the Criminal Justice Act 2003.  
Background facts 
4.	The background facts are these.  The appellant is a Lithuanian national.  In December 2015 he was remanded in custody for a driving offence and was placed in Her Majesty's Prison Pentonville.  He was put in a cell with the complainant, a man called Narutavicius.  He was on remand for an offence of causing grievous bodily harm, an offence for which Narutavicius was in fact subsequently convicted in January 2016 and sentenced to a term of 12 months' imprisonment.  It appears that Narutavicius had, for no obvious reason, attacked an elderly man on the street causing him nasty injuries.  He also was sentenced for two offences of criminal damage and one of assaulting a police officer.
5.	As for the appellant, he himself was convicted in January 2016 of driving whilst disqualified.  He was sentenced to nine weeks' imprisonment.  Although the appellant has previous convictions for minor theft and drink related matters, he has no previous convictions for offences of violence.
6.	At all events, the complainant and the appellant had shared a cell for a few days whilst in Pentonville Prison without trouble.  However, at lunchtime on 31st December 2015 there was a serious incident.  A prison officer was summoned by an alarm bell to the cell.  When he looked in he noticed that the floor was covered in blood.  The appellant was, according to the prison officer, standing calmly at the back of the cell.  The complainant then "came tumbling out" (in the words of the prison officer) of the cell lavatory.  The officer summoned more staff and the cell door was then opened.  The complainant appeared to be in a bad way, as it was said.  The appellant on the other hand was not observed to have any injuries.  The complainant said to the prison officer that he had been assaulted in the cell but the complainant was not fit enough to be interviewed at the time.  Subsequent agreed medical evidence showed the complainant to have had four facial fractures ‑ a fractured eye socket, a fracture to each cheek and a fracture at the top of the mouth.
7.	In due course, on 7th January 2016, the complainant made a statement.  Amongst other things he described how it was that he had come to share the cell with the appellant and that he had initially been pleased as they were both fellow Lithuanians.  According to the complainant, the appellant indicated that he was keen on kick boxing and regularly trained and practised whilst in the cell.  The complainant said that the appellant appeared obsessed with shadow boxing and fighting of that kind.  
8.	The complainant was to say that on the date in question he was sitting down at the table eating lunch when all of a sudden the appellant said something aggressive towards him.  The complainant said that he was puzzled by what the appellant was doing and continued to eat.  He then said this in his statement:  
"The table I was at was facing the wall so I couldn't see what Tomas was doing but knew he was stood up behind me.  I suddenly got punched in the side of the head by Tomas.  I started to feel dizzy and Tomas punched me several more times very quickly.  I think I must have passed out.  I was trying to block the punches by holding my head in my hands, but I blacked out and fell on the floor.  The next memory I have was waking up in the toilet near the corner.  I was really scared and could tell I was seriously injured as I had lumps all over my head and I was bleeding a lot.  I heard a prison officer at the door ... " 
The statement carried on to describe his memory of what thereafter happened.
9.	It would not be right to say that the evidence of the complainant was the sole evidence available to the prosecution.  There was also the evidence of the prison officer and the agreed medical evidence which of itself lent potentially very strong support to the prosecution case.  Nevertheless, only the complainant and the appellant could have known what had happened inside the cell.  Thus the evidence of the complainant, and his credibility and reliability, was central to the prosecution case.
10.	The appellant was arrested on 4th February 2016, just as he was about to be released from prison after serving the relevant part of his own sentence.  He was interviewed on that date.  In interview he was to say that he had acted in self‑defence.  He stated that the complainant had mental health issues, was known to be violent and had been behaving strangely towards the appellant and had said things such as he suffered from paranoia and schizophrenia.  He said that on the day in question the complainant had been argumentative and aggressive in the cell and then had attacked him with a plastic cutlery knife.  The appellant had then sought to defend himself by punching the complainant once and then restraining him when he went to the floor, before trapping him in the lavatory cubicle.  The appellant said that it was he who had pressed the alarm bell.  He insisted that he had hit the complainant only once.  He suggested, when the point was put to him, that the other injuries noted to the complainant may have occurred when the complainant fell to the floor or by striking cell fittings.  The appellant was charged that day with a section 18 offence and was further remanded in custody.
11.	What then happened was this.  On 26th February 2016 the complainant was served with a notice of deportation to Lithuania.  This was, it seems, not made known to the prosecution or the police at the time.  Certainly no mention was made of that point at the plea and trial preparation hearing held at Blackfriars Crown Court on 4th March 2016, when the trial was fixed to start in the week commencing 18th July 2016.  However, on 22nd March 2016 (that is to say, after the plea and trial preparation hearing) the complainant was deported to Lithuania.  At all events, on 12th April 2016 the officer in the case was informed by the prison that the complainant had been deported.  The defence was not informed of this however, although the Crown Prosecution Service was.
12.	There was then an amount of email communication between the officer in the case and the Home Office.  As we gather from Miss Crane, who appears for the Crown, it appears that by the end of May the Crown Prosecution Service was preparing a hearsay application with regard to the complainant's written statement.  But no letter of notice of intention to make such an application was given to the defence until that was done by letter served on the defence on 1st July 2016.  That letter enclosed an application notice dated 28th June 2016, together with witness statements of the complainant and of the officer in the case, DC De Asha, which was dated 8th June 2016.
13.	In his statement of 8th June 2016 the officer in the case set out the background and noted the discussions he had had with representatives of the Home Office and the details he had been given about the deportation of Mr Narutavicius.  The officer then said this:  
"When I interviewed Mr Narutavicius in HMP Pentonville he provided me with some contact details for him for when he was released.  The first was a mobile number.  I have rung this several times over the past couple of months.  It appears to be inactive and continually goes straight to the voicemail system.  I have left messages, but never had any response.  Mr Narutavicius also provided me with a home address of a cousin, who resides in Enfield.  I sent a letter to this address in mid‑April but had no reply.  I conducted some research into the address and it appears to be a house of multiple occupancy.  I discovered a phone number for someone linked to the address and spoke to him on 8th June 2016.  He gave his name as 'Alexandros' and said that he knew of Mr Narutavicius as he had lived in the property around a year or so ago.  Alexandros said Narutavicius's cousin lived at the property and may have forwarding details for him.  I was given a phone number for Mr Narutavicius's cousin.  The phone claims that it cannot take incoming calls.  I have sent a text message to the phone requesting that they call me.  I then sent a further letter, addressed to his cousin ... on 8th June 2016."
The Hearing below 
14.	It appears that the actual hearsay application notice was not in fact lodged with the court itself until the date of trial, that is to say 18th July 2016.  Miss Crane has frankly told us that she herself was not aware of the position and had attended court assuming that Mr Narutavicius was still in prison and may be giving evidence from prison over a video link, which of course could not have been the case.  In addition, a further statement was put in dated 18th July 2016 by DC De Asha setting out further details of the flight which had taken Mr Narutavicius back to Lithuania when he was deported.  
15.	It seems that nobody made any suggestion that there be at least a short adjournment to see if further enquiries could usefully be made.  The matter proceeded to argument as to whether or not the proposed hearsay evidence in the form of the claimant's statement should be admitted.
16.	In that context Mr Eaton, appearing then as he does now for the appellant, submitted to the Recorder that the application was made very much out of time and, as he submitted, was made much too late.  Mr Eaton opposed the extension of any time to serve the application notice, saying the delay was unexplained and inexplicable.  Mr Eaton in any event referred to the provisions of section 116(2)(c) and (d) which indeed was the statutory basis on which the Crown was seeking to admit this hearsay evidence.  He argued that the requirements of the statute were simply not satisfied in this case.  
17.	There was a hearing at which DC De Asha gave oral evidence.  We have not ourselves seen a transcript of his evidence.  It appears that much of the cross‑examination in fact related to what was said to be a further serious failure by the prosecution, notwithstanding repeated defence requests, to make full disclosure of the complainant's medical records, particularly those relating to his mental health history, or to have obtained from the complainant his consent in that regard.  It was also put that far more steps should have been taken either to stop the complainant's deportation, pending the present trial, or at all events to ascertain his future whereabouts.  Furthermore, no one had caused any actual visit to be made to the address in the United Kingdom which had been given.  Nor had any enquiries been made, for example of the Lithuanian Consulate or some other relevant medium, to seek to ascertain the whereabouts of the complainant in Lithuania after his deportation.  Such steps as had been taken were, overall, criticised as in effect cursory, superficial and inadequate.
18.	One point that Mr Eaton had sought to argue was that the evidence was not even sufficient to show that the complainant had indeed been deported and was now in Lithuania.  Mr Eaton has wisely not sought to pursue that point before us.  It is now accepted that the Recorder was fully entitled to proceed on the footing that the complainant had indeed been deported.
Discussion 
19.	The relevant, or potentially relevant, statutory provisions are to be found in section 114 and section 116 of the Criminal Justice Act 2003. In the relevant respects, those provide: 
"114 Admissibility of hearsay evidence
 (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—
 (a) any provision of this Chapter or any other statutory provision makes it admissible
 (b) any rule of law preserved by section 118 makes it admissible
 (c) all parties to the proceedings agree to it being admissible, or
 (d) the court is satisfied that it is in the interests of justice for it to be admissible.
 (2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
 (a)how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
 (b)what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
 (c)how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
 (d)the circumstances in which the statement was made;
 (e)how reliable the maker of the statement appears to be;
 (f)how reliable the evidence of the making of the statement appears to be;
 (g)whether oral evidence of the matter stated can be given and, if not, why it cannot;
 (h)the amount of difficulty involved in challenging the statement;
 (i)the extent to which that difficulty would be likely to prejudice the party facing it. 
... 
116  Cases where a witness is unavailable
 (1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
 (a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter
 (b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
 (c) any of the five conditions mentioned in subsection (2) is satisfied.
 (2) The conditions are—
 (a) that the relevant person is dead;
 (b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
 (c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
 (d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
 (e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence." 
20.	The most convenient starting point in cases of the present kind is now the authority of Riat [2013] 1 Cr.App.R 2.  That reviews the relevant previous authorities and sets out the relevant principles to be applied in a structured way.  No actual reference, however, is made by the Recorder in his lengthy ruling to the case of Riat.  In his ruling the Recorder at all events set out the background facts and duly referred to the provisions of section 114 and section 116.  Amongst other things, he found as a fact, as we have indicated, that the complainant had indeed been deported.  That being so, the focus of the enquiry was perhaps more obviously to be directed at section 116(2)(c) than section 116(2)(d).  Be that as it may, it is to be emphasised that the application notice issued by the Crown placed reliance solely on those two subsections.  No reliance was placed on an alternative basis, on section 114(1)(d).  
21.	The Recorder ruled that an extension of time for serving the notice was appropriately granted under the provisions of Rule 2015 of the Criminal Procedure Rules notwithstanding the non compliance with Rule 20.2  The Recorder shortly stated: 
"In my judgment and under my discretion there is not such unfairness caused by the late notice to such an extent that the defendant cannot have a fair trial."  
Although Mr Eaton remains critical of that ruling, saying that the delay had not been effectively explained, he acknowledged that the Recorder did have a discretion in this regard.
22.	Having so indicated, the Recorder then went on, perhaps rather puzzlingly, to "start with" section 114(2) of the 2003 Act.  That is puzzling just because the application notice was based solely on section 116(2)(c) and/or (d).  At all events, the Recorder made an appraisal of the matters set out in section 114(2) and concluded that the defence was in a position to challenge the written statement of the complainant.  Having done that, the Recorder then turned to the provisions of section 116(2)(c) and (d), although for some reason he linked that at that stage with reference also to section 78 of the Police and Criminal Evidence Act 1984.  
23.	The Recorder then reviewed DC De Asha's evidence about his discussions with the Home Office and attempted contact with the various numbers which had been given to him.  Among other things the Recorder said this:  
"In cross examination he accepted that he had not been to the address.  I think he said that he phone was a multiple address.  So the result of that is that he has not been able to locate the witness. In addition to that and a matter which causes me concern in terms of this judgment, is what has happened in terms of the officer's attempt to find out from the Lithuanian consulate or embassy, Lithuania being part of the European Union what information either from the consulate in this country or in Lithuania where the witness whether they have any information as to where the witness is.  Indeed I asked DC Daisha about that this morning and the answer from the officer was that he made no enquiry with the consulate here or in Lithuania.  It did not occur to him.  It was not a situation he had before nor he said 'did I have any guidance.'"  
24.	The Recorder then referred to Mr Eaton's submission that the defence could not do justice to the defence case in view of the absence of the complainant for oral examination, coupled also with the complaint about the lack of proper medical disclosure being given.  
25.	The Recorder then came to what he identified as the nub of his ruling towards the end of his decision.  He said this:  
"So I come to my ruling.  In terms of the sections which I have been through, I have concluded that first of all as I have already said, the fact that the application is made out of time is not one which causes me to rule that the statement should not go in.  I don't see anything in terms of section 114(2) which persuade me that it would be unfair for the statement to go in.  So far as section 116(2)(C) and (D) are concerned as indicated it is clear that he is outside the United Kingdom and in terms of what is perhaps the most important part of this judgment, namely that it is not reasonably practicable to secure his attendance and that such steps as reasonably practicable taken to find him have been taken, although it is seems to me regrettable and that more could have been done by the officer to ensure that there was some effort made to find out through the Lithuania consulates that he should have been here, the fact is that it seems to me that the failure of communication between the prison service, the Home Office, the police and the Crown Prosecution Service to establish that he was actually outside the United Kingdom because he was deported, do not persuade me that I should exclude the statement under (C) or (D) or indeed under section 78." 
26.	With all respect, this somewhat garbled passage seems to involve an unwarranted conflation of three separate points: whether the evidence was admissible under section 116(2)(c) and/or (d); whether it was admissible under section 114(1)(d); and whether, it if it was admissible, it should be excluded either under section 78 of the Police and Criminal Evidence Act 1984 (or, it may be, section 126 of the 2003 Act itself).  But, to repeat, the application was based solely on section 116(2)(c) and/or (d).  If the requirements of those subsections were not met by the prosecution, then the precondition for admission of the evidence was not there.  As Riat states at paragraph 15, the general principle underpinning section 116 is that the necessity to resort to secondhand evidence must be demonstrated.
27.	Further, as Riat itself also cautions, section 114(1)(d) cannot be used in itself routinely to avoid the statutory requirements of sections 116 to section 118: which is doubtless why the Crown had never sought to rely on section 114 at all in its application notice.  
28.	In our view, it was and is important to have regard to the context here.  The complainant was not a peripheral witness.  On the contrary, he was the central witness so far as the prosecution case was concerned.  Further, the appellant had been charged with a very serious offence ‑ an offence under section 18 with an alternative count under section 20.  
29.	So far as one can tell from the Recorder's ruling, he seems to have approached matters on the broad basis that the evidence could be admitted as a matter of fairness and justice, albeit that he, the Recorder, had a discretion to "exclude the statement" under section 116(2)(c) or (d) if not also under section 78.  But that is not the approach sanctioned under section 116.  
30.	Moreover, the Recorder's finding on the facts that "more could have been done by the officer in the case" was, we think, eminently justified.  Indeed, we do not think it fair simply to focus on what the officer in the case himself had done or not done.  No doubt he had done what he thought was his best.  But he himself admitted that he had not given thought to other matters and he seems to have been given little advice or guidance in circumstances of which he had had no previous experience, as he said.  In any event the Crown Prosecution Service had its own responsibilities, they being aware by now of the complainant's deportation.  So not only could more have been done but also, as the Recorder again found, there demonstrably had been a "failure of communication" between the prison service, the Home Office, the police and the Crown Prosecution Service.  It is clear overall that the complainant's movements had not been monitored as they should have been and there was a further unfortunate failure, when the deportation had been noted, to make any enquiries of the Lithuanian consulate or some other such source to seek to ascertain the whereabouts of the complainant in Lithuania.  Further, Lithuania being a member of the European Union it can be assumed that had he been located arrangements could have been made, if need be by video link, for the complainant to give his evidence orally at trial.
Conclusion 
31.	In those circumstances, and given the Recorder's own primary findings of fact, we consider that this appeal must be allowed.  We make clear that we do not do so simply because of the unfortunate and unsatisfactory delay in formulating and serving the hearsay application notice: although we would observe that had the hearsay application notice been served more promptly the need in truth to make further and better enquiries might well then have been appreciated.  But the fundamental point, as we see it, is that in the events which happened it had not been shown that the requirements of section 116(2)(c), or for that matter (2)(d), had been met.
32.	In those circumstances, we need not deal with Mr Eaton's further complaint about the alleged late or inadequate disclosure of relevant medical notes relating to the complainant's mental health: although Mr Eaton in any event did make the point that that failure was more generally indicative of an unacceptable degree of inactivity on the part of those prosecuting this case.  Nor in the circumstances need we deal with Mr Eaton's criticism of the Recorder's subsequent rejection of an application made under section 125 of the 2003 Act.  Since the basis of admitting the written statement of the complainant had not been made out under section 116(2) and since there was no other alternative application under section 114(1)(d), the evidence was, quite simply, wrongly admitted.  The conviction was thereby rendered unsafe.  Hence we allow this appeal.  
33.	Do you have any application, Miss Crane?  
34.	MISS CRANE:  No, my Lord. I am instructed not to make any further application.