Neutral Citation Number: [2016] EWCA Crim 1913
No: 201502719 C2; 201503710 C2 
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:

THE VICE PRESIDENT OF THE COURT OF APPEAL CRIMINAL DIVISION 
(LADY JUSTICE HALLETT DBE) 

MR JUSTICE WILKIE 
 
MR JUSTICE LAVENDER 
 
R E G I N A 

v 

CHUDI HENGARI‑AJUFO
RONNIE MALBA ATUGIYA 

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Mr D Bentley QC appeared on behalf of the Appellant Hengari‑Ajufo
Ms T J Ayling QC appeared on behalf of the Appellant Atugiya 
Mr C Aylett QC appeared on behalf of the Crown 
 
J U D G M E N T 
(Approved) 
Crown copyright© 

1.	THE VICE PRESIDENT: 
2.	Introduction 
3.	 On 18 May 2015 at the Central Criminal Court before His Honour Judge Cooke QC, the two appellants were convicted of the offence of murder by a majority of eleven to one.  They appeal against conviction with leave on three issues: (i) the judge's ruling that the prosecution could treat an eyewitness, Jahreal Wright, as hostile; (ii) the judge’s ruling that the prosecution could adduce the hearsay evidence of two witnesses to whom the eyewitness allegedly described the murder; (iii) the judge's directions on the hearsay evidence. 
4.	Facts
5.	A young man, David Maxwell, only 18, was stabbed twice on 31 October 2014 in Pilgrimage Street, London.  Eyewitnesses describe two groups, consisting of two males in each group, arguing.  As Mr Maxwell walked away, an attacker stabbed him in the back between the shoulder blades.  Mr Maxwell stumbled towards a convenience store asking for an ambulance.  One of the wounds had penetrated his heart and he was pronounced dead at the scene. His friend Jahreal Wright was with him at the time of the stabbing but he fled shortly afterwards, taking with him Mr Maxwell's mobile phone and bag.  Mr Maxwell's attackers also made good their escape.  
6.	The prosecution relied on a number of categories of evidence.
i.	7.	  There was evidence of an earlier dispute between Hengari‑Ajufo and Mr Maxwell.
ii.	8.	CCTV evidence showed two men dressed in similar fashion to the appellants following the deceased and Wright through the streets. At 14.12, Mr Maxwell walked out onto Borough Road where he met up with Wright.  He and Wright were followed at a distance by three males.  At 14.23 CCTV footage showed two men, said to be the appellants, 200 metres from the scene.  The stabbing occurred at 14.25.  At 14.26 the same two men were seen on CCTV moving from the scene.
iii.	9.	Cell site evidence established that at 14.24, within seven seconds of each other, Hengari‑Ajufo's phone and Mr Maxwell’s phone ‘pinged’ off the same mast. 
iv.	10.	Soon after the stabbing, Hengari‑Ajufo left for Bristol, telling a friend that he was wanted in London.  
v.	11.	   Clothing seized from Atugiya's house was similar to that depicted on one of the figures in the CCTV footage.  The clothing was damp to the touch as if it had been washed.
vi.	12.	Examination of CCTV at Southwark tube station showed that on 31 October at 17.54 a person wearing similar clothing to that seen on the CCTV footage purchased a travel card. The card was attributed to Atugiya and found in his bedroom.
13.	Jahreal Wright
14.	Emily Skien, who was the deceased's girlfriend, saw Jahreal Wright at the deceased's flat after the stabbing. He told her that Mr Maxwell had been stabbed and was on his way to hospital.  She asked Mr Wright where the deceased's bag was, but he did not reply.  
15.	Kerry Maxwell, one of Mr Maxwell's sisters, discovered that Jahreal Wright had been with her brother when he was attacked, so she rang him.  He told her that he knew who had killed her brother but he would not tell her over the telephone, and they arranged to meet at the Elephant and Castle.  Miss Maxwell took her sister, Sirma, and her cousin, Sasha Maxwell, to the meeting.  
16.	Jahreal Wright told the three young women that he had seen what had happened.  According to Kerry and Sasha Maxwell, he said David saw two boys coming around the corner.  One was "Tudgy" or "Chaddy" or "Chudi".  Hengari‑Ajufo was known as "Chudi" or "Chuds".  The other was called "Billz".  Atugiya was known as "Billz".  Mr Wright believed that Chuds, lived in Mint Street.  Hengari‑Ajufo did not live in Mint Street but he lived close by.  Wright recognised one of them, Chuds, as someone with whom the deceased had had a problem in the past.  As they got closer, he noticed that the smaller one, Billz, had two knives.  Billz stabbed the deceased in the back.  Wright went into a nearby store to fetch a friend called Royston, for whom they had been waiting.  When he came out of the shop the deceased was lying on the floor.  An ambulance had been called, so he took the deceased's bag and phone and fled.  He said he was concerned about breaching his bail conditions.
17.	Sirma made a statement to similar effect as her sister and cousin, although she believed that Wright said that Chuds was the stabber.  She added that on another occasion, which was the ninth night observation of Mr Maxwell's death, Wright was shown a photo of Ronnie Atugiya and he said the other man did the stabbing.  
18.	Jahreal Wright was traced and arrested for attempting to pervert the course of justice.  He was interviewed under caution and made no comment.  He refused to make a witness statement.  On 16 December 2014, he was taken before the Bromley Magistrates' Court.  Having affirmed, he answered a number of questions about the stabbing.  He stated that the deceased was his best friend.  On the morning in question they had met up close to his home in Southwark.  He, Wright, had to attend the magistrates' court.  From there they went to Oxford Street and then to Elephant and Castle. Mr Maxwell briefly returned home at Gateway Housing.  They made their way to Tabard Gardens where Wright had arranged to meet a boy called Royston.  He was not aware of anyone following.  They arrived at the Pilgrimage Street entrance to the gardens.  Mr Maxwell called or sent a text messages to Royston to tell them they had arrived.  Wright and Mr Maxwell waited on a nearby car.  Wright got off the car and went to a convenience store.  As he was walking towards the store he heard Mr Maxwell scream and shout for an ambulance.  At this point Mr Maxwell was five to six car‑lengths away from him.  He ran back and saw the deceased staggering and holding one hand to his chest and the other to his side.  He turned back and ran towards the store.  He saw Royston.  He ran into the store and picked up a glass bottle; he left the store and dropped the bottle. The deceased was leaning against a car.  He insisted he had not seen anything of the incident having turned when he heard the scream.
19.	The following day Wright spoke to Kerry, Mr Maxwell's sister, and to a cousin whose name he did not know.  He claimed he just happened to bump into them walking through Elephant and Castle.  He told them the deceased had died, what he and the deceased had been doing earlier in the day and where he was killed.  He did not tell them anything else.
20.	Applications and Rulings 
21.	Mr Crispin Aylett QC prosecution indicated an intention to summon Wright to court to give evidence and, if necessary, an intention to apply to call evidence from the Maxwells as to what Wright had told them.  On 30 April 2015 Mr Aylett applied for a witness summons requiring Wright to attend.  Wright eventually appeared on 7 May 2015.  He was granted legal representation, and a witness statement was prepared in these terms:
"On 16 December 2014, I gave a sworn deposition before District Judge Ede at the Bromley Magistrates' Court.  I believed by giving this deposition, I would not have to give evidence as a witness at any subsequent trial.  I stick by the details provided in this deposition, I do not wish to change anything in there.  I do not wish to give live evidence in court as I have already given my account on 16 December 2014.  I feel as if I am being forced against my will to give evidence.  I don't wish to have any more involvement in this matter.  I apologise if I have caused any inconvenience or delay.  I never had this intention."
22.	Nonetheless, Mr Aylett decided to call Wright.  He appreciated there were a number of possible outcomes: 
(i)	23.	Wright would give evidence in accordance with his deposition; 
(ii)	24.	Wright would give evidence in accordance with what he allegedly told Kerry and Sasha Maxwell; 
(iii)	25.	Wright would give evidence in such a way as to exculpate either or both defendants; 
(iv)	26.	Wright would refuse to co‑operate.  
27.	Wright was sworn.  He declared that he had made a deposition, he adopted that deposition and did not want to add anything.  He refused to answer any questions from the prosecution.  Mr Aylett then applied to treat Wright as hostile. Despite opposition from Mr Bentley QC and Ms Ayling QC for the defence, the judge ruled that Wright could be treated as hostile.  
28.	Wright was questioned about his deposition by the Crown and simply stood by it.  At that stage Mr Aylett was not permitted to ask about the conversation with the Maxwells.  There was no cross‑examination by the defence.
29.	The judge heard submissions about the admissibility of the evidence of the Maxells. In a long, detailed and careful ruling the judge addressed all the factors in section 114 (2) to which a judge must have regard in deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d) in turn. He found as follows. 
30.	(a) The probative value of the hearsay was significant, both in understanding other evidence in the case and in the widest sense. 
31.	(b) There was other evidence in relation to the matter in issue namely presence at the scene and the defendants could, if they wish, give evidence about it themselves.  
32.	(c) The evidence was of high importance. 
33.	(d) The statements were made the day after the killing to bereaved members of the deceased's family and there was no reason for Wright to lie to them. 
34.	(e) Jahreal Wright’s reliability should be judged by the context of his remarks and not determined solely by his general background, his character and his behaviour at trial.  
35.	(f) The evidence appeared reliable. The meeting was admitted. Wright’s account to the Maxwells was supported by objective evidence (for example the CCTV footage, the observation of others and cell site analysis and there was no reason to distrust the Maxwells. They corroborated each other and had informed the police promptly of the meeting.  
36.	(g) Wright had remained mute and so he could not give oral evidence but the judge was satisfied that Wright was frightened to tell the truth.  His best friend had been murdered in his presence.  He may have had no fear of the court or the legal process, but the judge was satisfied he had a fear of the consequences should he be labelled "a grass or a snitch".
37.	(h) The judge accepted it would be difficult for the defence to challenge the evidence, given the obvious credibility of Kerry and Sasha Maxwell, but observed it would be a strange state of affairs if, when hearsay is reported by a highly credible witness, inadmissibility might follow, whereas the reverse proposition would lead to the admission of material of doubtful origin.  He concluded that, despite any difficulties in challenging the evidence, they were not insurmountable.
38.	(i) The defendants were well placed to challenge the statements by conventional routes for example by evidence as to Wright's behaviour, his character, his inconsistency and his conduct. 
39.	Accordingly, the judge concluded that the hearsay evidence from Kerry and Sasha Maxwell was admissible pursuant to section 114(1)(d) of the Criminal Justice Act 2003 in that it was in the interests of justice for it to be admitted. Kerry and Sasha Maxwell gave evidence as to the meeting and what Wright had told them.  Neither was cross‑examined.  Sirma was made available as a witness but she was not required by the defence.  
Wright was recalled but declined to answer any questions from the prosecution on what he was alleged to have said to the girls. There were no questions from the defence. 
40.	Grounds of appeal
41.	As we have indicated, the grounds advanced by Mr Bentley QC and Ms Ayling QC are threefold.  The only differences between them were differences of emphasis.
42.	Ground 1 
43.	First the judge was wrong to rule that Wright was a hostile witness. At the start of the trial Wright was not a witness for the Crown as such and not one upon whom the prosecution relied.  He had been arrested for perverting the course of justice in the same case and he had given a "no comment" interview and been released. All the Crown could say was that he was present at the scene as evidenced by the CCTV material and his own deposition.  In that deposition, he had stated in the clearest possible terms that he had seen nothing.  The Crown may not have believed him, but that was all they had.  
44.	The appellants maintain that the Crown has a duty only to call witnesses who are truthful and reliable.  Wright was neither. The Crown should not have put him in the witness box simply to see what happens.  Having done so, when Wright had adopted his deposition, that should have been the end of the matter. There was nothing to suggest he was in fear other than the fear of self‑incrimination for drug dealing, and that in itself would not be sufficient to support a finding of fear for these purposes.  The Crown knew Wright's character before they called him and before they made the application to treat him as hostile.  He had been arrested a number of times for a variety of offences, including perverting the course of justice, perjury, possession with intent to supply, burglary, going equipped for theft and shoplifting.  He could not be described as hostile because he had made no formal previous inconsistent statement.  There was no point in seeking to declare him hostile because there was nothing upon which the Crown could cross‑examine.
45.	The judge was also criticised for appearing to place too much reliance on Wright’s demeanour in the witness box as opposed to the context of the application and the evidence given.  The judge said this:
"I should judge hostility having regards to the background circumstances, but giving perhaps priority and certainly centrality to the demeanour of the witness before the jury.  Looking at that demeanour, and I have had every opportunity to see it, I am satisfied that this is a hostile witness."
46.	Mr Bentley and Ms Ayling sought to persuade us that the issue of hostility should be judged not by the demeanour but rather by the extent to which a witness resiles from an account previously given. 
Ground 2 
47.	The judge was wrong to allow the hearsay evidence of what Wright said to the Maxwells to be admitted. The appellants placed reliance upon the decision in R v Riat [2013] 1 Cr App R 2 and the general principle enunciated in Riat that the common law prohibition on the admission of hearsay remains the default position notwithstanding the provisions of the Criminal Justice Act 2003.  Specific reliance was placed on paragraphs 7, 8, 20, and 25: 
"7. 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 section 125?
8. Although there is no rule to the effect that where the hearsay evidence is the 'sole or decisive' evidence in the case it can never be admitted, the importance of the evidence to the case against the accused is central to these various decisions."
...
		
20. Section 114(1)(d) contains a general residual power to admit hearsay evidence which does not otherwise pass a statutory gateway, if the judge is satisfied that it is in the interests of justice for it to be admitted. If this gateway is invoked, the judge is specifically directed to have regard to the (non‑exhaustive) considerations set out in s 114(2). There have been several cases on this gateway which it is not appropriate to review here. We observe only that it must not become a route by which all or any hearsay evidence is routinely admitted without proper scrutiny. That would be to subvert the express provisions which follow in ss 116‑118. This court emphasised in R v D (E) [2010] EWCA Crim 1213 that s 114(1)(d) cannot be used routinely to avoid the statutory conditions for the admission of evidence which properly falls to be considered under ss 116‑118.
...
25. Whichever is the statutory power under consideration, it is clear that hearsay must not simply be 'nodded through'. A focussed decision must be made whether it is to be admitted or not. This does not, for the reasons which we have given at [4]‑[5], above, involve a pre‑condition that the hearsay be shown independently to be accurate. But it does involve a careful assessment of: (i) the importance of the evidence to the case; (ii) the risks of unreliability; and (iii) whether the reliability of the absent witness can safely be tested and assessed. It follows that considerations such as the circumstances of the making of the hearsay statement, the interest or disinterest of the maker, the existence of supporting evidence, what is known about the reliability of the maker and the means of testing such reliability are all directly material at this point, as is any other relevant circumstance.
48.	Applying those principles, this is evidence that should not have been admitted for a number of reasons, in particular because it was highly prejudicial and Jahreal Wright was inherently unreliable.  He may well have had a motive for casting suspicion on others and to divert attention away from his own criminal conduct.  A number of matters indicated Wright's general unreliability: the way he left his dying friend, taking Mr Maxwell's bags with him; the fact that, rather than tell the authorities what he had seen, he met up with Kerry and Sasha Maxwell; and the fact that he claimed that Billz and Chuds were responsible but did not and could not say how he knew them. Neither of them lived in Mint Street as he claimed.
49.	What he told the Maxwells was at worst an inadequate case of identification and at best a case of recognition with all the inherent dangers of identification. One of the witnesses had described the taller man having his hood tightly done up so that he was effectively disguised.  It was for that reason that the police decided not to carry out identification procedures in Hengari‑Ajufo's case.  Because Wright was uncooperative and denied seeing anyone, defence counsel were unable properly to challenge Wright’s purported identification and the jury was unable properly to assess the quality of the identification.
50.	Further, counsel challenged the basis for the judge's finding that the witness was in fear, saying that it was far more likely that Wright was simply concerned about the consequences to him if anyone asked him about his own criminal conduct.  
51.	Knowing that Mr Aylett placed reliance on the decision in R v Saunders [2012] EWCA Crim 1185, Mr Bentley and Ms Ayling sought to distinguish it on its facts.  The appellant Saunders was alleged to have stabbed the victim to death.  There was evidence from a woman, JB, who had been present at the time of the stabbing.  Although she told the police she had not seen what happened, she told WR and BD, that she had seen the stabbing and that the stabber was the appellant, whom she knew.  The judge allowed the prosecution to call WR and BD provided they called JB to give evidence.  JB continued to say she had not seen what happened. 
52.	The judge's ruling was upheld. JB had not come within the fear provisions of section 116(2)(e) because she had been willing to give evidence, but she was nonetheless afraid of the consequences of incriminating the appellant and it had been appropriate therefore for the judge to rely on 114(1)(d). it was in the interests of justice to admit the evidence albeit the court emphasised at paragraph 34 the need to apply section 114(1)(d) with “a great deal of caution and circumspection”.  We were also invited to note the factual differences between this case and Saunders.  JB was in a state of some fear, undoubtedly knew the appellant, there was an admissible and dying declaration implicating the appellant and there was nothing to undermine the reliability of the evidence.  
53.	In this case it is said that the judge’s ruling put the defence in an impossible position.  The appellants were not present at the conversation; they had no knowledge of it.  Counsel could not challenge it. Therefore, the jury heard unchallenged and damning evidence from the deceased’s family about what Wright had said to them when Wright himself had given a deposition in contradictory terms.
54.	Ms Ayling maintained that had the judge exercised the proper degree of care and scrutiny in his analysis of the provisions of section 114(2), the defence would not have been put in this position. 
Ground 3
55.	Ms Ayling also suggested that in his summing up the judge performed something of a volte face.  He gave the jury what was described as a "health warning" on how to approach the evidence coming from Wright, he described Wright's evidence at trial as "valueless", and Wright himself as a witness completely lacking in integrity. He directed the jury to treat the evidence from Miss Kerry Maxwell and Miss Sasha Maxwell with the utmost caution.  Although Wright was potentially well placed to give them an accurate account, he had given inconsistent accounts.  He directed the jury that it was his view they should hear from  Kerry and Sasha Maxwell but added:
"[...] no one would hang the proverbial cat on the basis of the evidence of Jahreal Wright, however bona fide persons are reporting it; you understand?  Why take this approach?  Because of the absence of consistency and integrity in relation to Jahreal Wright and how he has behaved; the fact that his attitude prevented any meaningful testing of what he said and the basis for what Kerry Maxwell and Sasha Maxwell told you he told them.  He could not be asked ‑‑ in so far as he apparently said that he recognised someone, he could not be asked, 'Well, how well did you know them,' all the questions you would want to ask because he would not answer questions.  Asking you to decide this case without knowing what Wright had said and done would be wrong, but using material other than in the limited manner that I have explained would likewise be wrong."
56.	If this passage reflected the judge's consideration of the reliability of the evidence, counsel argued the evidence should not have been admitted. It should have been excluded as having an unfair and unduly prejudicial impact on the fairness of the trial.
Conclusions
57.	We are indebted to all three counsel for their helpful and succinct submissions.  
58.	Ground 1
59.	First, the fact the prosecution chooses to call a witness does not mean they are bound by everything the witness says. It is far from uncommon for the prosecution to rely upon only parts of a witness’s testimony without having formally to impeach their witness. Second, in assessing whether a witness is hostile for the purposes of section 3 of the Criminal Procedure Act 1865, a judge will consider a large number of factors, including whether the witness is in a position to assist, whether they have indicated a willingness to assist, and any previous accounts given by the witness. However, another relevant factor may well be demeanour in the witness box. The issue of whether a witness is hostile does not depend solely on whether the witness has given a previous inconsistent written witness statement or evidence on oath.     
60.	In this case there was a previous inconsistent statement. If the Maxwells were telling the truth, (and there was no reason to suppose they were lying) Wright had told them he had seen the murder, the day after the murder.  He was undoubtedly present.  CCTV footage put him there. Eye witnesses put him there. He may have claimed not to have seen what happened but there was evidence that suggested he had been closer to Mr Maxwell and must have seen more than he cared to admit.  His hostility to authority was evident from his conduct at the scene and thereafter. The obvious inference, given his background, is that although he was prepared to help the bereaved family of his best friend, he was not prepared to help the authorities for fear of the consequences to him, be it at the hands of the criminal justice system or those seeking revenge on an informant.  
61.	Whatever his motives, we are satisfied that on these facts, Mr Aylett was entitled to call the witness and it was open to the judge to rule he should be treated as hostile. We see no merit in the ground based on this aspect of the judge's ruling.
Ground 2 
62.	We turn to the second ground which was in truth the primary focus of this appeal.  The evidence of Kerry and Sasha Maxwell was highly relevant, but it was inadmissible unless Mr Aylett could overcome several hurdles: the provisions of section 114 and the judge’s overall duty to ensure a fair trial pursuant to section 78 of the Police and Criminal Evidence Act 1984 and section 126 of the Criminal Justice Act 2003 itself. We emphasise that we are dealing solely with section 114 on this appeal and not section 119 for the general principles of admissibility of hearsay because no one at trial or before us addressed the provisions of section 119.  
63.	It is clear to us that the judge conducted an extraordinarily thorough examination of all the circumstances of the case before ruling that the hearsay evidence was admissible under section 114(1)(d).  He addressed each and every requirement of section 114 and the ultimate question of fairness. He was acutely conscious of the importance of the evidence to the parties, the potential for prejudice and the need to balance the interests of the parties so as to ensure a fair trial.  
64.	The evidence was undoubtedly important. Kerry and Sasha Maxwell were themselves reliable witnesses and whatever Wright’s shortcomings, on this particular issue, there was nothing to suggest he was unreliable. On the contrary the available evidence suggested that what he told them was true. He provided Kerry and Sasha Maxwell with a number of details that he could not possibly have known could be proved by objective means: for example, the number of men at the scene, the way in which the men were grouped, and the fact that the stabber had two knives.  
65.	Further the Crown ensured that the maker of the statement, Wright, was at court. Questions could be asked of him by the defence. The people to whom he allegedly made the statements were at court and their evidence and the accuracy of their recollection tested. We recognise that defence counsel could not test Wright’s identification or recognition of the appellants by questioning him but there were a number of other ways the dangers of identification or recognition could be explored, for example by way of the CCTV footage, other eye witnesses and or by eliciting admissions from the Crown. The evidence was prejudicial but its probative value far outweighed the prejudice. We are satisfied the evidence was admissible. 
Ground 3
66.	Subsequently, the judge, in an attempt to be as fair as possible to the defendants lent over backwards to give the strongest possible "health warning".  Had the judge not given such a strong health warning, given the importance of this evidence to the trial, no doubt he would have been the subject of criticism.  In our judgment, the way he directed the jury on this issue does not undermine his original decision to admit the evidence. He was simply directing the jury in a way that was most favourable to the defendants and directing them to focus on the objective evidence which placed the defendants at the scene and placed the knife or knives in their hands.  
67.	For those reasons, therefore, albeit we understand why this appeal was put before us, we are satisfied that nothing occurred at trial that undermines the safety of the convictions.  Both appeals must be dismissed.