Neutral Citation Number: [2009] EWCA Crim 1213
Case No: 200802146/B1
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
Date: Thursday, 4 June 2009
 
B e f o r e:

LORD JUSTICE THOMAS 

MR JUSTICE KING 
 
HIS HONOUR JUDGE MOSS QC 
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

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Mr M Heyward (who did not appear at the trial) appeared on behalf of the Appellant 
Mr I Wicks appeared on behalf of the Crown 
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J U D G M E N T 

LORD JUSTICE THOMAS: 

Introduction
1.	The appellant appeals with the leave of the Full Court against his conviction at the Crown Court at Portsmouth before His Honour Judge Cowling and a jury for an offence under section 18 of the Offences Against the Person Act 1861 of causing grievous bodily harm with intent.  After his conviction in March 2008 he received a sentence of five years' imprisonment.
2.	The issue in the appeal relates to the admission of hearsay evidence under the Criminal Justice Act 2003 in circumstances where a witness did not attend and the Crown contended that she could not be found, although such steps as reasonably practicable had been taken.
3.	The facts of the case and the issue for the jury to decide were simple.  There was no doubt that the complainant in the case, MC, had suffered grievous bodily harm.  This had resulted from his pouring a kettle of water over himself causing severe burns.  It was the prosecution case that it was the appellant who had forced him to do so.  It was the defence case that MC had done this of his own volition.  Both MC and the appellant lived at the same hostel which was largely inhabited by those who had drug addictions. 
4.	Before turning to the issue in the appeal it is necessary briefly to summarise the evidence.
The evidence
5.	MC's evidence can be summarised: (i) he was a drug addict who had lived at the hostel for two and a half years.  On Friday 10 August 2007 the appellant sold him, he claimed, some Diazepam for £5.  On Sunday 12th the appellant returned and asked for more money.  He did not have this.  (ii) On the following Wednesday, 15 August the appellant visited him with another male, identified as Henry.  There was an argument during which the appellant accused MC of not paying sufficient for the drugs and stealing his clothes; Henry left.  The appellant demanded £100, was aggressive and made MC make telephone calls to try and see if he could raise the money.  That was unsuccessful.  (iii) The appellant told MC he needed to teach him a lesson and put the kettle in the room on to boil.  He told him that if he, MC, did not pour the water over his own back himself, the appellant would pour it over his head.  MC pleaded with the appellant not to pour it over his head, but fearing the appellant would pour it over his head, he himself poured it over his back.  He did not report the incident that day, but cycled to his mother's address.  (iv) The following day, when the extent of his injury became apparent, the police were called.  He told his key worker at the hostel about what had happened.  He was then taken to hospital where the serious extent of his burns was clear. 
6.	The key worker also gave evidence.  She effectively confirmed the account that MC had given.  It is not necessary to set that out further.
7.	Before turning to the evidence of the witness whose statement was read, it is necessary to say what the remaining evidence was.  There was medical evidence that dealt with the extent of the injuries which was not in dispute.  There was the evidence of the appellant's interviews.
8.	The appellant himself gave evidence which was in substantial conformity with what he had said in interview.  His account was as follows:  (i) His jeans had been stolen.  (ii) He had supplied MC with drugs but he had not asked for payment.  He had gone to see MC with the person referred to as Henry.  He had accompanied him because Henry was aggressive and agitated and he wanted to try and keep the peace.  When they got to the room, Henry accused MC of stealing cannabis and cash.  He then left.  (iii) After Henry had left, the appellant asked MC about his jeans.  There was a quiet discussion.  There was no dispute over the payment for the drugs and no demand for money, as he had given MC the drugs.  (iv) MC then became distressed.  He was under the influence of drugs.  He then admitted taking the appellant's jeans.  To calm him down the appellant put on the kettle to make them both a cup of tea.  MC then took the kettle and poured it over himself.  (v) He denied he had had any conversation with SD, the witness whose statement was admitted under the CJA 2003.  It is, therefore, to that witness's evidence we turn.
9.	There can be no doubt, without needing to categorise the evidence any more than this, that it was evidence of some importance in the case.  SD had made a statement on 16 August 2007 about what had happened the previous day.  In summary she stated:  (i) the appellant came to see her at about 8.30 when her mother was visiting her.  He stormed in and said he had had a fall out with the key worker.  He then accused MC of taking his jeans.  (ii) The statement records the following:
"[The appellant] then said, 'I made him pour boiling water over himself.'  'What do you mean?  I asked.  [The appellant] said, 'I made him fill the kettle, boil it, I said if you haven't done it prove it.'  [The appellant] made [MC] lay down and offered him a pillow to bite.  [The appellant] said, 'He poured it over his back.'  He added, '[MC] poured another kettle full on himself.' I said, 'What do you mean?  You made him pour boiling water over himself twice?'  [The appellant] said, 'Yes.'" 
(iii) He then explained that MC had not been paying for the drugs that had been supplied. (iv) She then went on to say in her statement that the appellant said that MC had admitted taking the jeans.  The appellant then had gone to the bin shed at the hostel and retrieved a pair of jeans which he then said were his.  Her mother pointed to another bag in the shed which the appellant then opened.  Inside were MC's jacket, coat and jeans.
10.	 (v) The statement concluded in these terms:
"I am due to leave Portsmouth tomorrow.  If I had not been I would not make this statement.  I would be concerned for my safety.  I thought I knew [the appellant] but I realise now that I do not.  I cannot understand why he would do something so disgusting I will not attend court.  I am leaving the area and I and do not intend to return for court."
The application to admit the statement under the CJA 2003
11.	There was a plea and case management hearing on 14 January 2008.  At that plea and case management hearing it was made clear that this witness, SD, was required to attend.  The trial was fixed for 17 March 2008.
12.	A witness summons was issued on 29 February 2008 with an address for her which had been given in Newton Abbott.  An attempt was made to serve the summons on her at that address in Newton Abbott on 7 March 2008.  The officers were told that she had moved to Torpoint.  A mobile phone number was apparently available for her, but when that was rung the phone was switched off.
13.	Those, as we understand it, were the grounds which formed the basis of the application under section 116(2)(d) of the CJA 2003 to read SD’s statement.
14.	The section provides as follows:
"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 is identified to the court's satisfaction, and
 (c) any of the five conditions mentioned in subsection (2) is satisfied."
15.	The relevant condition was that in subsection (2)(d): 
"that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken."  
16.	It is important to note, that although part of the statement we have set out referred to her fear for her safety, that no application was made on the basis of fear.
17.	What appears to have happened before the court (and we are greatly indebted for the assistance we have received from Mr Wicks for the Crown) is that no evidence at all was called in relation to the steps taken which we have set out.  Prosecuting counsel told the judge the facts which we have outlined.  It appears that counsel who was appearing for the appellant made no submission that evidence should have been called.  Nothing was set out in writing as to agreed facts.
18.	The judge heard the outline of the facts given by counsel and heard the argument from the appellant's then counsel, to the effect that, on the basis of what had been asserted by counsel for the prosecution, it did not amount to the taking of such steps as was reasonably practicable.  The judge then proceeded to make a ruling.
19.	He set out those facts and said, after noting them: 
"So certainly efforts have been made to get the witness here."
20.	What he then proceeded to say, after referring to the submissions made on behalf of the appellant, was: 
"Well ... that may be a point; on the other hand how early can one serve witness summonses on people? This was done a couple of weeks or so before the trial was due to start and that would seem to be the reasonable time to do it, when you know the witness is reluctant.  Clearly efforts were made here to try and find her, enquiries were made, and so on and she is, on the face of the evidence, quite clearly making herself scarce. 
Looking at 116, it is specifically 116(2)(d), the evidence can be read."  
He then set out the section and said:
"It seems to me that such steps as are reasonably practicable have been taken here and she still cannot be found in time for this trial.  So the provisions of section 116(2)(d) in my judgment are made out." 
21.	Counsel for the appellant appearing at the trial also relied on section 78 of the Police and Criminal Evidence Act 1984.  Complaint is made about the way in which the judge dealt with that matter.  It is not necessary to refer to that for reasons that will shortly become apparent. 
The summing up
22.	After the admission of all the evidence to which we have referred the learned judge summed the case up to the jury.  Although no specific complaint is made about the way in which the judge directed the jury in relation to how they should treat the statement of SD, we think it important to refer to one part of the summing‑up which prefaced those remarks.  The judge said:
"However the law allows evidence to be given in other ways and in this case you heard the evidence of [SD] read to you, even though she did not come to court and even though the defence do not accept what she has to say in that statement.  You heard that the police had been trying to trace her and in the last bit of information they have she is somewhere down in the West Country, but she is clearly making herself scarce otherwise she might have been here.  She has disappeared.  Again, it is life, it is a fact of life, witnesses do not all turn up and everybody says what they say like they do in, you know, on the television documentaries ... we are dealing with real people.  And sometimes real people are not very co‑operative for all sorts of reasons.  So you do not see her and you know the defence do not agree with what she says."
23.	After the summing‑up had been completed the jury retired.  Their total retirement was a period of four hours and 29 minutes.  They returned a guilty verdict by a majority of ten to two.
The grounds of appeal
24.	We have adverted to the fact that counsel for the appellant raised before us as a ground of appeal the way the judge dealt with section 78 of the Police and Criminal Evidence Act 1984.  There also is raised as a further ground of appeal the contention that the evidence of SD was decisive evidence.  However, it seems to us that we do not need to consider those and other grounds, as the point that arises simply in this case relates to the way in which the judge admitted the evidence.
The approach to s.116(2)(d)
25.	In the recent decision of this court in Horncastle [2009] EWCA Crim 964 the court dealt with the position of witnesses who were in fear.  At paragraph 87 the court said:
"It is, however, important that all possible efforts are made to get the witness to court.  As is clear, the right to confrontation is a longstanding requirement of the common law and recognised in Article 6(3)(d).  It is only to be departed from in the limited circumstances and under the conditions set out in the CJA 2003.  The witness must be given all possible support, but also made to understand the importance of the citizen's duty ..."
26.	Although the court was in that instance dealing with witnesses who were kept from court through fear, the principle applicable is the same in the case of a witness who is reluctant to come to court and absents himself.  It is important that all efforts are made to get the witness to court; this must start with the witness being given all possible support and made to understand the importance of the citizen's duty to give evidence.
27.	The right to confrontation is a long‑standing right of the common law and is reflected in the European Convention at Article 6(3)(d).  The right to confrontation is not to be lightly departed from.  The provisions of the Criminal Justice Act 2003, described in Horncastle as a carefully crafted code, need to be observed carefully.  
28.	It seems to us that in a case of this kind, unless there is a written agreed statement of facts, it is simply not possible to proceed to consider an application without evidence as to the steps taken to find the witness.
29.	Our conclusion
30.	If an agreed statement of facts had been produced in this case, it would have exposed the error in the approach of the learned judge, which was to look at the matter, as if this witness was reluctant from the time when the police started to make enquiries after the PCMH in the month before the trial.  It is apparent from the witness's own statement that she was reluctant from the day she made the statement.  She said she would not come and therefore was at risk of breaking contact so she could not be found.
31.	There was, because matters proceeded so informally before the judge, no attempt to try and explore what steps the police had taken through the well‑known programme established for Witness Care to keep contact with her, to explain to her her duty, to try and find where she had gone in the months before the PCMH.  No doubt the constabulary at Portsmouth have a Witness Care Unit, but there was no evidence before the judge as to what steps it had taken.  Nor was there any evidence when enquiries came to be made in the early part of 2008 and in the month or two before the trial as to what information the witness's mother had about her location, no evidence as to what enquiries had been made of social security (as one assumes that the witness concerned was on social security).  She had been on the telephone.  There was no evidence as to whether any attempt had been made to trace her through cell site analysis.  It is said that all of this might be expensive.  It may be.  We do not know, however, because there was no evidence about that either.
32.	It seems to us, and in particular from the judge's remarks, that there must be a suspicion that this kind of application is being dealt with far too informally.  Given the importance of the right to confrontation under our law, it is quite impermissible to proceed with an application of this kind informally.
33.	It is to be hoped in applications of this kind that the facts can be agreed, but, if not, evidence must be called and the judge must make findings of fact.  With respect to the judge in this case, he did not make any findings.  He merely expressed a summary of what he was told.  It follows, therefore, first that there was no evidence properly before the judge on which he could have made any findings at all.  Secondly, even if the limited matters that had been relied on by the Crown had been facts upon which they had established by evidence, it would have been hopeless to expect a judge to say that such steps as were reasonably practicable had been taken.  If there was a problem with the cost of caring for a reluctant witness and finding her, then that needed to be dealt with by evidence.  There was no such evidence.
34.	In the result, therefore, we are of the clear view that this evidence was wrongly admitted as there was no evidence to establish that such steps as were reasonably practicable to find SD had been taken.  It is accepted that if the evidence was wrongly admitted, the conviction cannot be considered safe.  In the circumstances, therefore, we have no alternative but to quash this conviction.
35.	LORD JUSTICE THOMAS:  Are you applying for a retrial? 
36.	MR WICKS:  My Lord, yes.
37.	LORD JUSTICE THOMAS:  The appellant is in custody? 
38.	MR HEYWARD:  Yes, my Lord.  
39.	LORD JUSTICE THOMAS:  You can't have any objection to a retrial? 
40.	MR HEYWARD:  My Lord, if a retrial ‑‑ if the Crown seek a retrial then we have no objection to it.
41.	LORD JUSTICE THOMAS:  They are seeking a retrial.
42.	MR WICKS:  My Lord, yes.
43.	LORD JUSTICE THOMAS:  Then we will order a retrial.  There is only one count in the indictment.  How quickly can you prefer a fresh indictment? 
44.	MR WICKS:  My Lord, it can be done within the set period.
45.	LORD JUSTICE THOMAS:  What is that? 
46.	MR WICKS:  My Lord, we can do it within seven days.
47.	LORD JUSTICE THOMAS:  Seven days, fine.  Then we direct ‑‑ this ought to be got on with.  He ought to be arraigned within a month.  There is no reason why this can't be tried at Portsmouth? 
48.	MR WICKS:  No. 
49.	LORD JUSTICE THOMAS:  If there is an application for bail, we will not deal with it.  You can make an application to the judge.
50.	MR HEYWARD:  My Lord.
51.	LORD JUSTICE THOMAS:  You will need a representation order, won't you? 
52.	MR HEYWARD:  Yes, my Lord.
53.	LORD JUSTICE THOMAS:  We had better make a representation order.  We had better make an order restricting the reporting of the proceedings or anonymising them until after the retrial, until we have approved an anonymised version.  There is a point of some importance in this case relating to the conduct of these applications.  Those who are sitting diligently in front of us, we will try and keep the transcript anonymised so that it can be reported.  Is there anything further? 
54.	MR HEYWARD:  My Lord, my Lord.
55.	LORD JUSTICE THOMAS:  We are very grateful to you and we do appreciate the help you have given us.  There is no personal criticism of you at all.
56.	MR WICKS:  Grateful.
57.	LORD JUSTICE THOMAS:  You will need a solicitor too, I imagine.
58.	MR HEYWARD:  Sorry, my Lord? 
59.	LORD JUSTICE THOMAS:  You will need a solicitor.
60.	MR HEYWARD:  Yes, my Lord.  
61.	LORD JUSTICE THOMAS:  We had better make an order to cover him as well.  Thank you very much.