No: 201003664/B3 
Neutral Citation Number: [2011] EWCA Crim 1746
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Thursday, 16th June 2011
 
B e f o r e:
SIR ANTHONY MAY 
(PRESIDENT OF THE QUEEN'S BENCH DIVISION)
MR JUSTICE HICKINBOTTOM 
MRS JUSTICE THIRLWALL DBE
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R E G I N A 

v 

DARREN COURTNEY ATKINSON
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Computer Aided Transcript of the Stenograph Notes of  
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Mr T Quinn appeared on behalf of the Appellant
Miss N Sharma appeared on behalf of the Crown
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J U D G M E N T
1.	SIR ANTHONY MAY:  When this matter came before another division of this court on 16th February 2011 as a renewed application for leave to appeal against conviction, following refusal by the single judge, the court granted leave on one of several of the grounds only, relating to a decision by His Honour Judge Martineau who was the trial judge at the Crown Court at Blackfriars when the appellant, Darren Courtney Atkinson, was convicted on 28th May 2010 by a jury majority of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861.  He was sentenced to imprisonment for public protection and a period of 3 years was specified as the minimum term less a fairly large number of days spent on remand.
2.	The one matter upon which leave to appeal against conviction was granted by the Full Court concerned the refusal of the trial judge, in the course of the trial, on 25th May 2010, to admit written evidence by a person called Adam Swinback‑Slack as hearsay evidence.
3.	The facts of the matter, for present purposes, can be fairly briefly stated.  The complainant, a man called Arshad Ali, the appellant and a co‑defendant called Boyle, who was convicted unanimously of the same offence and also sentenced to imprisonment for public protection, were in December 2009 all residents at St Mungo's Hostel for homeless men who suffered from alcoholism.  On 3rd December 2009 the appellant and co‑accused reported to staff that the complainant had threatened them with a knife.  About 45 minutes later the appellant approached the supervising officer, Catrina Nightingale, and her evidence, which was disputed by the appellant, was that he stated to her:  "He's done it again, we kicked the fuck out of him."In forensic terms emphasis is placed on the word "we" because the appellant denied that he had used the word "we", saying that he had said, if anything, that he used the word "he".  
4.	The complainant was discovered on a first floor landing unconscious, with his head against a doorframe.  His nose appeared to be broken and his face was covered in blood.  At hospital he underwent emergency surgery to remove a subdural haemotoma and remained in a critical condition, reliant on a ventilator and with drug support of his vital functions.  He suffered brain damage as a result of his injuries and had no recollection of the incident.
5.	The prosecution case was that the appellant and co‑accused were both present and jointly responsible for the attack which caused the complainant these injuries.
6.	The Crown did not accept that the complainant ever had a knife, for none was found, but even if he had the actions of the co‑accused in punching the complainant to the ground and stamping on his head went far beyond self‑defence.  As we shall briefly explain in one moment, the evidence against Boyle, the co‑accused was very strong and it is not surprising that he was unanimously convicted.
7.	The Crown's case against Darren Atkinson was that he was there and actively encouraged the co‑accused and indeed himself delivered at least one kick, and reliance in this respect was placed upon his comment to Catrina Nightingale that after the incident: "We kicked the fuck out of him".
8.	Neither the appellant nor the co‑accused gave evidence.  The defence case for this appellant was that he was not part of any joint enterprise to cause the complainant harm and indeed he was not involved in inflicting any of the complainant's injuries.  The defence case, as put for the co‑accused, was that he acted in self‑defence at all times in punching the complainant's face and stamping once on his chest when it appeared he was about to get back up.  
9.	The issue, accordingly, for the jury in relation to this appellant was whether he was indeed jointly involved in the attack with the co‑accused, who may have taken the lead in terms of the injuries inflicted.
10.	There was evidence from a woman called Sophie Berteau who worked at St Mungo's Hostel and she spoke with the appellant and the co‑accused at about 5.00 pm and was told that they had had an incident when the complainant tried to harm him, that is to say the co‑accused with a knife.  So far as it went she said she did not believe these allegations and felt that his behaviour was not typical of the complainant.  About half‑an‑hour later she heard the complainant shouting and found him in his room holding a dinner fork and a kitchen knife and complaining that the co‑accused had bashed his door open whilst he was sleeping.
11.	Catrina Nightingale, as we say, gave evidence that she was alone in the reception area when the appellant came to her at about 5.45 pm and stated: "He's done it again so we kicked the fuck out of him."  She then gave evidence as to what she saw when she went upstairs and saw the appellant and co‑accused standing next to the injured body of the complainant.
12.	There was forensic evidence to the effect that there was bloodstaining on Boyle's shoes which, in the opinion of the expert was consistent with stamping on the part of the complainant's head or body that was wet with a significant amount of blood.  There was evidence of significant bloodstaining on the complainant's shoulder area just below the left side of his skull which was cut.  However there was no bloodstain of the chest area of his jumper.  Accordingly it was the prosecution case that the stamp was to the complainant's head rather than to his chest.  Although there was no bloodstaining on the appellant's shoes or clothing, this, in the opinion of the expert neither supported or disproved the suggestion that he had kicked the claimant because he might have inflicted a kick at a time before the complainant was bleeding profusely.
13.	There was CCTV footage of the complainant before the incident and the Crown suggested that it did not appear that he was carrying a knife or fork at the time. There was also CCTV evidence concerning the appellant's presence in the general area of the attack and going up and down stairs.
14.	There were interviews during which the appellant strenuously denied any involvement when he was questioned at the scene by the police.  He made a "no comment" interview.  The co‑accused, Boyle, stated upon arrest:  "I did it, I had to. He came at me with a knife.  I hit him in the face four or five times." Later he added he had also kicked the complainant.   
15.	There was in interview the co‑accused, Boyle, gave an initial explanation that he had hit the complainant four or five times because he came at him with a knife. Later, during an interview under caution, he explained that he had been attacked by the complainant holding a knife in self‑defence he punched him four or five times to the ground and then stamped on his chest when he was trying to get back because he feared the attack would continue.  The appellant was also present, said Boyle in his interview at the material time, but did not participate in any way.
16.	Accordingly the case against Boyle was a strong one.  The case against the appellant was not so strong, in the sense that at least that there was no positive forensic evidence to link him with the injuries that had been caused.  But there was evidence that he was in the area at the time and there was evidence that he had said shortly afterwards to the supervising officer that: "We kicked the fuck out of him".
17.	Against that background and in proceedings in which evidence of which that is a summary was given, the Crown had served a statement by Adam Guy Lancaster Swinback‑Slack.  He was also an inmate at the St Mungo's Hostel at the time.  His statement read that on Thursday 3rd December he was in his room at this address and that whilst he was in his room he heard a male who he knew as Pepe, that is to say Boyle, and he heard various things that Pepe was saying and doing and it appeared that Pepe was very angry and continued to kick his, that is to say Swinback‑Slack's door and shout for a few moments but he continued to ignore him.  The statement contained the statement of: "At no time did I see Pepe to know whether he had any involvement in the assault on Duffy.  All I heard was Pepe's voice."
18.	There is no mention of the appellant at all in that statement.  Swinback‑Slack had however been interviewed and the record of his interview was item 4 on the list of unused material served by the Crown.  Accordingly, the defence were aware of the existence of the record of that interview.  On 6th May they asked for disclosure of this interview tape.  This was provided by the prosecution with a letter of 18th May 2010.  This was quite shortly before the trial.  It was only on about 21st May that defence counsel, Mr Quinn, had the opportunity of being told about the existence and contents of this tape because his solicitors had listened to it.
19.	Mr Swinback‑Slack was a fully bound witness and accordingly it was the Crown's obligation to make all possible efforts to get him to trial to give evidence but they were unable to find him as the trial approached and they informed the defence of that matter on 17th May, in a letter stating that he was missing.
20.	Of course, there was a possibility that he might turn up or be found at some stage between then and the trial, which started the following week but in the event he did not.  So it was that not at the beginning of the trial, nor indeed in consequence of the service of any hearsay notice under the regulations, application was made to the trial judge on the 25th May in relation to the admission of written evidence of Mr Swinback‑Slack as hearsay evidence.
21.	We have the transcript of the proceedings which constituted that application.  We think it is fair to say that the application was not dealt with in a structured way, such as we might suggest in a moment.  But looking at the matter in the round and with the benefit of what may well be an imperfect transcript, the following was put before the judge, this is by way of summary.  The application started off as an application advanced by Mr Quinn to admit as hearsay evidence, not the transcript of the record of interview, but the witness statement.  The witness statement had nothing to say about this appellant and it did have things to say about the co‑defendant, Boyle, which were adverse to that co‑defendant's defence.  Mr Quinn had however, as we have said, had the opportunity of hearing the tape of the interview of Mr Swinback‑Slack and the application veered off, if we can put it that way, into an application which also made reference to a desire perhaps to have some or parts of the interview admitted as hearsay evidence.  As we say, this was not a structured application but this was the general drift of the way in which it went.
22.	The defence of Atkinson wanted the material in, in particular because the record of interview, which is quite reasonably long and again contains a lot of material which was adverse to the co‑defendant, Boyle, does contain a passage relating to this appellant where Swinback‑Slack having at first not been clear who was being spoken of referred to this appellant and he referred to him briefly in these terms: 
"They are the usually best of friends, aye.  I see the Scouser [being a reference to this appellant] in Peppy's room.  
[The officer said]:  Let's get a description of him in case it is one and the same.  
He's got a skinhead the Scouse lad.  Baggy jeans.  Liverpool.  
How big would you say he was?  
Stocky, about same as Peppy but more stockier like.  Skinhead haircut."  
So there was reference to this appellant and there was also reference to this witness not having heard the appellant through his closed door as the incident apparently was going on.
23.	So the defence wanted that material before the jury and Mr Quinn submits to us that had it gone before the jury, as it did not, it may have influenced them in their consideration of whether he did indeed participate jointly in the attack upon the complainant.
24.	There is reference in this discussion which has been transcribed to section 116(2)(d) of the Criminal Justice Act 2003, but, as we say, the matter was not put before the judge in a structured way.  What happened however was that the judge came to a conclusion which he expressed in these terms.  It appears on more than one page of the transcript but it includes the following.  He said this:  
"Yes, well, but I have, as I already said, I have to strike a balance between the interests of one defendant, and the interests of another, and the evidence is hearsay evidence, which of course we all know is admissible in many different circumstances, but here it is strongly opposed by a co‑defendant who has done everything that he should have done to get the witness here.  That is to say to indicate from the first proper moment, which is the plea and case management hearing, that he wants this witness, and this witness is not here, and yet it is to be said that, subject, of course, to the direction that the jury would be given, that, of course, hearsay evidence is not of the same quality as live oral evidence, subject to that, the evidence is going to be given."  
That may be a mistranscription because on the following page the judge said, and this was his decision:  
"In any event, I have an overriding, have I not, duty to ensure a fair trial, and a fair trial means a trial that is fair to everybody.  For two defendants it has to be fair to both, and here, as sometimes happens, a balance has to be struck between the interests of two defendants where those diverge.  
I am bound to say, it seems to me, quite clear, that the interests of the co‑defendant prevail here because he has made it clear that he wants the witness here to give live oral evidence and that is not happening."   
25.	One of the points, indeed one of the few points that counsel on behalf of the co‑accused had made was, in circumstances where it was perfectly obvious that this evidence, if it was to be admitted, was seriously adverse to that defendant, that Mr Swinback‑Slack was, so it was said, a person with 140 convictions, who it was necessary, so counsel reckoned on behalf of Boyle, to cross‑examine if this evidence was to be given.
26.	So it was that the judge's decision was that the application to admit written material of evidence, be it the witness statement or the record of interview of Mr Swinback‑Slack should not be allowed.
27.	We have said that this decision was not reached in a structured way.  It is just necessary, for the purposes of this judgment, to look at certain sections of the Criminal Justice Act 2003, in relation to the admissibility of hearsay evidence.  The first section is section 116, and that is under a heading "Cases where a witness is unavailable". It provides as follows:  
"(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." 
One of the conditions in subsection (2) is subsection (2)(d) which provides: 
"that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken." 
The position was that Mr Swinback‑Slack was not present and could not at least immediately be found.  Accordingly, if this had been approached in a structured way, questions would have needed to be considered whether such steps as it was reasonably practicable to take to find him had been taken.
28.	That academically raises the question as to who ought to have taken the reasonable steps because section 116(2)(d) much more normally arises where it is the prosecution who wish to have the hearsay evidence put before the jury and where the straightforward question is whether the prosecution have taken reasonably practicable steps to find the person who is missing.
29.	In the present case, the prosecution took a neutral position to the application to have the evidence put before the jury and before this court Miss Sharma has gone some way to accepting that it might well have been found that the prosecution had not taken all reasonably practicable steps to secure the witness's attendance.
30.	It would then have been necessary for the judge to decide whether, in circumstances where it is not the prosecution but a defendant who wishes to have the evidence put before the jury, the reasonably practicable steps are to be judged as those taken by the defendant rather than the prosecution and Miss Sharma was inclined to accept, we think sensibly, that that would have been the case.
31.	We do not so decide absolutely for the purpose of this appeal because the matter was not debated before the judge and because we do not think it is necessary to do so for the purpose of deciding this appeal.  But we do proceed, at least contingently, on the footing that the reasonably practicable steps in the circumstances of this case are to be judged as those of the applying defendant and that the judge might well, he had asked that question in a structured way, have come to the conclusion that they had taken all reasonable practicable steps because, in truth, it was for the prosecution to get the witness to court rather than the defence and they had in fact made appropriate applications to that end.  Parenthetically Miss Sharma would not agree with all of that.  She has made some submissions about the failure to serve a hearsay notice.  But we put that to one side.
32.	If it were the case, and we think it may have been, that section 116(2)(d) applied, then the conditions of that section applied and the evidence was admissible.  The judge's discretion to exclude it, if that is what he ought in the interests of justice to happen, did not reside, as some submissions in this case have thought, in section 78 of the Police and Criminal Evidence Act 1984 because that section only applies where the prosecution proposes to rely on the evidence and that was not the case here.
33.	But there was, as counsel agree, in these proceedings consideration available to the court under section 126 of the Criminal Justice Act 2003 which provides that: 
"(1)In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if—
(a) the statement was made otherwise than in oral evidence in the proceedings, and 
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence."  
Accordingly counsel now before the court agree, and this court is prepared to proceed on the basis that a structured approach by the judge in the present case would entitle the judge to have excluded the evidence if, in his judgment, taking account of the matters set out there, the exclusion of statement substantially outweighed the case for admitting it, taking account of the value of the evidence.
34.	If that analysis, by which we mean the analysis of section 116 and section 126 were not the correct analysis, or if it had been the case that reasonably practicable steps had not been taken to secure the attendance of Mr Swinback‑Slack, there was another statutory route by which the judge could have considered, and the application could have been made and that was under section 114 of the 2003 Act.  This provides: 
"(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—
... 
(d)the court is satisfied that it is in the interests of justice for it to be admissible."
Subsection (2) provides a whole list of considerations that the court should take into account, which we are not going to read but which bear upon such matters as reliability of the maker of the statement and the probative value of the statement.  There is authority, which again we do not need to refer to, to the effect that the court should be cautious before admitting evidence simply under section 114(1)(d) of the 2003 Act.
35.	However, taking the matter broadly, which we do because the judge in the presentation took the matter broadly, the considerations under section 114(1)(d) are roughly and broadly the same as the considerations under section 126 (1)(b) and we reach the conclusion that a structured analysis of the application that was being made in the present case and which is the subject of this appeal could properly have been decided by the court conducting a balancing exercise in the interests of justice, between the interests of the admitting the evidence and the interests of not admitting it.  In the present case, those two interests represented the interests of each of the co‑defendants respectively.
36.	The appellant and his representatives wanted the evidence in because they said it was some evidence which could have persuaded the jury that they were unsure whether this appellant had participated in the attack on the complainant.  The co‑defendant wanted the evidence out because it was highly prejudicial, so it was said, to his case of self‑defence and he wanted the opportunity of cross‑examining a witness who, according to his counsel at least, had 140 convictions and may well have been cross‑examined as to his reliability and credibility.
37.	The judge made the decision that that balance fell in favour of excluding the evidence.  In our judgment, that was a judgment which was not only entirely open to him, in the circumstances which we have described but was also the correct one to make.  It is, in our judgment, plain that the interests Boyle in excluding the evidence were far weightier than the interest of this appellant in having it admitted. The evidence was plainly prejudicial, so far as Boyle was concerned.  The evidence was, it is to be accepted, of some peripheral help to this appellant but it was, in our judgment, no more than that.  It was evidence of a negative kind, and the one thing that it did not do, and this is important, is it did not make any impact at all on the evidence, which must have been one of principal reasons why the jury convicted this appellant, the evidence of Catrina Nightingale who said that this appellant stated to her:  "We kicked fuck out of him." Mr Swinback‑Slack's evidence had no bearing on the truth or otherwise and reliability or otherwise of that evidence and was, as we think at best, peripheral.
38.	Accordingly, in our judgment, the decision which the judge made in the rather jumbled circumstances in which the application was made to him but nevertheless was a correct one and in consequence this appeal fails.  We should however say that even if we had come to the opposite conclusion in relation to the admission of the evidence, we are, each of us, individually and collectively quite clear that notwithstanding the absence of this evidence, the conviction was safe.  We put this briefly by reference to the submissions made on behalf of the Crown by Miss Sharma and to the effect that the evidence was in fact quite strong against this appellant and once the jury accepted, as they must have done, that Catrina Nightingale's evidence was reliable and to be relied on that constituted a clear admission that he had indeed participated jointly in the attack.  
39.	As Miss Sharma puts it, the prosecution case was that they both assaulted Arshad Ali on 3rd December 2009, whilst all parties were residents at St Mungo's Hostel.  The appellant made a "no comment" interview.  The case against him was that he was a secondary party.  The prosecution relied on a number of strands of evidence to demonstrate that he must have been not only there but encouraging what was going on.  He was present at the scene, as was confirmed by the CCTV evidence which showed the landing beyond which the incident took place.  We have already referred to the incriminating comment made to Miss Nightingale.  Her account included putting her arm out in front of the appellant to stop him from getting close to Ali and she feared he was going to do something else to the complainant.  Sophie Berteau stated that both the appellant and the defendant complained to her that Ali had tried to hurt Boyle earlier that same day but did not want the police to be called.  At the same time, both men had enquired if the appellant could move into a vacant room along the corridor to protect Boyle and she formed the view that the defendants had invented the complaint of an attack in order to bolster Boyle's claim that he needed the protection of the appellant.  In other words, they were both acting together in the time leading up to this attack.
40.	So it is that even if we had not come to the conclusion that the judge gave the right decision in relation to admitting the evidence, we would nevertheless still have dismissed this appeal on the basis that we were satisfied that the conviction was nevertheless safe.  In the result the appeal is dismissed.