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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Warnick, R v [2013] EWCA Crim 2320 (22 November 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2320.html Cite as: [2013] EWCA Crim 2320

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd November 2013

1. LORD JUSTICE ELIAS: On 19th November 2012, in the Crown Court at Liverpool before His Honour Judge Hatton, the appellant was convicted of causing grievous bodily harm with intent. He was sentenced on at that date to 13 years' imprisonment. He now appeals against conviction by leave of the single judge.
2. The background was this. On the evening before the offence took place Wayne Gill, the complainant, answered a telephone call on a mobile telephone belonging to his friend Robinson. Gill stated that it was abusive, but he did not recognise the voice, nor was the person identified.
3. The following day, at about 12.30 pm, Gill walked to the house of Robinson to collect some money. He noticed a blue Mercedes car on the street and began walking home. As he walked along a footpath he noticed the Mercedes pass him at speed, turn round and pull up alongside him. The passenger asked if Gill had been the male on the telephone the previous evening. Gill denied being that person and the passenger asked some more questions. Gill noticed that the driver kept looking in the rear view mirrors. The passenger punched him to the face and got out of the vehicle and continued to attack him. The driver then also got out of the car and tried to hit Gill and he then retrieved a 3 foot long crowbar from the boot of the Mercedes. The passenger shouted "Break his legs" and the driver struck Gill in the right leg, breaking it, and then in the left leg. He also struck him on the head with the crowbar. The driver and passenger then drove away.
4. Police Constable Proudfoot went to the scene at about a quarter to one and spoke to various bystanders. One relevant piece of hearsay evidence which she recorded in her note book was given by a Claire Huckley. She also gave her mobile telephone number to the officer. She stated that "The offenders made off in the Mercedes with the registration MW61 YPK". As a result of that information the automatic number plate registration system was checked and the Mercedes with the relevant registration number was found to have travelled in a north-westerly direction along the Formby bypass at 13.08 hours. It was discovered that this vehicle had been leased to the appellant. Contact was made with a Mr Mark Argent, who had paid the insurance for the vehicle, and he in fact employed the appellant on a commission basis. The vehicle was subsequently recovered a couple of days later in a street near Argent's address.
5. Gill made a statement and he provided a description of his assailants. Later he identified the appellant as the driver. He also accepted that he was the same man whom he had seen some weeks earlier outside the Punch Bowl public house. He did not, however, know him.
6. The appellant subsequently surrendered himself voluntarily to the police and he was interviewed under caution. He submitted a prepared statement in which he denied knowing Gill and stated that at the material time he had been running with a friend, Roberts, along the Cheshire Lines Canal between Lydiate and Formby and he said he had then driven home in the Mercedes. He said he had been running between the hours of 11.30 and 1.30. Subsequently a VIPER identification procedure was conducted on 15th May and Gill identified the appellant as the driver. He later identified a volunteer on the parade as the passenger, although subsequently he also correctly identified the passenger in an identity parade.(He was in fact acquitted at the trial.)
7. The evidence given by the appellant at trial was that he lived a very short distance from the scene of the incident. He said that he had no reason to assault the complainant and had not met him before. He agreed that the Mercedes had been leased to him and had been in his possession for some weeks before the incident but he was not involved in the incident. He said that he had left his house to go for a pre-arranged run with his friend, Andrew Roberts. They set off running at about 11.30. He said they finished the run at about 13.00 and at that point he drove to Formby to meet his brother for a coffee. He subsequently received a call from Argent to say the police had contacted him about the car. The appellant said he did not know what that was all about, but he drove to Argent's house and he left the Mercedes and used Argent's own car for the next couple of days whilst Argent was in London. He believed that the complainant probably recognised him on the identification parade because he had seen him earlier outside the public house. When asked why he had not mentioned the alibi concerning his brother in his earlier prepared statement, he said he had not wanted to bring other people into the matter.
8. The single ground of appeal relates to a hearsay application in which the judge admitted as hearsay evidence the statement made to the officer by Claire Huckley.
9. Originally the prosecution sought to have this evidence adduced under section 114(1)(d) of the Criminal Justice Act 2003. That is the provision which allows hearsay evidence to be admitted where the court is satisfied that it is in the interests of justice for it to be so admitted. It was pointed out by the defence that the appropriate section was in fact section 116, given that the contention was that Claire Huckley was unwilling to appear in court because she lived in the neighbourhood and did not want to become involved. It was clear that she had some fear of giving evidence in court. In those circumstances the relevant section is section 116(2)(e) of the 2003 Act, which deals with circumstances where a person who has relevant evidence to give will not appear in court through fear. The application was amended and it was pursued principally on the basis of section 116.
10. The judge considered that application under that section but he rejected it on the grounds that one of the conditions for admitting that evidence had not been satisfied. In order for the evidence to be admitted it is necessary that the person who made the statement is identified to the satisfaction of the court, and the judge commented that although he had been given the name and the telephone number, he did not think that that condition had been satisfied. He added that it was not clear whether the witness remained in fear. That would suggest in fact that he was not satisfied that section 116(2(e) applied at all because possibly, if further efforts had been made by the police, the witness would have been willing to give evidence. If that is so, it was certainly a proper basis on which to refuse this application. In any event, the judge went on to consider whether the evidence should be admitted under section 114(1(d). He went through the matters to which the court should have regard set out in section 114(2) and concluded that the evidence should be admitted under that section.
11. We accept the submission of the appellant that the evidence ought not to have been admitted under that provision. As this court has said on a number of occasions in cases such as Z [2009] 1 Cr App R 34 at paragraphs 18 to 20, ED [2010] EWCA Crim 1213 at paragraphs 14 to 21, and more recently in Riat [2013] 1 Cr App R 2 at paragraph 20, the power to admit evidence under section 114(1)(d) in the interests of justice should not be used so as to circumvent the conditions laid down in section 116. That, it seems to us, is precisely what happened here. Having concluded that one of the conditions for admitting the evidence under section 116 was not satisfied, the judge was wrong to admit the same evidence under section 114(1)(d). That would nullify the purpose of the conditions specified by Parliament in section 116.
12. We also note that the fact that the judge thought that the witness might no longer be in fear would suggest that he had taken the view that it was possible she would have been prepared to give evidence if perhaps the police had explained to her more fully what safeguards may be provided to her. If that is so, then it is difficult to see how the provision in section 114(2)(g) was satisfied, because that requires the court to have regard to "whether oral evidence of the matter stated can be given". Be that as it may, we are satisfied that the evidence ought not to have been admitted in this case. The relevant question, therefore, is simply whether the conviction is safe, notwithstanding that this evidence was wrongly admitted.
13. The appellant submits not. He says that the critical element, absent this identification of the car by the witness, was the identification by the complainant of the appellant as the driver of the car. But counsel for the appellant cast some doubt on the reliability of that evidence. He noted, for example, that the complainant failed, on the first occasion at least, to recognise the passenger in the car; and that he described the car as light blue, whereas it is silver, although counsel fairly admitted that to some extent it may be a subjective matter how someone describes the colour of a car where it lies somewhere between two colours. He also pointed out that in describing the appellant, the complainant Gill had said that he had a number one hair cut. In fact at the identification parade which took place a week or so later, it appeared to have grown not insignificantly since then, and more than might reasonably have been expected if the original description was correct.
14. We have considered this matter with care. We identify the factors which were pointing towards the guilt of the appellant independently of the hearsay evidence. As prosecuting counsel points out, they fall broadly into three areas. First, there is of course the important evidence of identification itself, which, as we have indicated, counsel for the appellant seeks to undermine. Secondly, there is the extremely powerful circumstantial evidence: the fact is that a car of a similar description to that given by the complainant was found in the area a short time after the incident and the appellant was indeed the driver of that car. He then left the car away from his house giving a less than convincing explanation for doing that. The third strand of evidence was the change in the alibi given by the appellant between the statement provided at interview and the evidence given at trial. Initially the account was that he had been running for two hours, which would of course have embraced the whole period in which this incident occurred, and that he had thereafter driven home. Subsequently that changed in a very significant way, no doubt in the light of the fact that by then he appreciated that the car had been seen on the Formby Bypass at eight minutes past one. So the contention was that he had been running for an hour and a half and then had travelled to Formby to meet his brother. Nothing about that meeting had been stated on the earlier occasion. The explanation was that he did not wish to get his brother involved, but it is difficult to see why, if he was innocent, he was not prepared to say that he had gone to meet his brother to have a cup of coffee, as he later sought to claim.
15. Bearing all these matters in mind, we are satisfied that, notwithstanding the fact that this hearsay evidence ought not to have been admitted, there was cogent evidence before the jury from which the only sensible inference was that this appellant had committed the offence. Accordingly, notwithstanding the attractive submissions made both orally and in writing by Mr Morgan, we dismiss this appeal.