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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 >> Drinkwater v R. [2016] EWCA Crim 16 (23 February 2016) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2016/16.html Cite as: (2016) 180 JP 177, [2016] EWCA Crim 16, [2016] Crim LR 647, [2016] 1 Cr App R 30, 180 JP 177, [2016] 4 WLR 42, [2016] WLR(D) 92

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ST ALBANS
HER HONOUR JUDGE CATTERSON
T20147161

		Royal Courts of Justice Strand, London, WC2A 2LL
		23 February 2016

Lady Justice Sharp:

1. On 19 December 2014, the appellant, Paul Drinkwater, was convicted after a trial at the Crown Court at St Albans, of two counts of rape (counts 1 and 4), two counts of robbery (counts 2 and 6) and one count of indecent assault (count 5). On 27 March 2015, he was sentenced to a total of 29 years imprisonment: sentences of 14 years' imprisonment were imposed for each of the rapes, to run consecutively; sentences of 4 years' imprisonment concurrent were imposed for the robberies; and a consecutive sentence of 1 year's imprisonment was imposed for the indecent assault. Three counts of false imprisonment (counts 2, 8 and 9), 2 counts of possessing an offensive weapon in a public place (counts 5 and 11) and one count of indecent assault (count 7), were ordered to lie on the file against him on the usual terms.
2. He appeals against conviction with the leave of the single judge. His application for permission to appeal against sentence has been referred to the full court by the Registrar. At the end of the oral hearing, we dismissed his appeal. These are our reasons.

The appeal against conviction

3. The appeal against conviction relates to a ruling made by the judge towards the close of the defence case in which she exercised her discretion pursuant to section 126 of the CJA 2003 to exclude certain hearsay evidence. This was evidence which the defence wished to adduce pursuant to section 116(2)(a) of the Criminal Justice Act 2003 (CJA 2003). It consisted for the most part of statements made by a man, Alan Hopkins, who died in 2007. Hopkins had confessed to involvement in one of the incidents of rape (count 4) but had then immediately retracted his confession, refusing to sign the statement the police prepared at the time.^[1] The appellant's primary submission is that the judge should have permitted that evidence to be admitted, her refusal to permit it was irrational, and accordingly, the appellant's conviction is unsafe.

The relevant statutory framework

4. Section 116 CJA 2003 provides for the admission of hearsay evidence where the witness is unavailable. The relevant parts of it provide that:

"(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…"

5. Section 126 CJA 2003 operates without prejudice to the discretion to exclude prosecution evidence under section 78 of the Police and Evidence Act 1984 (PACE); and unlike section 78 which operates to exclude only evidence tendered by the prosecution, it can be invoked in respect of evidence tendered by the defence. The heading to section 126 is "Court's general discretion to exclude evidence"; and it 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."

The factual background

6. The events with which this case is concerned occurred in 1984. In November and December of that year, in two separate incidents, three young women were brutally attacked and sexually assaulted by a stranger wearing a balaclava concealing his face, and wielding a large knife, whilst they were walking home late at night in Berkhamsted. It was common ground at trial that these three young women had been subjected to the dreadful and terrifying ordeal they described in witness statements taken at the time; and a good deal of the evidence, including from the women themselves, was read to the jury by agreement. We should add that the three women were available and willing to give evidence, but the defence indicated they need not be called. (We were told during the course of the hearing that one of the victims, PW has, sadly, died since the trial). The judge also told the jury, correctly, that there were striking similarities between the attacks, and they were entitled to conclude from that feature alone, that they were committed by the same man. The issue the jury had to consider was whether they could be sure that the appellant was the perpetrator.
7. The first incident occurred on Saturday 26 November 1984, at about 11.15 p.m. ST, a schoolgirl who was then 15 years old, was walking home after a night at the cinema with friends. When the last of her friends reached their home, ST carried on along the High Street in the direction of Tring. She was followed and then accosted from behind by a man, wearing a balaclava over his face, with holes only for the eyes and the mouth. Her attacker was armed with a large knife which he held to her throat. She was too petrified to scream. He forced her to climb over some gates into the grounds of a nearby school; took her into a particularly secluded section of those grounds, compelled her to undress completely and raped her, with the knife stuck into the ground beside him while he did so. After that, he robbed her of a small amount of change she had in her dress pocket.
8. ST, by then partially dressed, and in great distress, knocked on the door of a nearby house, and the police were called. The call was timed at 12.02 a.m. ST was taken to Berkhamsted Police Station, and by 1.15 a.m. was being examined by Dr Suzanna Hurst, a General Practitioner, in the Medical Room of the Police Station. ST had been 'virgo intacta' before this incident. Her clothes were taken and individually placed into brown bags. On examination it was obvious that recent sexual intercourse had taken place. It was found that ST's external genitalia were very bruised and her hymen was torn. ST had other injuries. Dr Hurst made a statement about the examination the same day.
9. Dr Hurst gave evidence at the appellant's trial about her procedure for conducting such examinations. Her standard procedure was to stand the person on a brown paper sheet: and the examination started at the top of the person to avoid contamination. She said she always wore gloves; and that she always used a clean sheet of paper for examination on the couch (a matter relevant to the issue of possible contamination raised by the defence).
10. The medical examination was attended by a woman Police Officer, (WDC Parry) and a Scenes of Crime officer (SOCO), waited outside the Medical Room to receive the specimens and clothing taken from ST. Seven separately sealed specimens were taken, including an external vaginal swab labelled JC/3(3), and these were then delivered together with appropriate paperwork to the Home Office science laboratory in Huntingdon, by a police motorcyclist. A slide was generated from the external swab. The slide was examined for the presence of spermatozoa which were found to be present in significant numbers. Shortly afterwards, it was discovered that ST was pregnant as a result of the rape; and the pregnancy was later terminated.
11. The second incident occurred on Saturday 15 December 1984, three weekends after the first attack. Two other young girls, PW and SF (both 18 years old) went to a party at the Old Mill House in Berkhamsted. In the early hours of the 16 December 1984, they were walking home from the party, out of Berkhamsted, on the main A41 road in the direction of Hemel Hempstead. The night was foggy. They were on an unlit section of the road when they were set upon by a man who ran up behind them and pulled them down onto the grass verge. The man wore a balaclava over his face, with holes only for the eyes and the mouth. He was armed with a large knife and threatened to slit their throats. He forced the two girls to crawl through the hedge into an adjoining field where he compelled them to undress completely. He forced them to perform oral sex on each other and then digitally penetrated SF's vagina. He then raped PW with the knife stuck into the ground beside them. After that, he robbed PW of money and cigarettes she had in her handbag (though she seemed to recollect him saying he did not smoke).
12. He then made the two girls, naked as they were, run in opposite directions through the field in the pitch dark, so he could make good his escape. When he had gone, the girls found each other again, managed to gather their clothing and found their way back to the road, where they desperately tried to flag down some passing cars. The third car stopped. The second car that passed them did not do so; but the driver of it after a short distance realised something was seriously wrong, stopped and dialled 999 from the nearest telephone box. That call was timed at 01.27 am. The girls, both distraught, and only partially clad, were then driven by the elderly couple who had stopped in their car, to Berkhamsted police station. PW and SF were separately examined at a local General Practitioner's in Berkhamsted. A Dr Tutty examined SF and Dr Hurst examined PW.
13. Dr Hurst's examination of PW began at 4.00am on 16 December 1984. PW was then barefoot, wearing only her coat and trousers with her sweatshirt and pants in her handbag. In addition to finding that PW was covered in mud, scratches and reddened patches on her skin, Dr Hurst confirmed that sexual intercourse had recently taken place. The SOCO filled in and signed the relevant forms for the submission of the various specimens and clothing, including PW's trousers, to the Huntingdon Laboratory. He delivered them to that laboratory on Monday 17 December 1984. Her trousers were submitted for forensic examination and examined for the presence of spermatozoa. These were found to be present in significant numbers round the crotch area of the trousers. The various surfaces of the trousers were examined for fibres and other debris/residue using strips of adhesive tape. These tapings were then fixed to acetate sheets. The trousers were not retained but the acetate sheets were.
14. After this attack, statements were taken from various motorists who realised they had travelled along the unlit section of the A41 where the attack took place at about the time it had happened. At about quarter to one in the morning, a taxi driver, Mr Hayes, on his way to pick up a fare at the Old Mill, saw two girls walking on the opposite side of the road (the same side of the road as PW and SF had been walking). He also saw a man walking in the same direction, about 40-50 yards behind them. He didn't know his name, but he said in evidence before the jury that he recognised him as someone who he had taken as a passenger on previous occasions from Hemel Hempstead to Berkhamsted, and who he had seen that Saturday lunchtime drinking in Snooks Bar, in Hemel Hempstead. At the trial, the appellant, his then partner, Wendy Duggan (who gave evidence for the prosecution) and a former work colleague of the appellant, Phillip Fowler gave evidence that the appellant was drinking in Berkhamsted, and not Hemel Hempstead on that Saturday lunchtime.
15. On 15 February 1985, the appellant, a local man, then 22 years old, was interviewed by police about the attacks. At that point, the appellant had convictions for, amongst other offences, aggravated burglary and robbery, during the course of which he had been masked and wielded a weapon. He denied being the attacker. In relation to the second incident, he said he had been home by 12.20 a.m. The jury had before it, in the form of admissions, an account of what he had claimed at the time of his interview. This was that on the night of 15 December 1984, he had visited the King's Club, Berkhamsted, with his (then) girlfriend Wendy Duggan, arriving there at 11.30 p.m. He claimed he left the club at midnight after a slight tiff with her, walked home via the A41, arriving at about 12.20 a.m. and that he went straight to sleep on her sofa. Ms Duggan could not provide an alibi: she said she had not arrived at her home until 2.15 a.m., when she found the appellant clothed and asleep on her sofa.

The re-investigation and the DNA evidence

16. At some point in 2012 the attacks were re-investigated as part of a cold case review. The retained specimens, in particular, the microscope slide and the acetate tapings recovered from the victims of the rapes, were re-tested using the latest and most sensitive DNA profiling techniques. The specimens revealed DNA profiles which matched that of the appellant. Expert evidence was given for the prosecution by two forensic scientists specialising in the analysis of bodily fluids and the interpretation of DNA results: Mr Martin Whitaker, in respect of the specimens relating to the first incident; and Miss Charlotte Hargreaves, in respect of the second.
17. In the re-investigation, the material on the microscope slide (JC/3(3)) taken from ST was extracted and re-examined. Efforts were made to separate the semen from any other cellular material. The seminal fraction was subjected to DNA testing. The result yielded a major profile, matching the appellant's DNA profile. Mr Whitaker calculated the finding was seven million times more likely if the DNA came from the appellant rather than from anyone unrelated to him.
18. It was suggested to Mr Whitaker in cross-examination that the major DNA profile matching that of the appellant found when the seminal fraction was tested, could have come from some form of cellular contaminant, rather than from the seminal fraction. Mr Whitaker did not accept this. He pointed out that if this was true, then the seminal fraction (from the semen which had been present in large quantities in the sample tested) contained no DNA profile at all. In the result, Mr Whitaker said he had no reason to doubt that the DNA profile matching that of the appellant originated in the semen on the slide and the external vaginal swab.
19. In relation to PW, as we have said, the presence of semen on the inside crotch of her trousers had been confirmed in 1984. A lab note from 1984 said: "Semen present on the inside front and back, also outside front. The semen on the outside front gives weaker AP [acid phosphate – used to test for the presence of semen] positive reaction. The semen has probably soaked through from the inside to the outside front. All surfaces tested." The tapings from all 8 surfaces were preserved on the acetate sheets.
20. When these were re-examined by Miss Hargreaves, each taping was found to contain a trace of semen. The biological material from the two tapings from the inside front left leg and the right leg were combined. This was separated into seminal and cellular fractions and submitted for DNA testing. The material from the tapings as a whole, including the inside front tapings of the trousers (exhibit ZH22) yielded two profiles: a mixed DNA profile consistent with DNA from PW and the predominant DNA profile, which came from the same person. The predominant DNA profile matched that of the appellant. Miss Hargreaves calculated that that result was approximately 43 million times more likely if it came from the appellant rather than from someone other than and unrelated to him. It was her opinion that the matching DNA profile most likely came from semen.
21. The prosecution case in the end was a simple one. It was that this was gold standard evidence, from which the jury could be sure that the appellant was the attacker in each case. The unchallenged calculations of likelihood ratios, in practice effectively excluded anyone other than the appellant being the origin of the DNA, as did the evidence that it came from semen as opposed to other cellular material. The statistic for PW meant 1 in 43 million men; and the evidence before the jury was that there were not 43 million men in the United Kingdom.
22. The case for the appellant however was that he was not the perpetrator. The appellant said he had no idea how DNA matching his profile, if it was his DNA, came to be there. His DNA, if it was his DNA (albeit separately taken from different victims in different incidents) must have found its way into those specimens, by some form of contamination.
23. In that connection, the defence led evidence that by 1985 the appellant had been convicted of a number of offences. Police records of his detention at that time were no longer available. The appellant said in evidence however that he had been a regular 'visitor' to Berkhamsted Police station at the time; and it was suggested on his behalf, that this gave rise to the possibility his DNA (though not his semen, as it was not his case that he had left any at the police station) had somehow "come into contact" with the relevant complainants.
24. However, no scientific evidence was called by the defence. There was therefore no scientific evidence before the jury to support the possibility of contamination in this way, or to rebut or contradict the scientific evidence called by the Crown. There was also no challenge by the defence – in cross -examination or otherwise - to the separate findings made by Mr Whitaker and Miss Hargreaves that the DNA profiles matched that of the appellant, nor to their calculations of the likelihood of that result if the matching DNA did not come from the appellant.
25. Moreover, Mr Whitaker and Miss Hargreaves also had reference samples from five other men. One of those men was Hopkins. Mr Whitaker and Miss Hargreaves independently concluded there was "no support" for the view that Hopkins or any of the other five contributed their DNA to any of the results. Their findings about this were not challenged either.

Mr Hopkins

26. It was however suggested on the appellant's behalf at trial that there was a credible possibility that Hopkins might have been the perpetrator of the second attack i.e. against PW and SF.
27. Unused material produced by the prosecution before the trial disclosed that at the time of the first investigation, Hopkins, a local man, like the appellant, had been arrested on 26 January 1985 in connection with the offences, but then released without charge. Hopkins had appeared in the early hours of 17 December 1984 at the Moat House Hotel in Bourne End, about half a mile away from the scene of the second attack. He was wet, covered in mud, and claimed to have been involved in a fight. He said he wanted to phone a taxi. A taxi was called for him by hotel staff, and took him home to Hemel Hempstead. On the way he asked the taxi driver not to tell the police about him.
28. On 26 January 1985, Hopkins' home was searched by the police. Amongst the items found were a balaclava and a number of knives. He was arrested the same day. After his arrest, Hopkins was interviewed. He admitted involvement in the second incident, but denied that he had worn a balaclava. However Hopkins then refused to sign a statement the police typed out for him to sign, and afterwards sought to retract what he had said. SF knew Hopkins. She made a statement in February 1985, in the knowledge that he had been arrested, in which she described him as a dreamer always looking for attention. She said he had never come to mind when she thought about what happened, and she didn't think he could have done it. Hopkins died in 2007.
29. At the request of the defence, a number of matters concerning Hopkins and the original police investigation into his connection with the case were reduced to formal admissions by agreement pursuant to section 10 of the Criminal Justice Act 1967 ^[2] and put before the jury at the close of the prosecution case.
30. The admitted facts included that amongst the various items recovered when Hopkins' home was searched, were knives, a three-inch sword and a balaclava; that Hopkins' father had said his son had another balaclava used for riding his motor bike, but that this was not recovered; that Hopkins was arrested on suspicion of rape and that during the course of the investigation Hopkins admitted his involvement in the [PW/SP] offences; although denying he had worn a balaclava. It was also admitted that a statement was typed out for him to sign which he then refused to do, and that shortly afterwards he had sought to retract everything he had said.
31. The defence however wished to place more material relating to Hopkins before the jury. As part of the appellant's case, a number of witness statements taken as part of the original investigation into Hopkins were read to the jury without opposition from the Crown. These included statements from those who had seen Hopkins at the Moat House Hotel; from taxi drivers who had driven Hopkins on a number of occasions, and from some of his friends.
32. The defence also wanted to admit into evidence under the hearsay provisions of the CJA 2003, and therefore to prove as true, the statement under caution which Hopkins refused to sign; and substantial parts of a report dated 8 February 1985 (the report) made into the investigation into Hopkins by a Detective Constable Wynn. DC Wynn was one of the officers engaged in investigating the attacks and had conducted the interview which resulted in the statement Hopkins refused to sign. The defence also wanted to put in Hopkins' detention record and the notes by doctors of his examination when at the police station. However it is Hopkins' statement and the report, rather than these statements which have been the principal focus of this appeal.
33. The passages from the report which the defence wanted to tender in evidence, dealt with Hopkins' admission that he was the man at the Moat House Hotel, his initial denials that he was involved in the second attack; and his various changes of story, including his 'full voluntary statement' as the report described it (i.e. the statement under caution which he refused to sign); his retraction of it and the reason Hopkins gave for the retraction as recorded by DC Wynn. This was that the "only reason for making the admission was that no-one would believe otherwise; that all the relevant details had been put into his head by the police and he was simply telling them what the police wanted to hear." The report recorded DC Wynn's acknowledgement that the statement made contained no details known only to the attacker; and that though numerous enquires were carried out in an effort to substantiate whether or not Hopkins should continue to be a suspect, none had proved satisfactory in either direction.
34. The Crown did not agree to those statements going before the jury. The defence therefore applied to admit them pursuant to section 116(2)(a) CJA 2003. Some of the statements in the report (which purported to record what Hopkins had said to DC Wynn) were, as the judge noted, multiple hearsay. But since DC Wynn was apparently available to give evidence if required to do so, it was common ground that this particular feature of the evidence was not material to the issues of admissibility which the judge had to decide.

The judge's ruling

35. As we have said, the defence application was refused by the judge in the exercise of her discretion under section 126 of the CJA 2003.
36. In R v Riat and ors [2012] EWCA Crim 1509 at para 7, the Vice President of the Court, Lord Justice Hughes (as he then was) described at para 7 the six successive steps which could usefully be considered when addressing the statutory framework for the admission of hearsay evidence, under the CJA 2003. These are:

"i) Is there a specific statutory justification (or 'gateway') permitting the admission of hearsay evidence (s 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 PACE and/or s 126 CJA)

vi) If the evidence is admitted, then should the case subsequently be stopped under section 125?"

37. In relation to fifth step, he said this at para 21 and following:

"21. Even when a statutory gateway is passed, and does not contain a specific 'interests of justice' test, section 78 Police and Criminal Evidence Act 1978 applies to evidence which the Crown wishes to adduce, and section 126 CJA 03 applies to all tendered hearsay.

22. The non-exhaustive considerations listed in s 114(2) as directly applicable to an application made under s 114(1)(d) are useful aides memoire for any judge considering the admissibility of hearsay evidence, whether under that subsection or under s 78 PACE, or otherwise.

23. Section 126 provides a free-standing jurisdiction to refuse to admit hearsay evidence. It does not apply to any other evidence tendered in a criminal case. If the evidence is tendered by the Crown, it stands in parallel to the general jurisdiction under s 78 PACE, which power is specifically preserved by s 126(2)(a). It goes, however, further than s 78 because it applies also to evidence tendered by a defendant, which might, of course, be targeted either at refuting Crown evidence or at inculpating a co-accused.

24. The exact ambit of s 126 is not in question in any of our present cases and may need further consideration when it directly arises. The section makes specific reference in s 126(1)(b) to the possibility that hearsay evidence may be held inadmissible because it may generate undue waste of time upon satellite issues. But the jurisdiction provided by the section is not on its face limited to such a case; it explicitly extends to an assessment of the value of the evidence. The section appears under a side heading which, although not part of the enacted terms of the statute, suggests a general discretion, and such appears to have been assumed to be its effect, albeit without detailed argument to the contrary, in both Gyima [2007] EWCA Crim 429 and Atkinson [2011] EWCA Crim 1746.

25. Whichever is the statutory power under consideration, it is clear that hearsay must not simply be 'nodded through'. A focused 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."

38. The judge accepted Mr Seymour's submission that the court's observations in Riat about section 126 were obiter, but she took the view that they provided highly persuasive guidance. In consequence, she directed herself to have regard to the "checklist" of factors in section 114(2) CJA 2003 when considering whether the evidence should be admitted.
39. The non-exhaustive checklist of factors set out in Section 114(2) CJA 2003 are those to which the court must have regard when determining whether an out of court statement should be admitted in 'the interests of justice" under the court's inclusionary discretion under section 114(1)(d). They are:

"114 (2) …

(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.

Discussion

40. As the court said in Riat, the exact scope of the discretion to exclude hearsay evidence under section 126 CJA 2003 may need further consideration, if and when the point arises. Our strong preliminary view is that, in order to prevent the potential admission of barely relevant evidence, section 126 permits the court to exclude hearsay evidence which lacks significant probative value. Section 126 was enacted in the light of the Report of the Law Commission: Evidence in Criminal Proceedings: Hearsay and Related Topics, and we believe that our view is supported by the reasons advanced by the Law Commission for the relevant recommendation (see paragraph 11.18 of the Report). Professor Ormerod has also commented that a restrictive interpretation of section 126 would open an astonishingly wide scope for the admissibility of defence evidence with little or no opportunity to filter unreliable or spurious evidence (to which elaborate and plausible documents adding weight to that evidence might be "produced"). See for example, the case comment to R v James, Criminal Law Review (2005). See further, the commentary by Professor Spencer in Hearsay Evidence in Criminal Proceedings, 2^nd edition at paras 5.55 to 5.58).
41. We heard however no developed argument (indeed almost no argument at all) on the scope of section 126. The ambit of disagreement between the parties was limited to the way in which the judge, applying Riat, exercised her discretion.
42. Thus, for the appellant, Mr Seymour accepted a number of points. First, that Riat provides very persuasive guidance in relation to the court's exclusionary powers under section 126 CJA 2003. Secondly, that the section relates to evidence which is prima facie admissible and relevant (the fact for example, that the person making a statement is dead would not render an irrelevant statement by them, such as a confession to a different crime, admissible). Thirdly, as the court said in Riat, that the wording of the section gives the court the power to assess the value of such 'out-of-court' statements when determining whether to exclude them. And fourthly, that the section 114(2) factors are a helpful common sense checklist which assists the court in assessing their value and therefore in deciding whether they should be excluded or not (a parallel we might add, with the approach taken when the court is considering whether to exclude hearsay statements tendered by the prosecution under section 78 PACE 1984). With those propositions we would agree.
43. The case he advanced in the end was a narrow one, which was that on the facts, the judge's decision was irrational, and outside the range of reasonable decisions that were open to her on the facts. He also submitted more generally that the threshold for exclusion of evidence tendered by the defence was a lower one than that for evidence tendered by the prosecution.
44. The Crown in their submissions did not address any issues of law at all. Instead, Mrs Evans focussed on the strength of the case against the appellant on the unchallenged DNA evidence in relation to two sets of 'stranger' rapes, where forensic analysis excluded Hopkins as a contributor to the (seminal) sample recovered from either woman.
45. As we have already indicated, our strong preliminary view is that section 126, on its correct interpretation, permits the judge to exclude hearsay evidence which lacks significant probative value. That was the approach followed by the judge, and, assuming it to be correct, we can find no error in her conclusion that the hearsay evidence in this case lacked sufficient probative value to permit its admission. However, even if section 126 has a somewhat narrower scope, the hearsay evidence was nonetheless properly excluded.  This becomes obvious once the nature of the evidence is considered in detail.
46. The evidence that the appellant was seeking to put before the jury as true was internally inconsistent, confusing and contradictory. In it, Hopkins both admitted and denied being responsible for the attacks on PW and SF. The matter went further however. The defence also sought to prove as true the reason he gave for making the admission in the first place viz. that he was only telling the police what he thought they wanted to hear; and, through the mouth of DC Wynn, that there was nothing which had been uncovered during the course of the extensive police investigation conducted at the time which substantiated whether Hopkins should continue to be a suspect: see para 33 above. The proposed hearsay evidence also contradicted the uncontroverted evidence of the complainants that the attacker wore a balaclava (one of the striking features which linked the attacks, quite apart from the DNA evidence) since Hopkins had denied wearing one even at the stage when he admitted the attack.
47. In reality the evidence did not prove or assist in the proof of anything and was of no value in determining the guilt or innocence of the appellant. Indeed somewhat paradoxically it undermined the primary case the defence wished to advance and which they were able to make on the basis of the admitted facts, which was that there was a possibility that Hopkins was the attacker.
48. On the material which was before them by agreement, the jury knew that Hopkins had confessed to involvement in the second incident, albeit they also knew that he had then retracted that confession. They knew all about his appearance at Moat House; about what he had said in the taxi going home, about what had been recovered on a search of his house and his physical appearance more generally. They knew too about the proximity of the Moat House to the scene of the second incident and his home address by reference to maps which were before them. Mr Seymour did not identify to us any particularly salient fact which he wanted to prove through the hearsay statements and which was not already in evidence. On the contrary, the features of the evidence Mr Seymour said raised the credible possibility that Hopkins was responsible for the second incident were all before the jury. The statements were therefore of no significant value to the case, having regard to the detailed admissions (and evidence) concerning Hopkins which were already in evidence; and we do not accept that their exclusion deprived the defence of anything of value or emasculated it, as Mr Seymour submitted.
49. The other statements the defence wanted to put in (Hopkins' detention record and the notes by doctors of his examination showing Hopkins was fit to be interviewed) were it seems to us 'parasitical' on the admission of the statement of Hopkins and those of DC Wynn. On their own, they added nothing of significance and it seems to us the judge was entitled to exclude them.
50. To return to the language of section 126 CJA 2003, therefore, we consider that the case for exclusion "taking account of the danger that to admit it would result in undue waste of time…taking account of the value of the evidence" was overwhelming. Whatever, therefore, the threshold for exclusion in section 126, in our judgment, this evidence plainly failed to surmount it. We need only add that in our view there is nothing whatever in the language of the section which requires the court to apply a different threshold test for exclusion depending on whether the evidence is tendered by the prosecution or the defence; nor can we see any principled justification for such a difference.
51. In reality the Crown's case against the appellant stood or fell on the DNA evidence; that evidence was overwhelming, and we are in no doubt that his conviction is safe. Without doubt it entitled the jury to conclude that there was no realistic possibility that Hopkins might have been responsible, to reject the defence's 'contamination' theory, and to be sure that the perpetrator who ejaculated on each occasion was the appellant.

Sentence

52. Mr Seymour did not address us orally in relation to the application for permission to appeal against sentence, but was content to rely on his written submissions. The sentence was a long one, but for rape offences of this wickedness and brutality we think it was fully merited. The application for permission to appeal against sentence is refused.

Note 1   The interview was not mechanically recorded.    [Back]

Note 2   The relevant part of section 10 provides: (1) Subject to the provisions of this section, any fact of which oral evidence may be given in any criminal proceedings may be admitted for the purpose of those proceedings by or on behalf of the prosecutor or defendant, and the admission by any party of any such fact under this section shall as against that party be conclusive evidence in those proceedings of the fact admitted     [Back]