Neutral Citation Number: [2008] EWCA Crim 1786
No: 200704588/D4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Wednesday, 9th July 2008
 
B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE SILBER 
 
SIR CHRISTOPHER HOLLAND 
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R E G I N A 

v 

KEVIN SCORAH
 
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Mr T Fitzpatrick appeared on behalf of the Appellant 
Mr J Oates appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE RICHARDS:  Kevin Scorah appeals against his conviction on 6th August 2007 at Chester Crown Court after a trial before His Honour Judge Boulton and a jury on a count of causing grievous bodily harm with intent, in respect of which he was sentenced to eight years' imprisonment.  A co‑defendant, Andrew Pinkham, was convicted of the same offence and was sentenced to six years' imprisonment.
2.	This was in fact the third time the defendants had faced trial on this charge.  At the first trial the jury were unable to agree.  At a retrial the appellant's counsel had to withdraw from the case because of criticisms made by the appellant of his solicitor during cross‑examination of the appellant.  The jury were discharged, so the appellant was given the chance to be represented by new solicitors and counsel at a further trial.
3.	The proceedings arose out of an incident at about 11.00 pm on Good Friday, 25th March 2005, when four men were involved in an altercation with the complainant, Stephen Pollard, in Station Avenue, Little Sutton, Ellesmere Port.  After some words were exchanged, the complainant went into his house and came out brandishing a knife.  The four men scattered, armed themselves with wood from a nearby garden fence and together attacked him, knocked him to the ground, and, while he was laying there defenceless, punched him and kicked him to the head, causing him to sustain serious injury.
4.	The prosecution case against the appellant centred on evidence identifying him as one of the men involved in the attack.
5.	His case was that he had been wrongly identified and he put forward an alibi supported by his girlfriend.
6.	As to the prosecution evidence, the complainant himself, Mr Pollard, was so seriously injured that he could not recall what had happened.  His girlfriend, Karen Drummond, said that she left the public house with him at about 10.30 pm.  They had had a drink and were both a bit "tiddly".  As they turned the corner into Station Avenue where they lived, they heard voices and somebody said, "That's Robbie D's missus."  It seems that that was a reference to her.  She had previously been married to a man called Robbie Drummond, and, although they had been divorced for some years, they were still good friends.  The complainant, who had gone up the path to the house, said, "No, that's my missus."  It was obvious to Karen Drummond that there was going to be trouble.  Two of the group were coming up the path.  She said she recognised the appellant, who was the leader of the group.  She said that her ex‑sister‑in‑law was the best friend of the appellant's mum, Annette Aston.  She knew the appellant to say hello to but no more.  She knew his mum to talk to.  As to the circumstances of her recognition of the appellant, a further relevant aspect of her evidence is that when they on the path the hall in the house was lit up.
7.	What then happened, according to her evidence, was this.  The appellant said, "Robbie will thank us for this."  She responded, "Kev, there is no need for this."  She pushed the complainant inside the house.  She said to the youths, "We had Christmas dinner together with Robbie," referring to the fact that she, the complainant and Robbie Drummond had had Christmas dinner together the previous year.  She said she was trying to reason with the appellant.  The complainant must have come out of the house.  She tripped and fell into the garden.  The complainant had his back to her and was in the middle of the four lads.  The appellant came up behind him and hit him with a stick.  The complainant went to the ground, his head split open and he was making a snoring noise.  The lads were saying, "He's snoring", and they kicked him to the head.  She screamed that they were killing him.  She intervened and the lads ran away.  She said that as quickly as it started, it stopped.  Subsequently she recognised Pinkham on a television news report about the army and reported his name to the police as one of the attackers.  Then on 1st March 2006, almost a year after the incident, she attended an identification parade and picked out both the appellant and Pinkham.
8.	A neighbour by the name of Heather Myatt, who lived in the house almost opposite, gave a fairly detailed account of the incident, including evidence that the complainant was brandishing something in his hand that looked like a knife but she did not identify any of attackers.
9.	Another neighbour, Lisa Johnson, who lived in the house opposite, heard noise and looked out of the window.  She said there were a few people outside.  Someone at the back of the group turned round and looked at her house.  It was Pinkham, with whom she went to school.  He was about seven to ten metres away.
10.	A woman by the name of Deborah Netherton, whose husband was a taxi driver, saw a man, whom she identified as the appellant, running along Rossmore Road West.  He was facing her about ten or 15 yards away, though she also seems to have said later he was about 25 to 30 yards away.  She said she had known him for ten years and that they had picked him up in the cab in the weeks previously.  She too attended an identification parade on 1st March 2006 and identified the appellant.
11.	There was prosecution evidence relevant to the appellant's alibi to which we will come back in a moment.
12.	The final element of the prosecution evidence to which we need to refer was that of a police officer, DC Owens.  He gave evidence that he went to the address of the appellant's mother, Annette Aston, at 12.10 pm on 26th March 2005 ‑‑ that is to say, a little over 12 hours after the incident ‑‑ in order to arrest the appellant.  The appellant was not there.  The officer recorded in his pocket book certain comments by Mrs Aston.  The defence objected to the prosecution adducing that evidence, but the judge allowed it in.  A challenge to the judge's ruling on that matter is at the heart of this appeal and we will come back to the detail in a moment.
13.	DC Owens also gave evidence of mobile phone analysis which showed that a telephone number used by Pinkham in the past was stored on the SIM card of the appellant's mobile phone.  Moreover, there was evidence that when Pinkham left the police station after being arrested and interviewed on 17th January 2006, ten months after the incident and a month before the appellant himself was arrested, within 40 minutes of his release he made three calls to the appellant's number, including one of sufficient length to show that it connected.
14.	In addition, there was great deal of telephone traffic between Pinkham and the appellant's family in the months after the incident.  Hundreds of calls were made, most frequently to the appellant's half‑brother, Ricky Aston.  
15.	We should mention that the appellant himself was not arrested and interviewed until 16th February 2006.  There was evidence that he denied that he was found hiding under a bed.
16.	The appellant himself gave evidence at the trial.  He said that he did not know Pinkham, the complainant, Karen Drummond, or her ex‑husband Robbie Drummond.  He gave an alibi, saying that he had been with his girlfriend, Jennifer Norbury at the time of the incident.  She worked as a barmaid at the Bear's Paw public house, some distance away from the incident, on Friday evenings.  On 25th March 2005 he had dropped her off there at about 5.00 pm.  She called him at 9.30 or 10.00 pm to pick her up.  It was about a ten minute drive for him to get there.  On arrival he went through the back door for a drink while waiting for her to finish her shift.  They left together at about 10.30 and drove home.  The appellant said that he did not leave the house again that night.
17.	His girlfriend Jennifer Norbury gave evidence in confirmation of his alibi.
18.	We come back at this point to one feature of the prosecution evidence relevant to the issue of alibi.  It is that telephone records showed 17 or so calls from the landline at the Bear's Paw pub to the appellant's mobile phone between 10.10 and 10.58 pm.  The prosecution case was that these calls were made by Jennifer Norbury because the appellant had failed to pick her up.
19.	The appellant's evidence, supported by that of his girlfriend, was that the first call must have been his girlfriend asking him to pick her up and the other 16 must have been made by someone trying to tell his girlfriend that she had left her purse at the pub.  She said in evidence that she had left the purse behind and had to go back there the next morning to pick it up.
20.	As to all of this, it is also relevant to note that the prosecution called a witness, Joanna Birkett, who was working at the Bear's Paw that night and who did not recall either the phone calls made from the pub or Jennifer Norbury having lost her purse.
21.	That in summary was the evidence at the trial.
22.	The main grounds of appeal relate to the admission of the hearsay evidence as to what was said by the appellant's mother, Mrs Aston, to DC Owens the day after the incident, whether the judge erred in admitting it, and whether, having admitted it, the judge erred in failing to direct the jury as to its weight and provenance.  
23.	By section 114(1)(d) of the Criminal Justice Act 2003 a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if the court is satisfied that it is in the interests of justice for it to be admissible.  In deciding whether a statement should be admitted under that provision, the court must have regard to the factors set out in subsection (2).  They include in paragraph (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, in paragraph (c) how important that matter is in the context of the case as whole, in paragraph (d) the circumstances in which the statement was made, and in paragraph (h) the amount of difficulty involved in challenging the statement.
24.	We should also refer to section 121 which imposes an additional requirement for the admissibility of multiple hearsay.  It provides as follows:
"1.  A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless ‑‑ 
 (a) either of the statements is admissible under section 117, 119 or 120, 
 (b) all parties to the proceedings so agree, or
 (c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.
2.  In this section hearsay statement means a statement not made in oral evidence but is relied on as evidence of a matter stated in it."
25.	What DC Owens recorded in his pocket book and gave evidence of was the following.  First, he recorded that he attended at Mrs Aston's address.  The entry continued:
"Kevin not resident.  Leave card.  He will contact Mr Boag to arrange to attend at custody."
26.	The statement then continued with comments seemingly attributed to Mrs Aston as follows: 
"She had heard that Steve was at home.  Came out of house with knife and had go at youths which included stabbing someone in the hand.  Refused all further details.  Kevin Scorah has cut marks on body that have been photographed by a friend."
27.	The officer conceded in cross‑examination that he had no independent recollection of the conversation with Mrs Aston and had not given her an opportunity to sign the pocket book.  He confirmed that she was relaying information to him that she had heard from another source.  He did not know that other source, but got the impression that it was the appellant, though he accepted he did not know that this was the case.  He confirmed that there had been no further enquiry or contact with Mrs Aston and no attempt had been made to produce her as a witness.  The evidence in question was not put to the appellant in his police interview.
28.	It is to be noted that this evidence was admitted into evidence at the appellant's first trial presided over by His Honour Judge Hale but excluded at the second case presided over by Her Honour Judge Case.  In his ruling at the third trial Judge Boulton started by reminding himself, as he put it, that Judge Hale was one of the most senior criminal judges on the circuit and Judge Case one of the least experienced criminal judges on the circuit.  Mr Fitzpatrick submits that the overriding impression was that Judge Boulton did not carry out an independent assessment of the merits, but took the view that he should admit the evidence because Judge Hale had previously done so.  We do not accept that submission.  Judge Boulton introduced an irrelevance by referring to the relative experience of the judge who presided over the earlier trials, but he did so, as he said, by way of context, and he went on to give a reasoned basis, albeit briefly reasoned, for his decision to admit the evidence.  
29.	He said, plainly referring to the relevant provisions of section 114(2) of the 2003 Act, that there were three issues that went to the centre of the question of admissibility of such hearsay evidence.  First, how important the matter was in the context of the case as whole.  The answer in this case was that it went to the very centre because it rebutted an alibi which was said to be false.  Secondly, the circumstances in which the statement was made.  The answer was that the police officer within 12 hours of the incident was receiving from the mother of the defendant a hearsay statement which effectively rebutted the defendant's alibi.  Thirdly, and most important, the amount of the difficulty involved in challenging the statement.  The answer in the context of this case was no difficulty at all because the witness was the mother of the accused and would be readily available to the defence if they thought it appropriate to call her.
30.	Mr Fitzpatrick submits that the judge fell into error for a number of reasons.  First, the evidence given by the police officer was evidence of what Mrs Aston said she had heard from somebody else.  The somebody else was unknown and was certainly not proved to be the appellant.  There could have been any one of a number of sources, including, it is suggested, even the police themselves, who had attended upon Mrs Aston on the night of the incident itself to arrest the appellant.  The evidence is therefore in the form of multiple hearsay and there is no way of knowing how many different sources of information were involved, their personal knowledge of the facts, their reliability or accuracy.
31.	Section 121 of the 2003 Act is engaged.  The statement was not admissible under sections 117, 119 or 120.  There was no agreement between the parties that it should be admitted.  Its admissibility therefore depended on the court being satisfied under section 121(1)(c) that the value of the evidence, taking into account how reliable the statements appeared to be, was so high that the interests of justice required the later statement to be admissible for the purpose of proving the fact that the earlier statement was made.  That test, it is submitted, was not met.
32.	We accept that line of the argument.  In our judgment, this was indeed evidence to which the multiple hearsay provisions of section 121 applied.  The test for admissibility under that section is more onerous than the general test in section 114.  The judge did not apply the section 121 test.  The issues under section 121 were raised in the defence skeleton argument that was before him, but it seems that they were not focused on in oral argument before him by either counsel, and we note that the judge said in his ruling that Mr Fitzpatrick, appearing as counsel for the defendant then as he does before us, accepted that the three issues to which the judge referred under section 114 went to the centre of the case.  However the argument proceeded before the judge, the fact is that section 121 was directly in play.  Had the judge considered it, it is our view that the only conclusion to which he could reasonably have come was that this evidence should not be admitted.  It was not known who had told, or was claimed to have told, Mrs Aston what she said to the police officer.  The officer's impression that it was the appellant was not good enough.  That was not stated in the note and he had no independent recollection of the conversation.  We reject the submission made by Mr Oates for the Crown, that the words used themselves point conclusively to there being a report by Mrs Aston of her son's actions and intentions.  Nor do we accept the submission that the problem could have been resolved by the defence calling Mrs Aston to clear up the issue of provenance.  It was the prosecution that was seeking to use this evidence.  The problem was inherent in the evidence itself and it was a matter for the prosecution to address if it could.  The fact that the source was not known also means that there was no way of assessing the reliability of the original statement and no way in which that statement could properly be challenged.  The fact that it corresponded in part to what was said in other evidence does not show that it could be treated as generally reliable.
33.	We are therefore satisfied that the judge fell into error in allowing this evidence to be adduced by the prosecution.
34.	But the problem does not end there.  Having allowed the evidence in, the judge referred to it twice in his relatively short summing‑up.  In fact he did not accurately set out the note from the officer's pocket book.  He omitted the introductory words "she had heard that" before "Steve was at home ..."  Far more importantly, however, and as further submitted by Mr Fitzpatrick, the judge failed to give the jury any direction or guidance as to the need for care in relation to such evidence, bearing in mind that it did represent multiple hearsay which had not been tested or explored in any way and that the evidence had not even been put to the appellant in interview.  We are told that the issue was raised with the defendant in his cross‑examination, but his response was that he knew nothing about the visit of the police.  He said that he and his mother were on very bad terms.
35.	We doubt whether a direction or guidance expressed in the strongest of terms would have been sufficient to ensure that the jury did not misuse or give undue weight to this evidence, evidence which should not have been before them in the first place.  But the fact is that nothing was said to them about how to approach it.  That compounds the error in letting the evidence in.
36.	There are further complaints about the summing‑up in other grounds of appeal but they are of lesser substance in themselves.  One matter is that the judge did not direct the jury on the issues of joint trial and the need to give separate consideration of the evidence against and for each defendant.  It is submitted that the omission was particularly important in the context of this case because it was easy for the jury without proper guidance to come to the conclusion that, if one defendant was guilty, the guilt of the other must follow.
37.	We do not accept that submission.  It would undoubtedly have been better for the judge to include what is a standard direction concerning the need for separate treatment of the defendants, especially in a case where the prosecution were contending that they had both lied and that the only explanation was that they were both guilty of the offence.  However, the nature of the evidence before the jury was such that we do not think that the jury can have been led into the kind of error suggested.  There were plainly separate issues of identification in relation to each of the two defendants, as well as the separate issue of alibi advanced by the appellant.  It is true that there were links established by the various telephone contacts between Pinkham and the appellant and other members of the appellant's family, but, looking at the case as a whole, we are not satisfied that the absence of a specific direction as to separate treatment can have led the jury to leap from a finding of guilt against Pinkham into a finding of guilt against the appellant without proper consideration of the evidence relating specifically to the appellant.
38.	A further matter raised in relation to the summing‑up is the absence of a direction on the issue of circumstantial evidence and the care needed in its interpretation.  It suffices to say that in our judgment no such direction was needed on the facts of this case.  
39.	The final matter raised considers an alleged failure by the judge to direct the jury adequately in relation to weaknesses and discrepancies in the identification evidence.  It was contended by the defence that the identification evidence was suspect and unreliable.  The major point was that the two witnesses had given very different descriptions of the clothing worn by the man they identified as the appellant and that they gave very different accounts of the direction in which he was running from the scene.  As to clothing, Karen Drummond described the man as wearing blue jeans and a blue top with lighter coloured sleeves, whereas Deborah Netherton described him as wearing a cream tracksuit jacket, cream trousers and trainers.  As to route, Karen Drummond said that the four men ran off north in the direction of Pound Road, whereas Deborah Netherton said that the man she saw was running in a southerly direction onto Rossmore Road West.  It is submitted that because of those discrepancies the evidence of the two witnesses was mutually destructive in terms of reliable identification.  
40.	The judge did in fact refer to the fact that the witnesses gave different descriptions of the clothing worn by the man.  It is unnecessary for us to set out the passage of his summing‑up in which he did so.  In our judgment, he drew the jury's attention adequately to the discrepancy as to clothing, even if the point could have been worded better and more fully.  
41.	As to the different accounts given of the direction or route taken by the man identified, the fact is that Karen Drummond was describing the moment that the four youths ran off together, whereas Deborah Netherton saw a man by himself, and could also see the scene of the incident, suggesting that what she was looking at took place some moments later.   By that time the men could have split up and the man she saw could have been travelling in a different direction from that in which he started out.  It would have been better for the judge to draw attention to the differences in the evidence on this point, but we do not accept that there was a clear discrepancy casting serious doubt on the reliability of the identifications.
42.	Accordingly, those various other criticisms of the summing‑up are not particularly strong points in themselves. But we must come back to the erroneous admission of the hearsay evidence and the compounding of that error by the way the evidence was dealt with in the summing‑up.  The final question we have to address is whether, looking at the case as a whole, the effect of the errors is to render the conviction unsafe.
43.	We have borne in mind the apparent strength of the identification evidence, coming as it did by way of recognition of the appellant by two separate witness, though we do not lose sight of the matters relied on by the defence as weakening that evidence, including matters to which we have not made specific reference in this judgment.  We have also borne in mind the apparent weakness of the appellant's alibi evidence and the problems created for him by the telephone records, both in relation to his alibi and as regards his knowledge of Pinkham, and the strength of the prosecution case that he was lying in his denials that he knew Pinkham.  The case against the appellant was plainly a strong one.  
44.	On the other hand, the jury at the first trial was unable to agree on a verdict, though we do not know the detailed circumstances of that case and the way in which matters were put to the jury on that occasion.  Moreover, it is impossible to assess how much weight the jury at the present trial may have given, especially in the absence of any guidance, to the evidence which we have held should not have been admitted at all.  We cannot exclude the possibility that it was treated as a decisive piece of evidence in destroying the appellant's alibi and establishing his presence at the scene.  We also bear in mind the existence of other weaknesses in the summing‑up, even though, as we have said, they do not give rise in themselves to any major concern.
45.	We have considered all these matters with care.  The conclusion to which we have ultimately come is that the errors that we have found in relation to the hearsay evidence are such as to render this conviction unsafe so that the conviction cannot be allowed to stand.  Accordingly, the appeal is allowed and the conviction is quashed.
46.	LORD JUSTICE RICHARDS:  Mr Oates, is there any application consequent upon that by the prosecution? 
47.	MR OATES:  My Lord, no.   
48.	LORD JUSTICE RICHARDS:  Sorry? 
49.	MR OATES:  No, my Lord.  
50.	LORD JUSTICE RICHARDS:  The prosecution is not applying for a further retrial? 
51.	MR OATES:  There have been three trial already.  
52.	SIR CHRISTOPHER HOLLAND:  One of them didn't ‑‑ 
53.	MR OATES:  Yes, I do apologise.
54.	SIR CHRISTOPHER HOLLAND:  ‑‑ didn't come to a jury verdict.  
55.	LORD JUSTICE RICHARDS:  There has been one effective trial at which the jury failed to agree.
56.	MR OATES:  One in which there was no conviction, so the Crown would be entitled to ask for a retrial.
57.	LORD JUSTICE RICHARDS:  Is the Crown asking for a retrial? 
58.	MR OATES:  Yes, my Lord.
59.	LORD JUSTICE RICHARDS:  What do you say about that, Mr Fitzpatrick? 
60.	MR FITZPATRICK:  Well, my Lord, this will, of course, be the fourth time that the proceedings will be gone through.  I know that the fact that it is a three year old case perhaps does not weigh that heavily with the court.  The defendant, of course, has been in custody and now served the equivalent of a two year sentence already.
61.	LORD JUSTICE RICHARDS:  Out of an eight year sentence.
62.	MR FITZPATRICK:  Yes, yes.  It is a serious case.  It would be idle to suggest otherwise.
63.	LORD JUSTICE RICHARDS:  And the quashing of the conviction in relation to the appellant has no implications for the conviction of the co‑defendant? 
64.	MR FITZPATRICK:  Not at all.  I believe that I concede in my advice and grounds certainly that the case against him was overwhelming in a sense.  It does not impinge on that at all.
65.	LORD JUSTICE RICHARDS:  It is always a matter of concern if the situation arises in which one co‑defendant's conviction is quashed for technical grounds, as is the case here, whereas the other one stands because there are no such grounds in his case.
66.	MR FITZPATRICK:  Yes.  My Lord, it is not a submission that I can make that this is not a serious matter.  The only meaningful point that I can raise is that we will have been through this three times before and there has been some incarceration.
67.	LORD JUSTICE RICHARDS:  There is no reason why a fair trial could not take place? 
68.	MR FITZPATRICK:  I don't believe that I can properly argue against that observation, my Lord.
69.	LORD JUSTICE RICHARDS:  Though it would always be open for an application to be made to the judge at the beginning of any further trial if there were such grounds.
70.	MR FITZPATRICK:  Yes.
71.	LORD JUSTICE RICHARDS:  Thank you very much.  (Pause).  The court orders a retrial.  Consequential upon that ‑‑ we have already made clear that we allow the appeal, we quash the conviction, the retrial ‑‑ there is simply the one count in the indictment? 
72.	MR FITZPATRICK:  My Lord, yes.  
73.	LORD JUSTICE RICHARDS:  Retrial on that count.  We direct that a fresh indictment is to be preferred.  I think we normally specify 28 days for that. 
74.	THE CLERK OF THE COURT:  He should be rearraigned on the fresh indictment within two months.
75.	LORD JUSTICE RICHARDS:  Within two months.  Thank you.  Fresh indictment to be preferred, the appellant to be rearraigned on the fresh indictment within two months.  The appellant will be remanded in custody pending the retrial.  We are empowered to make a representation order for the retrial, so  a representation order for the retrial.  Was it junior counsel and solicitors at the last trial? 
76.	MR FITZPATRICK:  It was, my Lord, yes.
77.	LORD JUSTICE RICHARDS:  An order on the same basis.  This trial ‑‑ well, the last two trials took place, I think the first one in Wales.
78.	MR FITZPATRICK:  In Mold, my Lord.  
79.	LORD JUSTICE RICHARDS:  And the second one in Chester.  
80.	MR FITZPATRICK:  Knutsford.  The second trial was in Knutsford and the third one in Chester.
81.	LORD JUSTICE RICHARDS:  Does the matter fall within the province of the Northern Circuit rather than the Welsh Circuit? 
82.	MR FITZPATRICK:  My Lord, yes, the Northern Circuit.
83.	MR JUSTICE SILBER:  Knutsford is now in the Northern Circuit? 
84.	MR FITZPATRICK:  My Lord, yes.
85.	LORD JUSTICE RICHARDS:  We shall direct that the location of the re‑trial shall be determined by the presiding judge of the Northern Circuit.  There is nothing else, is there? 
86.	MR FITZPATRICK:  I don't believe so, my Lord.
87.	LORD JUSTICE RICHARDS:  Thank you very much indeed.