Neutral Citation Number: [2012] EWCA Crim 1434
Case No: 201102274 C1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT NORWICH
His Honour Judge Jacobs
T20107111
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 3 July 2012
Before :

LORD JUSTICE MOORE-BICK
MR. JUSTICE KENNETH PARKER
and
THE RECORDER OF NEWCASTLE
(sitting as a judge of the Court of Appeal, Criminal Division)
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Between :

	THE QUEEN	Respondent	
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	WILLIAM ROWLEY	Appellant	

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Mr. Simon Spence Q.C. (instructed by the Registrar of Criminal Appeals) for the appellant
Mr. Martyn Levett (instructed by the Crown Prosecution Service) for the respondent

Hearing date : 14th June 2012
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Judgment

Lord Justice Moore-Bick : 
1.	On 24th March 2011 in the Crown Court at Norwich before His Honour Judge Jacobs the appellant was convicted of murder and was sentenced to life imprisonment. The minimum term to be served in custody was specified as 17 years. He was indicted jointly with his co-accused, Darren John Peake, who was acquitted. The appellant now appeals against conviction by leave of the Full Court.
2.	The offence of which the appellant was convicted was committed on Sunday 31st January 2010. In the early hours of the morning the deceased, Archie Kerr, aged 51, was assaulted outside his home in Great Yarmouth. He suffered serious head injuries which were consistent with having been struck with some considerable force with a heavy object. The injuries were not consistent with a single punch. Mr. Kerr died 2 months later on 2nd April 2010 from a combination of bronchial-pneumonia and brain damage resulting from the assault. The appellant, Darren Peake and another man named Lee Taylor were all present in the vicinity of the deceased’s home at the time in question. After investigations, in the course of which Taylor was interviewed by the police at some length, the appellant and Peake were charged with the murder of Mr. Kerr. The appellant accepted that he had punched the deceased once before walking away but denied having used any kind of heavy object to cause the serious injuries that led to Mr. Kerr’s death.
3.	The prosecution case was that this was a planned attack by the appellant and Peake acting together intending to cause at least really serious bodily harm to Mr. Kerr. It was said that the appellant had struck the initial blow as soon as the deceased opened the door and that he had then signalled to Peake who came over to lend assistance. The attack was said to have been carried out in revenge for an assault on the appellant earlier that evening by the deceased’s son, James Flynn, in the course of which the appellant himself had suffered serious injuries. 
4.	The appellant’s case was that, although he had been present at the scene of the attack, he did not inflict serious injury on the deceased and was not part of any agreement to do so. He had punched the deceased once, spontaneously, when the deceased came towards him. Thereafter he had walked away. He denied having signalled to Peake and said that he had simply pointed to Taylor who was standing on the other side of the road.
5.	Peake’s case was that he had played no part in the attack on Mr. Kerr. He said that he had seen the appellant punch him, knocking him to the ground. When he went over to join the appellant he found him bending over Mr. Kerr, still punching him, and holding a fire extinguisher. Peake said that he had pulled the appellant away and had then left the area. He denied that any signal had passed between him and the appellant, but he admitted that he had signalled to Taylor who was farther along the road.
6.	The question for the jury was whether the appellant, or Peake, or the two of them acting together, had killed Mr. Kerr, intending to kill him or cause him grievous bodily harm.
7.	The main evidence for the prosecution took three forms: a CCTV recording; evidence from two witnesses who were at Mr. Kerr’s home at the time of the attack; and medical evidence. The CCTV recording showed the appellant, Peake and Taylor all in the vicinity of Mr. Kerr’s home in Deneside, Great Yarmouth at 01.39 a.m. The appellant approached number 37 and became involved with the person who opened the door. That person is now known to have been Mr. Kerr. At that stage Peake was some distance away and Taylor was on the opposite side of the road. The recording showed that the appellant had punched the deceased once in the face. It then showed Peake walking towards the scene of the attack before the camera panned away.
8.	Carla Brooking, Mr. Kerr’s partner, said that she had been with him in his flat when they heard noises outside. He had gone to investigate, thinking it was his son, James Flynn, arriving home. A few seconds later she had followed him into the communal hallway and had seen his body lying outside on the ground, with his head on the doorstep. A man was leaning over him, holding a fire extinguisher with both hands at chest level. Initially she gave no more than a description to the police and said she did not know who the man was. Later, however, she identified the man with the fire extinguisher as Peake, whom she knew and had seen on a number of occasions in a local public house. Ms Brooking made it clear in cross-examination that she had not seen the attack itself. At a later stage in her evidence she said that she had seen the appellant a few times but that he was not the man she had seen holding the fire extinguisher.
9.	Victoria Stockley, James Flynn’s girlfriend, who was also in the flat at the time of the assault, called the emergency services. She recalled Carla Brooking saying that the deceased had been hit with a fire extinguisher and that Peake was responsible. She had said that both before she went outside and also after James Flynn had arrived home in a taxi. She said that Peake had been wearing a white hooded jacket but that she did not recall what the appellant had been wearing.
10.	Mr. Kerr sustained multiple fractures of the bones on both sides of his face, both above and below the eyes, fractures of the bones around his cheeks and a fracture of his lower jaw. The doctor said that he had rarely seen such extensive injuries and expressed the view that they were consistent with the application of significant force with a heavy object. In his view they were certainly not consistent with a single punch. The displacement of the lower jaw had caused an obstruction to the deceased’s airway causing difficulty in swallowing. He had also suffered injury to his brain.
11.	The appellant was arrested and interviewed. He answered “No comment” to all the questions put to him, but in due course he served a defence case statement in which he accepted that he had been present outside the deceased’s home at the material time. 
12.	Taylor was arrested on 1st February 2010 and in his initial interview declined to answer any questions. Mr. Kerr died on 2nd April 2010 and on 5th April 2010 Taylor received a text message from the appellant reading
“Taylor, its ur Gorbals connection. what the fuk u up 2? Have u went queens on me? I can find u if u have.”
In addition, between 2nd and 15th April Taylor received over 130 calls from mobile phones associated in one way or another with the appellant.
13.	Taylor was interviewed again at the beginning of May and on that occasion gave a full account of what had happened. He said that he had been standing some distance away from the house containing Mr. Kerr’s flat on the other side of the road. He described having seen the appellant punch Mr. Kerr once, knocking him to the ground. At that point, he said, they both disappeared from view behind a low wall which ran along the pavement in front of the house. A little later he had seen the appellant stand up and walk away. He himself had then turned away to leave and as he did so he saw Peake walking towards the house. He said on at least one occasion during the interview that he was frightened of both the appellant and Peake.
14.	Following the interview Taylor was told that he would not be charged and was invited to make a statement with a view to attending the trial as a prosecution witness. He expressed his fears and declined to do so. In the course of the interview he was asked to comment on the text message from the appellant. He said it was obviously a threat about what the appellant would do to him if he spoke to the police. There is nothing to indicate whether Taylor thought that the appellant might find out that he had spoken to police; we think it unlikely that he did, but it is fair to say that the text message did not prevent him from speaking out. Whether it caused him to tailor his account may be another matter, but we are not concerned with that. The police saw Taylor again in June 2010 and tried to persuade him to give evidence for the Crown, but he was unwilling to do so. We shall have to return to that conversation at a later stage. 
15.	In due course the appellant alone was convicted of the murder of Mr. Kerr. Peake was acquitted.
16.	This appeal is concerned with the admissibility of the various statements made by Taylor to the police in the course of his interview in May 2010. By the time of the trial he had disappeared and there were strong reasons for thinking that he was in Spain. In mid-December 2010 the prosecution served notice of their intention to apply to adduce in evidence under section 116 of the Criminal Justice Act 2003 a transcript of what he had said in that interview in order to establish the appellant’s presence at the scene of the crime. A witness summons was issued to compel Taylor’s attendance at the trial, but it could not be enforced while he was abroad. However, on 30th December 2010 the appellant served a defence case statement admitting that he had been present at the time of the attack and as a result the prosecution abandoned its application to adduce the record of Taylor’s interview in evidence. The appellant had not objected to the prosecution’s application, because his defence team thought that Taylor’s account could provide some support for his case. The day after the prosecution abandoned its application, therefore, he applied to adduce the record of Taylor’s interview himself, but after holding a voire dire, in the course of which he heard evidence from Taylor’s mother and two of the police officers who had been involved in the investigation, the judge dismissed the application. He did so because he was satisfied that by sending the text message mentioned earlier the appellant had frightened Taylor and had caused him to leave the country in order to avoid being called as a witness at the trial.
17.	The sole ground of appeal in respect of which the Full Court gave leave is that the conviction is unsafe because the judge wrongly ruled that the statements made by Taylor in interview were inadmissible under section 116 of the Criminal Justice Act 2003.
18.	The material parts of section 116 provide 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. 
(2)	The conditions are—
 . . .
(c)	that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d)	that relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken; 
 . . .	
(5)	A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a)	by the person in support of whose case it is sought to give the statement in evidence,
 . . .
	in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).”
19.	The judge found that, despite having made all reasonable efforts, the prosecution had been unable to find Taylor, although it was fairly clear that he was abroad, probably somewhere in Spain. He was satisfied to the criminal standard that Taylor was outside the United Kingdom. His mother had told the police that he was in Spain and it had been easy to confirm that that was the case because he rang his mother from a Spanish number while they were present. On the basis of the evidence of the text message, the evidence of the police officers and the evidence of Taylor’s mother on the voire dire the judge found that Taylor had gone to ground because he did not want to give evidence in the trial. He had done so because he was frightened of both defendants and of Flynn. As a result the judge said he was “completely sure” that the circumstances described in section 116(2)(c) and (d) had been caused by the appellant in order to prevent Taylor from giving evidence and that the record of his interview was therefore rendered inadmissible on his application by subsection (5).
20.	It was common ground that the conditions in subsection 2(c) and (d) were satisfied in this case. In those circumstances Mr. Simon Spence Q.C. for the appellant submitted that the judge’s ruling was wrong because the evidence before the court was incapable of supporting the judge’s finding that Taylor’s unavailability was caused by the appellant’s text message. Moreover, he submitted that even if that message was the cause, or one of the causes, of his absence, it had not been sent in order to prevent Taylor from giving oral evidence in the proceedings, since there were no relevant proceedings in existence at the time it was sent. He submitted that Taylor’s evidence tended to support the appellant’s case since it was inconsistent with Peake’s assertion that he had intervened in the attack by the appellant on Mr. Kerr by trying to take the fire extinguisher from him. As a result of its exclusion, therefore, the conviction was unsafe. Mr. Martyn Levett for the Crown challenged all three of those submissions. 
21.	It is worth making the point at the outset that section 116(2)(c) and (d) render hearsay evidence admissible, subject to the provisions of subsection (5), if certain conditions are satisfied. Whether the conditions themselves are satisfied is a question of fact, as is the question whether the provisions of subsection (5) take effect. If the requirements of the section are not satisfied, the evidence is not admissible; admissibility does not depend on the exercise of judicial discretion. The principal question for the court on this appeal, therefore, is whether the evidence before the judge was capable of supporting his findings that the text message sent by the appellant to Taylor on 5th April 2010 caused him to go into hiding abroad in a place from which, if he could be found at all, it was not reasonably practicable to obtain his return and had been sent in order to prevent him from giving oral evidence at the trial 
22.	The judge described the appellant’s sending the text message to Taylor as “the clearest case of intimidation.” Mr. Spence did not seriously contest that, but he reminded us that it had been sent many months before Taylor had gone abroad and had not inhibited him from talking to the police at the beginning of May only a month later. He also reminded us that Taylor had remained in Great Yarmouth for some months afterwards and had met the appellant and others involved on a number of occasions during that time. He therefore submitted that the text had not itself caused Taylor to be so frightened that he felt he had to get away.
23.	When the police spoke to Taylor in June 2010 he made it clear that he was unwilling to provide a statement or give evidence at the trial. He said that he was unable to face going into court in front of the families of the defendants and the deceased and giving his evidence in formal surroundings. He made some comments which tend to support the conclusion that he was frightened of the possible repercussions from the appellant, but he also made a number of comments which could be interpreted as indicating that he simply could not face the prospect of giving evidence in front of the families of the deceased and the two accused. The way in which Taylor expressed himself on that occasion led Mr. Spence to submit that what really caused him to leave the country was not the threat from the appellant, which he had received before he gave his account in May 2010, but simply his inability to face up to the possibility that he might be brought to court against his will and required to give evidence in public. However, that was not the totality of the evidence before the judge, who had also heard from police witnesses and, importantly, from Taylor’s mother, who had told him that Taylor was frightened of the appellant.
24.	Section 116(5) provides that a condition set out in any paragraph of subsection (2) is to be treated as not being satisfied if it is shown that the circumstances described in that paragraph have been caused by the person in support of whose case it is sought to give the statement in evidence in order to prevent the witness giving evidence in person. As the judge pointed out, the principle underlying section 116(5) is that a person who is responsible for the absence of the witness whose hearsay evidence he wishes to rely on should not be allowed to benefit from the fact that the witness is unavailable to give evidence in person if he brought that situation about deliberately. Hearsay evidence may often be reliable, but it suffers from three principal drawbacks. The first is that the statements relied on can be proved without the need for the maker to stand up in court and repeat them under oath. As everyone knows, witnesses do not always give evidence entirely in accordance with their written statements, or, in the case of previous oral statements, in accordance with what they previously said. There may be many reasons for that, not only impaired recollection but a heightened awareness of the importance of accuracy and of careful consideration of the way they express themselves. The second is that the jury do not have the benefit of seeing the witness give evidence and are therefore deprived of a valuable tool for the purpose of making an assessment of his or her credibility. Often a statement made out of court, particularly if it is in writing, can be made with a degree of confidence that the witness does not carry when giving the same evidence in person. Third, and most importantly, there is no opportunity to test the evidence by cross-examination, to probe its weaknesses and to diminish its impact. For these reasons, although a hearsay statement may carry less weight than robust oral testimony to the same effect, it may, especially if written, be powerful evidence which does not carry the attendant risks of calling the witness in person. That is no doubt why Parliament thought it appropriate to enact subsection (5) of section 116.
25.	In the present case it seems likely that Taylor’s absence was motivated in part by fear of the appellant, in part by fear of Peake and Flynn and in part by a more general inability to face up to the prospect of giving evidence. Certainly the prospect of being required to attend court appears to have precipitated his departure, because he showed no sign of leaving Great Yarmouth until the prosecution obtained a witness summons to compel his attendance, but that of itself tells one little about the factors weighing on his mind at the time. Once he realised that he was likely to be compelled to give evidence he would probably have acted in the same way, whether out of fear of the appellant or  others or an inability to face giving evidence in open court.
26.	It is unfortunate that we have not had the benefit of seeing a transcript of the evidence given on the voire dire, but having heard the evidence of the police officers involved in the investigation and that of Taylor’s mother, to both of which he referred in his ruling, the judge was convinced that the appellant’s threat was still operating on his mind. We take that to mean that he was satisfied that it was the primary cause of Taylor’s absence, but at any rate, as Mr. Spence acknowledged, he must have been satisfied that it was at least one of the effective causes of his absence. In our view it is sufficient for the purposes of subsection (5) that the action of the party seeking to adduce the hearsay evidence should have been an effective cause, albeit not the only cause, of the witness’s absence, since to hold otherwise would significantly undermine the policy of the legislation. In our view the evidence before the judge was well capable of supporting such a finding. 
27.	In those circumstances we are unable to accept Mr. Spence’s submission that, even if the appellant’s threat did cause Taylor to leave the country, it was not made in order to prevent Taylor giving oral evidence in the proceedings, because at the time it was made no proceedings had been instituted in relation to the death of Mr. Kerr. The purpose of the text message was to warn Taylor that he should not give an account of the events of that night that might incriminate the appellant and that, if he did so, the appellant would take his revenge. That was not limited to any account he might give to the police but was intended to be understood, and we have no doubt was understood, as extending to giving evidence against the appellant in any proceedings that might ensue. Although the reference to “the proceedings” in subsection (5) must refer to the proceedings in which it is sought to adduce the evidence, we see no reason to interpret the subsection as limited to steps taken after the commencement of the proceedings. If, as we think, the purpose of the provision is to prevent the person who is responsible for the absence of the witness from adducing his evidence in the form of hearsay, it is of no relevance whether the proceedings had or had not been started at the time when the relevant acts were performed. The only question of importance is whether the acts were done in order to prevent the attendance of the witness at the proceedings. In the present case the judge was entitled to find that the text message was sent for that purpose and that its effect persisted up to and indeed beyond the time when Taylor left the country.
28.	For those reasons we are satisfied that the judge’s findings of fact cannot be impugned and that he was right to hold the statements made by Taylor to the police in interview were not admissible in support of the appellant’s case. The appeal must therefore be dismissed.