Law Report: 27 FEBRUARY 1998; Cross-examination of accused was inappropriate

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Regina v Gray and another; Court of Appeal (Criminal Division) (Lord Justice Hutchison, Mr Justice Mance and Judge Ann Goddard QC) 20 February 1998

It was inappropriate for an accused to be cross-examined about the content of a document which was inadmissible as evidence against him, such as the police interview of a co- accused who had not given evidence, in such a way as to confer upon that document the status of admissible evidence.

The Court of Appeal allowed the appeals of Darren John Gray and Gareth Evans against their convictions at Maidstone Crown Court of arson, being reckless as to whether life was endangered. A retrial was ordered.

It was alleged that they had started a fire in a church, causing damage valued at pounds 400,000. Both appealed, inter alia, on the ground that the judge, when directing the jury on the question of recklessness, had referred to the risk to firefighters and others, whilst the Crown's case as to recklessness had been put on the basis of risk to the occupants of the neighbouring vicarage and nearby dwellings. Gray also appealed on the ground that counsel for the Crown had wrongly cross-examined him on the content of Evans' interview with the police.

David Tomlinson (Registrar of Criminal Appeals) for Gray; Louis French (Registrar of Criminal Appeals) for Evans; Nigel van der Bijl (Crown Prosecution Service) for the Crown.

Lord Justice Hutchison said that the appellants' submission that their cases at the trial had been significantly prejudiced by their inability to address the question of firemen as potential victims, because it had only been introduced in the judge's summing up, was well founded. In the circumstances it was impossible to say that their convictions were safe and the appeals would be allowed on that ground.

The further ground advanced by Gray involved an important point of principle. Evans, who was first on the indictment, had elected not to give evidence. The transcript of his interview with the police was before the jury, and was admissible evidence in his case. The main complaint put forward on Gray's behalf related to the fact that, and the way in which, counsel for the Crown had cross-examined him on Evans' interview, which was inadmissible against him.

Prosecuting counsel had asked Gray if he and Evans were "the best of mates at the time", and had put a copy of Evans' interview before Gray. He had then asked a series of further questions, in the course of which Gray had denied having planned to set fire to the church. When counsel put it to him that Evans had said in his interview that they had planned to do so, Gray had said that that was a lie.

Counsel for Gray had contended that the appellant should not have been cross- examined in that way because the effect of the questions had been to seem to confer on the interview of Evans an evidential status which it did not enjoy. He had relied on R v Windas 89 Cr App R 258 and on R v Hickey and others (unreported, 30 July 1997).

The general effect of the cross-examination in the present case had been to elevate the significance of what Evans had said in interview, and to denigrate Gray's answers disagreeing with what Evans had said in interview. Counsel for the Crown had said that cross-examining in such a manner was not an infrequent practice. It was clear that that should not be the position. Although it could not be said that it would never be appropriate to ask a witness a question about what appeared in the interview of a co- defendant, what was inappropriate was to use the interview, or whatever other inadmissible document, as though it were evidence in the case against the defendant being cross-examined.

The conviction could not be said to be safe. A retrial would, however, be ordered.

Kate O'Hanlon, Barrister