Law Report: Witness statements not admissible: Regina v Setz-Dempsey and another Court of Appeal. (Criminal Division) (Lord Justice Beldam, Mr Justice Auld and Mr Justice Scott-Baker), 22 June 1993

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The court's approach when deciding whether to admit a witness statement under section 25 of the Criminal Justice Act 1988 is significantly different from its approach under section 26.

The Court of Appeal allowed the appellants' appeals against convictions at Chichester Crown Court before Judge Wrintmore and a jury for theft and handling stolen property respectively.

The appellants were charged with the theft and handling of a Rolls-Royce Spey aero-engine. The main prosecution witness identified the first appellant from video clips put together by the police and made statements linking the appellants with possession of the engine soon after it was stolen.

At trial, the witness was unable to recollect any of the relevant events due to mental illness. The prosecution applied for the statements made by the witness in the course of the police investigation to be read to the jury.

A consultant psychiatrist gave evidence, in the absence of the jury, that the witness had consulted him shortly before the events investigated at the trial. The witness was admitted as an in-patient the day before he made his first statement to the police. The doctor said that due to mental disorder the witness could become so anxious that his ability to recall sequentially and coherently could be affected.

The trial judge ruled that the witness was by reason of his mental condition 'unfit to attend as a witness' within section 23(2)(A) of the Criminal Justice Act 1988. He exercised his discretion to admit the statements under section 25.

The appellants appealed against conviction on the ground that the statements should not have been admitted.

David Hooper (Registrar of Criminal Appeals) for the appellants; Martin Binning (Crown Prosecution Service) for the Crown.

LORD JUSTICE BELDAM, giving the court's judgement, said that the words of section 23(2)(A), which included unfitness by reason of bodily or mental condition, were not intended merely to apply to the physical act of getting to court but to the capacity of the witness when there to give evidence in accordance to statements which would become admissible if the conditions specified were fulfilled.

As the statements were prepared for the purpose of contemplated criminal proceedings the principles which the trial judge had to follow in deciding whether or not the statements ought to be admitted were those set out in section 26. Although in deciding under section 25 whether to exercise its discretion to exclude the document the court had, as under section 26, to have regard both to the contents of the statement and to the risk that its admission or exclusion would result in unfairness to the accused, there was an important difference in approach.

Under section 25 the court exercised its discretion by holding that the statement ought not to be admitted in the interests of justice. Under section 26 the court was required to start from the position that the statement could not be given unless the interests of justice required admission of the statement. Accordingly, the judge erred in principle and it was open to the Court of Appeal to review the exercise of the judge's discretion.

Under section 26 the first matter to which the court had to have regard was the contents of the statement. The mere fact that the statements went to prove matters which were vital or of great significance was not a ground of exclusion.

The second matter the court had to consider was the risk that the admission of the statement would result in unfairness to the accused if the person making the statement did not give evidence.

The inability to test the testimony of identification by cross- examination was of the utmost significance. The court should be cautious about admitting evidence of identification in this form.

The court was also required to have regard to other circumstances which appeared relevant. It was relevant to consider not only the effect of the doctor's evidence of the quality of the evidence but also the fact that the statements could not be fairly admitted without the jury hearing his evidence.

The admission of the statements was a material irregularity and the judge erred in law in failing to consider the requirements of section 26. The appeals were allowed and the convictions quashed.