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

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.

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Recruitment Genius: Customer Accounts Executive

£14000 - £18000 per annum: Recruitment Genius: This is an opportunity for the ...

Recruitment Genius: Team Administrator / Secretary - South East

£14000 - £17000 per annum: Recruitment Genius: Full time Administrator/Secreta...

Recruitment Genius: Parts Advisor

£16500 - £18500 per annum: Recruitment Genius: One of the leading Mercedes-Ben...

Recruitment Genius: Software Developer

£27500 - £35000 per annum: Recruitment Genius: This is an exciting opportunity...

Day In a Page

Fifa corruption: The 161-page dossier that exposes the organisation's dark heart

The 161-page dossier that exposes Fifa's dark heart

How did a group of corrupt officials turn football’s governing body into what was, in essence, a criminal enterprise? Chris Green and David Connett reveal all
Mediterranean migrant crisis: 'If Europe thinks bombing boats will stop smuggling, it will not. We will defend ourselves,' says Tripoli PM

Exclusive interview with Tripoli PM Khalifa al-Ghweil

'If Europe thinks bombing boats will stop smuggling, it will not. We will defend ourselves'
Raymond Chandler's Los Angeles: How the author foretold the Californian water crisis

Raymond Chandler's Los Angeles

How the author foretold the Californian water crisis
Chinese artist who posted funny image of President Xi Jinping facing five years in prison as authorities crackdown on dissent in the arts

Art attack

Chinese artist who posted funny image of President Xi Jinping facing five years in prison
Marc Jacobs is putting Cher in the limelight as the face of his latest campaign

Cher is the new face of Marc Jacobs

Alexander Fury explains why designers are turning to august stars to front their lines
Parents of six-year-old who beat leukaemia plan to climb Ben Nevis for cancer charity

'I'm climbing Ben Nevis for my daughter'

Karen Attwood's young daughter Yasmin beat cancer. Now her family is about to take on a new challenge - scaling Ben Nevis to help other children
10 best wedding gift ideas

It's that time of year again... 10 best wedding gift ideas

Forget that fancy toaster, we've gone off-list to find memorable gifts that will last a lifetime
Paul Scholes column: With the Premier League over for another year, here are my end of season awards

Paul Scholes column

With the Premier League over for another year, here are my end of season awards
Heysel disaster 30th anniversary: Liverpool have seen too much tragedy to forget fateful day in Belgium

Liverpool have seen too much tragedy to forget Heysel

Thirty years ago, 39 fans waiting to watch a European Cup final died as a result of a fatal cocktail of circumstances. Ian Herbert looks at how a club dealt with this tragedy
Amir Khan vs Chris Algieri: Khan’s audition for Floyd Mayweather may turn into a no-win situation, says Frank Warren

Khan’s audition for Mayweather may turn into a no-win situation

The Bolton fighter could be damned if he dazzles and damned if he doesn’t against Algieri, the man last seen being decked six times by Pacquiao, says Frank Warren
Blundering Tony Blair quits as Middle East peace envoy – only Israel will miss him

Blundering Blair quits as Middle East peace envoy – only Israel will miss him

For Arabs – and for Britons who lost their loved ones in his shambolic war in Iraq – his appointment was an insult, says Robert Fisk
Fifa corruption arrests: All hail the Feds for riding to football's rescue

Fifa corruption arrests

All hail the Feds for riding to football's rescue, says Ian Herbert
Isis in Syria: The Kurdish enclave still resisting the tyranny of President Assad and militant fighters

The Kurdish enclave still resisting the tyranny of Assad and Isis

In Syrian Kurdish cantons along the Turkish border, the progressive aims of the 2011 uprising are being enacted despite the war. Patrick Cockburn returns to Amuda
How I survived Cambodia's Killing Fields: Acclaimed surgeon SreyRam Kuy celebrates her mother's determination to escape the US

How I survived Cambodia's Killing Fields

Acclaimed surgeon SreyRam Kuy celebrates her mother's determination to escape to the US
Stephen Mangan interview: From posh buffoon to pregnant dad, the actor has quite a range

How Stephen Mangan got his range

Posh buffoon, hapless writer, pregnant dad - Mangan is certainly a versatile actor