LAW REPORT: Transcript of cell confession evidence unfair

LAW REPORT v 15 June 1995

Regina v Lockley; R v Corah Court of Appeal (Criminal Division) (Lord Justice Pill, Mr Justice Ognall and Mr Justice Buckley) 26 May 1995

When considering whether the transcript of evidence given by a witness at an earlier trial of a cell confession by the accused should be admitted in evidence under the Criminal Justice Act 1988 where the witness had absconded, the bad character of the witness was not an overriding factor, but, if the witness had boasted of an ability to deceive, it was important for the jury to assess the witness's demeanour and manner of giving evidence.

The Court of Appeal dismissed Adrian Neil Lockley's appeal against conviction of murder and allowed Lisa Mary Corah's appeal against conviction of murder.

The appellants were charged with murdering Corah's brother-in-law. Corah made a statement to the police that Lockley came to her home with a bloody pickaxe handle. The jury at the appellants' trial in March 1993 were discharged because of illness. At the retrial in May 1993, a transcript of evidence given at the March trial by Corah's cellmate was put in evidence as the witness had absconded from an open prison while on home leave. Evidence about the circumstances in which the witness's evidence became available, including an inducement of a transfer to open prison, and her character was also given.

Lockley appealed on the ground that the trial should have been severed because of the prejudice to him of being jointly tried with Corah. Corah appealed on the ground that the transcript should have been excluded.

Nicholas Paul; Ben Emmerson, who did not appear below (Registrar of Criminal Appeals) for the appellants; Tim Spencer (CPS) for the Crown.

Lord Justice Pill, giving the court's judgment, said that the transcript was admissible as first-hand hearsay under section 23 of the 1988 Act.

The expression "statement prepared for the purposes of contemplated criminal proceedings" in section 24 included a statement made in the course of criminal proceedings. One of the purposes of recording criminal proceedings was to make available a record for use on any appeal to a higher court. The transcript was also admissible as a "business etc document" under section 24. Sections 25 and 26 gave the court a discretion as to whether to admit a statement which was admissible under section 23 or 24.

The trial judge was not referred to and did not exercise his discretion in accordance with the 1988 Act. Therefore the Court of Appeal should exercise a fresh discretion. A statement prepared for the purposes of pending or contemplated criminal proceedings must be tested against the principles in sections 25 and 26.

Under each section the court must form an opinion whether it was "in the interests of justice" that the statement be admitted. The court must have regard under each section to the particular considerations set out in the section concerned.

Weight must be given to the fact that the witness had given evidence on oath and had been cross-examined. The court could not accept that the character of the witness was an overriding factor in considering whether the admission of her evidence was in the interests of justice. It might in some situations be in the interests of justice to admit the evidence of a person of bad character, particularly when the bad character could readily be demonstrated. The evidence was however about a cell confession made in the absence of any other witnesses and such evidence was always treated with caution by the courts. The witness had boasted a remarkable ability to deceive.

It was of great importance that the members of the jury should have the opportunity to assess the witness for themselves, including her demeanour and the manner in which she gave her evidence. The potential unfairness to the accused in the jury's not having that opportunity was such as to require the exclusion of the transcript in the interests of justice.

Its admission involved a wrong decision on a question of law involving potentially important evidence. Corah's appeal must be allowed and her conviction quashed.

In relation to Lockley the judge gave strong and repeated directions to the jury that Corah's out-of-court statements were not evidence against Lockley. The court was unable to hold that the judge exercised his discretion wrongly when permitting the joint trial to proceed. Lockley's appeal was dismissed.