What’s this about?
On 6th February 2013 the Court of Appeal gave judgement in the case of Adeojo & Nyamuofukudza  EWCA Crim 41 that gives us another insight to the courts thinking about hearsay. Hearsay is a complicated area of law, and has been going back and forward between the ECHR and the UK for the last few years (I’ve written a bit about it here). The fundamental way that the English Courts will look at the matter seems to be relatively settled (at least until the ECHR get involved again), but it will take a while for the details to be thrashed out (see Ibrahim  EWCA Crim 837 and Riat  EWCA Crim 1509 for more details).
Sylvester Akapalara was murdered on 29th December 2010 by a group of young men. During this encounter, two assoicates of Mr Akapalara (Sean Essuman-Dadson and Abdul Ullah) were also attacked. The Prosecution alleged that Mr Adeojo and Mr Nyamuofukudza were amongst the two attackers.
The evidence came mainly from Mr Essuman-Dadso who made a recorded statement implicating the two appellants. Mr Ullah gave a description of the events of the attack, but couldn’t identify anyone.
Mr Essuman-Dadso was an extremely reluctant witness. He refused to answer questions in Court, other than to confirm that his original account was true and that he was not in fear.
The Judge admitted his statement to the police as hearsay evidence. The jury was given warnings. The jury convicted Mr Adeojo of murder, but could not agree about Mr Nyamuofukudza and a re-trial was order. Other defendants who had also been charged were acquitted.
The other evidence against Mr Adeojo was a telephone conversation between him and another co-Defendant which, on the prosecution’s case, seemed to refer to a gun that had been recovered. There was other circumstantial evidence – his phone was in the same area as the murder, Mr Adeojo had a knife wound (which he may have lied about), as did the attacker.
At the re-trial of Mr Nyamuofukudza, Mr Essuman-Dadso was again not a particularly forthcoming witness and refused to answer questions. On this occasion, the Judge concluded that he was in fear and again admitted the evidence. Mr Nyamuofukudza was convicted on this occasion.
The main argument for both appellants was that the convictions were unsafe because the hearsay evidence should not have been admitted. The Court dismissed both appeals.
The Court re-iterated what was said in Riat that, ultimately, the “job of the judge is not to look for independent complete verification. It is to ensure that the hearsay can safely be held to be reliable.” In this case, the evidence of Mr Essuman-Dadso was held to be rightly admitted, giving four reasons: firstly, there was no motive for him to lie, secondly, the account given was capable of being compared against the other circumstantial evidence as a check on his accuracy, thirdly, because the statement was recorded, there was no argument as to its accuracy and, fourthly, when looking at the supporting evidence, this was capable of supporting it.
Although different considerations applied to the different cases, the Court reached the same conclusions.
There is not any great new point of law in the judgment, but it is useful to see how the Court approach hearsay cases. The question of what is sufficient corroborative evidence, and what form it can take, will need to be resolved over time, as and when individual cases come forward.
Although the legal test the Court will address is clear, the issue will presumably go back to the ECHR at some point. It seems to me that it is arguable that the approach currently adopted is not compatible with Art 6. The ECHR’s approach in the case of Tahery is instructive. We will have to see if Strasbourg decides to speak again.