Nico Brown [2019] EWCA Crim 1143

The appellant was charged with wounding with intent and possession of an offensive weapon on the basis that he was the person who stabbed the victim through the window of his car. The victim refused to co-operate with the police, witnesses could only provide a general description of the offender and failed to identify the appellant in ID procedures.

The circumstantial evidence against him was a witness who gave the registration of a vehicle of which the appellant was the registered keeper, although that assertion involved hearsay evidence. Other witnesses provided a partial registration, number plate recognition cameras put the appellant’s car in the relevant area, as did cell site data from the appellant’s mobile phone. Finally, DNA from the appellant was found on the victim’s driver door.

The challenge on appeal was the admission of the hearsay evidence. The witness was on the top deck of a bus from where she saw the incident start but rushed to her child to cover his eyes. She called the police and read the registration number from the mobile phone of a passenger sat behind her. Despite efforts to trace that other passenger she was not found. The witness gave evidence and had no direct knowledge that the number recorded on the phone was the number plate of the car to which the assailant returned after the attack, but this was her belief based on what the passenger told her. That passenger’s statement to the witness was therefore admissible as evidence of truth of the matter stated only if it fell within one of the limbs of s114(1) of the Criminal Justice Act 2003.

The statement was not admissible under s116, unavailable witnesses, as the name of the witness was unknown, the prosecution contended it was admissible under s118 as res gestae. The judge was satisfied that there was no possibility of concoction of the information given by the unidentified passenger and described it as “classic res gestae material”. The judge went through the list of factors in s114(2) and concluded that the interests of justice test was satisfied.

The point of principle raised by the appeal was whether the statements made by the passenger were inadmissible as evidence of the matters stated because her name was not known. Ford [2010] EWCA Crim 2250 treats the relevance or reach of the Criminal Evidence (Witness Anonymity) Act 2008 as extending to a case where the anonymity of a person who made a statement “is sought to be preserved”, not by the prosecutor applying for an order to secure the person’s anonymity, but by the maker of the statement clearly indicating she is not willing to be identified. This does not apply in this case, there is nothing to suggest the passenger was seeking to remain anonymous, it was simply that she could not be traced.

It is only the 2003 Act that governs this case and there is no general rule in that Act that a statement made outside of court cannot be admitted as hearsay evidence unless the maker of the statement is identified.

It was necessary to consider the possibility that the unidentified passenger did not record the registration accurately but that was something the jury was well able to evaluate and could reasonably take the view that the possibility of an error could safely be ruled out. The Court was satisfied that the hearsay evidence given by the witness was admissible and properly admitted by the judge. The appeal was dismissed.