Kuany Eljack & Khalid Latif [2019] EWCA Crim 1038

Both applicants were convicted of wounding with intent, unlawful wounding and robbery and sentenced to 8 years’ detention. Both sought leave to appeal against conviction.

F called the police to say he and his friend, G, had been stabbed by two people in F’s flat. He had told the men that he would give them money to stop so they escorted him to a cash machine, and he gave them money. He said G was the main target of the attack, but he was hurt when he tied to intervene.

F positively identified both males and there was CCTV identifying the 2 applicants at the cash machine with F. in consequence of his mental health issues the Crown applied to adduce the evidence of F as hearsay evidence pursuant to s116. That application was made very late and should have been made much earlier given the seriousness of F’s issues. The issue for the Court, however, was whether there was any error of law in the way the judge addressed the issue. An application to rely on G’s statements as hearsay, on the ground he could not be found, was refused.

The single judge rejected the submission that the judge had been wrong to allow the statements of F as hearsay and the Court agreed. The submissions advanced are little more than a re-run of the points argued before the trial judge and rejected by him. The Court could not see any sound basis for any application to appeal against conviction and the Court could only intervene if there was a clear error of law. No such error had been identified or substantiated.

The Court was satisfied, in light of medical evidence, that F was ‘unfit to ne a witness because of his mental condition’, notwithstanding even the most skilled intermediaries. The applications were refused.