Kuany Eljack & Khalid Latif [2019] EWCA Crim 1038

Kuany Eljack and Khalid Latif v Regina [2019] EWCA Crim 1038 concerned renewed and referred applications for permission to appeal against conviction before the Court of Appeal (Criminal Division), which were refused.

Mr Eljack, aged 24, and Mr Latif, aged 19, were convicted on 25 April 2018 at the Crown Court at Blackfriars of wounding with intent, unlawful wounding and robbery. Each received eight years’ detention in a young offender institution. Mr Eljack’s application for permission to appeal was refused by the single judge and was renewed before the full court. Mr Latif’s appeal, based on the same ground, was referred by the Registrar. The court granted Mr Latif a short extension of time, accepting that his advisers had genuinely but mistakenly believed his position would be protected by Mr Eljack’s timely application.

On 6 January 2017 the complainant Mr Furman and his friend Mr Ginova were found with knife wounds at Mr Furman’s flat. Mr Furman told police that two men had attacked Mr Ginova and that when he tried to intervene he too was cut. He said he had offered the men money to stop. They took him to a Costcutters cash machine, assaulting him on the way, and he withdrew money because he feared for his safety. The evidence against the applicants included Mr Furman’s witness statements, his positive identification of both men (Mr Latif as the man who stabbed Mr Ginova and cut his hand and neck, Mr Eljack as the man who beat Mr Ginova and forced him to hand over money) and CCTV footage from outside Costcutters showing Mr Furman at the machine with both applicants.

The Crown applied, very late in the proceedings, to admit Mr Furman’s statements as hearsay under section 116 of the Criminal Justice Act 2003 on the ground that he was unfit to be a witness because of his mental condition. His Honour Judge Simon conducted a voir dire at which medical evidence was adduced and subjected to cross-examination. The medical evidence came from Dr Nadia Davies, a consultant psychiatrist who had treated Mr Furman for ten years. She described him as suffering from paranoid schizophrenia, experiencing auditory hallucinations and paranoid delusions, symptoms exacerbated by non-compliance with medication and periodic drug use. Although she considered that he had had capacity to give a witness statement in January 2017, she stated that he was not fit to give evidence at trial and that being compelled to do so would be detrimental to his mental health. She explained that under the stress of court proceedings his hallucinatory experiences would increase to the point where he would be incoherent and unable to answer questions. The judge accepted Dr Davies’s evidence without reservation and ruled that Mr Furman was unfit to be a witness within the meaning of section 116(2)(b). At the same hearing the Crown also sought to rely on written statements of Mr Ginova as hearsay on the ground that he could not be found, but Judge Simon refused that application, being unsatisfied that all reasonably practicable steps had been taken.

The trial proceeded with Mr Furman’s statements read to the jury, accompanied by appropriate warnings. A police officer was cross-examined as to how the statements had been taken. Extensive admissions were agreed between the Crown and the defence setting out Mr Furman’s mental health history, his symptoms, the circumstances of the attack (in which Dr Davies confirmed that two local drug dealers had attacked Mr Furman’s friend and slashed Mr Furman’s hand and neck with a knife before forcing him to withdraw money), his understanding of court proceedings, his difficulty expressing himself under stress, his need for the support of trusted mental health professionals, and the fact that the difference between real occurrences and paranoid hallucinations would be obvious to those who knew him. The applicants did not give evidence. The judge summed up fully and fairly and the applicants were unanimously convicted.

The single ground of appeal advanced on behalf of both applicants was that the judge had erred in admitting Mr Furman’s statements as hearsay. The single judge rejected that submission, emphasising that different tests applied to fitness to stand trial, fitness to be a witness and capacity to make a reliable witness statement. He noted that the prosecution’s application did not defy logic but was consistent with Dr Davies’s evidence that Mr Furman had capacity in January 2017 to make a statement but was unfit in April 2018 to give live evidence. He further observed that the jury had not been left in the dark: the defence had been allowed to cross-examine on the circumstances of the statement-taking, further admissions had been agreed based on the medical evidence, and the judge had referred to these matters in his summing-up.

Before the full court Mr Newport, appearing for both applicants, repeated the arguments advanced below. He submitted that it was illogical to conclude that Mr Furman could not give evidence when he had been found fit to plead to charges brought against him the previous year. He argued that if Mr Furman was unfit to attend court there must be a question mark over the reliability of his witness statements. He contended that the jury had been left in the dark on the issue of the complainant’s reliability and that special measures such as intermediaries should have been used to enable Mr Furman to give oral evidence. He also submitted that the judge should have exercised his discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude the statements on the ground that their admission made the proceedings unfair.

Lord Justice Coulson, giving the judgment of the court, held that the submissions amounted to no more than a re-run of the points argued and rejected below, which had also been rejected by the single judge. The court could only intervene if there was a clear error of law and none had been identified. Judge Simon had dealt carefully with the hearsay applications, hearing the evidence and accepting that of Dr Davies. He had referred extensively to her evidence in his ruling, noting that she was not an expert brought in for the purposes of the proceedings but the treating psychiatrist with a professional relationship spanning ten years. Her evidence carried very significant weight. The judge had accepted that although she had considered special measures and intermediaries, Mr Furman’s illness meant that he might or might not take to an individual and there was simply nothing that could be done to alleviate the impact on him of having to come to court and answer questions. Even by live link, the stress would cause his hallucinatory experiences and the manifestation of his chronic paranoid treatment-resistant schizophrenia to increase to the point where he would not be coherent. The judge had therefore been satisfied that Mr Furman was unfit to be a witness because of his mental condition within the meaning of section 116(2)(b).

The Court of Appeal rejected each of the applicants’ detailed submissions. As to the comparison with fitness to plead, the court held that the single judge had fully dealt with that point: different tests applied which could self-evidently lead to different results. As to the reliability of the statements, the court noted that that matter had been addressed in the voir dire. Dr Davies had given evidence that when Mr Furman attended the police station he was accompanied by his then permanent care worker who would have known if he was suffering from hallucinations. There was evidence that he had not been put under time pressure and had taken all the breaks he sought. There was nothing to suggest that he lacked capacity to make the statements. As to the jury being left in the dark, the court held that in the terms advanced by Mr Newport the argument was simply wrong. The further admissions made plain that reliability was a critical issue for the jury and the judge had expressly referred to those admissions in his summing-up. What Mr Newport intended to convey was that the jury were deprived of the opportunity of seeing the witness in person. The court accepted that there were always disadvantages if an important witness did not come to court, but that was part of the balancing exercise the judge had to undertake between treating Mr Furman fairly and treating the applicants fairly. The judge had struck the right balance. As to special measures, the court held that the judge had addressed that submission and given clear reasons in his ruling for rejecting it, again as part of the required balancing exercise. As to the submission under section 78, the court noted that the judge had dealt fully with the circumstances in which the statements were taken, had concluded that there was no basis for exclusion, and had permitted cross-examination of the officers, which was the subject of a clear reminder in the summing-up.

The court concluded that it had not been shown that the judge erred in principle in ruling that Mr Furman’s statements were admissible under section 116. He had reached that conclusion based on clear and persuasive evidence which he had heard and assessed. He had ensured that the applicants were properly protected by way of the admissions about Mr Furman’s mental condition and the cross-examination permitted about the circumstances in which the statements were taken. The court noted that there was other evidence against the applicants, including CCTV footage, that there had never been an explanation as to why they were outside Costcutters with Mr Furman, and that the applicants had chosen not to give evidence at trial. The court saw no reason to conclude that the convictions were in any way unsafe. In short, although the necessary extension of time was granted to Mr Latif, both applications for permission to appeal against conviction were refused.