Discretion to Exclude Hearsay Evidence under s. 126 Criminal Justice Act 2003 R v Drinkwater [2016] EWCA Crim 16

摘要

D, the appellant, was convicted of two counts of rape, two of robbery and one of indecent assault. He appealed on the ground that the trial judge should have permitted him to adduce hearsay evidence under s. 116(2)(a) of the Criminal Justice Act 2003 rather than excluding the evidence in the exercise of her discretion under s. 126 of the 2003 Act. The case concerned separate brutal attacks on three young women in Berkhamsted on two different occasions in 1984 (the latter incident relating to two victims). The attacks, by a man with a large knife who was wearing a balaclava, took place late at night when the women were walking home. There were striking similarities between the three attacks and the jury had been properly directed that it was entitled to conclude that the same man had committed all of the attacks, the issue being whether D was the man. The main hearsay evidence took the form of a confession made to the police by H, who had died 7 years before D's trial. The confession had not been mechanically recorded and H, who had sought to retract the confession immediately after making it, had refused to sign a statement that had been typed out for him to sign.