ABSTRACT
Section 23 of the Criminal Justice Act 1988 allows a written statement to be used in place of oral evidence without the consent of the defence in any of the following instances: • the maker of the statement is dead or cannot attend court because of his
bodily or mental condition; or • the maker of the statement is outside the UK and it is not reasonably
practicable to secure his attendance; or • all reasonable steps have been taken to find the maker of the statement but
he cannot be found; or • the statement was made to the police and the maker does not give oral
evidence ‘through fear or because he is kept out of the way’. It should be noted that where fear is relied on, that fear must be proved by admissible evidence. Thus, in Neill v North Antrim Magistrates’ Court [1992] 1 WLR 1221; [1992] 4 All ER 846, the House of Lords held that this provision could not be relied upon to admit the written statements of two boys where a police officer gave evidence that the mother of the boys had told him that they were in fear; it would have been different if the officer had been able to give evidence that the boys themselves had told him that they were in fear. Similarly, in R v Belmarsh Magistrates Court ex p Gilligan [1998] 1 Cr App R 14, the Divisional Court held that, in order to satisfy the requirements of s 23 of the Criminal Justice Act 1988, the court must hear oral evidence (for example, from a police officer) as to the fear of the witness. The fear cannot be proved by a written statement made by the witness who claims to be in fear. In R v Ricketts [1991] Crim LR 915, it was said that the jury must not be told that a statement is being read to them on the ground that the maker of the statement is absent because of fear for his personal safety resulting from threats by the accused. Obviously this would be extremely prejudicial. In R v Waters (1997) 161 JP 249, the victim of an assault made a statement to the police in which he identified the appellant as one of his assailants. At the appellant’s trial, the witness started to give evidence but then ceased to give evidence through fear, saying that he could not now remember what had happened and could not identify his assailants. The Court of Appeal (following R v Ashford Justices ex p Hilden [1993] QB 555; [1993] 2 All ER 154) upheld the decision of the trial judge to allow the witness’s earlier statement to be read to the jury under s 23 of the Criminal Justice Act 1988. The court said that what mattered was whether or not there was, at the time when s 23 was invoked, any relevant oral evidence which the witness was still expected to give. If there was such evidence, and it was proved beyond reasonable doubt that he did not give that evidence through fear, s 23 was satisfied.
