Hearsay – Failure to Assess Credibility R v Kiziltan[2017] EWCA Crim 1461

This case focussed on the decision of Trial Judge to admit hearsay where a witness did not attend Court and the issue of whether where the circumstances of his non attendance and his evidence touched on credibility the material should have been excluded under Section 78 .

The Court concluded that :

……We do not consider that it would be right to criticise the judge for that decision or for his ultimate assessment that the case came within section 116(2)(d). It was a finely balanced decision, in our view. Having come to that decision the judge then had no discretion; the evidence was admissible subject to any application to exclude it under section 78 PACE. However, the judge went on “to consider the next step which I am bound to take, which is to consider the interests of justice stage, set out in section 114(1)(d).” He then referred to all the matters set out in section 114(2) before deciding to admit the evidence. This was an error of approach which may have arisen from the way the case was argued before him by counsel for the Crown who was still rather unclear about the correct approach even before us.

…….We are satisfied that had the judge directed his mind to the question of fairness and the application of section 78 PACE (taking account of the matters set out in section 114(2)) he would inevitably have excluded the evidence