The defendant had been found unfit to plead on a charge of murder. Charges against the co-defendants were later reduced to inflicting grievous bodily harm, but when the defendant came to be dealt with, it was on the basis that the charge remained murder. The sole evidence against him was from a witness whose evidence was read because of his fear. He challenged the fairness of a trial in which the substantial evidence against him was not tested under cross examination.
Held: It could not be a rule of law that a witness’s evidence could not be read, where he was the only witness against the defendant. This would make the section of the 1988 Act otiose. A decision made by jury under a section 4A hearing was as to the actus reus only, and not as to intent. Here, however, the question was as to the defendant’s knowledge that another might commit a crime. Antoine says that a court should look to the physical acts of the defendant, and bear in mind the social purpose of the legislation. It must be recognised that the distinction is not always clear. The admission of evidence need not always be unfair, but in these circumstances the inability to tst the central witness in the case was fundamental. The witness may have had reasons not to tell the truth.
Lord Justice Potter The Honourable Mr Justice Mackay
 2 Cr App R 322,  EWCA Crim 357
European Convention on Human Rights, Criminal Justice Act 1988 23, Criminal Procedure (Insanity) Act 1964 4A, European Convention on Human Rights
England and Wales
Cited – Regina v Antoine HL 30-Mar-2000
The appellant sought to argue that despite having been found unfit to plead under the 1964 Act, it was still open to him to argue that the defence under section 2 of the 1957 Act applied, and that he was entitled to be plead diminished . .
Cited – Regina v O’Loughlin and McLoughlin 1988
Cited – Regina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
Cited – Unterpertinger v Austria ECHR 24-Nov-1986
The defendant was convicted of causing actual bodily harm, mainly on the basis of statements which his wife and daughter had given to the police. His wife and daughter took advantage of their right not to give evidence at his trial and so could not . .
Cited – Sellick and Sellick, Regina v CACD 14-Mar-2005
The defendants appealed convictions for murder saying that the court had had read to it the statements of four witnesses who refused to attend for fear, having been intimidated. Other witnesses had been unco-operative and had been treated by the . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Davis HL 18-Jun-2008
The defendant had been tried for the murder of two men by shooting them at a party. He was identified as the murderer by three witnesses who had been permitted to give evidence anonymously, from behind screens, because they had refused, out of fear, . .
These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.179577