202302376 B1 - [2025] EWCA Crim 1036

Adam Plummer is the appellant’s brother and made a witness statement dealing with various matters on 18 June 1997. He gave evidence in accordance with it. Among other things, it says:

“After the Police left I spoke to my mum about the situation with Joe. We spoke about the murder Joe was being questioned about. During this I asked her how he was meant to have killed the woman. She replied that he was supposed to have stabbed her in the neck with a pair of scissors and kicked her in the head. We continued to speak about the situation and that she was fed up with being raised all the time and that she did not think Joe had done it.”

If this conversation took place after the appellant was interviewed, as the statement says, it has no evidential value at all. If it occurred before that then the fact that she knew unpublished details may generate an inference that the appellant must have told her, and could only have done so if he was the killer. The date is critical. Analysis of the occasions when the police searched the mother’s house generated an inference that the conversation must have been before the interviews.

This was deployed to effect at the trial. In the cross-examination

Q. Yes. So we can see that the only occasion when the police went to 29 St Mary’s Road to search it and Adam and his family were present was the 3rd of April, yes?

A. Right.

Q. Agreed?

A. I think so, yes.

Q. Yes. Right, let me remind you of what Adam told the jury happened no sooner had the police left the house on that day. He told the jury this, “After they left”, referring to the police, “I spoke to mother about the murder he was supposed to have done”. How could that have happened, Mr Plummer?

A. How do I know?

Q. Well, let me put the question to you in this way. What have you said to your mother that on the 3rd of April 1997 she and your brother should have been having a conversation about a murder that you were supposed to have done?

A. No, I never said anything.

Q. Well, judged from what your brother told the jury, your mother and he seemed to have believed that you were suspected of it on the 3rd of April?

A. On the 3rd of April?

Q. Yes. How could that have happened, Mr Plummer?

A. I don’t know.

Q. Even the police didn’t suspect you on that day. Why were they talking about you being suspected or possibly involved in a murder on the 3rd of April?

A. Well, you should ask them.

Q. Can you help the jury with that?

A. This guy here should have asked them that.

Q. No, I’m asking you?

A. Well, I haven’t got an answer for you, I’m afraid, I’m sorry. I don’t know.

Q. “I spoke to mother about the murder he was supposed to have done”. And I said,

“Did you ask your mum a question how he was supposed to have killed her?” And he replied,

“Stabbed her in the neck and kicked her in the head”. And I asked him, “Did she say what she had been stabbed in the neck with?” And Mr Plummer told the jury, “A pair of scissors”.

Can you explain to the jury, please, how such a conversation should have or could have taken place involving your mother on the 3rd of April 1997?

A. This is a conversation, yes, that this guy here, yes, should be having, yes, with my mother, yes, who is dead, yes, or my brother, not me. I don’t know.

Q. You see, somehow between the 25th of March and the 3rd of April, it appears that your mother has come to believe that you may have been or may supposed to have been involved in a murder in which someone was stabbed in the neck, kicked in the head and that what she had been stabbed with was a pair of scissors. Now can you help us as to where she got that from?

A. I don’t know. I’ve not got a clue.

Q. I mean, forget the details, can you help us as to why she might have thought that you were supposed to have done it?

A. I don’t know.

Q. There’s only one possible explanation, Mr Plummer?

A. OK.

Q. It couldn’t have come from the police because they didn’t first suspect you until the 18th. The only way that that conversation could have happened, I suggest, on the 3rd of April is if you had told her that you had done it?

A. No, I didn’t do that, no, I wouldn’t.

Q. You see, in addition to confessing to Christopher Dunne, you confessed to your own mother, didn’t you?

A.

I didn’t confess to Christopher Dunne and I didn’t confess to my mother. I didn’t do it.

You know it ---

In his closing speech, Mr. Price said:-

If, as undoubtedly they did, Adam Plummer and his mother were discussing the Wilden murder on the 3rd of April as one Adam was being led to believe his brother was supposed to have done, on that date, from whom could his mother have learned of the Wilden mother as one Justin was supposed to have done? It can't have been the police. She can have learned of it from only one person prior to that date. The irresistible inference, we submit, the only inference is that on a date before the 3^rd of April 1997, Justin Plummer had confessed to his mother that he had committed the Wilden murder and that is why she is not named in the alibi notice on the 21st of April 1997 as you may recall I put to him in the clearest of terms so that he could have the opportunity to deal with the suggestion.

The problem with this evidence is that it is hearsay, and multiple hearsay at that. The prosecution relied on Adam Plummer to give evidence about what his mother said to him, in order to generate an inference that the appellant had made a confession to her. Mrs. Plummer was dead by the time of the second trial and was not able to say what either of her sons had said to her about the murder or when. No statement had ever been taken from her. The fact that the appellant “agreed” the suggestion that the conversation between his brother and mother took place on 3 April is not evidence because he was not there. He was accepting an inference which was put to him based on other evidence which he was not able to give evidence about either.

After receiving the summary described in [73] above, we gave rather more attention to this passage of evidence than we had during the hearing and asked the parties for assistance about how it had come to be admitted and whether it was treated as hearsay during the trial. Mr. Price KC responded by making this submission by email:-

“We submit the evidence of the conversation between him and his mother given by Adam, was plainly not hearsay, as it was not adduced to prove the truth of its content. Its relevance lay, not in the truth of the facts stated [which were in any event not in issue], but that such a conversation should have taken place on the date it did [assuming for this purpose it was indeed 03.04.97], This evidence was adduced from Adam [without objection from the defence or intervention by the judge] to prove the state of knowledge of the appellant’s mother on 03.04.97, so as to then to be able to pose the question, from where had she acquired such knowledge, which on or before that date, could not have been from the police, as she was reported to have said.”

We were unable to accept that the evidence was not hearsay on this basis. The statutory scheme renders admissible in certain circumstances statements “not made in oral evidence in the proceedings…as evidence of any matter stated”, see section 114(1) of the 2003 Act. “Statement” and “matter stated” are defined in section 115.

The prosecution sought to prove that the appellant had confessed the murder to his mother. They did this by seeking to prove that she had said something about the murder to her other son at a time when only the killer (outside a circle of confidentiality in the investigation) could have known it. Therefore it must have come from the appellant, by inference in the form of a confession to her of the murder. A confession is a hearsay statement, albeit one which was admissible at common law as an exception preserved by section 118 of the 2003 Act. When the appellant’s mother spoke to Adam Plummer, she was making a statement to cause him to believe that the deceased had been killed in a certain way, see section 115(3)(a) of the 2003 Act. This was true, and the evidence only of significance because it was true. What followed from that was an attempt to date the conversation to show that she can only have made that statement, for that purpose, having got the information from the appellant. We do not accept Mr. Price’s submission for this reason. Even if he is right, however, and the evidence is not technically multiple hearsay, it clearly suffers from all the same weaknesses that would attract a reasoned admissibility decision, a section 125 re-evaluation and a careful direction about its reliability if it were hearsay within section 121. We return to this below.

No hearsay application was made to the judge, who did not consider section 121 to determine admissibility. There was no objection to the admissibility of the evidence. The judge did not consider under section 125 whether the evidence was unconvincing so that any conviction would be unsafe because of it. The judge gave no hearsay direction (or other warning) about it. These are protections against the dangers of unreliable evidence following the relaxing in 2003 of the rule against hearsay. The definition of the type of evidence to which the new regime applies, found in section 115, is not always easy, and we would suggest that in cases of doubt the court should treat the evidence as hearsay because that will not (as formerly) result in its exclusion, but in its being subjected to a regime which governs its admissibility and treatment within the trial. The availability of these protections should not depend on fine and technical distinctions.

This does not give rise to a ground of appeal, but this analysis does serve to illustrate the point that the appellant’s evidence was not persuasive, and not all of that was his fault. It also serves to show that the Adam Plummer evidence was not strong and independent support for the Dunne confession.

The judge did consider whether the appellant faced an unfair task because he had not been required to consider what evidence he could give about Dunne’s statement until the retrial in 2023, 26 years after the event. He recorded that the appellant was first asked to give evidence in detail about Dunne’s statement at the trial in 2023. The statement was served before the first trial in the spring 1998, and the appellant’s solicitor was informed by the CPS that they no longer intended to rely on the witness on 13 November 1998. The judge held in his ruling on an application to stay the proceedings as an abuse that this meant that:

“the defendant has had the opportunity to focus upon, and provide his own recollection of, the contents of the statement at a point that was months, rather than years, after the alleged discussions.”

That is true, but there was no evidence that the appellant, assisted by his solicitor, had ever availed himself of this opportunity. No privileged material was disclosed.

This bears on whether it was fair to admit the hearsay evidence when the reason why Dunne had not himself given evidence while he was alive and been cross-examined at a trial, in which the appellant could also give evidence near the time of the relevant evidence was that the prosecution had changed its mind on whether his evidence was reliable and necessary. Should they have been allowed to change their mind when the consequence of their original decision was to reduce permanently the ability of the appellant to challenge the evidence of Dunne? This is where section 78 of PACE comes in.