In order to succeed, on the facts given, the prosecution need to establish, inter alia, that Dan was the man who ran out of Glitters at midday on the day of the offence.
Without more, Ella will be competent as a witness, but will not be allowed to make a dock identification. The proper practice is to hold a formal identification procedure before the trial and, if it resulted in a positive identification, to elicit evidence of that identification before asking Ella whether that person is in court. See The Modern Law of Evidence (‘MLE’) 13th ed at pp202-205. The question does not indicate whether there was a formal identification procedure. The statement made by Ella to her mother describing the person she saw will be admissible as evidence of the matters stated, under s 120(1), (4) and (5), Criminal Justice Act 2003, provided that Ella gives evidence that to the best of her belief her statement states the truth. See MLE, 13th ed at p202. However, by itself this would not be weighty evidence against Dan: there are many men who are big, fat and bald.
The prosecution will want to show that the black car outside Glitters at the relevant time was Gil’s car because it may be possible to show that Dan made use of Gil’s car at the time and place of the crime. Frieda can no longer remember the registration number, but the prosecution may seek to rely on s 120(1), (4) and (6) of the 2003 Act to admit her police statement as evidence of the registration number. See MLE, 13th ed at p186. Section 120(4) can be satisfied by Frieda giving evidence that to the best of her belief she made the statement and it states the truth. However, prima facie it seems that s120(6) cannot be satisfied because, although Frieda cannot remember the registration number and cannot reasonably be expected to remember it well enough to give evidence of it (9 months has elapsed), the statement was not made when the matters were fresh in her memory because she had to rely upon the picture on her mobile phone. The solution may be to argue either:
- that the photo itself, if it still exists, is the ‘statement’ (defined by s 13 of the Act as any representation of fact…however made) or
- that in the absence of any requirement that the statement be the first or only statement of the matter in question, use can be made of a statement (the police statement) which is an accurate copy of an earlier statement (the photo). See MLE 13th ed at p188.
Gil, by the retraction of his police statement, has shown that if called by the prosecution he is likely to be a hostile witness. However, it seems that the prosecution are still entitled to call him: see R v Mann (1972) 56 Cr App R 750 and R v Dat  Crim LR 488, CA. If he is called and says that his car was in his garage on the day of the robbery, the prosecution will rely on his previous inconsistent statement to apply to the judge to treat him as a hostile witness. The judge’s decision will not depend solely upon his having made a previous inconsistent statement – other factors, such as willingness to assist, can be taken into account: R v Hengari-Ajufa  EWCA Crim 1913. If he is treated as hostile, the prosecution, before proving the previous inconsistent statement, must mention the circumstances of the making of the statement and ask him if he made it. If he does not admit that he made it, it can be proved (s 6(3), Criminal Procedure Act 1865) and becomes admissible as evidence of the matters stated: s 119(1)(b), Criminal Justice Act 2003. The jury may rely on Gil’s evidence; or they may rely on his previous statement as evidence supporting the prosecution case, but only if sure that it is true: R v Billingham  2 Cr App R 341 (20). See generally MLE, 13th ed at pp206- 212. What weight to attach to the previous inconsistent statement will also turn on such matters as the location of Gil’s garage and whether it was possible, on the day in question, to get to and from Hatton Garden within 4 hours.
Dan’s statement to the police will be treated as a ‘mixed statement’, ie a statement containing both an inculpatory part (‘I may have been in Hatton Garden…’) and an exculpatory part (‘…you’ve got the wrong man’). The whole of such a statement, if made on accusation, is admissible as evidence of the truth of the facts it contains. However, the judge may point out to the jury that the incriminating parts are likely to be true (otherwise why say them?) whereas the excuses do not have the same weight: R v Duncan (1981) 73 Cr App R 359 and R v Sharp  1 WLR 7. This common law rule has been preserved by s 118, Criminal Justice Act 2003. See generally MLE, 13th ed at pp200-202.