14. Hearsay evidence

Question 1

What does s114 of the CJA 2003 say?

Answer 1

That:

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter (hearsay) stated if, but only if—

(a) any provision of this chapter or any other statutory provision makes it admissible,

(b) any rule of law preserved by section 118 makes it admissible,

(c) all parties to the proceedings agree to it being admissible, or

(d) the court is satisfied that it is in the interests of justice for it to be admissible.

Question 2

What does s114(1)(d) CJA 2003 say?

Answer 2

That hearsay is admissible if the court is satisfied that it is in the interests of justice for it to be admissible.

Question 3

What does the court need to be careful of in regard to hearsay?

Answer 3

Hearsay evidence may pose a particular threat to the fairness of a criminal trial.
It is necessary for courts to be vigilant, first that hearsay is recognised and treated as such, and secondly that it is received in evidence only where the appropriate safeguards are in place.

Question 4

What is hearsay?

Answer 4

The definition of hearsay has to be gleaned from the proposition that ‘a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if’.

Thus the essential ingredients are ‘a statement’ (a representation of fact or opinion made by any person in whatever way) which is tendered ‘as evidence of any matter stated’ but not made in oral eidence in the proceedings.

The essence of hearsay as an essentially second-hand account of relevant matters has not changed as a result of the CJA 2003, and neither has the rationale for regarding hearsay as generally inferior to first-hand evidence.

This results in a statement being non-hearsay in the absence of any purpose on the part of the maker to cause a person to believe the matter, or to cause a person or a machine to act as though it were as stated.

Question 5

Who does the hearsay rule apply to?

Answer 5

Both defence and prosecution.

Question 6

What is the scope of the hearsay rule?

Answer 6

It is far reaching, applying to both prosecution and defence.

It covers not only the statements of non-witnesses, but also past statements made by a witness who is called to give oral evidence and who could therefore be cross-examined about what the witness has said previously. It applies to all statements, not simply to those made in anticipation of the trial itself, and includes documents as well as oral statements.

It follows that the rule catches some evidence, such as records of routine business dealings, that is intrinsically reliable, but this does not prevent it being hearsay: the reliability or otherwise of the evidence is relevant only to whether it may be received through an exception to the rule.

Question 7

What does s115 CJA 2003 say?

Answer 7

That a statement for the purposes of hearsay is any representation of fact or opinion made by a person by whatever means, including representations made ins ketch, photofit or other pictorial form.

Question 8

Will a witness’s out of court statement be hearsay?

Answer 8

Not if tendered as evidence of consistency/something else rather than evidence of a matter stated. This is, however, frequently restricted by the rule against previous consistent statements (remember, there are exceptions such as self-serving statements or previous consistent complaints).

If admissible, s120 CJA (section not needed to be remembered) may apply as to render the statement admissible as evidence of any matter of which the maker’s oral evidence would have been evidence.

The use of a previous inconsistent statement is not hearsay when tendered merely to show inconsistency.

However, such a statement, properly proved, can be evidence of any matter stated.

Question 9

Do the rules against hearsay apply as vigorously to out of court statements as they do witness statements?

Answer 9

No.

Question 10

Is a representation of fact or opinion (statement) made purely by mechanical process hearsay?

Answer 10

No, thus juries are allowed to see still photographs taken by a security camera during an armed robbery or a video recording or a tape of a conversation e.c.t.

Furthermore, as a video recording is admissible, so too is a witness who has seen the recording may give evidence of what was seen as such a person is in effect in the same position as a witness with a direct view of the action.

It IS hearsay where the representation depends on the human input for its accuracy in absence of proof that the input was accurate.

Things like photofits are hearsay.

Question 11

What does ‘evidence of a matter stated’ mean for hearsay?

Answer 11

Only where it is relied upon as evidence of any matter stated: in other words, where it is sought to establish the truth of that matter.

This distinction is generally easy to draw except in cases where the speaker does not intend the listener to believe the relevant matter.

The labelling of items, i.e. ‘product of Morocco’ is hearsay even where indelibly stamped into the goods or stamped onto a document (but in most cases is admissible under the business records exception, but the point still taken to ensure it has been properly canvassed)

Further examples of hearsay are that a party to a conversation conducted through an interpreter infringes the hearsay rule by seeking to prove what the other party said by relating to the court what the interpreter said AND

a police officer who testifies that a person is a ‘known heroin user’ is giving hearsay evidence if the basis of that knowledge is information supplied by others, including the person in question

Question 12

what care must be taken in respect of the ‘matter stated’ for hearsay?

Answer 12

To actually identify the matter stated as there may be more than one such matter in issue.

Example:

In Williams (Ochaine) [2014] EWCA Crim 1862, the defence to murder was that the crime was committed by S, who did not testify. It was said that S had confessed in a telephone conversation with E, which E had recorded. The decision not to call E led to hearsay problems both as to the content of the recording, which if it was indeed a third-party confession might have been admissible under s. 114(1)(d) (see F17.34) in the interests of justice, and also as to the need to prove that the voice heard on the recording was indeed that of S, which could not be proved simply by reliance on E’s out-of-court assertion to that effect. Therefore in these circumstances, the matters stated are 1. E confessed, and 2. That the voice was E.

Question 13

What does s115 CJA 2003 say?

Answer 13

(1)In this Chapter references to a statement or to a matter stated are to be read as follows.
(2)A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
(3)A matter stated is one to which this Chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—
(a)to cause another person to believe the matter, or
(b)to cause another person to act or a machine to operate on the basis that the matter is as stated.

Question 14

Can a matter implied in a call constitute hearsay?

Answer 14

No, not unless the person saying the thing had a purpose to either (a) to cause the recipient of the call to believe the matter or (b) to cause the recipient to act as though the matter is as stated.

Where the caller believes that the recipient already knows the matter in question, and is therefore not speaking with either of the hearsay purposes, the evidence is original, non-hearsay evidence. We should look out for a ‘common understanding’, which may preclude it being made for the purposes of convicing a person to believe something.

The below are examples:

In the appeal of Twist, the prosecution relied on text messages received by T to establish intent to supply drugs. This was a relevant matter, but the messages, being mere requests for drugs, did not contain any statement that T was a dealer. Even if such a statement could be inferred, the purpose of the senders did not include any intention to cause anyone to believe he was. In the appeal of Boothman, B was charged with conspiracy to supply cannabis and cocaine, and there was considerable traffic in text messages between B, who was advertising a good stock of available drugs, and other persons either placing orders or commenting on issues relating to past supply. Particular objection was taken to the mention of ‘lines’ in the incoming texts as including statements indicative of the supply of cocaine. But the senders of the texts did not have a purpose to make B believe that he was a supplier of that drug, or to induce him to act upon it as true (as distinct from acting upon it to supply further drugs). The evidence was therefore not hearsay. In the appeal of Tomlinson and Kelly, the matter to be proved was that the accused were in possession of a gun, and the communication in question was a text message to T from a third party seeking the return of a gun. Assuming that the message included, by implication, a suggestion that T had the gun, the sender was not intent on causing T to believe that fact — rather there was a common understanding that such was the case, so again the message was not hearsay. And finally in the appeal of Lowe, L was charged with twice raping his young girlfriend following an argument. The defence was consent, and L claimed that the argument followed the intercourse rather than the other way round. Messages from L to the complainant, apparently apologising for the rape and admitting the sequence of events, were held not to be hearsay: though they contained statements of highly relevant matters, L was not seeking to cause the complainant to believe she had been raped: ‘if that is what the messages meant, they both knew that’. The statements were also confessions, but nothing turned on that.

Twist [2011] EWCA Crim 1143 was applied in Khan (Imran) [2013] EWCA Crim 2230, where the question was whether one of two parties to a conversation was acquainted with D. The fact that both parties referred to D by his nickname, Bana, suggested that he was well-known to both. No question of hearsay was involved, as there was no purpose on the part of either party to cause the other to believe that he knew ‘Bana’.

To the same effect is Noble [2016] EWCA Crim 2219, in which an exchange of messages between a man accused of murder and his girlfriend included reference by her to his possession of a gun. The Court of Appeal observed: ‘[He] knew if he did or did not have a gun. The purpose of any statement made to him about having a gun was not for him to believe that he had a gun, or to cause him to act on that basis.’

By contrast, in Doyle [2018] EWCA Crim 2198 the prosecution sought to prove that D had been in possession of a package of drugs by reference to text messages from the recipient of the package. These asserted that D had stolen drugs from it, and demanded that D act on the accusation. It was held that the messages were hearsay.

In Anwar [2021] EWCA Crim 1811, evidence was excluded as hearsay that consisted of a conversation ‘overheard’ by a witness for the defence in which two men who had been present when a third was attacked were discussing, amongst other things, the fact that V was armed with a knife and that one of them had disposed of it. It was common ground on appeal that the statements were hearsay, being ‘representations’ as to the events, but the two speakers did not have an obvious purpose to persuade one another to believe what had happened, and if they were unaware the witness was listening, their purpose could not have extended to persuading her either.

An older authority that appears inconsistent with the principles laid down in Twist is West Midlands Probation Board v French [2008] EWHC 2631 (Admin), in which it was held that, where a prisoner is released on licence, the licence is hearsay in consequence of s. 115(3), the purpose of the maker being to cause the prisoner and others to believe the statements in the licence and to act accordingly. Yet the function of the licence would seem rather to be to lay out the terms on which the prisoner is to be set at liberty; there is no obvious purpose with regard to causing any person to believe the matters stated.

Question 15

What is the three stage test for ascertaining whether communications are hearsay?

Answer 15

(1) Ascertain the matter sought to be proved (i.e. is it evidence of truth of the statement or merely consistency). Hughes LJ noted that the opening words of s. 114(1) (‘admissible as evidence of any matter stated’) demonstrate that the CJA 2003, like the common law, is concerned with what it is that a party is seeking to prove. The purpose of the party in adducing a communication has therefore first to be ascertained.

(2) Provided that the matter sought to be proved is a relevant one, the next question is whether there is a statement of that matter in the communication. If not (perhaps because the communication is not a statement at all, but a question such as a request for drugs), no question of hearsay arises.

(3) If the communication does state the matter, was it one of the purposes (not necessarily the only or dominant purpose) that the recipient, or any other person, should believe that matter or that a person should act upon the basis that it is as stated (or that a machine should operate on that basis)? If yes, it is hearsay; if no, it is not.

Question 16

Would a statement be hearsay if it is intended to be read by no one?

Answer 16

No, such as a diary entry (except where kept more like a record, with some entries being made by a third party).

Question 17

Are there any remains of common law rules on hearsay except for those retained expressly?

Answer 17

No.

Question 18

Where evidence has more than one purpose, in that it is inadmissible hearsay for one purpose but admissible original evidence for another, what does the judge need to do?

Answer 18

Give a very careful direction as to the use that the evidence can be put.

In Ali (Mahboob) [2024] EWCA Crim 77, the Court of Appeal was critical of the failure of the prosecution to distinguish clearly between two mutually exclusive purposes of tendering a statement that undermined an alibi defence: one being to show that both the statement, and the defence were untrue (not hearsay); and the other being that the statement being tendered represented the truth (hearsay). The statement having been admitted for the former purpose, it was wrong of prosecuting counsel to suggest to the jury that it was a permissible inference that it was true: a course of action that had in turn led to some inconsistency in the judge’s direction to the jury.

Question 19

Where a state of mind is asserted by the speaker, with the purpose of causing another to believe it, is that hearsay?

Answer 19

Yes, but may be admissible under the res gestae exception.

However, if the state of mind is merely to be inferred, then it may fall outside the definition of ‘matter stated’ and be classified as original evidence.

For example:

For several months, D had kept a letter written by a third party, protesting that no one had avenged S’s death. The keeping of the letter provided non-hearsay evidence of D’s state of mind in relation to V.

In Davis [1998] Crim LR 659, D, on being interviewed in connection with theft, failed to reveal facts upon which he afterwards sought to rely in his defence. At trial he wished to give evidence of what his solicitor had said to him prior to the interview, but was prevented from doing so on the grounds that it would infringe the hearsay rule. The Court of Appeal pointed out, correctly, that this was not necessarily the case. It was material for the jury to consider D’s reasons for failing to disclose the relevant facts in deciding whether to draw an inference against him under the CJPO 1994, s. 34 (see F20.4). IF D’S PURPOSE IN REPEATING THE SOLICITOR’S WORDS WAS SIMPLY TO SHOW THE IMPACT ON HIM OF THE ADVICE GIVEN, THE HEARSAY RULE WOULD NOT HAVE BEEN INFRINGED. It would have been otherwise if D had sought to demonstrate the truth of anything said.

A statement may be used to prove the knowledge of the maker without infringing the rule: where D denied knowing that certain premises were being used as a brothel, an advertisement that he had sought to place, referring to the premises and containing a reference to ‘many stunning masseuses’, was admissible to show that he did know

Question 20

Can a statement made be used to prove the knowledge of the maker without infringing the rule on hearsay?

Answer 20

Yes.

A statement may be used to prove the knowledge of the maker without infringing the rule: where D denied knowing that certain premises were being used as a brothel, an advertisement that he had sought to place, referring to the premises and containing a reference to ‘many stunning masseuses’, was admissible to show that he did know.

Question 21

Is it hearsay where the statement is given in evidence merely to show the statement had been made?

Answer 21

No.

In some cases the mere making of the statement may have significance in law, quite aside from any question of its truth. In Woodhouse v Hall (1980) 72 Cr App R 39, the question to be decided was whether a massage parlour was being run as a brothel. Having defined a brothel as ‘an establishment at which two or more women were offering sexual services’, the Divisional Court held that it was open to police officers who had attended the premises posing as customers to prove that the women employed there had offered them various sexual services. There was no question of hearsay: the relevant issue was simply whether the offers had been made.

Equally, for companies, diaries and notebook entries made by an individual who did not give evidence were relevant and admissible because his statements represented the directing mind and will of a company under the ‘identification’ principle. There was therefore no hearsay issue, as there might have been had the statements been tendered for other purposes without calling the maker as a witness.

Question 22

Can a lie/other untrue statements be classed as hearsay?

Answer 22

No.

A statement that is demonstrably false may show a consciousness of guilt.

Under the CJA 2003, it would seem that a lie cannot be hearsay evidence of a matter that it is not intended to assert

Examples:

In Minchin [2013] EWCA Crim 2412, the Court of Appeal accepted that a statement containing the details of an alibi alleged to be false could be tendered by the prosecution without breaching the hearsay rule. ‘What mattered was the fact that it was said.’

In Ali (Mahboob) [2024] EWCA Crim 77, the Court of Appeal considered that the statement of a person whom the defence had decided not to call could be relied upon by the prosecution, without breaching the hearsay rule, where the purpose of doing so was to show that the maker of the statement was lying in an attempt to provide an alibi, in a manner inconsistent with the evidence of D and another alibi witness who had testified, thus undermining the defence. The prosecution argument was that ‘if people are lying, then their accounts may well unravel and be inconsistent with each other’.

Question 23

Is the hearsay code in breach of the ECHR?

Answer 23

No.

Question 24

What are the four exceptions to the rule against hearsay?

Answer 24

1. The statutory exceptions
2. The common law exceptions preserved by s118
3. Agreement of all parties
4. Cases where it is in the interests of justice to admit it

Question 25

Can a statement be subject to multiple gateways to admissibility where it is hearsay?

Answer 25

Yes, such as res gestae and first-hand hearsay in which a person cannot attend the court.

Question 26

What safeguards are there for hearsay evidence?

Answer 26

They are s. 124, which provides for the testing of credibility where the maker of a hearsay statement does not attend to testify

s. 125, which deals with the power to stop a case where evidence is unconvincing; and

s. 126, which provides a specific discretion to exclude hearsay evidence.

In addition, all prosecution evidence is subject to the court’s general powers of discretionary exclusion, of which the PACE 1984, s. 78, is the most important, in respect of which it is particularly noteworthy that the criteria for admitting evidence in the ‘interests of justice’ under s. 114(2) have become central to the discretionary exclusion of evidence otherwise admissible under the Act’s other hearsay exceptions

The judge is also obliged to direct the jury, where hearsay evidence is received, as to the dangers of acting upon it

Question 27

How should the court approach whether particular hearsay ought to be admitted?

Answer 27

the main concern of the court, particularly in the more controversial cases of hearsay covered by s. 116(2) (death, illness, absence abroad, the lost witness, and fear) or by the interests of justice exception in s. 114(1)(d), is the risk of unreliability, and the extent to which the reliability of the evidence can safely be tested and assessed. Riat renders the statutory framework in six successive steps, an approach recently commended in Spraggon [2022] EWCA Crim 128 as being of particular benefit to the criminal justice system.

(a) Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (ss. 116 to 118)?
(b) What material is there which can help to test or assess the hearsay (s. 124)?
(c) Is there a specific ‘interests of justice’ test at the admissibility stage?
(d) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s. 114(1)(d))?
(e) Even if prima facie admissible, ought the evidence to be ruled inadmissible (PACE 1984, s. 78, and/or CJA 2003, s. 126)?
(f) If the evidence is admitted, should the case subsequently be stopped under s. 125?

Although there is no rule to the effect that where the hearsay evidence is the ‘sole or decisive’ evidence in the case it can never be admitted, the importance of the evidence to the case against the accused is central to these various decisions.

Question 28

What should the court do pre-speeches where hearsay is ruled admissible?

Answer 28

Where a judge permits hearsay evidence to be adduced, the detail behind the ruling should be given before speeches, so that counsel may tailor their speeches to the ruling and, where appropriate, make submissions in respect of the content of the proposed hearsay direction in light of the ruling.

Question 29

When should a direction on hearsay be made?

Answer 29

it was said that the direction should be given before the evidence is heard, and repeated in the summing-up.

Question 30

What discretion is there to exclude otherwise admissible hearsay?

Answer 30

For prosecution, S126 CJA, s78 PACE, and common law (Sang, prejudicial outweighing probative)

For defence, s126(1)(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.
Although capable of being narrowly construed as applicable only to ‘superfluous’ hearsay, s. 126(1)(b) may have a wider application, specifically in relation to hearsay that lacks probative value

The starting point for any assessment of admissibility is that ‘the necessity for resort to second-hand evidence must be demonstrated’ and that this has implications not only for the question whether it is fair to admit a statement which satisfies one of the conditions laid down in s. 116(2), but also for the need for rigorous assessment of whether the condition is itself made out, in particular in relation to absent witnesses who may be fearful or who have absented themselves.

Question 31

What does s116 CJA say?

Answer 31

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

(a) that the relevant person is dead;

(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;

(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a) to the statement’s contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and

(d) to any other relevant circumstances.

(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a) by the person in support of whose case it is sought to give the statement in evidence, or

(b) by a person acting on his behalf,

in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).

IN SUMMARY:
A. Would it be admissible if given orally and do we know the person; AND
B. Are they:
a. dead,
b. unfit,
c. outside the UK and its not reasonably practicable,
d. cannot be found despite reasonably practicable steps,
e. through fear (either giving no evidence or just that contained in the statement, but the court must give leave)
C. Fear is to be construed widely, including for death or injury of another or financial loss
D. Leave for fear is only to be given after considering:
a. the statement’s contents,
b. risk of unfairness for its admission/exclusion and how hard it will be to challenge the statemnt if no oral evidence is given,
c. what special measures may be given, and
d. any other relevant circumstances
E. any condition mentioned in B are to be treated as not satisfied (even if it is) if it is shown that the circumstances described are caused by:
a. the person in support of whose case it is sought to give the statement or
b. by a person acting on his behalf in order to prevent the relevant person giving oral evidence in the proceedings

Question 32

How is ‘fear’ for the purposes of hearsay to be construed?

Answer 32

Fear is to be construed widely, including for death or injury of another or financial loss

Question 33

What will the judge have to consider before giving leave for hearsay to be admitted?

Answer 33

a. the statement’s contents,
b. risk of unfairness for its admission/exclusion and how hard it will be to challenge the statement if no oral evidence is given,
c. what special measures may be given, and
d. any other relevant circumstances

Question 34

When will any circumstances contained in s116 be deemed not existing?

Answer 34

A. any condition mentioned in B are to be treated as not satisfied (even if it is) if it is shown that the circumstances described are caused by:
a. the person in support of whose case it is sought to give the statement or
b. by a person acting on his behalf in order to prevent the relevant person giving oral evidence in the proceedings

Question 35

What restriction is there for s116 hearsay?

Answer 35

Only for first-hand hearsay.

Also where it would not be otherwise admissible (such as bad character).

And the person must be identifiable so that s124 (subsitute of XX) can be invoked.

Cannot be applied to anonymous witnesses (may be instead admissible under res gestae or interests of justice exception, but these exceptions cannot be invoked so as to allow witnesses to choose to provide evidence anonymously – can only be for untraceable witneses).

Where a person makes a statement, but it is not clear whether the statement is based on personal knowledge or on something the maker has been told, the s. 116 statement should not be admitted. However, it may be admissible as multiple hearsay (such as in business documents).

Applications under s. 116 most frequently concern statements in documents, but oral hearsay statements may also be tendered, as may statements made by conduct (for the meaning of ‘statement’ see s. 115(2) at F16.7). In Musone [2007] EWCA Crim 1237, a man who had been stabbed was asked ‘what’s happened, mate?’ and replied ‘Musone’s just stabbed me’. The statement was admitted at D’s trial for murder under s. 116. By the same token, a gesture or sign language similarly identifying the guilty party could be received.

Question 36

What guidance is there on s116(5) CJA 2003, in respect of the person causing the other to not give oral evidence?

Answer 36

Section 116(5) prevents a person from being able to rely on any hearsay statement by a potential witness where that person, or someone acting on that person’s behalf, is responsible for the absence of the witness in order to prevent the witness from testifying.

the defence was prevented from adducing the record of interview with T, who had been threatened by D and had subsequently fled abroad. D subsequently wished to refer to aspects of T’s statement that were favourable to the defence, after the prosecution had decided not to adduce it. Section 116(5) prevented him from doing so. The threat did not have to be the main or primary cause of the witness’s absence, provided it was at least one of the effective causes. To hold otherwise would significantly undermine the policy of the legislation.

Further, the provision was not limited to steps taken by the accused after the commencement of proceedings, provided they were taken with the intent of preventing the attendance of the witness at the proceedings.

s. 116(5) is directed against a party to the proceedings and does not apply to evidence of a complainant who had ‘caused’ her own absence by committing suicide.

Question 37

In terms of hearsay evidence, what may the court do where a witness has died?

Answer 37

It may move straight to the consideration of whether the principles of trial fairness permit the witness’ statement to be adduced.

Question 38

In terms of hearsay evidence, what may the court do where a witness is unfit?

Answer 38

Further investigation of the witness’ supposed condition is required to ensure the condition is satisfied.

Provision focuses on the physical act of attending court AND the fitness of the witness when there to give evidence (including unfitness through a mental condition)

Evidence of a mental condition, not clearly indicating unfitness, exacerbated by stress is not sufficient.

However, a judge is entitled to take into account any future consequences giving evidence may precipitate (such as suicide).

Trauma from a sexual assault, in absence of a mental condition, may suffice.

Under the previous legislation, which was in similar terms, when a witness was unable to recollect relevant events, and medical evidence established that the cause was a mental disorder giving rise to great anxiety and failure of recall when under stress, the conditions of admissibility were satisfied (Setz-Dempsey (1994) 98 Cr App R 23).

Other pertinent authorities under the 1988 Act include Elliott [2003] EWCA Crim 1695, where it was held that, where the defence can point to proper grounds for wishing to cross-examine a doctor who testifies to the unfitness of a patient, it is right to make an opportunity available for them to do so. The effect of the witness’s mental condition at the time the statement was made is, of course, a factor relevant to whether it should be excluded under s. 123 for lack of capability (see F17.23).

In Eljack [2019] EWCA Crim 1038, V, the victim of an assault, had serious long-term mental health issues and suffered from delusions. His doctor’s evidence was that giving evidence in person would exacerbate his condition, but that he was capable of giving a witness statement: if affected by delusion when doing so, this would have been readily apparent. It was held that V’s statement was rightly admitted as hearsay. A further argument that, because V had himself been found fit to stand trial on a previous occasion, he could not be unfit to testify, was rejected: ‘They are different tests which can self-evidently lead to different results’.

Question 39

May sudden illness be a good reason for refusing to consider a s116 hearsay application?

Answer 39

No.

When deciding whether a trial would be unfair after a witness becomes unfit during XX, the judge is entitled to bear in mind that the whole of the evidence could have been received under s116.

Question 40

Can an application to admit an accused’s hearsay statement succeed where the accused is fit t stand trial but unfit to give sworn evidence for the defence?

Answer 40

Yes. However, it is rare and exceptional as there could be other ways of getting around it, such as:

video link,

allowing sworn evidence to be given from somewhere other than the witness box,

frequent breaks, or

restricting duration or terms of XX.

Question 41

What guidance is there for hearsay where it is contended a witness is outside the UK and it is not reasonably practicable to secure attendance or cannot be found after reasonable steps?

Answer 41

The evidence that must be provided to lay a foundation in these two cases is essentially what it is ‘reasonable’ to expect a party to do, whether that involves taking steps to secure the attendance of a person who is known to be abroad, or to find a person whose whereabouts are unknown.

Depends on the circumstances, but pros should be in a position to provide a sufficiently compelling and detailed reason for the absence of any witness to satisfy the requirements of a fair trial.

In Price v UK (2017) 64 EHRR 17, while the authorities had made ‘significant efforts’ to persuade a reluctant witness based in Antwerp to testify, the ECtHR said that it could reach ‘no firm conclusion’ as to whether all reasonable steps had been taken in the absence of more detailed submissions as to the reasons why the prosecution had not had recourse to further measures which may have been available (in that case, by virtue of the EU Convention on Mutual Assistance in Criminal Matters). While the absence of good reason is not (and was not in Price v UK) conclusive on the question whether a trial has been fair, it is an important factor.

The courts emphasise the importance about keeping track of witnesses and their preparedness to testify. Thus, where a key prosecution witness who was in South Africa had a last-minute change of heart about attending the trial, it was said that what was reasonably practicable must be judged in the light of the steps taken by the party seeking to secure the attendance of the witness and that further inquiries as to the reasons for the witness’s refusal should have been made. It was also said to be appropriate to provide evidence of whether the witness’s account could have been secured by video link or by some other method that permits a degree of challenge by the defence. In McEvoy [2016] EWCA Crim 1654, the evidence of two German university students should not have been read where it was ‘pivotal’ to whether a child had been indecently assaulted, but no efforts had been made to contact them via their home or university addresses in the two months before the trial.

Therefore, the prosecution’s keeping track of witnesses and preparedness is a vital matter for whether ‘reasonable steps’ have been taken.

Similar considerations apply to witnesses who cannot be found. In Riat, Hughes LJ said, ‘[i]f the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing’.

the court expressed concern that trials should not proceed without formal inquiry (or at least an agreed statement of facts) on which to base a decision on admissibility

if a person tells a witness cannot be traced, then that carries the implication that efforts had been made. If they have not been, the judge is being misled.

In Adams [2007] EWCA Crim 3025, it was held that reasonable steps had not been taken in relation to a witness with whom there was no contact from the time when the trial date was fixed until the week before it started, when a message was left on his mobile phone to which he did not respond. This ‘fell a long way short of what was, in practice, needed to get witnesses to attend court’, although in that case, exceptionally, the evidence was admitted under s. 114(1)(d)

Adams was considered in Murphy [2014] EWCA Crim 1457, where the prosecution had lost touch with the witness until just before the trial, but then made efforts to ensure his attendance, including seeking a witness summons which was served on him before he disappeared leaving no address. It was held that the judge was entitled to conclude that the prosecution had taken reasonable steps.

To similar effect is Barnes [2020] EWCA Crim 959, where the witness appeared to be prepared to give evidence, albeit with special measures, until just before the re-arranged trial date, at which point steps were taken to serve a witness summons and to track down the witness, who had moved away. The Court of Appeal observed (at [18]) that ‘there is a limit in any given case as to what is or is not “reasonably practicable”’.

In Jones (Kane) [2015] EWCA Crim 1317, the complainant in an incident of significant domestic violence had disappeared, and no steps had been taken to secure her attendance despite concerns about her welfare, and indications that she might not appear. It was held that the process by which her evidence had been admitted at trial had not complied with the safeguards anticipated by the CJA 2003. The application had been made erroneously under s. 114(1)(d) (see F17.34) instead of s. 116, but both provisions required an investigation into the reasons why the witness could not attend the trial. As a matter of due diligence there were practical measures that could have been adopted to ensure the attendance and protection of the complainant, and while this might have involved delay this did not provide a sufficient basis upon which to admit the evidence in hearsay form.

Question 42

How relevant is the prosecution’s keeping track of witnesses and preparedness for whether all reasonable steps have been taken for hearsay evidence?

Answer 42

Vital.

Question 43

What should courts do when one side says that a witness is unavailable and so their evidence should be read?

Answer 43

the court expressed concern that trials should not proceed without formal inquiry (or at least an agreed statement of facts) on which to base a decision on admissibility on the reasonable steps.

Question 44

What guidance is there on whether a witness is unavailable through fear?

Answer 44

Does not require such fear be attributable to the accused.

Therefore, a co-accused creating the fear does not rise to a defence challenge.

However, a causal link between the fear and failure/refusal to give evidence must be proved in a way decided on a case-by-case basis.

Particular care is needed to tell the jury that the Defendant is the cause of the absence of the witness.

Question 45

What have the courts said in respect of intimidation in cases where a witness is unavailable through fear?

Answer 45

That clearly to allow the accused to benefit would be wrong and therefore is in a weak position to claim infringement of the right to a fair trial. However, still needs to be admitted under the same process – cannot skirt around that process just because it is intimidation. Fear needs to be proven in the same way. If they can be brought to court as hostile witnesses, then that is fine (i.e. they were unwilling, but not through fear).

Where there has been intimidation, absence of any steps to get the accused to court is not fatal to the accused’s argument.

All possible efforts should be undertaken to get her them to court, including giving evidence via all possibilities such as screens, though if it can be said the judge is entitled to take the view that no steps would help then they may not need to.

One factor to take into account is existence of evidence, such as cctv, of the person directing a violent attack against C.

The fact a complainant is not in court to tell the court their reason for the intimidation is not fatal.

The witnesses should not be assured that the evidence will be read.

Court should take into account the circumstances the statement was given in, any unfairness likely to be created, any difficulty in challenging the statement, and possibility of special measures.

Not strictly a discretion but something akin to it.

Issues of trial fairness, including an alleged infringement of the ECHR, Article 6(3)(d), can conveniently be subsumed within the s. 116(4) inquiry, but ultimately the issues are the same in fear cases as in other cases of challenge for unfairness based on Horncastle

Question 46

What are the requirements of hearsay admissibility of a business document?

Answer 46

It is admissible of any matter stated if:
(a) oral evidence on it would have been admissible as evidence of that matter
(b) it:
a. was created in the course of a trade, business, profession, or occupation, or as the holder of office;
b. the person who had supplied the information had or may reasonably have had personal knowledge of those matters, and
c. each person through whom the information was supplied by the person who had personal knowledge received it in the course of a trade, business, profession, or occupation, or office (this could be the same person as b above)
(c) and where it is prepared for the purposes of pending or contemplated criminal proceedings but not obtained pursuant to a request/order for overseas evidence, it must also:
a. satisfy s116(2) (death of the person, unfit, not reasonably practicable, not found, through fear), or
b. they cannot be reasonably expected to have any recollection of the matters in the statement.

ALSO MUST BE NO DIRECTION STATING IT IS UNADMISSIBLE BECAUSE ITS RELIABILITY IS DOUBTFUL IN VIEW OF:
(a) Its contents
(b) The source of the info
(c) The way in which or the circumstances in which the information was supplied, or
(d) The way in which or the circumstances in which the information was created or received

SUMMARY IS THIS:
A. Would it be admissible if oral? If yes,
B. Is it a business document? If yes,
C. If not an overseas document:
a. is the person supplying the info unavailable under s116(2)? If yes, Or
b. will the person supplying the info reasonably be expected to have recollection of it, if no
D. is it unreliable? If no, admit.

Question 47

What does the s117 ability to admit extend to?

Answer 47

Documents for business, from liquidators, the NHS, transcript of evidence from a witness at and earlier trial, a police custody record, medical records

Question 48

Can the person who had complied a business document for use in criminal proceedings supplement the information in the document via oral hearsay?

Answer 48

Not through s117 as it only applies to documentary evidence.

Not can they confirm it by simply calling someone who has checked it.

Question 49

For deciding whether a hearsay statement should be admitted under the hearsay exception, what should the court take into account?

Answer 49

(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot (i.e. what alternatives there are);
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

Does not need to reach a conclusion on all factors, but merely express a judgment in light of them and any other relevant ones. They are not a questionnaire to be answered. It follows that an appeal will only interfere if incorrect principles have been applied or it is outside the discretion.

For an example of wrong application, for factors e-f the judge needs to express an opinion. It is not good enough to merely say the jury will express an opinion.

In assessing potential defence interest, the judge should consider only the interest of arriving at the right conclusion, not merely the interests of the defence.

A hearing for this cannot take account of material hearing on an ex parte application that was not available to the defence.

Question 50

Should s114(1)(d) (the interests of justice exception for hearsay) be routinely used?

Answer 50

No. it is a safety valve exception.

Thus, consideration needs to be given as to why any evidence did not qualify under the other gateway. Cannot be used to circumvent the regime.

Thus, it should not be used to short cut s116 where the victim is available but merely does not wish to go through the evidence (not through fear) and where the prosecution had failed to take all proper steps to secure attendance.

It obviously can’t be used where the normal hearsay route is barred because it is not in the interests of justice.

Question 51

Is a confession inadmissible under s76 admissible under the interests of justice hearsay exception?

Answer 51

No.

Question 52

What is the public information exception for hearsay?

Answer 52

The rule for which:
(a) published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,
(b) public documents (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them,
(c) records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) are admissible as evidence of facts stated in them, or
(d) evidence relating to a person’s age or date or place of birth may be given by a person without personal knowledge of the matter.
Are preserved from hearsay.

Question 53

Is evidence of reputation/pedigree/existence of marriage/existence of a person/thing/public or general right admissible under the hearsay rules?

Answer 53

yes.

The CJA 2003, s. 118(1), makes specific provision for saving the common-law rules admitting evidence of reputation to prove character, and the use of reputation or family tradition to prove or disprove pedigree, the existence of a marriage, any public or general right, or the existence of any person or thing. With the exception of the rules concerning character, such evidence is rarely resorted to at common law and is not dealt with in this work.

Notice for such evidence is not required.

Question 54

What is res gestae?

Answer 54

Where:
(a) a person makes a statement when they are so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;

(b) the statement accompanied an act which can be properly evaluated as evidence if considered in conjunction with the statement (this exception is limited to cases where the words spoken are truly ‘part and parcel’ of an act such as identification; or

(c) the statement relates to a physical sensation or a mental state

this could be admissible as hearsay under res gestae

Question 55

In terms of the res gestae emotionally overpowered statement, what guidance is there?

Answer 55

Needs to be proof of a close and intimate connection between the exciting events and making of the statement.

Now mainly used in cases of violent assault where the complainant is reluctant to testify

The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.

The test is this:

1. The primary question which the judge must ask himself is — can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied on evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.

An admissible res gestae statement may be derived from the accounts of two eye-witnesses, one (who later gave evidence) making an emergency call having witnessed a stabbing, in which she read a car registration number written down by the other (who was unable to be traced after the incident). Both witnesses were reacting spontaneously to the same shocking event.

Question 56

What is the applicability of res gestae to domestic abuse cases?

Answer 56

Could be received under res gestae where there had been phone calls to the emergency services and the complainant later does not wish to testify through fear (though it may also go in through s116, the difference being under s116 special measures/other ways of getting her to court ought to be considered).

Special measures are not of great significance for res gestae.

Res gestae can also be used where the complainant fears reliving the events, as the prosecutor is entitled to have regard for the well-being of the complainant

However, where the complainant does not wish to testify through fear, it is important that res gestae is not used to skirt round s116.

Where the complainant has other reasons for not wanting to attend, such as through a wish to reconcile, then there may be some other equally difficult public interest issues in using res gestae statements.

Where a complainant fails to turn up, the court should first consider why rather than just immediately going to res gestae. If fear was involving, consideration should be given as to what they could do to dispel that. The reasons for non-attendance are relevant to the exercise of discretion under s78

The criteria for the interests of justice hearsay exception is likely to be of some help.

May also be admitted under s114(1)(d) where appropriate.

Should consider supporting evidence of the statement (i.e. whether it was made on bodycam e.c.t.), whether the complainant could have been called, and whether the court could call them. All circumstances relevant to exercise of s78 and res gestae.

Question 57

What guidance should be given to the jury where a spontaneous statement has been given in evidence under res gestae?

Answer 57

the judge must make it clear to the jury:

(a) that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them;

(b) that ‘they must be satisfied that the declarant did not concoct or distort to his advantage or to the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will’ (at p. 302);

(c) where there are special features that bear on the possibility of mistake, then the jury’s attention must be invited to those matters.
In Mills v The Queen [1995] 3 All ER 865, the Privy Council rejected an argument that a specific direction must always be given as to the risk of mistaken identification by a dying man in a res gestae statement. The jury in that case had been adequately directed about the risks of mistaken identification in relation to the evidence of other witnesses, and fairness did not require a repetition.

Question 58

Are confessions admissible under the hearsay rule at common law?

Answer 58

Yes, any rule of law relating to that admissibility is retained.

However, mainly regulated by s76.

The most important rule that is retained is the implied acceptance by the accused of a statement made in their presence, even where they are silent.

To the extent that the admissibility of the self-serving parts of a mixed statement depends on factors not dealt with in the PACE 1984, s. 76, the common law is also preserved by s. 118(1).

Question 59

Are admissions by agents admissible under the hearsay rule at common law?

Answer 59

Any rule of law under which in criminal proceedings—

(a) an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
(b) a statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.

IS PRESERVED

Question 60

Are there any hearsay rules preserved for statements in furtherance of a common enterprise?

Answer 60

Yes. Any rule of law under which a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated is preserved.

The rule that the acts and statements of one party to a common purpose may be evidence against another is particularly associated with charges of conspiracy. However, it is not confined to such cases and applies to other offences where complicity is alleged.

Thus, in Jessop (1877) 16 Cox CC 204, for example, D was charged with the murder of V, with whom he had entered into a suicide pact to die by taking poison. The plan miscarried and D survived. Field J held that evidence of the purchase of poison by V, being an act done in furtherance of the common purpose, was admissible against D. Another illustration is Jones (Brian) [1997] 2 Cr App R 119, in which it was held that the rule applied to a joint enterprise to evade the prohibition on the importation of drugs, despite the fact that no charge of conspiracy was brought.

Should be careful not to confuse this rule with the ‘identification principle’ for the controlling will and mind of a company, as evidence of a controlling mind is admissible as the company’s mind, not as a common enterprise.

Question 61

Do the hearsay rules allow for experts to use what a body of expertise has said?

Answer 61

Yes.

The process of taking account of the work of other in the same field is an essential ingredient of the nature of expert evidence and as such is not subject to the hearsay rule. However, where an expert relies on the existence or non-existence of one fact which is basic to the question they are asked to give an opinion on, this fact must be proved by admissible evidence (of course, this is qualified by the fact that evidence can be given of preparatory findings without the need to call those who made the findings as witnesses).

The common-law rule was considered by the Privy Council in Myers v The Queen [2015] UKPC 40. A police officer who had expertise in gang culture and had made a special study of the various gangs alleged to have been concerned in a series of shootings had given expert evidence relating to intra-gang loyalty with a view to demonstrating the motive of the accused. Having considered authorities, including Abadom and the decision of the Court of Criminal Appeal for South Australia in Cluse [2014] 120 SASR 268 (which also concerned evidence of gang culture), Lord Hughes said that it was clear that an expert witness was not immune from all inhibition on hearsay. In some cases, the dividing line was between evidence of opinion (which may be informed by hearsay) and specific evidence of observable fact, which must be proved in accordance with the normal rules of evidence. But, as Lord Hughes said (at [65]):

“… experts often give evidence of observable fact and such evidence may legitimately be, and very often is, informed by the accumulated body of knowledge collected by others as well as by the witness’ own experience.”

After giving relevant examples, Lord Hughes continued (at [66]):

“The test of whether evidence based upon hearsay material can be given is better seen to be WHETHER IT CEASES TO BE THE EXPOUNDING OF GENERAL STUDY (whether by the witness or others) AND BECOMES THE ASSERTION OF A PARTICULAR FACT IN ISSUE IN THE CASE. The first is expert evidence, grounded on a body of learning or study; the second is not, even if it may be given by someone who is also an expert. The line between the two is case-specific, but it will usually be possible to discern it.”

Question 62

Are there any additional requirements on multiple hearsay?

Answer 62

Yes.

(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless—

(a) either of the statements is admissible under section 117, 119 or 120,
(b) all parties to the proceedings so agree, or
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

Therefore, multiple hearsay is not admissible unless:
(a) it is a business document
(b) a previous statement by a witness in the case
(c) all parties agree
(d) where the court is so convinced by the value of the evidence that it can invoe the ‘safety valve’ to admit it.

In Walker [2007] EWCA Crim 1698, where it was held to be wrong to ‘jump straight’ to s. 121 without first locating a hearsay exception for each statement separately.

The Court of Appeal noted the similarity of the wording of the two ‘interests of justice’ provisions. The difference is that under s. 121(1)(c) the value of the evidence must be ‘so high’ that its admission is required. In Thakrar [2010] EWCA Crim 1505, the Court approved of the use of s. 121 to admit statements taken in Northern Cyprus from witnesses who claimed to have heard D1 confess to three murders and related offences, and to implicate his co-accused D2. The fact that the accounts contained details of the crimes that could only have been known to a participant was held to provide striking evidence of their reliability.

In Xhabri [2005] EWCA Crim 3135 (considered at F17.40), the test in s. 121 was satisfied in relation to a complaint of false imprisonment which was relayed by two friends of the victim to a police officer. The complainant and the officer (though not the two friends) were available for cross-examination. The Court of Appeal considered that both s. 121(1)(a) (admissibility under other provisions) and s. 121(1)(c) (admissibility in the interests of justice) were satisfied.

In A’Hearne [2022] EWCA Crim 1784, D had confessed to N that he had ‘battered a girl’, and N related the confession to C, a police officer. N did not give evidence through fear and C was too ill to attend the trial. The condition required by s. 121(1)(c), that the value of the evidence was so high that the interests of justice require admissibility, was satisfied, and the use of the criteria in s. 114(2) as a guide was commended.

Question 63

What does s124 CJA allow for?

Answer 63

The admissibility of evidence:
(a) which would have been admissible as to credibility of a witness if he had given oral evidence
(b) matters which would have been final had they given evidence in the proceedings (collateral matters?)
(c) evidence of inconsistent statements admissible for the purpose ofshowing he contradicted himself

if such evidence leads to an allegation being made against the maker of a statement, the court may permit a party to lead additional evidence as the court sees fit for the purposes of denying or answering the allegation.

For the purposes of this section, where it is admitted under s117 each person who must have supplied or received the statement is treated as the maker of the statement and so the court can do any of the above.

Question 64

What must the prosecution do to help the working of s124 CJA?

Answer 64

They must undertake very full inquiries, in the case of important hearsay evidence for the prosecution. A mere check of the PNC would not suffice.

Question 65

Can s124 CJA be employed to admit bad character evidence?

Answer 65

Yes, but subject to s100. It cannot be admitted just to smear their character where it is otherwise irrelevant.

Question 66

What provisions are relevant to whether a hearsay statement should be excluded?

Answer 66

For pros, S78, some of the provisions themselves (such as s116) have inbuilt parts.

Should be ruled upon in advance. The existence of s125 (duty to stop a case) doers not mean that such a ruling should be delayed.

Question 67

Would a conviction based upon hearsay evidence involve a violation of article 6 rights?

Answer 67

Generally no. there is no bar to a conviction being obtained solely or to a decisive degree on untested hearsay evidence as the regime parliament created was principled and full of safeguards.

The ECHR later agreed with the UK on this.

The court must be satisfied that there is good reason fort absence of the witness, as well as that a fair trial will be possible despite the opportunity to XX. This latter condition is harder to satisfy where the hearsay evidence is the main evidence. The Grand Chamber drew attention to a judge’s duty to stop a case where any such conviction would be unsafe.

the core principle to be deduced is that, where the untested hearsay evidence is ‘critical’, the question of whether the trial is fair depends on three principal factors:
(a) there is good reason to admit the evidence

(b) whether the evidence can be shown to be reliable

(c) the extend to which counterbalancing measures exist and have been properly applied. This includes the safeguards in the CJA 2003 and the application of common law safeguards and the summing up directions.

There is no need for sole or decisive evidence to be independently verified. He just needs to ensure the evidence can safely be held to be reliable.

Complainants suffering from mental health issues may dampen the reliability if crucial elements are not supported.

Generally seems to be a direct proportional relationship between the importance of the evidence and the ned for it to be seen to be reliable.

The bad character of an accused is not necessarily a reason for exclusion, even if it seems they are prepared to lie, provided the evidence available to the jury is that they can properly assess the risk of the witness having done so.

The fact of there being vulnerable witness does not absolve domestic courts of their responsibility to ensure fairness when allowing witness statements to be read.

If the prosecutor has delayed proceedings and, as a consequence, a witness is unable to testify, the court may exclude the witness’ statement on the basis that they should have proceeded earlier.

Where the witness goes missing in circumstances which raise doubts about their reliability, it is unlikely it will be admitted.

Two witnesses having statements in identical terms with some questions being unclear, the court should not admit the statement as the unfairness of not being able to cross-examine is particularly acute.

Question 68

What relationship does hearsay have with identification evidence?

Answer 68

The right to challenge becomes particular important.

The court should be very reluctant to receive such evidence. If it is received, an appropriate warning of the dangers of relying on it should be given.

Question 69

What is the power to exclude hearsay evidence contained within the CJA?

Answer 69

S126:
(a) it may refuse to admit it as evidence of a matter stated if:
(b) the court is satisfied the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

Does not affect any other power the court may have.

In addition to being concerned with stopping an undue waste of time on satellite issues, the court is given by this section a general discretion to exclude evidence which lacks significant probative value.

CAN BE INVOKED TO EXCLUDE DEFENCE EVIDENCE

Question 70

What power does the court possess where the court is satisfied that the case against the defendant is based wholly or partly on hearsay evidence?

Answer 70

Where it finds it so unconvincing that the defendant’s conviction would be unsafe, the court must direct the jury to acquit or, if considering a retrial should be ordered, discharge the jury.

This equally applies to offences where a jury can find an alternative if they are also satisfied that this case is also wholly or partly on unconvincing hearsay.

This also applies to trials of fact for insanity cases.

The point is not to be a fact-finder but to consider whether a conviction would be safe. Needs to consider the reliability of the hearsay, its place in the evidence, the issues in the case, and all the other individual circumstances.

If it has not been shown to be reliable, the statement is ‘almost bound to be “unconvincing” in the way that a conviction would be unsafe”.

This is a different test than Galbraith as here the judge needs to assess the strengths and weaknesses, the tools available to the jury for testing it, and its importance to the case as a whole.

Question 71

Are there any notice requirements for hearsay evidence?

Answer 71

Yes, for:
S114(1)(d) interests of justice
S116 (unavailability)
S117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings)
S121 (multiple hearsay)

The OTHER forms of hearsay are EXEMPTED from the notice requirements.

However, evidence admissible by agreement of the parties is not specifically exempted. We do not know it specifically applies.

Notice must be served on the court officer and each other party, identifying the evidence that tis hearsay, any facts on which the party relies to make the evidence admissible, how that party will prove them, why the evidence is admissible, and attach the notice to any statement or other document containing the evidence that has not already been served.

Question 72

What may the court do where one party has failed to comply with the hearsay notice requirements?

Answer 72

The court may still give leave to admit it, and the party entitled to the notice may also waive the entitlement.

The rules are not purely decorative and can be enforced.

The court is not obliged to give leave to a co-accused who has failed to comply with the notice procedure.

Question 73

What is the notice time requirement for introduction of hearsay evidence?

Answer 73

For prosecutors, 20 business days after not guilty plea in the mags or 10 business days after not guilty in the crown.

For defendants, as soon as reasonably practicable.

Question 74

What should the court do where a party objects to the introduction of hearsay evidence?

Answer 74

The party must apply to the court to determine the objection and serve the application on the court officer and each and every other party.

Also serve the application asap and not more than 10 business days after service of notice to introduce, service of evidence if no notice is required, or the defendant pleads not guilty

And explain why they object

Question 75

How may the court determine admissibility of hearsay?

Answer 75

At a hearing, in public or private or without a hearing

Must not determine unless the party who served the notice is present or has a reasonable opportunity to respond.

May also adjourn the application.

Question 76

Can a ruling on admissibility of hearsay evidence be discharged or varied?

Answer 76

Potentially yes.

Question 77

What happens where hearsay evidence is opposed?

Answer 77

It must treat it as if it were admissible by agreement

Question 78

What may the court do in respect of the notice requirements for hearsay evidence?

Answer 78

It may:
(a) shorten or extend even after expiry
(b) allow notice to be in a different form or given orally; and
(c) dispense with the requirement of notice

Question 79

what must a party who wants an extension of time for hearsay evidence do?

Answer 79

(a) Apply when serving the app or notice and explain the delay.