3.2 Hearsay exceptions 1 Flashcards
Statutory exceptions
What is hearsay?
Section 114(1) Criminal Justice Act 2003
A statement made out of court
Adduced as evidence of the matter stated
Section 115 CJA 2003
(2) by a person and by any means
(3) with the intention to
(a) cause another person to believe it to be true; or
(b) cause another person to act or a machine to operate as if the statement were true.
When is hearsay evidence admissible?
Section 114(1) Criminal Justice Act 2003
Where -
(a) Any of the statutory exceptions apply;
(b) Where any of the common law exceptions preserved in s.118 apply;
(c) where both sides agree;
(d) where it is in the interests of justice.
What are the statutory exceptions to the exclusionary rule against hearsay evidence?
Section 114(1)(d) CJA In the interests of justice.
Section 116 Criminal Justice Act 2003
Where the witness is unavailable.
Section 117 CJA
Where the evidence is a business document -
unless the court doubts its reliability - s.117(6) and (7) CJA.
Section 78 PACE
Nevertheless the court has a general power to exclude unfair evidence.
Which statutory provision deals with the hearsay evidence of unavailable witnesses?
Section 116 Criminal Justice Act 2003
Which three conditions must be present to admit hearsay evidence from unavailable witnesses?
Section 116(1) Criminal Justice Act 2003
(a) oral evidence given in proceedings by the person who made the statement would have been admissible;
(b) the relevant person is identified to the court’s satisfaction;
(c) any of the conditions in subsection (2) is satisfied.
What are the conditions one or more of which must be satisfied to admit hearsay evidence from unavailable witnesses?
Section 116(2) Criminal Justice Act 2003
(a) the relevant person is dead
(b) they are unfit to be a witness because of bodily or mental condition
(c) the relevant person is outside the UK and it is not reasonably practicable to get them to attend
(d) the relevant person cannot be found and such steps as are reasonably practicable have been taken to find her
(e) the relevant person is in fear and the court gives leave.
What does it mean for someone to be unfit to be a witness because of a bodily or mental condition, as per Section 116(2)(b) CJA?
This refers not to the inability to attend court but to give evidence.
It need not be a recognised medical condition.
How does the court determine whether it is reasonably practicable to locate a witness, as per Section 116(2)(c) and (d)?
The court considers the normal steps taken to locate a witness.
Cost is a factor.
Section 116(2)(c) should be taken as including the impracticability of giving evidence via video link.
How is “fear” defined as per Section 116(2)(e) Criminal Justice Act 2003?
Section 116(3) CJA ... fear is to be widely construed and (for example) includes fear of death or injury of another person or financial loss.
When may the court give leave for hearsay evidence where the witness is in fear?
Section 116(4) CJA ... only if the court considers that the statement ought to be admitted in the interests of justice ...
What should the court have regard to in assessing whether it would be in the interests of justice to admit a hearsay statement taken from a witness in fear?
Section 116(4) CJA
(a) the statement’s contents;
(b) any risk that its admission will result in unfairness;
(c) in appropriate cases, the fact that a direction could be made in relation to the relevant person under Section 19 Youth Justice and Criminal Evidence Act 1999;
(d) any other relevant circumstances.
What is the standard of proof to show that a witness is in fear?
The criminal standard.
Must fear felt by the witness be caused by D for the Section 116(2)(e) exception to apply?
No.
Should the courts seek to test whether a witness is genuinely in fear?
Davies [2007] 2 All ER 1070
Courts are “ill-advised” to try to make witnesses in fear come to court.
Shabir [2012] EWCA Crim 2564
“Every effort” should be made to get witnesses to come to court to test their fear.
Sellick [2005] EWCA Crim 651
Applying Section 116(5) Criminal Justice Act 2003:
Where intimidation of a witness is proved or the court considers it a high probability, D cannot complain that the right to a fair trial has been infringed by allowing hearsay.