9.5 Hearsay Evidence Flashcards
Hearsay Evidence Definition
A hearsay statement is ‘a statement, not made in oral evidence, that is relied on as evidence of a matter in it’.
When is hearsay evidence admissible?
Falls into one of these categories:
a. If any provision of this CJA 2003 chapter 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
Provisions of CJA 2003 which make hearsay evidence admissible:
(1) Cases where a witness cannot attend court, written evidence may be admitted if
a. oral evidence would have been admissible (first hand hearsay)
b. person who made the statement is identified to the court’s satisfaction
c. one of these is satisfied:
i. they are dead
ii. they are unfit due to bodily / mental capacity
iii. outside UK and cannot secure attendance
iv. person cannot be found (but reasonable steps taken )
v. Person is afraid of giving evidence and court grants leave for them to give written evidence
(2) Business or other documents
When is hearsay evidence admissible on the grounds that it is in a business or other document?
- Oral evidence given in the proceedings would have been admissible
- the document (or the part of it containing the statement) must have been created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office;
- the person who supplied the information contained in the statement (the relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
- each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.
When is a business statement which has been prepared for use in criminal proceedings admissible hearsay evidence?
- Any of the five conditions in 116(2): witness is death, cannot be traced, unfit etc.
- the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement
Two common law exceptions to the rule excluding hearsay evidence
- Evidence which is a confession or mixed statement made by the defendant AND
- evidence admitted as part of the RES GESTAE
When will confession evidence be admissible as hearsay evidence
If the accused makes a confession, this may be given in evidence against him if is directly relevant to the proceedings
When will hearsay evidence be admissible under the second common law exception
The common law principle of evidence being admitted as part of the res gestae provides that a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded.
Court admitting hearsay evidence on the grounds that it is in the interests of justice for it to be admissible: key considerations
- 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 for understanding other evidence in the case
- what other evidence has been, or can be, given on the matter or evidence mentioned in para (a)
- how important the matter or evidence mentioned in para (a) is to the context of the case as a whole
- the circumstances in which the statement was made
- how reliable the statement-maker appears to be
- how reliable to evidence of he making of the statements appears to be
- whether oral evidence of the matter can be given (and if not, why not)
- the amount of difficulty involved in challenging the statement; and
- the extent to which that difficulty is likely to prejudice the party facing it
Procedural rules for admitting hearsay evidence
Part 20 CrimPR
When do the rules in Part 20 of the CrimPR apply?
Cases where:
1. Its in the interests of justice for the hearsay evidence to be admissible
2. witness is unavailable to attend court
3. evidence is multiple hearsay
4. either pros. or def. rely on s 117 for admission of a written witness statement prepared for use in criminal proceedings
If Part 20 CrimPR applies, what requires accompany it?
Party seeking to rely on Part 20 hearsay evidence or oppose another party’s application to introduce the evidence must give notice of this intention to the court and other parties in the case (CrimPR, r 20.2)
Does the court have any ability to extend or alter the time limits and notice requirements in Part 20 CrimPR
- Court has discretion to alter time limits
- court can also get rid of written notice requirement and replace with oral notice
To which types of hearsay evidence does Part 20 NOT apply?
Part 20 rules do not apply for evidence admissible on any other grounds (eg. common law exceptions)
- So notice is not required for this type of hearsay evidence
How is the admissibility of hearsay evidence determined? How does this change from CC to MC?
- if CPS / defendant makes application to adduce hearsay evidence at trial and this is opposed by the other party, the court will determine admissibility at the pre-trial hearing
- Magistrates Court: likely at case management hearing/pre-trial review or specific pre-trial hearing about admissibility
- Crown Court: at PTPH or specific pre-trial hearing
