Criminal Practice - Hearsay Evidence

Question 1

What is hearsay?

Answer 1

• Statement not made in oral evidence relied on as evidence of the matter in it
• Witness statements agreed to be read out in court
• Business documents produced in court

Question 2

When is hearsay evidence admissable?

Answer 2

1. Under statute
2. By rule of law
3. By agreement of all parties
4. In the interest of parties

Question 3

Under statute

Answer 3

Witness unavailable

• Includes death;
• Unfit owing to bodily or mental condition;
• Outside of UK and not reasonably practicable to require attendance;
• Cannot be found despite reasonable practical steps having been taken
• Also includes the situation where witness does not give evidence through fear and court gives leave

Business documents

• If document created or received in course of trade, business, profession or other occupation; and
• Person who supplied information may reasonably be supposed to have reasonable knowledge of the matter; and
• If information received by other persons it was done so in the course of trade, business, profession or other occupation

Statements prepared for use in criminal proceedings

• When the relevant person cannot be expected to recollect matter (i.e. police officers’ statements)

Previous consistent or inconsistent statements

• Can be adduced to challenge the witness’s altered account or to show they have provided a consistent account throughout

Expert evidence

Confessions

Question 4

By rule of law

Answer 4

Confessions or mixed statements

• Which are partly culpatory and partly exculpatory by the defendant

Statements made at time of the offence

Statements preserved by res gestae

• Where a person is so emotionally overpowered by an event that the possibility of concoction/distortion can be disregarded
• Statements accompanying an act that can only be properly evaluated in conjunction with statement; and
• Statements relating to a physical or mental state

Question 5

By agreement

Answer 5

E.g. when parties agree that statement can be read out

Question 6

In the interests of justice

Answer 6

• Probative value of statement
• What other evidence could be given
• Importance to the case as a whole
• Circumstances in which statement was made
• Reliability of the statement maker and evidence of the making of the statement
• Whether oral evidence can be given
• Difficulty in challenging statement
• Likely prejudice caused

Question 7

Multiple hearsay

Answer 7

Admissible multiple hearsay:

• Business documents
• Inconsistent or consistent statement
• All parties agree; or
• In interest of justice

Question 8

Confessions

Answer 8

• Any statement wholly or partly adverse to the person who made it whether or not to a person in authority and whether made in words
• Mixed statements that are partly incriminating and partly exonerating are treated as a confession

Question 9

Admissibility of confessions

Answer 9

• As long as confessions are relevant to a matter in issue between prosecution and defence confessions are admissible

Question 10

Challenges to the admissibility of confessions

Answer 10

• Oppression
• Things said or done likely to render confession unreliable

There also needs to be a causal link between the above and the confession - burden of proof is on the prosecution to show beyond reasonable doubt that neither of the above apply

If prosecution cannot discharge the burden the court must exclude the evidence (there is no discretion)

Question 11

Oppression

Answer 11

Section 76 PACE:

• Torture, inhuman or degrading treatement or the use or threat of violence

Question 12

Things said or done likely to render confession unreliable

Answer 12

• Inducements, misrepresenting the strength of the case or questioning a suspect when unfit
• E.g. promise of bail if defendant confesses, officer overstates strength of evidence, can also include interviewing a suspect not fit for interview

Question 13

Voir Dire

Answer 13

• Hearing by the judge in absence of the jury to determine the admissibility of a confession
• Crown Court: jury would not be aware of the confession

By contrast, in the Magistrates’ Court if bench rules confession inadmissible they must put the confession from their mind and decide the case without it

Question 14

Exclusion of Other Evidence

Answer 14

Section 78 of PACE

• Court can exclude any prosecution evidence if, considering all circumstances, the admission of evidence would have adverse effect on fairness of proceedings
• This is discretionary rather than mandatory
• Often used if police officers have breached their duties under PACE in obtaining evidence
• Courts will not usually exercise their discretion unless the breaches are significant and substantial and have rendered the evidence unreliable
• Commonly applied to illegal searches, identification evidence, confessions, covert surveillance and under-cover operations