Criminal Practice WS4 (Hearsay)

Question 1

What are the 3 factors the court considers of whether there can be a free trial?

Answer 1

Court must always be satisfied that there is sufficient basis for the absence of a witness and a fair trial will be possible.

It is harder for the court to be satisfied a fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence.

Where the hearsay is critical to the case, the question of whether there can be a fair trial depends on 3 main factors
1) whether there is good reason to admit the evidence pursuant to CJA 2003
2) whether the evidence can be shown to be reliable
3) The extent to which counterbalancing measures have been properly applied.

Question 2

What is the definition of ‘Hearsay’ and what is the general rule regarding admissibility?

Answer 2

A statement, not made in oral evidence, that is relied on as evidence of a matter in it’

• a statement (made by a person)
• is not made in oral evidence
• is tendered to prove a matter stated

General rule - hearsay is inadmissible (s114(a)(b).

Question 3

What is meant by ‘statement made by a person’?

Answer 3

Must establish whether the evidence being sought to be adduced as hearsay is a statement.

A statement is a representation of any fact or opinion made by a person by whatever means and includes a representation made in a sketch, photofit or other pictorial form.

Statement must be
- made by a person (i.e. not a computer)
- made by whatever means (e.g. orally, in writing, by conduct etc.’

Question 4

What is meant by ‘not made in oral evidence’?

Answer 4

Statement made ‘out of court’

(e.g. a witness at trial repeating what had been told to them by another person out of court).

Question 5

What is meant by ‘prove a matter stated’?

Answer 5

The statement must also have made to prove a matter stated.

The person who makes the statement must make it with the intention to either:
1) Cause someone to believe that what is being represented in the statement is true

2) Cause someone or something to operate on the basis that what is being represented in the statement is true.

There may be more than one intention as to why a statement was made, therefore, it is important to exercise caution. If this is the case, the statement is not necessarily excluded from falling within the definition of hearsay.

Question 6

What is the court’s approach to deciding whether evidence is hearsay? R v Twist

Answer 6

1) Identify what the relevant fact (matter) is sought to prove
2) Ask whether there is a statement of that matter in the communication.
- If no, no question of hearsay arises.

If yes, ask whether it was one of the purposes (not necessarily the sole or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it has true:
Yes- hearsay
No - not hearsay

Thus, hearsay is a statement made out of court, that the person who made it intended another to believe, subsequently tendered in evidence, as proof of the matter stated.

Question 7

Give an example of hearsay?

Answer 7

• A witness repeating at trial what he has been told by another person
• A statement from a witness being read out at trial instead of the witness attending
• A police officer repeating a confession at trial
• A business document being introduced in evidence at trial i.e. this will be a written document: e.g. an accounts ledger showing an entry of £500 will amount to a statement made outside of court.

Question 8

What happened in the case of R v Knight?

Think diary sexual offence case.

Answer 8

The defendant was convicted of various sexual offences committed against a 14 year-old girl. At trial, the girls aunt was allowed to give evidence of entries she had read in the girl’s diaries that detailed the girl’s sexual contacts with the defendant.

The defendant submitted that such evidence was hearsay and should not have been admitted.

The Court of Appeal held that such evidence was not hearsay, because the girl had not intended other people to read the entries and therefore fell outside of the scole.

Question 9

What is first-hand and multiple hearsay?

Answer 9

First-hand hearsay (repeating a statement that he heard the defendant make, witnessed it first hand):
- Jason is on trial for theft. The arresting officer, gives evidence that when he arrested Jason, Jason made the following confession: ‘Okay, fair enough, it was me. I only did it for drug money’

Multiple Hearsay:
- Maryam is a bank clerk. She receives a cash deposit of £5,000 from a customer and places this in the bank’s safe. She tells Brian, the senior cashier, who in turn tells Emir, the manager. Emir makes a record of the deposit in a ledger. An armed robbery subsequently takes place and the £5,000 is stolen. At the robber’s trial, the CPS seeks to use the entry
in the ledger to show how much money was in the safe. The entry in the ledger will be multiple hearsay. The details of the amount of money placed in the safe have passed from Maryam to Brian, then from Brian to Emir and then from Emir into the ledger itself.

Question 10

What are the grounds for admitting hearsay evidence? (Exceptions to the general rule)

Answer 10

General rule: Hearsay evidence is inadmissible. The admissibility provisions for hearsay evidence are strict, evidence which amounts to hearsay will only be admitted if:

1) A statutory provision makes it admissible (s114(1)(a)
2) Common law rule preserved by s118 makes it admissible (s114(1)(b).
3) The parties agree to the evidence being admissible (s114(1)(c)
4) The evidence is admissible in the interests of justice (s114(1)(d).

Question 11

What are the statutory exceptions to the general rule that Hearsay evidence is not admissible?

Answer 11

1) Cases where a witness is unavailable (s116 CJA 2003)

2) Business and other documents (s117 CJA 2003)

3) Common law exception (res gestae) (s118)

4) All parties agree to the evidence & in the interests of justice (s114(c) and (d))

Question 12

Explain the statutory provision in s116 CJA 2003 ‘cases where a witness is unavailable’ - s116 CJA 2003 which makes Hearsay evidence admissible?

Answer 12

Hearsay evidence will only be admissible where a witness is unavailable if they are unavailable because under s116 CJA 2003.

1) The relevant person is dead (court will immediately move to consider whether it is in the interests of justice to admit their evidence)

2) The relevant person is unfit to be a witness because of his bodily or mental condition (investigations must be carried out to decide if this condition is satisfied - the witness could be bought to court, but if they were to attend their bodily or mental condition would render their attendance pointless)

3) The relevant person is outside of the United Kingdom and is not reasonably practicable to secure his attendance (court will consider any steps taken to secure the attendance of the witness, or the reason for the witness being abroad. The prosecution will need to provide compelling evidence to satisfy this condition and the courts will consider the level of contact before the trial started)

4) The relevant person cannot be found, although such steps as it is reasonably practicable to take and find him have been taken (all reasonably practicable steps must have been taken to locate a witness who is lost, and this not only includes looking for the witness but keeping track of the witness to satisfy this condition. Regular contact should be maintained between the witness and the party calling the witness)

5) Through fear, the relevant person does not 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 (widely construed - but evidence may be adduced as hearsay if they are in fear of giving evidence, any evidence of fear must relate to the relevant time and may come from, being in fear as a result of witness intimidation, fear of injury or financial loss, courts deploy special measures to mitigate the impact of fear on a witness ability to give evidence. Every effort must have been made to get the witness to court before this condition is satisfied).

NOTE: S116 only applies to first-hand hearsay
- i.e. if B tells C something, and C seeks to repeat the matter in court, C will be able to do so under s116 if:
- B is either dead or outside of the UK
- It is not reasonably practicable to secure B’s attendance

However, if A tells B who tells C something and C seeks to repeat the matter in court, s116 will not enable this and the hearsay will be excluded.

Question 13

Provide a summary of s116 and who hearsay will be admissible?

Answer 13

1) Oral evidence of the person making the statement would have been admissible if they had attended in person

2) The person who made the statement is identified to the court’s satisfaction (e.g. the court knows who they are)

3) It is first-hand hearsay ‘information that has only passed through one other person’

4) any of the reasons listed in s116 with regards to unavailability e.g. witness is dead, unfit, outside the UK, cannot be found, fear of giving evidence

Question 14

Explain the statutory exception in s117 ‘business and other documents’ as the exception to the general rule that hearsay is inadmissible?

Answer 14

Statements contained in business documents may be admissible hearsay evidence if the statement
- Would have been admissible as evidence of a matter stated in oral evidence
- Was created, or received by a person who at the time was acting in the course of a trade, business profession or other occupation or as a holder of an unpaid or paid office
- Was supplied by someone who had or may reasonable be supposed to have personal knowledge of the matters stated
- If the evidence is multiple hearsay, each person passing statement received the information in the course of a trade, business, profession or other occupation as the holder of a paid or unpaid office.

i.e. multiple hearsay will be admissible providing the information was passed to each person in the course of trade (e.g. A tells B tells C, who writes the statement down in a document).

Examples of admissible hearsay:
- Receipts which evidences that the defendant purchased a gun will be admissible providing it was created by the shop-worker who served the gun-man.
- Suspect deposits money into a bank, and the bank clerk records the entry on the ledger (multiple hearsay)
- Medical records
- Any statement written down by a police officer in the course of duty.

Question 15

Give an example where a witness is in fear of giving evidence is satisfied as admissible hearsay evidence under s116?

Answer 15

Ava witnesses murder, she gives a signed statement to the police describing what she saw. Before the case comes to trial, she receives anonymous letters telling her that if she gives evidence at court, her baby son will be killed.

Ava refuses to attend court to give oral evidence of what she saw. Ava’s written statement may be admissible in evidence

She satisfies the condition of s116(2)(e) and oral evidence given by her of what she saw when the murder occurred would have been admissible at the trial.

However, the trial judge will still need to give leave for her written statement to be admitted in evidence, having regard to the matters listed in s116(4).
- s116(4) requires the court to give leave only if it considers that the statement ought to be admitted in the interests of justice having regard to the contents
- to any risk of unfairness (in particular how difficult it would be to challenge the statement) and the fact that (in appropriate cases) special measures directions could be made.

Question 16

What is meant by reports prepared by experts (if leave of the court is obtained) s30 CJA 1988?

Answer 16

s30 CJA 1988: The court may permit an expert’s report to be admissible as an item of hearsay evidence without the expert needing to attend court to give oral evidence.

The court will consider
- the contents of the report
- the reasons for non-attendance and
- the risk of unfairness, particularly if the contents of the report are controversial and the defendant will be deprived of the opportunity to cross-examine.

Question 17

Explain how a statement prepared for the purposes of pending or contemplated criminal proceedings and how this evidence can be used under s117?

Answer 17

There are extra rules that apply to documents prepared for the purposes of pending or contemplated criminal proceedings.

Conditions:
1) One of the five conditions in s116 is satisfied
2) The person who supplied the information cannot reasonably be expected to have any recollection of the matters in the statement
3) Generally all the witness statements and all entries in police notebooks made in the course of an investigation into an alleged offence will fall within the definition.

Question 18

What is the exclusions to s116 and s117 applying? s78 PACE 1984

Answer 18

Section 117(6) and (7) add to the general exclusionary discretion in s.78 PACE in that they allow the court to exclude evidence that would otherwise be admissible under s.117 if it is satisfied that the statement’s reliability is doubtful in the view of:

• It’s contents
• The source of the information contained in it
• The way in which or the documents in which the information was supplied or received
• The way in which the circumstances in which the document concerned was created or received

When considering whether to admit or exclude evidence through the gateways created in s116 and s117, the court should take into account the factors listed in s114(2) that the relevant to the decisions on admission of evidence in the interests of justice.

Question 19

What is the common law exception s118 CJA 2003 to hearsay being inadmissible?

Answer 19

1) Res gestae
- The statement is made as a result of a close and intimate connection with the event in issue, and it is made contemporaneously with the event, then it may be admitted as hearsay evidence.

It is justified on the basis that the spontaneous reaction to the event would have dominated the thoughts of the victim, making it unlikely that the reaction would have been prepared.

2) Confessions
- codified by s76(1) PACE
- will be admissible even if hearsay evidence

Question 20

Explain the key criteria of the res gestae common law principle in s118 CJA 2003?

Answer 20

1) The statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded.
- The statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or
- The statement relates to a physical sensation or a mental state (such as intention or emotion).

2) Possibility of concoction is excluded-event to which statement relates was so unusual or startling or dramatic as to dominate the thoughts of the victim so the utterance was an instinctive reaction.

3) Where res gestae evidence is admitted, it must be made clear to the jury that they must be satisfied that there was no mistake on the part of the witnesses as to what had been said to them.

4) in domestic violence cases, the res gestae exception provides the prosection with an alternative to s116(2)(e) ‘fear’ as a way of admitting the evidence of a complainant who does not give evidence at trial

Examples:
- What is said by the victim in a 999 call or to officers immediately after alleged incident will usually be admissible as res gestae evidence.
- witness heard victim say ‘Don’t shoot me Jordan’ immediately before hearing the gun fire - this would be hearsay evidence, but likely to be admissible as part of the res gestae, to help prove the shooting was not an accident

Question 21

What is meant by the statutory exception that hearsay is admissible by agreement (s114(1)(c) and in the interests of justice (s114(1)(d)?

Answer 21

Agreement
- If all the parties in the case agree, any form of hearsay evidence may be admissible in
evidence.

Interest of justice
Courts must consider:
1) 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.
2) What other evidence has been, or can be, given on the matter to which the evidence relates
3) How important the matter or evidence in which the hearsay evidence relates to is in the context of the case as a whole.
4) The circumstances in which the statement was made.
5) How reliable the maker of the statement appears to be.
6) How reliable the evidence of the making of the statement appears to be.
7) Whether oral evidence of the matter stated can be given and, if not, why it cannot.
8) How difficult it would be to challenge the statement.
9) The extent to which that difficulty would be likely to prejudice the party facing it.

• The application of the interests of justice should be approached with caution. It is not intended to be a way of getting round the failure of a particular piece of evidence to fit into any of the other exceptions to the exclusionary rule
• The attempt to use it has failed in a case where a witness was reluctant to come to court to give evidence because she did not want to relieve the trauma of the sexual assaults that would have been subject of her evidence - The Court of Appeal held that the prosecution was trying to circumvent s.116, which does not recognise that reason for admitting hearsay evidence
• Cannot be used to repair failings on the part of the party seeking to adduce the evidence
• Where the crown has failed to take reasonable steps to find a witness or to secure the witness’s attendance, so that s116(2)(c) or (d) cannot be used, they cannot fall back on s.114(1)(d) and say that the evidence should be admitted in the interests of justice.

It is a discretionary exclusionary power and should have regard to the defendant’s right to a fair trial.

Question 22

What is the procedure of admitting hearsay (Part 20) and when does it apply?

Answer 22

Part 20 of the Criminal Procedure Rules provides that a party who is seeking to rely on hearsay must serve a hearsay notice on all other parties and the court.

This will only be required if the hearsay is admissible
- Due to a witness being unable to attend the court (s116)
- Due to it being in the interests of justice to admit the hearsay (s114)
- Due to the evidence being multiple hearsay (s121)
- Because the prosecution or defence rely on s117 for admission of a written witness statement

Note, a hearsay notice is NOT required and Part 20 does NOT apply to admit confession evidence, any common law exceptions.

Question 23

What are the time limits for serving the Hearsay Notice?

Answer 23

Notice must be served on the court and every other party, it must:
1) Identify the hearsay evidence.
2) Set out the facts relied on that make the evidence admissible.
3) Explain how those facts will be proved if they are disputed.
4) Explain why the evidence is admissible.
5) The evidence must be attached to the notice if it has not already been served.

Prosecution
Magistrates court - notice must be sent not more than
20 business days after the defendant pleads not guilty
Crown court - notice must be sent not more than 10 business days after the defendant pleads not guilty

Defence
- Must merely serve the notice ‘as soon as reasonably practicable’

Question 24

What are examples that are not hearsay?

Answer 24

*Private diary- writer did not intend anyone else to read it or believe it.

*CCTV- ‘made by a person’- no issue of hearsay arises where evidence was created entirely by a device such as CCTV without human input.

*Questions- where there is no statement of matter-e.g., the communication only includes a question, no issue of hearsay.

Question 25

What is original evidence and how intention is not hearsay?

Answer 25

*Very often evidence of words spoken out of court will be admissible as original evidence.
*Original evidence is a relevant statement adduced for some reason other than to prove the statement is true.
*In many cases the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true.
*In that case, it is not hearsay because it is not being admitted as evidence of any matter stated.

Examples include evidence of threats being made to a person:
- Where the threat is along the lines of, ‘if you don’t do what I say, I shall harm you’, the evidence is usually being adduced to show that the threat was made, not that the maker of the threat would indeed cause harm to the person addressed.
- Original evidence can also be adduced to show the state of mind of the maker of the statement.

Question 26

What kind of words are not hearsay?

Answer 26

1) To show the effect of words
- In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay.
- Therefore, where a defendant wants to reveal solicitor’s advice to show why a “no comment” interview was given, that evidence is not hearsay.

2) Legally significant words
- Where the words spoken have significance as a matter of law, they are not hearsay
- Therefore, an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of “brothel”.

3) Falsehoods -
- It follows from the definition of hearsay in s.114 that there can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true.
- Therefore, the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.

Question 27

What are the notice requirements regarding opposing hearsay?

Answer 27

A party objecting to the introduction of hearsay evidence must serve an application on the court and every other party as soon as reasonably practicable and in any event not more than 10 business days and every other party as soon as reasonably practicable and in any event not more than 10 business days after either of the following, whichever of those happens last.

• Service of the notice to introduce the evidence;
• Service of the evidence objected to, if that is evidence for which no notice is required; or
• The defendant pleads not guilty.

The application must explain:
- Which, if any, facts set out in the notice to introduce the evidence the party disputes.
- Why the evidence is not admissible; and
- Any other objection to the evidence.