Evidence II (s78, hearsay)

Question 1

To what evidence do s78 applications apply?

Most important means by which the defence can seek to have prosecution evidence excluded

Answer 1

Prosecution evidence only; cannot be relied upon by prosecution or co-D to exclude evidence D seeks to admit

Question 2

What is s78 used for? Specifically where defence contend what?

Answer 2

Of general application - where defence contend that such evidence has been obtained unlawfully, improperly or unfairly

Question 3

How does s78 link to s76?

Answer 3

S78 commonly used alongside s76 to exclude evidence of confessions which prosecution seek to rely on

Question 4

What is the key test for excluding evidence under s78?

Answer 4

Whether admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it

Question 5

Does evidence that has been irregularly obtained render it per se inadmissible?

Answer 5

No; s78 is not automatic

Question 6

What is the court not concerned with in s78? What is it only concerned with?

Answer 6

Marking disapproval of police conduct/punishing prosecution for how it has been obtained - only whether fairness dictates that evidence should be excluded

But where there has been bad faith on the part of the police when acting in breach of PACE or the Codes of Practice that is a factor which is likely to lead to exclusion of the evidence

Question 7

What breaches will the defence refer to when making an application under s78?

Answer 7

Breaches of the Codes of Practice under PACE (where applicable)

Codes of practice set procedures that police must follow in the exercise of their powers under PACE - the breach of which will often be basis for seeking to exclude evidence under s78

Question 8

Are the codes admissible in evidence?

Answer 8

Yes - where a breach of a code is alleged the defence can rely in court on the content of the code setting out the procedures that should have been followed

Question 9

What are the 8 Codes of Practice?

Answer 9

1. Code A - stop and search
2. Code B - entry, search and seizure
3. Code C - detention, treatment, and questioning of non-terrorist suspects
4. Code D - identification
5. Code E - audio recordings of interviews
6. Code F - visual recording of interviews with sound
7. Code G - arrest
8. Code H - detention, treatment and questioning of terrorism suspects

Question 10

What are some common examples of s78 applications?

Answer 10

• Right of access to legal advice improperly denied
• Waiver of right to legal advice was not voluntary, informed or unequivocal
• Failure to caution a suspect before questioning
• AA not provided for youth, mentally disordered or vulnerable suspect
• ID procedures have not been followed

Question 11

Will any and every breach/contamination of the Codes justify exclusion of evidence?

Answer 11

No - breach must be significant and substantial

Question 12

What will make a breach ‘significant and substantial’ in context of s78 application (i.e. what is the key consideration)?

Answer 12

The effect the breach has on the fairness of proceedings (i.e. would the admission have such an adverse effect)

Question 13

Will serious breaches always lead to exclusion?

Answer 13

No - breach can be major but will still not lead to exclusion if court reaches the view that no unfairness was caused

Seriousness is not the principal consideration (effect is)

Question 14

At what 3 points can an application under s78 be made?

Answer 14

1. Before trial
2. At commencement of trial; or
3. Just prior to prosecution seeking to admit evidence which defence wishes to be excluded

Question 15

How will it be decided by the judge when the s78 application will be dealt with? When will directions for it be given?

Answer 15

• Less significant matter = during trial itself
• Exclusion would mean prosecution case is fatally weakened or left with no/insufficient remaining evidence = pre-trial hearing or commencement of trial (pre-jury sworn in)

Directions given by judge in Crown usually at PTPH re when s78 application heard

(Where the point of law [for which app is made] is clear from the case papers/becomes clear following initial disclosure, the defence should include the point of law in the Defence Statement together with any authorities relied upon)

Question 16

Above all a s78 application should be made before what?

Answer 16

Before evidence to which objection is taken is adduced

Question 17

In Crown, what type of dispute will mean a judge will not be able to determine a s78 application?

Answer 17

If there is a dispute on factual matters between the parties - will have to be resolved before s78 application determined

E.g. if the defendant is advancing an argument that the police acted in a way that was in breach of the PACE codes but the police officers concerned deny this, then the judge will have to hear evidence and make a decision on the facts before the judge can decide how the law should be applied.

Question 18

What burden/standard of proof applies when resolving a factual dispute as part of a s78 application and for what?

Answer 18

Judge has to be satisfied beyond reasonable doubt to find in favour of the prosecution version of the facts

Question 19

What is the different outcome if the judge hears the evidence and concludes that…

1. Police acted appropriately
2. Police misbehaved and there has been a significant and substantial breach of the code resulting in unfairness to D

From example: if the defendant is advancing an argument that the police acted in a way that was in breach of the PACE codes but the police officers concerned deny this, then the judge will have to hear evidence and make a decision on the facts before the judge can decide how the law should be applied

Answer 19

1. Legal argument will fail
2. Evidence likely to be excluded

Question 20

What is a ‘voir dire’?

Answer 20

A trial within a trial; factual disputes are resolved

NB this is not the same as a hearing on admissibility of evidence! Both take place in absence of jury, but voir dire is only where facts are disputed. If facts not disputed, will be a regular hearing

Question 21

Will a jury take part in a voir dire?

Answer 21

No

Question 22

What can a magistrates’ court do re a s78 application?

Answer 22

Can rule on it when it arises or hear all the evidence before ruling on admissibility

Question 23

Why should disputed confessions be determined as a preliminary issue?

Can be other forms of evidence, but most commonly confessions here

Answer 23

Interests of justice may dictate that a ruling on admissibility is made early enough to allow D to know whether evidence forms part of the case and deal with it in cross-examination

Question 24

What is the rule on relevance?

Answer 24

All evidence sufficiently relevant to the facts in issue is admissible subject to the exclusionary rules

Question 25

What is the general rule on hearsay?

Answer 25

Hearsay is inadmissible; a statement made out of court may not be presented in evidence as **proof of its contents**

Question 26

Will hearsay (by definition) always be inadmissible?

Answer 26

Not if it falls within one of the exceptions to the general exclusionary rule

Question 27

What is the main rationale for excluding hearsay?

Answer 27

The maker of the statement cannot be cross-examined ## Footnote E.g. in trial for murder of V, A gives evidence that B said that D killed V - but only A is in court to be cross-examined and cannot test credibility of B's statement (not safe to convict)

Question 28

What is the difference between a statement and a matter stated?

Answer 28

* **Statement** = any representation of fact/opinion made by a person by whatever means (words, sketch, pictorial form etc.) * **Matter stated** = purpose of person making statement appears to have been to cause another person to believe matter of cause another person to act/machine to operate on basis of that matter stated

Question 29

What is hearsay? | **3 part test from Twist**

Answer 29

1. What is the **relevant fact** the party calling the evidence is seeking to prove? 2. Is there a **statement of that fact/matter** in the communication? (No = not hearsay) 3. Did the person making the communication **intend that the recipient should believe that matter or act upon it as true**? (No = not hearsay) | Must **all** be present ## Footnote A statement is hearsay if: * Made out of court; and * Person made it intended another person to believe it; and * It is adduced as evidence of the matter stated

Question 30

In deciding whether something is hearsay, must the purpose of causing another to believe it be the **only/dominant** reason for the communication?

Answer 30

No! As long as the recipient/any other person should believe that matter of act upon it as true

Question 31

Why must the relevant matter that the hearsay is sought to prove be identified first?

Answer 31

If there is not a statement of **that** matter in the communication, no question of hearsay arises

Question 32

What are some examples of things that will not be hearsay?

Answer 32

* Private diary (no intention of other person reading/believing it) * CCTV (not made by person) * Questions (no statement of a matter)

Question 33

Why were the texts in *Twist* (received by D asking for drugs) not hearsay?

Answer 33

There was no statement that he was a drug dealer (matter prosecution sought to prove) so messages not hearsay and were admissible

Question 34

Will an implied statement make something hearsay?

Answer 34

No - e.g. in *Twist*: implied statement that recipient of message was a drug dealer but it **was not the intention of the sender of the message to make recipient believe that fact**

Question 35

What is original evidence and why is it not hearsay?

Answer 35

* Original evidence = relevant statement adduced for some reason **other** than to prove that statement made was true e.g. that words were **spoken** out of court * Is **not hearsay** because it is not being admitted as evidence of any matter stated ## Footnote *e.g. "if you don't do what I say, I will harm you"* = showing threat was **made**, not that maker of threat would **cause harm**

Question 36

How can original evidence be adduced to show **state of mind** of the maker of the statement?

Answer 36

Ratten case: * D murdered wife * Defence was that gun gone off by accident * Evidence of 999 call made by deceased shortly before killing admitted to **show wife was in a distressed state at the time** (not to show D had killed)

Question 37

What else will **not** be hearsay?

Answer 37

* **To show effect of words** - purpose of adducing words spoken out of court was to show **effect** words had on person to whom they were said rather than truth of what was said * **Legally significant words** - words spoken have significance as a matter of law *e.g. offer of sexual services in exchange for money admissible to show that premises on which words were spoken is a brothel* * **Falsehoods** - party adduces evidence of words spoken while asserting it is not true *e.g. pros give evidence of D giving false alibi to show D was trying to avoid being convicted of offence* ## Footnote I.e. a statement made out of court that a person made without intending another to believe it

Question 38

What are the 3 circumstances in which hearsay is admissible? | I.e. exceptions in s114(1)

Answer 38

1. Statutory exceptions in CJA apply 2. Common law exceptions preserved under CJA apply 2. Parties agree to it being admissible 3. Court is satisfied it is in the interests of justice for it to be admissible (statutory discretion)

Question 39

What are the 2 statutory exceptions under which hearsay is admissible?

Answer 39

1. S116 - witness is unavailable 2. S117 - it is a business document

Question 40

Do the statutory exceptions for hearsay also apply to evidence that would have been inadmissible in live evidence (e.g. bad character that is not admissible through a gateway)?

Answer 40

No!!!!!

Question 41

# **S116 UNAVAILABLE WITNESS** What are the conditions for hearsay to be admissible if witness is unavailable?

Answer 41

1. Oral evidence given in proceedings by person who made statement **would have been admissible** as evidence of that matter (i.e. would-be inadmissible live evidence not allowed!) 2. Relevant person (who made statement) is **identified to court's satisfaction** 3. Any of the 5 conditions of s116(2) is satisfied

Question 42

# **S116 UNAVAILABLE WITNESS** What are the five conditions of s116(2)?

Answer 42

Relevant person... * Dead * Unfit to be witness (mental/bodily condition) * Outside UK and not reasonably practicable to secure attendance (live **or** in video link) * Cannot be found but reasonably practicable steps taken to find * Through fear does not give evidence and court gives leave for statement to be in evidence

Question 43

# **S116 UNAVAILABLE WITNESS** Does 'unfit to be a witness' relate to only medical condition? Is it only those who physically cannot attend court?

Answer 43

* No medical condition required - can be a trauma victim * Not re fitness to physically attend but to give evidence once there

Question 44

# **S116 UNAVAILABLE WITNESS** For outside UK/cannot be found, what steps should be taken to secure attendance/find?

Answer 44

Consider cost v importance of evidence witness would give

Question 45

# **S116 UNAVAILABLE WITNESS** How is 'fear' in the 5th condition of s116(2) to be construed? When would leave be given by the courts (what would regard be had to)?

Answer 45

* Widely construed - i.e. fear of death/injury of another person, of financial loss etc. * Leave can be given by courts only if it considers statement ought to be admitted in interests of justice (having regard to contents, any risk of its admission/exclusion, whether special measures given)

Question 46

# **S116 UNAVAILABLE WITNESS** Must the 'fear' in s116(2) be caused by the D? What if it is?

Answer 46

* No requirement - but should establish **causative link** between fear and failure to give evidence * If fear **caused by D** = D cannot complain right to fair trial has been infringed

Question 47

# **S117 BUSINESS DOCUMENTS** What are the conditions for hearsay to be admissible if statement is contained. ina business document?

Answer 47

1. Oral evidence given in proceedings by person who made statement **would have been admissible** as evidence of that matter (i.e. would-be inadmissible live evidence not allowed!) 2. Requirements of s117(2) are satisfied

Question 48

# **S117 BUSINESS DOCUMENTS** What are the 3 requirements under s117(2)?

Answer 48

* Document created/received by person **in course of trade, business, profession** (paid/unpaid) * Person who supplied information contained in statement (may reasonably be supposed to have) had **personal knowledge of matters dealt with** * Each person (if any) through whom information supplied from relevant person to recipient received information **in course of trade...** | Person in first and second can be the same

Question 49

# **S117 BUSINESS DOCUMENTS** When does the court have the discretion to exclude admissible business document?

Answer 49

If satisfied that statement's reliability is doubtful

Question 50

# **S117 BUSINESS DOCUMENTS** What type of business does s117 cover?

Answer 50

Wide wording: covers documents that are not business documents at all e.g. statements written by police officer in course of duty

Question 51

# **S117 BUSINESS DOCUMENTS** What are the extra rules that apply to documents prepared for purposes of pending/contemplated criminal proceedings?

Answer 51

To be admissible, either... * One of 5 conditions in s116 satisfied; **or** * Person who supplied information contained in statement **cannot reasonably be expected to have any recollection of matters dealt with in statement** (re length of time since information supplied/all other circumstances) ## Footnote Generally all witness statements and entires in police notebooks made in course of investigation into alleged offence will fall within definition

Question 52

# **S117 BUSINESS DOCUMENTS** When does s117(6) and (7) allows the court exclusionary discretion for evidence that would otherwise be admissible under s117?

Answer 52

If court is satisfied that statement's reliability is doubtful in view of: 1. Contents 2. Source of information contained in it 3. Circumstances in which information supplied or received 4. Circumstances in which document was created/received

Question 53

What does s114 allow for and when? When is it applicable?

Answer 53

* Allows for admission of hearsay evidence where court is satisfied that it is **in the interests of justice to admit it** * Applicable where parties do not agree + exception does not apply

Question 54

# **S114 INTERESTS OF JUSTICE** Alongside anything else it considers relevant, to what must the court have regard to when deciding whether it is the interests of justice to admit evidence?

Answer 54

* Probative value of the statement/how valuable it is for understanding other evidence * What other evidence has been/can be given on mater or evidence * Importance of evidence in context of case as a whole * Circumstances in which statement was made * Reliability of maker of the statement * Reliability of evidence of the making of the statement * Whether oral evidence of the matter stated can be given (and why if not) * Difficulty involved in challenging statement * Extent to which that difficulty could prejudice party facing it | Basically anything

Question 55

# **S114 INTERESTS OF JUSTICE** Can s114 be used as a way of getting around the failure of evidence to fit in other exceptions of exclusionary rules?

Answer 55

No - should be approached with **caution**; cannot be used to circumvent

Question 56

# **S114 INTERESTS OF JUSTICE** Can s114 be used where prosecution has taken reasonable steps to find witness/secure witness attendance but fails?

Answer 56

No! Cannot fall back on s114

Question 57

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** What are the common law exceptions to the rule against hearsay?

Answer 57

* Public information * Evidence of reputation * Res gestae * Confessions * Statements in furtherance of common enterprise * Body of expertise

Question 58

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** What does public information include?

Answer 58

* Published works dealing with matters of public nature (dictionaries/maps) * Public documents (registers) * Records (court records, public treaties)

Question 59

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** What does evidence of reputation include?

Answer 59

Evidence of reputation as to character to **prove character**

Question 60

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** Under the res gestae exception, a statement is admissible as evidence of any matter stated if what?

Answer 60

* Statement maker was so **emotionally overpowered** that possibility of concoction/distortion can be disregarded * Statement **accompanied an act** which can be properly evaluated as evidence only if considered in conjunction with statement * Statement relates to **physical sensation/mental state** ## Footnote I.e. event to which statement relates was so unusual/startling/dramatic as to **dominate thoughts of victim** and cause utterance that was insinctive to

Question 61

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** Under the res gestae exception, what is the idea behind a statement being made in an unusual/startling/dramatic situation??

Answer 61

That the situation **dominates the thoughts of the victim** and causes an utterance that was an instinctive reaction to the event

Question 62

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** Where res gestae evidence is admitted, what 2 things must the jury be satisfied of?

Answer 62

1. There has been **no mistake** on part of witness re what was said to them 2. There was **no concotion** on the part of the maker of the statement ## Footnote Where there are special features that bear on the possibility of mistake, the attention of the jury must be drawn to them.

Question 63

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** What does res gestae provide the prosecution with an alternative to? What is usually admitted as res gestae?

Answer 63

* **Fear** as a way of admitting evidence of complainant who does not give evidence at trial * What is said in 999 call/to officers immediately after alleged incident **usually admissible as res gestae**

Question 64

# **COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY** How do the exceptions of confessions, statements in furtherance of common enterprise, and body of expertise work?

Answer 64

* Confessions - evidence of confessions as admissible is preserved * Statements in furtherance of CE - statements of one party to criminal enterprise in furtherance of that enterprise is **admissible against all parties to joint enterprise** * Body of expertise - expert witness can draw on body of expertise (would be impossible to give evidence otherwise)

Question 65

When is a **previous inconsistent statement** of the witness admissible under statutory exception per s119?

Answer 65

Where a witness **admits to having made/is proved to have made** previous inconsistent statement

Question 66

What is the statutory exception per s120 for previous **consistent** statements of the witness?

Answer 66

Any previous consistent statements to rebut a **suggestion of recent fabrication** is admissible as evidence of any matter stated ## Footnote I.e. accused of fabricating what they are saying now - can refer to past statement to say that they said it earlier

Question 67

What is multiple hearsay and what are the **only** ways it is admissible?

Answer 67

* Multiple hearsay = where a witness testifies to what Y said Z told Y (cf hearsay = witness testifies to what Y said) * Can be **allowed** if admissible under s117 (business doc), s119 or s120 (previous statements), if all parties agree, of if in interests of justice ## Footnote Is **never allowed** through any of the exceptions in s116 (unvailable witness) or through preserved common law

Question 68

How can a statement-maker's credibility still be challenged even though they are not present at the court to be cross-examined?

Answer 68

S124 allows opposing party to put into evidence anything that **could have been put to witness to challenge credibility in cross-examination**

Question 69

What 2 things (either or) must the judge do under s125 where a case depends wholly/partly on hearsay evidence and it is unconvicing such that a conviction would be unsafe?

Answer 69

Discharge jury and order retrial **or** direct jury to acquit D

Question 70

What type of hearsay can be excluded under s126?

Answer 70

**Superfluous hearsay** - hearsay evidence that would otherwise be admissible where admission of evidence would result in an undue waste of time

Question 71

What should be drawn to the attention of the jury in the context of hearsay?

Answer 71

* Was not given on oath and was not tested in cross-examination * Risks of relying on hearsay evidence and limitations on usefulness

Question 72

When must notice be given where a party intends to introduce hearsay evidence? When is notice not required?

Answer 72

* Notice **required** if the hearsay evidence is given under s114 (interests of justice), s116 (witness unavailable), s117(1)(c) (document prepared in contemplation of court proceedings) or s121 (multiple hearsay) * Notice **not required** for common law exceptions

Question 73

What must a hearsay notice contain?

Answer 73

The evidence, the facts relied on making it admissible, how those facts will be proved if disputed, why the evidence is admissible

Question 74

When must D and prosecution serve hearsay notice?

Answer 74

* D = ASAReasonablyPracitcable * Pros = 20 business days (mags) or 10 business days (Crown) after not guilty plea

Question 75

What should a party objecting to the introduction of hearsay evidence do? | EVEN IF NO NOTICE WAS REQUIRED TO INTRODUCE

Answer 75

Serve application on court and every other party

Question 76

When should objecting party serve notice? What should it contain?

Answer 76

ASAReasonablyPracticable and not more than 10 business days after whichever of the following happens last: * Service of notice to introduce evidence * Service of evidence objected to (if evidence for which no notice required); * D pleads guilty Should contain the facts in notice (if served) it disputes, why evidence not admissible, and any other objection to evidence

Question 77

What are all the hearsay exceptions by section?

Answer 77

* S116 unavailable witness * S117 business document * S118 common law exception * S119/120 previous statement of witness

Question 78

When can the court exclude hearsay even if one of the exceptions applies?

Answer 78

* Business document and court is doubtful as to reliability * S125 where case depends wholly/partly on unconvincing hearsay * S126 hearsay is superfluous * S78 unfair prosecution evidence

Question 79

Where the parties do not agree and the exceptions do not apply, what can the court do?

Answer 79

Use its discretion under s114 to admit hearsay in the interests of justice