Evidence II (s78, hearsay) Flashcards
To what evidence do s78 applications apply?
Most important means by which the defence can seek to have prosecution evidence excluded
Prosecution evidence only; cannot be relied upon by prosecution or co-D to exclude evidence D seeks to admit
What is s78 used for? Specifically where defence contend what?
Of general application - where defence contend that such evidence has been obtained unlawfully, improperly or unfairly
How does s78 link to s76?
S78 commonly used alongside s76 to exclude evidence of confessions which prosecution seek to rely on
What is the key test for excluding evidence under s78?
Whether admission of evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it
Does evidence that has been irregularly obtained render it per se inadmissible?
No; s78 is not automatic
What is the court not concerned with in s78? What is it only concerned with?
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
What breaches will the defence refer to when making an application under s78?
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
Are the codes admissible in evidence?
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
What are the 8 Codes of Practice?
- Code A - stop and search
- Code B - entry, search and seizure
- Code C - detention, treatment, and questioning of non-terrorist suspects
- Code D - identification
- Code E - audio recordings of interviews
- Code F - visual recording of interviews with sound
- Code G - arrest
- Code H - detention, treatment and questioning of terrorism suspects
What are some common examples of s78 applications?
- 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
Will any and every breach/contamination of the Codes justify exclusion of evidence?
No - breach must be significant and substantial
What will make a breach ‘significant and substantial’ in context of s78 application (i.e. what is the key consideration)?
The effect the breach has on the fairness of proceedings (i.e. would the admission have such an adverse effect)
Will serious breaches always lead to exclusion?
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)
At what 3 points can an application under s78 be made?
- Before trial
- At commencement of trial; or
- Just prior to prosecution seeking to admit evidence which defence wishes to be excluded
How will it be decided by the judge when the s78 application will be dealt with? When will directions for it be given?
- 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)
Above all a s78 application should be made before what?
Before evidence to which objection is taken is adduced
In Crown, what type of dispute will mean a judge will not be able to determine a s78 application?
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.
What burden/standard of proof applies when resolving a factual dispute as part of a s78 application and for what?
Judge has to be satisfied beyond reasonable doubt to find in favour of the prosecution version of the facts
What is the different outcome if the judge hears the evidence and concludes that…
- Police acted appropriately
- 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
- Legal argument will fail
- Evidence likely to be excluded
What is a ‘voir dire’?
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
Will a jury take part in a voir dire?
No
What can a magistrates’ court do re a s78 application?
Can rule on it when it arises or hear all the evidence before ruling on admissibility
Why should disputed confessions be determined as a preliminary issue?
Can be other forms of evidence, but most commonly confessions here
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
What is the rule on relevance?
All evidence sufficiently relevant to the facts in issue is admissible subject to the exclusionary rules
What is the general rule on hearsay?
Hearsay is inadmissible; a statement made out of court may not be presented in evidence as proof of its contents
Will hearsay (by definition) always be inadmissible?
Not if it falls within one of the exceptions to the general exclusionary rule
What is the main rationale for excluding hearsay?
The maker of the statement cannot be cross-examined
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)
What is the difference between a statement and a matter stated?
- 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
What is hearsay?
3 part test from Twist
- What is the relevant fact the party calling the evidence is seeking to prove?
- Is there a statement of that fact/matter in the communication? (No = not hearsay)
- 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
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
In deciding whether something is hearsay, must the purpose of causing another to believe it be the only/dominant reason for the communication?
No! As long as the recipient/any other person should believe that matter of act upon it as true
Why must the relevant matter that the hearsay is sought to prove be identified first?
If there is not a statement of that matter in the communication, no question of hearsay arises
What are some examples of things that will not be hearsay?
- Private diary (no intention of other person reading/believing it)
- CCTV (not made by person)
- Questions (no statement of a matter)
Why were the texts in Twist (received by D asking for drugs) not hearsay?
There was no statement that he was a drug dealer (matter prosecution sought to prove) so messages not hearsay and were admissible
Will an implied statement make something hearsay?
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
What is original evidence and why is it not hearsay?
- 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
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
How can original evidence be adduced to show state of mind of the maker of the statement?
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)
What else will not be hearsay?
- 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
I.e. a statement made out of court that a person made without intending another to believe it
What are the 3 circumstances in which hearsay is admissible?
I.e. exceptions in s114(1)
- Statutory exceptions in CJA apply
- Common law exceptions preserved under CJA apply
- Parties agree to it being admissible
- Court is satisfied it is in the interests of justice for it to be admissible (statutory discretion)
What are the 2 statutory exceptions under which hearsay is admissible?
- S116 - witness is unavailable
- S117 - it is a business document
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)?
No!!!!!
S116 UNAVAILABLE WITNESS
What are the conditions for hearsay to be admissible if witness is unavailable?
- 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!)
- Relevant person (who made statement) is identified to court’s satisfaction
- Any of the 5 conditions of s116(2) is satisfied
S116 UNAVAILABLE WITNESS
What are the five conditions of s116(2)?
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
S116 UNAVAILABLE WITNESS
Does ‘unfit to be a witness’ relate to only medical condition? Is it only those who physically cannot attend court?
- No medical condition required - can be a trauma victim
- Not re fitness to physically attend but to give evidence once there
S116 UNAVAILABLE WITNESS
For outside UK/cannot be found, what steps should be taken to secure attendance/find?
Consider cost v importance of evidence witness would give
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)?
- 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)
S116 UNAVAILABLE WITNESS
Must the ‘fear’ in s116(2) be caused by the D? What if it is?
- 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
S117 BUSINESS DOCUMENTS
What are the conditions for hearsay to be admissible if statement is contained. ina business document?
- 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!)
- Requirements of s117(2) are satisfied
S117 BUSINESS DOCUMENTS
What are the 3 requirements under s117(2)?
- 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
S117 BUSINESS DOCUMENTS
When does the court have the discretion to exclude admissible business document?
If satisfied that statement’s reliability is doubtful
S117 BUSINESS DOCUMENTS
What type of business does s117 cover?
Wide wording: covers documents that are not business documents at all e.g. statements written by police officer in course of duty
S117 BUSINESS DOCUMENTS
What are the extra rules that apply to documents prepared for purposes of pending/contemplated criminal proceedings?
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)
Generally all witness statements and entires in police notebooks made in course of investigation into alleged offence will fall within definition
S117 BUSINESS DOCUMENTS
When does s117(6) and (7) allows the court exclusionary discretion for evidence that would otherwise be admissible under s117?
If court is satisfied that statement’s reliability is doubtful in view of:
- Contents
- Source of information contained in it
- Circumstances in which information supplied or received
- Circumstances in which document was created/received
What does s114 allow for and when? When is it applicable?
- 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
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?
- 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
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?
No - should be approached with caution; cannot be used to circumvent
S114 INTERESTS OF JUSTICE
Can s114 be used where prosecution has taken reasonable steps to find witness/secure witness attendance but fails?
No! Cannot fall back on s114
COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY
What are the common law exceptions to the rule against hearsay?
- Public information
- Evidence of reputation
- Res gestae
- Confessions
- Statements in furtherance of common enterprise
- Body of expertise
COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY
What does public information include?
- Published works dealing with matters of public nature (dictionaries/maps)
- Public documents (registers)
- Records (court records, public treaties)
COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY
What does evidence of reputation include?
Evidence of reputation as to character to prove character
COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY
Under the res gestae exception, a statement is admissible as evidence of any matter stated if what?
- 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
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
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??
That the situation dominates the thoughts of the victim and causes an utterance that was an instinctive reaction to the event
COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY
Where res gestae evidence is admitted, what 2 things must the jury be satisfied of?
- There has been no mistake on part of witness re what was said to them
- There was no concotion on the part of the maker of the statement
Where there are special features that bear on the possibility of mistake, the attention of the jury must be drawn to them.
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?
- 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
COMMON LAW EXCEPTIONS TO RULE AGAINST HEARSAY
How do the exceptions of confessions, statements in furtherance of common enterprise, and body of expertise work?
- 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)
When is a previous inconsistent statement of the witness admissible under statutory exception per s119?
Where a witness admits to having made/is proved to have made previous inconsistent statement
What is the statutory exception per s120 for previous consistent statements of the witness?
Any previous consistent statements to rebut a suggestion of recent fabrication is admissible as evidence of any matter stated
I.e. accused of fabricating what they are saying now - can refer to past statement to say that they said it earlier
What is multiple hearsay and what are the only ways it is admissible?
- 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
Is never allowed through any of the exceptions in s116 (unvailable witness) or through preserved common law
How can a statement-maker’s credibility still be challenged even though they are not present at the court to be cross-examined?
S124 allows opposing party to put into evidence anything that could have been put to witness to challenge credibility in cross-examination
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?
Discharge jury and order retrial or direct jury to acquit D
What type of hearsay can be excluded under s126?
Superfluous hearsay - hearsay evidence that would otherwise be admissible where admission of evidence would result in an undue waste of time
What should be drawn to the attention of the jury in the context of hearsay?
- Was not given on oath and was not tested in cross-examination
- Risks of relying on hearsay evidence and limitations on usefulness
When must notice be given where a party intends to introduce hearsay evidence? When is notice not required?
- 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
What must a hearsay notice contain?
The evidence, the facts relied on making it admissible, how those facts will be proved if disputed, why the evidence is admissible
When must D and prosecution serve hearsay notice?
- D = ASAReasonablyPracitcable
- Pros = 20 business days (mags) or 10 business days (Crown) after not guilty plea
What should a party objecting to the introduction of hearsay evidence do?
EVEN IF NO NOTICE WAS REQUIRED TO INTRODUCE
Serve application on court and every other party
When should objecting party serve notice? What should it contain?
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
What are all the hearsay exceptions by section?
- S116 unavailable witness
- S117 business document
- S118 common law exception
- S119/120 previous statement of witness
When can the court exclude hearsay even if one of the exceptions applies?
- 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
Where the parties do not agree and the exceptions do not apply, what can the court do?
Use its discretion under s114 to admit hearsay in the interests of justice
