Hearsay

Question 1

Criminal Justice Act 2003, s114

(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

Answer 1

(a) any provision of this chapter or any other statutory provision 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.

Question 2

Hearsay
may pose a particular threat to justice, thus it is essential for courts to be:
o vigilant

Answer 2

1. hearsay is recognised and treated as such
2. secondly that it is received in evidence only where the appropriate safeguards are in place

Question 3

Hearsay definition

Under the CJA 2003, s. 114(1), the definition of hearsay has to be gleaned from the proposition that

Answer 3

that ‘a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if’

essential
- A STATEMENT
- which is tendered ‘as evidence of any matter stated’.

Question 4

History based in case law

Answer 4

As Lord Thomas CJ explained in Horncastle, giving a judgment of the Court of Appeal regarded as supplementary to that of the Supreme Court in the same case:

… the law of England and Wales has … always insisted that it is ordinarily essential that evidence of the truth of a matter be given in person by a witness who speaks from his own observation or knowledge. It uses the legal expression ‘hearsay’ to describe evidence which is not so given, but rather is given second hand, whether related by a person to whom the absent witness has spoken, contained in a written statement of the absent witness, given in the form of a document or record created by him, or otherwise.

Question 5

Definition of statement

CRIMINAL JUSTICE ACT 2003, S. 115

(1) In this chapter references to a statement … are to be read as follows.

Answer 5

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

This definition is to be read in combination with the definition of ‘matter stated’ in s. 115(3)

Question 6

definition of ‘matter stated’

Answer 6

which restricts the application of the hearsay rule to cases where the maker of the statement had a purpose to cause another to believe the matter, or to cause the other, or a machine, to act as though it were as stated. For the purposes of exposition, it is convenient to take them separately.

Question 7

Previous statement of witness

Answer 7

The use of witness’s out-of-court statement = not hearsay

• Only if tendered as evidence of consistency rather than of a matter stated

Question 8

Previous statement of witness

Rule against narrative

Answer 8

o Does not allow previous statement to be used to show consistency
o Also known as the rule against self-serving statements

Question 9

Previous statement of witness

Showing inconsistencies

Answer 9

when tendered to show inconsistency, the use of a witness’s previous inconsistent statement is not hearsay

s.119 permits such a statement, properly proved, to be evidence of any matter stated.

Question 10

The reasons typically given for exclusion of hearsay do not apply with the same force to the out-of-court statements of those who are witnesses in the proceedings

Answer 10

• In many cases a statement made while events were fresher in the witness’s mind might provide evidence of better quality than subsequent evidence in court

Question 11

Hearsay and Mechanically Produced Evidence

Answer 11

Mechanically generation of an image eg CCTV = not hearsay

Question 12

Hearsay and Mechanically Produced Evidence

Juries entitled to see this

[EXAMPLES]

Answer 12

o Thus juries are allowed to see still photographs taken by a security camera during an armed robbery

o or a video recording of an incident

o and to hear a tape recording of a relevant conversation

• Witness has right to give evidence of what was seen

o as such a person is in effect in the same position as a witness with a ‘direct view of the action’

• sketch, photofit or any other pictorial form = statement for the purposes of the hearsay rule (s115(1))

o reverses Cook [1987] QB 417 in which the Court of Appeal had stated that sketches and photofit likenesses made under the direction of identifying witnesses were analogous to photographs

o this is not true - representation are based on recollection of the person directing the hand of the person constructing the image

o Thomasson confirmed that Cook has been reversed

Question 13

Definition of matter stated

Answer 13

A matter stated is one to which the chapter applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—

Question 14

The use of a witness’s out-of-court statement is not hearsay if tendered as evidence merely to show consistency or inconsistency, rather than as evidence of a ‘matter stated’.

Question 15

Hearsay only if it is relied upon as ‘evidence of any matter stated’

When it is sought to establish the truth of that matter

EXAMPLE =

Answer 15

• The distinction is generally easy to draw except in cases where the speaker does not intend to cause the listener to believe the relevant matter
• A common instance of reliance is where it is sought to establish the registration number of a car involved in an incident, and an eye-witness, A, who has seen the incident, relates the number to B, who has not.
• It is hearsay for B to tell the court what the number was for the purpose of proving the truth of A’s statement
• Where B makes a note of the number that A verifies, A may give evidence of the number by refreshing memory from B’s note

Question 16

hearsay:

In many instances the evidence is likely to be perfectly reliable, and admissible under the widely-drawn exception for business documents in s. 117

but the hearsay point should still be taken to ensure that the dangers can be properly assessed and that hearsay is not ‘nodded through’

Answer 16

The labelling of items

• If goods are imported in bags marked ‘Produce of Morocco’, the marks are hearsay evidence of the country of origin

The same result follows even where the information is indelibly stamped into the goods

Information stamped on to a document is hearsay evidence of the matters stated e.g., of a date:

A party to a conversation conducted through an interpreter infringes the hearsay rule by seeking to prove what the other party said by relating to the court what the interpreter said

A police officer who testifies that a person is a ‘known heroin user’ is giving hearsay evidence if the basis of that knowledge is information supplied by others, including the person in question

Question 17

Care must always be taken to determine the “matter stated” as there may be more than one such matter in issue

[CASE LAW]

Answer 17

• Williams (Ochaine)
• the defence to murder was that the crime was committed by S, who did not testify. It was said that S had confessed in a telephone conversation with E, which E had recorded.
• The decision not to call E led to hearsay problems both:

o as to the content of the recording, which if it was indeed a third-party confession might have been admissible under s. 114(1)(d) in the interests of justice

o Also as to the need to prove that the voice heard on the recording was indeed that of S, which could not be proved simply by reliance on E’s out-of-court assertion to that effect

Question 18

Rules against hearsay
Matters Intended to be Believed or Acted upon Reversal of Kearley

CJA 2003, s115(3) reversed the hearsay aspects in Kearley [1992]

[CASE LAW]

Answer 18

Kearley [1992] 2 AC 228
- D was charged with possession of a controlled drug with intent to supply.
- The amount found in D’s possession being of itself inadequate to warrant an inference of such an intent, the prosecution relied upon evidence that, after D’s arrest, a number of telephone calls had been made to his home in which the callers asked for D by his nickname and sought to buy drugs, and that a number of individuals had visited the house and asked to be supplied with drugs.
- None of these persons was called to give evidence at the trial.
- The House of Lords, by a majority, held that the hearsay rule prevented the use of the callers’ requests as evidence, in effect, of their belief that D was a dealer.

• Under s. 115(3), the matter impliedly stated by the callers in Kearley (that D is a dealer) is not one to which the hearsay rule applies unless the person making the request had a purpose either (a) to cause the recipient of the call to believe the matter or (b) to cause the recipient to act as though the matter is as stated. Where the caller believes that the recipient already knows the matter in question, and is therefore not speaking with either of the hearsay purposes, the evidence is original, non-hearsay evidence.
• On the facts of Kearley, the callers clearly thought that they were speaking to D himself. There was thus little danger that, in making their requests, they were seeking to mislead the person to whom they were speaking, or to misrepresent or exaggerate the matter on which the prosecution sought to rely, namely their belief that D was a drug dealer.

Question 19

Application of CJA 2003, s.115(3) proved to be difficult in practice

Answer 19

In Twist
- a series of conjoined appeals, the Court of Appeal attributed some of the difficulty to the continued use of expressions such as ‘implied assertion’ that are relics of the common law, and set out a clear three-stage test for ascertaining whether communications are hearsay under the CJA 2003, which is focused solely on the statutory wording. This analysis was endorsed in Mateza [2011], where it was also said that it was not helpful to look at earlier interpretations of s. 115(3)

Question 20

The test in Twist runs as follows:

[CASE LAW]

Answer 20

(1) Ascertain the matter sought to be proved. Hughes LJ noted that the opening words of s. 114(1) (‘admissible as evidence of any matter stated’) demonstrate that the CJA 2003, like the common law, is concerned with what it is that a party is seeking to prove. The purpose of the party in adducing a communication has therefore first to be ascertained.

(2) Provided that the matter sought to be proved is a relevant one, the next question is whether there is a statement of that matter in the communication. If not (perhaps because the communication is not a statement at all, but a question such as a request for drugs), no question of hearsay arises.

(3) If the communication does state the matter, was it one of the purposes (not necessarily the only or dominant purpose) that the recipient, or any other person, should believe that matter or that a person should act upon the basis that it is as stated (or that a machine should operate on that basis)? If yes, it is hearsay; if no, it is not.

Question 21

Twist – appeal

[CASE LAW]

Answer 21

• Prosecution relied on text messages received by T to establish intent to supply drugs
• This is relevant but messages are just requests for drugs, did not contain any statement that T was a dealer
• Even if such a statement could be inferred, the purpose of the senders did not include any intention to cause anyone to believe he was.

Question 22

In the appeal of Boothman,

[CASE LAW]

Answer 22

• B was charged with conspiracy to supply cannabis and cocaine, and there was considerable traffic in text messages between B, who was advertising a good stock of available drugs, and other persons either placing orders or commenting on issues relating to past supply.
• Particular objection was taken to the mention of ‘lines’ in the incoming texts as including statements indicative of the supply of cocaine.
• But the senders of the texts did not have a purpose to make B believe that he was a supplier of that drug, or to induce him to act upon it as true (as distinct from acting upon it to supply further drugs).
• The evidence was therefore not hearsay.

Question 23

In the appeal of Tomlinson and Kelly,

[CASE LAW]

Answer 23

• the matter to be proved was that the accused were in possession of a gun, and the communication in question was a text message to T from a third party seeking the return of a gun.
• Assuming that the message included, by implication, a suggestion that T had the gun, the sender was not intent on causing T to believe that fact — rather there was a common understanding that such was the case, so again the message was not hearsay.

Question 24

In the appeal of Lowe,

[CASE LAW]

Answer 24

• L was charged with twice raping his young girlfriend following an argument.
• The defence was consent, and L claimed that the argument followed the intercourse rather than the other way round.
• Messages from L to the complainant, apparently apologising for the rape and admitting the sequence of events, were held not to be hearsay: though they contained statements of highly relevant matters, L was not seeking to cause the complainant to believe she had been raped: ‘if that is what the messages meant, they both knew that’. The statements were also confessions, but nothing turned on that.

Question 25

An older authority that appears inconsistent with the principles laid down in Twist

[CASE LAW]

Answer 25

• West Midlands Probation Board v French, in which it was held that, where a prisoner is released on licence, the licence is hearsay in consequence of s. 115(3), the purpose of the maker being to cause the prisoner and others to believe the statements in the licence and to act accordingly.
• Yet the function of the licence would seem rather to be to lay out the terms on which the prisoner is to be set at liberty; there is no obvious purpose with regard to causing any person to believe the matters stated.

Question 26

Admissible hearsay

CJA 2003 creates four routes:

Answer 26

1) Admissible by agreement

2) Admissible by statute

3) Admissible by an expressly preserved common law principle

4) Admissible in the interests of justice

Consistent with the right to fair trial accorded by the ECHR, Article 6(3)(d)

Case law accept that CJA 2003 contains sufficient safeguards against the risk of wrongful conviction

Other safeguards also apply

Question 27

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if—

Answer 27

(a) any provision of this chapter or any other statutory provision 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.

Question 28

• They are s. 124, which provides for the testing of credibility where the maker of a hearsay statement does not attend to
• s. 125, which deals with the power to stop a case where evidence is unconvincing
• s. 126, which provides a specific discretion to exclude hearsay evidence
• In addition, all prosecution evidence is subject to the court’s general powers of discretionary exclusion, of which the PACE 1984, s. 78, is the most important
• The judge is also obliged to direct the jury, where hearsay evidence is received, as to the dangers of acting upon it

Question 29

In Riat [2012] EWCA Crim 1509, [2013] 1 All ER 349, Hughes LJ explained that the main concern of the court, particularly in the more controversial cases of hearsay covered by s. 116(2) (death, illness, absence abroad, the lost witness, and fear) or by the interests of justice exception in s. 114(1)(d), is the risk of unreliability, and the extent to which the reliability of the evidence can safely be tested and assessed. The statutory framework can therefore usefully be considered in these successive steps.

[CASE LAW]

Answer 29

(a) Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (ss. 116 to 118)?

(b) What material is there which can help to test or assess the hearsay (s. 124)?

(c) Is there a specific ‘interests of justice’ test at the admissibility stage?

(d) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (s. 114(1)(d))?

(e) Even if prima facie admissible, ought the evidence to be ruled inadmissible (PACE 1984, s. 78, and/or CJA 2003, s. 126)?

(f) If the evidence is admitted, should the case subsequently be stopped under s. 125?

Question 30

CRIMINAL JUSTICE ACT 2003, SS. 116 AND 123
Unavailable witness

Answer 30

i) The person is dead
ii) The person is mentally or physically unfit to give evidence
iii) The person is outside the UK (and it is not reasonably practicable to secure his attendance)
iv) The person cannot be found (and reasonable steps have been taken to find him)
v) Unavailability – subjective in its nature and so contains additional requirements, namely person is in fear of giving or continuing to give oral evidence

Question 31

CRIMINAL JUSTICE ACT 2003, SS. 116 AND 123

[THE LAW]

Answer 31

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,

(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

Question 32

CRIMINAL JUSTICE ACT 2003, SS. 116 AND 123

[THE LAW]

Answer 32

(3) For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—

(a) to the statement’s contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and

(d) to any other relevant circumstances.

(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused— in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).

(a) by the person in support of whose case it is sought to give the statement in evidence, or

(b) by a person acting on his behalf.

Question 33

First-hand hearsay

Answer 33

The CJA 2003, s. 116, applies only to first-hand hearsay.

When unclear if first-hand hearsay (eg personal knowledge/told something), the s. 116 statement should therefore not be admitted

Question 34

Multiple hearsay

May be admissible under s121, CJA 2003

May also contain more than one degree of hearsay

REQUIREMENT =

Answer 34

oral evidence of the person who made the statement would have been admissible as evidence of the matter (s. 116(1)(a)) also serves to ensure that hearsay cannot be received if the evidence would have been inadmissible for some other reason, e.g., that it is evidence of bad character that is not admissible under the CJA 2003, Part 11

person who made hearsay statement must be identifiable

those seeking to challenge its credibility must be able to ascertain (cross)

Question 35

Case law

Answer 35

Nkemayang [2005] - the Court of Appeal approved of the insistence in the CJA 2003 on strict proof of identity, saying that ‘any regime controlling the admissibility of evidence must be alert to the danger of fabricated evidence’.

In Mayers the Court of Appeal held that the language of s. 116(1)(b) clearly anticipates the disclosure of the identity of the maker of the statement to the defence; it follows that s. 116 cannot be applied to anonymous witnesses

In Ford [2010] - An unknown witness to a shooting had stated that he wished to remain anonymous, but had handed the police a note containing the registration number of the getaway car. It was held, following Mayers, that the note was inadmissible.

• Under Brown, if identity is known, WS may still be accepted under the common law of res gestae or under the ‘interests of justice’ exception in s. 114(1)(d), but it would appear from Ford that neither exception can be invoked so as to allow witnesses to choose to provide evidence anonymously, for fear of subverting the statutory scheme in the CAJA 2009.
• Ford was distinguished in Brown (Nico) where it was said that, if that decision is correct, it applies only to cases where the witness has expressed a preference to remain anonymous, and not to untraceable witnesses.
• In that case a woman on a bus had assisted a witness making an emergency call by providing the number of a car driven by a man who had stabbed the victim, but it proved impossible to trace her. The evidence she provided was admissible under both the res gestae and s. 114(1)(d).

Question 36

Death

Answer 36

• Eg Riat
• straight to the consideration of whether the principles of trial fairness permit the witness’s statement to be adduced

Question 37

Unfit to be a witness

Answer 37

investigation is required to ensure that the condition is satisfied