Hearsay

Question 1

What is the rule generally in relation to admissibility of all evidence?

Answer 1

All evidence which is sufficiently relevant to the facts in issue is admissible

All evidence which is irrelevant to the facts in issue should be excluded

Question 2

Is all relevant evidence admissible?

Answer 2

No - an exclusionary rule may apply meaning the evidence may be inadmissible

Question 3

What is the rule against hearsay?

Answer 3

A statement made out of court may not be presented in evidence as proof of its content

Question 4

What two questions should be asked in considering hearsay evidence?

Answer 4

a) Does the evidence fall within the definition of hearsay evidence? If the answer to this question is ‘yes’ then it is prima facie inadmissible

b) Does it fall within one of the exceptions to the general exclusionary rule?

Question 5

Why is hearsay rule treated differently and subject to stricter admissibility rules?

Answer 5

As it cannot be tested by cross-examination in court, risk of unfairness to the defendant where it is admitted. The risk gets greater as the importance of the hearsay evidence to the prosecution case increases. ECHR Article 6 may be engaged where hearsay is admitted

Question 6

What have the UKSC and the European Court of Human Rights said in relation to the UK’s rules on hearsay evidence and the fairness of trails?

Answer 6

• the UK statutory framework is sufficient to provide for a fair trial
• harder for the court to be satisfied that a fair trial will be possible if the evidence of the absent witness is the sole of decisive evidence against the accused
• where the hearsay evidence is critical to the case, the question of whether there can be a fair trial depends on three principle factors:

(i) whether there is a good reason to admit the evidence pursuant to CJA 2003

(ii) whether the evidence can be shown to be reliable; and

(iii) the extent to which counterbalancing measures have been properly applied eg exclusionary discretion, proper directions to the jury in summing up

Question 7

In general, is hearsay evidence admissible?

Answer 7

No

Question 8

When is hearsay admissible?

Answer 8

If it falls within any of the four exceptions in s 114(1) which are:

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

d) the court is satisfied that it is in the interests of justice for it to be admissible

Question 9

What is a statement in relation to the provisions on hearsay?

Answer 9

Any representation of fact or opinion made by a person by whatever means and it includes a representation made in sketch, photofit or other pictorial form

Question 10

What is a matter stated?

Answer 10

A matter stated is one which this chapter applies (and only if) the purpose of the person making the statement is:

i) to cause another person to believe the matter or

ii) to cause another person to act or a machine on the basis that the matter is as stated

Question 11

What is the three part test in R v Twist for determining if evidence is hearsay?

Answer 11

a) identify what relevant fact (matter) it is sought to prove

b) ask whether there is a statement of that matter in the communication - if no, then no question of hearsay arises (whatever other matters may be contained in the communication)

c) If yes, ask whether it was one one of the purposes (not necessarily the only or dominant purpose of the communication that the recipient or any other person should believe that matter or act upon it as true:

• if yes, it is hearsay
• if no, it is not

Question 12

What is hearsay?

Answer 12

• Evidence made out of court
• the person that made that statement intended another person to believe it
• it is adduced as evidence of the matter stated

Question 13

What is not hearsay?

Answer 13

• private diary - no intention on the statement maker to make anyone believe anything in it
• CCTV - not made by a person
• Questions - no statement of a matter, so questions admissible
• to show the effect of words - not showing the truth of what was said
• legally significant words - if the words spoken have significance in law then not hearsay
• falsehoods - no hearsay if party adduces evidence out of court while asserting it is not true

Question 14

If evidence of words spoken out of courts is used to adduce that the words were spoken rather than that were true, will they be admissible?

Answer 14

Yes because not hearsay - not adducing them to prove that they were true

Question 15

If evidence of words spoken out of courts is used to adduce the state of mind of the maker of the statement, will they be admissible?

Answer 15

Yes

Question 16

What are the three main reasons whereby hearsay may be admissible?

Answer 16

• the witness is unavailable
• it is a business document - however the court has discretion to exclude the business document if it is satisfied that the statement’s reliability is doubtful
• it is in the interests of justice to admit it

Question 17

When will hearsay be admissible on grounds the statement maker is unavailable?

Answer 17

• if oral evidence given in the proceedings by the statement maker would be admissible as evidence
• the statement maker can be identified to the court

AND

a) the person is dead

b) the person is unfit to be a witness because of his bodily or mental condition

c) that the relevant person is outside the UK and it is not reasonably practicable to secure his attendance

d) that the relevant person cannot be found although such reasonable steps as practicable have been taken to find them

e) that through fear the relevant person does not give oral evidence in the proceedings either at all or in relation to the statement

Question 18

When would a witness be deemed unfit to attend?

Answer 18

• they are unfit to give evidence once there
• no requirement that the condition makes a person unfit should be a medical condition
• trauma of having been a victim of sexual assault can qualify

Question 19

What factors will the court consider in deciding whether it is not reasonably practicable to secure attendance of witness outside of the UK or witness cannot be found?

Answer 19

• considers the normal steps taken to secure attendance of a witness
• cost of attendance
• importance of evidence witness would give
• attendance includes attending by videolink

Question 20

What amounts to fear for the admissibility of hearsay evidence?

Answer 20

• includes fear of death/injury of another/financial interest

Question 21

When will the court admit hearsay evidence that cannot be given in court due to fear of witness?

Answer 21

Court must consider that the statement ought to be admitted in the interests of justice having regard to:

• the statement’s content
• any risk that its admission or exclusion will result in unfairness to any party to the proceedings (ie how easy will it be to challenge the statement that the person does not give in person
• ability to make any special directions/measures to make it easier for person to give oral evidence
• any other relevant circumstances

Question 22

For fear and hearsay, must the fear be caused by the defendant?

Answer 22

No

Question 23

How should the fear of the witness be assessed by the court?

Answer 23

Contradictory case law but court of appeals said every effort should be made to get the witness to test the issue of fear

Question 24

What level must the court be satisfied to that the witness does not give evidence in court? What must also be established in relation to the fear and failure to give evidence?

Answer 24

Beyond reasonable doubt

A causative link between fear and failure to give evidence

Question 25

What effect will intimidation have on fairness of trial where is results in the defendant not being able to cross-examine the witness?

Answer 25

Defendant cannot complain that right to fair trial has been infringed on basis that they have not been able to cross-examine the witness as a result of their conduct in intimidating the witness (or high degree of likelihood that they have)