Hearsay

Question 1

S.114(1)(a) The CJA 2003 Act or any other statutory provision makes it admissible
CJA 2003 Statutory Gateways to Admissibility -
S.116 Unavailable Witnesses:

Answer 1

• The person is dead: Section 116(2)(a)
• The person is unfit to be a witness because of their bodily or mental condition: Section 116(2)(b);
• The person is outside the United Kingdom and it is not reasonably practicable to secure their attendance Section 116(2)(c);
• The person cannot be found although such steps as it is reasonably practicable to take to find them have been taken: Section 116(2)(d)
• The person does not give (or does not continue to give) oral evidence through fear: Section 116(2)(e).

Question 2

S.117 Business Documents:

Answer 2

• Oral evidence would be admissible as evidence of the matter;
• The document was created or received by a person in the course of their occupation, or as the holder of a paid or unpaid office;
• The person who supplied the information contained in the statement had personal knowledge of the matters dealt with; and
• If the information is multiple hearsay then each person passing it on also received it in the course of their occupation, or as the holder of a paid or unpaid office: Section 117(2).

Question 3

S.119 Previous Inconsistent Statements:

Answer 3

Previous inconsistent statements made by a witness are admissible as evidence of the truth of the matters stated therein under this section. This changes the position at common law whereby an inconsistent statement could only go to the issue of the weight to be attached to the witness’ oral evidence and was not evidence of the truth of its contents.

R v Joyce [2005] EWCA 1785:The defendant was positively identified by several witnesses who made detailed statements setting out the certainty of their identification. At trial the witnesses all claimed that they were now uncertain as to their identification, contrary to their previous statements. The clear implication was that the witnesses had been put under pressure to change their evidence. The judge admitted the previous statements as evidence of the original identifications and the jury convicted on the basis that these statements were true.

Question 4

S.120 Previous Consistent Statements:

Answer 4

In addition to inconsistent statement, any previous statement made by a witness is admissible as proof of its contents if it is adduced in evidence:
* To rebut an allegation of recent fabrication; or
* As a result of the witness being cross-examined on a memory-refreshing document; or;
* If the witness confirms that they made the statement and that it is truthful - provided that
a) It relates to the identity of a person, place or thing; or
b) It was made while matters which they now do not remember were still fresh in their memory; or
c) It is a recent complaint by a victim relating to the offence in the case and the victim has already given oral evidence of that offence.
A prosecutor should always consider introducing a previous statement if it contains a detailed description: section 120(5). This assists the witness giving evidence and enables the court to be given the best evidence. It removes the “memory test” aspect of giving evidence.

Question 5

Other Statutory Exceptions to the Rule Against Hearsay:

Answer 5

The primary statute which provides for the admissibility of hearsay is the CJA 2003 itself. However, some other statutory exceptions remain in force. The most commonly used examples of these include:

• Section 9 of the Criminal Justice Act 1967 (CJA 1967) (written witness statements);
• Section 30 of the Criminal Justice Act 1988 (Expert’s report).Note the need for the report to comply with CrimPR 19.4 unless it is agreed. An SFR1 is not an expert’s report compliant with CrimPR 19.4 for these purposes: Hunt v CPS [2018] EWHC 3341(Admin);
• Section 3 of the Bankers’ Books Evidence Act 1879 (copy of any entry in a banker’s book evidence of the matters recorded therein.) This evidence will usually also be admissible under section 117 CJA (business documents) but prosecutors should be aware of the restrictions on compellability imposed by section 6: a bank officer cannot be compelled to give any evidence or produce any exhibit which could have been proved under the Act.

Question 6

S.114(1)(b) The common law exceptions preserved by section 118:

Answer 6

All common law exceptions not explicitly preserved under section 118 are abolished. The remaining common law exceptions which are most likely to be encountered are as follows:

Res Gestae -
Res Gestae statements are broken down into three types:
a) Those made when a person is so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;
b) Statements accompanying an act which can only be properly evaluated in conjunction with the statement;
c) Statements relating to a physical or mental state.

Question 7

Witness emotionally overpowered -

Answer 7

The event giving rise to the overpowering emotion must be the criminal act itself. The correct test was summarised in R v Andrews (1987) 84 Cr App R 382 in which the House of Lords said that the trial judge must ask whether the possibility of concoction or distortion can be disregarded. In answering that question the judge must have regard to:
* how startling or dramatic the event was;
* how spontaneous the statement was;
* whether the triggering event was still operative when the statement was made;
* Any special features relevant to the possibility of distortion or concoction (e.g. evidence of a motive to fabricate false evidence); and
* Any special features relevant to the possibility of error (e.g. an identification made by a witness with particularly poor eyesight).

Question 8

Statements accompanying acts -

Answer 8

“…when there is an act accompanied by a statement which is so mixed up with it as to become part of the res gestae, evidence of such a statement may be given.”: Howe v Malkin (1878) 40 LT 196

Question 9

Statements about physical or mental state -

Answer 9

Statements made by a person as to their physical or mental state (including statements about their opinion) are evidence of the truth of their having such a state at or around the time that the statements were made. Whether the statement is sufficiently close in time to qualify will be for the tribunal of fact to decide.

Although the courts have deprecated any attempt to use res gestae to avoid calling a witness who is available there is no reason why a res gestae statement by a witness who is available and attends court cannot be used in evidence in addition to their oral evidence: (R v Shickle unreported 30 July 1997).

Question 10

Public Information -

Answer 10

Published works dealing with matters of a public nature, public documents and public records are all admissible under common law;

A person is permitted to give evidence of their age or date or place of birth, even though this information is hearsay.

Question 11

Confessions -

Answer 11

Confessions (including mixed statements) by the accused are admissible as to their truth. See also Confessions, Unfairly Obtained Evidence and Breaches of PACE elsewhere in this Legal Guidance. The rule which allows an accusation in the defendant’s hearing to be adduced if the circumstances were such as to call for a denial is preserved because the effect of the non-denial is that it amounts to a confession.

Question 12

Admissions by Agents -

Answer 12

Admissions made by agents (such as a lawyer acting for the defendant) are preserved as admissible exceptions to the hearsay rule. In R (Firth) v Epping Justices [2011] 4 All ER 326, the court accepted that the rule covered admissions made by a lawyer in completing a case progression form. However, the judge should normally exercise their discretion under section 78 of PACE to exclude such evidence provided that the parties conducted the case within the letter and spirit of the Criminal Procedure Rules (CrimPR): R v Newell [2012] EWCA Crim 650.

Question 13

Common enterprise -

Answer 13

Words spoken by one defendant in pursuit of and for the purposes of advancing a common enterprise are admissible against all co-defendants alleged to be involved in the joint enterprise even where they are said in the absence of the co-accused.

Although most often invoked in conspiracy cases, the rule is not limited to such cases but extends to any allegation of a common enterprise to commit an offence (as is indicated by the use in the statute of that phrase rather than specifically “conspiracy.”)

Question 14

The rule is subject to what has been described as a “three-pronged test” -

Answer 14

a) The words relied on must have been said by one of the other parties to the common enterprise; and
b) be reasonably open to the interpretation of having been made in furtherance of the alleged agreement; and
c) there must be some further evidence apart from those words to prove that the other defendant (against whom they are to be used in evidence) was a party to the common enterprise: (R v A Ltd, X, Y [2017] 1 Cr App R 1).

Question 15

Expert Evidence -

Answer 15

An expert may give evidence which relies upon the body of expertise relevant in their field.

Question 16

S.114(1)(c) All parties to the proceedings agree to it being admissible –

Answer 16

Agreement can be express or implied (R v Shah [2012] EWCA Crim 212).

Question 17

S.114(1)(d) The court is satisfied that it is in the interests of justice for it to be admissible -

Answer 17

In exercising the discretion under section 114(1)(d) the court must have regard to the following (and any others it considers relevant):

• 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;
• What other evidence has been, or can be, given on the matter or evidence mentioned above;
• How important the matter or evidence mentioned is in the context of the case as a whole;
• The circumstances in which the statement was made;
• How reliable the maker of the statement appears to be;
• How reliable the evidence of the making of the statement appears to be;
• Whether oral evidence of the matter stated can be given and, if not, why it cannot;
• The amount of difficulty involved in challenging the statement;
• The extent to which that difficulty would be likely to prejudice the party facing it.

Section 114(1)(d) should not be used simply as a means of circumventing the requirements of the other exceptions. There should be a hierarchical approach to using section 114(1)(d) and it should not be invoked until all other gateways have been considered (EED v R [2010] EWCA Crim 1213).

However, in R v Xhabri [2006] 1 Cr. App. R. 26 the Court of Appeal, when considering an application to admit the previous complaint of a rape victim under Section 120 (see above) stated that even if the previous complaint fell outside the strict construction of Section 120 they would admit the evidence under Section 114(1)(d).

Question 18

Multiple Hearsay (S.121 CJA) -

Answer 18

Multiple hearsay refers to the situation where information is relayed through more than one person before it is recorded, i.e. where the evidence for the hearsay evidence is itself hearsay.

Under section 121 CJA Criminal Justice Act 2003 a hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless:-

a) Either of the statements is admissible under section 117 (business documents), section 119 (inconsistent statements) or section 120 (other previous statements); or
b) All parties agree; or
c) The court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

The wording of section 121(1)(c) (“the interests of justice require…..”) suggests a higher threshold for admitting multiple hearsay than under section 114(1)(d). This is because multiple hearsay is more likely to be unreliable. However, there may be circumstances where it can be reliable.

Question 19

Statements in documents as exhibits (S.122 CJA) -

Answer 19

Copies of documents admitted under Section 119 or Section 120, which are exhibited, should not normally go out with the jury unless the court considers it appropriate or all parties agree: Section 122.

Question 20

Capability of the maker of the statement (S.123 CJA) -

Answer 20

The witness making any statement which is admissible by reason of Sections 116,117,119 or 120 must have the capability to make the statement, i.e. he must be capable of understanding the questions put to them about matters stated and giving answers which can be understood: Section 123.

For the interpretation of the similarly worded provisions as to “competence” under section 53 of the Youth Justice and Criminal Evidence Act 1999 see DPP v R [2007] EWHC 1842 (Admin).

Where the capability of the maker of the statement is challenged the issue must be resolved by hearing evidence (in the absence of a jury if there is one) and expert evidence is admissible. The burden of proof is on the party wishing to use the evidence and is on the balance of probabilities (section 123(4) CJA.)

Question 21

Credibility of the maker of the statement (S.124 CJA) -

Answer 21

Section 124 allows a party against whom hearsay evidence has been admitted to challenge the credibility of the person who made the hearsay statement. This can be done by adducing any of the following:

• evidence relating to the statement-maker’s credibility;
• evidence of any matter (with the court’s leave) on which, had the witness been present and cross-examined, their answer in cross-examination would have been final;
• evidence tending to prove that the maker of the statement had (at any time) made a previous inconsistent statement . This is admissible for the purpose of showing that the maker had contradicted himself.

This ability to challenge the credibility of a person who cannot be challenged by cross-examination because they do not give evidence as a witness was said by the Supreme Court in R v Horncastle [2010] 2 AC 373 to be one of the battery of measures which safeguard against an unfair trial, thereby rendering any “sole and decisive” rule against hearsay unnecessary.

Stopping the trial where the evidence is unconvincing (S.125 CJA) -
In a jury trial, if after the close of the prosecution case the judge is satisfied that:

• the case against the defendant is based wholly or partly on hearsay; and
• the evidence from the hearsay is so unconvincing that given its importance a conviction would be unsafe

then the judge must either direct an acquittal or discharge the jury so that a re-trial can take place.

This provision specifically applies only to jury trials. In non-jury trials the judge or magistrates would be bound to acquit in these circumstances in any event.

Question 22

General discretion to exclude Hearsay evidence (S.126 CJA) –

Answer 22

The court may refuse to admit hearsay evidence under section 126 CJA if it is satisfied that the statement will result in undue waste of time which outweighs any benefit to be gained from admitting it. This provision applies to both prosecution and defence evidence. It is in addition to and does not revoke any other statutory or common law powers to exclude evidence

Question 23

Expert Evidence: (S.127 CJA) –

Answer 23

Section 127 allows an expert to rely on a statement prepared by another person and refer to it in their evidence. The exception is subject to the following requirements:

• the statement was prepared for the purposes of criminal proceedings; and
• the person making it had personal knowledge of the matters stated; and
• written notice is given of the intention to call the expert to give evidence based on the statement; and
• the written notice names the maker of the statement and the nature of what it contains.

Where an expert gives evidence using the statement of the other person in accordance with this section then the statement of that other person becomes evidence of its contents.

A party may apply to the court to exclude the statement (and thereby require that the maker is called if it is to be relied upon by the expert) in the interests of justice. A non-exhaustive list of considerations for the court is set out at section 127(5).

Question 24

Confessions by co-accused -

Answer 24

Section 128 CJA introduces section 76A into The Police and Criminal Evidence Act (PACE) 1984. This enables a defendant to introduce a confession made by a co-defendant subject to his proving (on the balance of probabilities) that the confession was not made by oppression or in circumstances likely to render it unreliable.