Hearsay

Question 1

What is the general rule in relation to hearsay?

Answer 1

It is inadmissible.

Question 2

What are the two questions to ask in relation to hearsay?

Answer 2

1. Does the evidence fall within the definition of hearsay evidence? If yes, it is prima facie inadmissible.
2. Does it fall within one of the exceptions to the general exclusionary rule?

Question 3

What is the historic position in relation to hearsay?

Answer 3

Common law excluded statements other than statements made in oral evidence given in court because the maker of the out of court statement was not available to be cross-examined so the quality of the evidence could not be tested.

To avoid unfairness, common law developed a number of exceptions to the general rule.

However, there was no general `interests of justice’ rule whereby hearsay could be admitted.

Question 4

Why would ECHR Article 6 be engaged in relation to hearsay?

Answer 4

Because hearsay evidence cannot be tested by cross-examination in court, there is an obvious risk of unfairness to the defendant when admitted. The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.

Question 5

In relation to the considerations made by the SC and ECHR, where hearsay evidence is critical to the case, how is it determined if there can be a fair trial?

Answer 5

The question of whether there can be a fair trial depends on three principle factors:

*Whether there is a good reason to admit the evidence pursuant to CJA 2003;

*Whether the evidence can be shown to be reliable;

*The extent to which counterbalancing measures have been properly applied e.g. proper directions to the jury in summing up.

Question 6

What does CJA 2003 state in relation to admissibility of hearsay?

Answer 6

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

(a) any provision in CJA or other statutory provision makes it admisisble;

(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 7

What is a `statement’?

Answer 7

Any representation of fact or opinion made by a person and it includes a representation made in a pictorial form.

Question 8

What is hearsay?

Answer 8

A statement made out of court

Which the maker intended to be taken as true

Which a party seeks to rely on in court

To prove a fact included in the statement

Question 9

Will a private diary be hearsay?

Answer 9

No, this is because there is no intention on the part of the maker of the statement that any other person should believe anything.

Question 10

Is CCTV hearsay?

Answer 10

No, because it is not `made by a person’ it is created entirely by a device.

Question 11

Are questions classed as hearsay?

Answer 11

Where there is no statement of a matter, e.g. where the communication consists only of the asking of a question, the court in Twist thought that no issue of hearsay could arise.

Question 12

Would evidence adduced to show the effect of words be hearsay?

Answer 12

In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay. Therefore where a defendant wants to reveal solicitor’s advice to show why a “no comment” interview was given, that evidence is not hearsay.

Question 13

What is the position in relation to hearsay and legally significant words?

Answer 13

Where the words spoken have significance as a matter of law, they are not hearsay. Therefore an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of “brothel”.

Question 14

What is the position in relation to falsehoods and hearsay?

Answer 14

There can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true. Therefore the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.

Question 15

What is the position in relation to hearsay and original evidence?

Answer 15

Very often, evidence of words spoken out of court will be admissible as original evidence. In many cases, the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true. If that is the case, the evidence is not hearsay because it is not being admitted as `evidence of any matter stated’.

Question 16

What are the four exceptions to the general rule in relation to hearsay?

Answer 16

*Any statutory exceptions in the CJA 2003 apply;

*Any of the common law exceptions preserved under the CJA 2003 apply;

*All the parties agree

*The court uses its statutory discretion to admit the hearsay in the interests of justice.

Question 17

When is it possible that hearsay evidence can be adduced on the ground that the witness is unavailable (s.116)?

Answer 17

Will be allowed 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 is identified to the court’s satisfaction, and

(c) Any of the five conditions mentioned below are satisfied:

1. Relevant person is dead;
2. Relevant person is unfit to be a witness because of his bodily or mental condition;
3. Relevant person outside of the UK and not reasonable practicable to secure his attendance;
4. Relevant person cannot be found although such steps as reasonably practicable to find him have been taken;
5. That through fear the relevant person does not give oral evidence in the proceedings

Question 18

Explain the `unfitness’ to be a witness requirement?

Answer 18

*Does not refer to their ability to attend court, but to their ability to give evidence once there.

*No requirement that the condition that makes them unfit is a medical condition.

*The trauma of having been the victim of sexual assault can qualify.

Question 19

Explain the witness outside of the UK condition and what the court will consider in relation to “reasonably practicable”

Answer 19

*When thinking about “reasonably practicable”, cost is a relevant factor and it has to be balanced against the importance of the evidence that the witness would give.

*Outside of the UK should be read as referring to the impracticability of securing the attendance of the witness either in person or by video link.

Question 20

Explain the `fear’ condition

Answer 20

*Includes fear of the death or injury of another person or of financial loss.

*There is no requirement that the fear that is felt by the witness should have been caused by the defendant.

*It is very important that when police officers seek to persuade a witness to attend court to give evidence, they do not give the witness any assurance that their witness statement can be read to the court if they are afraid to attend.

*A causative link between the fear and the failure to give evidence must be established.

*Where intimidation of a witness by the defendant is clearly proved or there is a high degree of probability, a right to fair trial is not infringed.

Question 21

When is it possible that hearsay evidence can be adduced on the ground that it is a business document (s.117)?

Answer 21

(a) Oral evidence given in the proceedings would be admissible as evidence of that matter; and

(b) Requirements below are satisfied:

1) The document or the part containing the statement was created or received by a person in the course of trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

2) The person who supplied the information contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

3) Each person through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

Question 22

Under the business document ground, what sort of documents are included?

Answer 22

Medical records; and

Any statement written down by a police officer in the course of duty.

Question 23

What are the additional rules in relation to documents prepared for criminal proceedings (s.117) ?

Answer 23

*One of the give conditions mentioned in `witness is unavailable’ apply; or

*The person who supplied the information contained in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement.

Generally all witness statements and all entries in police notebooks made in the course of an investigation will fall within the definition.

Question 24

When can evidence that would otherwise be admissible under s.117 be excluded?

Answer 24

If it is satisfied that the statements reliability is doubtful in view of:

(a) Its contents;

(b) The source of the information contained in it;

(c) The way in which or the circumstances in which the information was supplied or received; or

(d) The way in which or the circumstances in which the document concerned was created or received.

When deciding whether to admit or exclude evidence, the court should take into account interests of justice.

Question 25

When is it possible that hearsay evidence can be adduced on the ground that it is in the interests of justice to admit it (s.114)?

Answer 25

Requires the court when deciding whether it is in the interests of justice to admit evidence of the following (and anything else it considers relevant):

a. 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

b. What other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a)

c. How important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole

d. The circumstances in which the statement was made

e. How reliable the maker of the statement appears to be

f. How reliable the evidence of the making of the statement appears to be

g. Whether oral evidence of the matter stated can be given and, if not, why it cannot

h. The amount of difficulty involved in challenging the statement

i. The extent to which that difficulty would be likely to prejudice the party facing it

Question 26

What is the public information exception?

Answer 26

Admissible public information includes:

*Published works dealing with matters of a public nature such as maps;

*Public documents such as public registers; and

*Records such as court records and public treaties

Question 27

What is the evidence of reputation exception?

Answer 27

The common law rule allowing the admission of evidence of reputation as to character, to prove character, is preserved.

Question 28

What is the exception of res gestae?

Answer 28

A statement is admissible as evidence of any matter stated if:

(a) the statement was made by a person so emotionally overpowered by an event that the possibility of concoction or distortion can be disregarded;

(b) the statement accompanied an act which can be properly evaluated as evidence only if considered in conjunction with the statement; or

(c) the statement relates to a physical sensation or mental state.

Question 29

Where res gestae is admitted, what should be made clear to the jury?

Answer 29

Where res gestae is admitted, it must be made clear to the jury that they must be satisfied that there was no mistake on the part of the witness as to what had been said to them. Where there are special features that bear the possibility of mistake, the attention of the jury must be drawn to them.

Question 30

Are 999 calls res gestae?

Answer 30

What is said by the complainant in a 999 call or to officers immediately after the alleged incident will usually be admissible as res gestae evidence.

The latter is becoming more important and reliable as a source of evidence now that most officers have body-worn cameras that record audio and video.

Question 31

What is the exception of confessions?

Answer 31

Evidence of confessions is admissible.

Question 32

Explain the statements of furtherance common enterprise exception

Answer 32

The statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise. This is of significance in conspiracy cases.

Question 33

Explain the body of expertise exception

Answer 33

Without this rule, it would be impossible for experts to give evidence of any of the learning within their field, except that which they themselves had contributed to the field.

Question 34

Explain the previous inconsistent statements exception

Answer 34

CJA 2003 provides that:

o A previous inconsistent statement that a witness admits to have made; or

o A previous inconsistent statement that the witness is proved to have made

Is admissible as evidence of the matter stated.

Question 35

Explain the previous statements of witnesses exception

Answer 35

Makes admissible as evidence of any matter stated, previous consistent statements admitted to rebut a suggestion of recent fabrication or as recent complaint evidence.

Question 36

What is the position in relation to multiple hearsay?

Answer 36

CJA 2003 provides that 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 ss.117, 119 or 120;

(b) All parties to the proceedings so 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.

Question 37

What is multiple hearsay?

Answer 37

An example of an oral hearsay statement would be that a witness testifies to what Y said. In contrast, an example of multiple hearsay would be X testifies to what Y said Z told Y.

Question 38

Is it possible for the opposing party to adduce evidence challenging the credibility of a witness?

Answer 38

Because the maker of a hearsay statement is not present in court to be cross-examined, it is necessary to allow the person’s credibility to be challenged in other ways.

CJA 2003, allows an opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination.

Question 39

What is the position in relation to unconvincing hearsay?

Answer 39

CJA 2003, allows the judge to stop a case where the case depends wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction of the offence would be unsafe.

Under those circumstances, the judge must either discharge the jury and order a retrial, or direct the jury to acquit the defendant.

Question 40

Explain the position in relation to superfluous hearsay

Answer 40

Allows the court to refuse to admit a statement if the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

This is a provision that can be used to exclude hearsay evidence proffered by either the prosecution or the defence.

Question 41

What must the jury be directed in relation to hearsay?

Answer 41

*The jury must be reminded that a hearsay statement that has been admitted at the trial was not given on oath and that it was not tested in cross-examination.

*The risks of relying on hearsay evidence should be pointed out and the jury should be warned to scrutinise it with particular care.

*Where the court has concerns about the quality of a particular piece of hearsay evidence, the attention of the jury should be drawn to the limitations on the usefulness of that piece of evidence.

Question 42

When is notice of hearsay required?

Answer 42

Notice is required where a party intends to introduce hearsay evidence under:

• interests of justice;
• witness unavailable;
• document prepared in contemplation of criminal proceedings; or
• multiple hearsay.

Question 43

What must the notice do?

Answer 43

a) Identify the hearsay evidence

b) Set out the facts relied on that make the evidence admissible

c) Explain how those facts will be proved if they are disputed

d) Explain why the evidence is admissible.

The evidence must be attached to the notice if it has not already been served.

Question 44

When must the prosecution serve notice?

Answer 44

They must not serve notice more than:

20 business days after a not guilty plea in the Mags; or

10 business days after a not guilty plea in the CC.

Question 45

When must a defendant serve notice?

Answer 45

As soon as reasonably practicable.

Question 46

What must a party opposing the introduction of hearsay evidence do?

Answer 46

A party objecting to the introduction of hearsay evidence must serve an application on the court and every other party as soon as reasonably practicable and in any event not more than 10 business days after either of the following, whichever of those happens last:

a) Service of the notice to introduce the evidence;

b) Service of the evidence objected to, if that is evidence for which no notice is required; or

c) The defendant pleads not guilty.

The application must explain:

a) Which, if any, facts set out in the notice to introduce the evidence the party disputes;

b) Why the evidence is not admissible; and

c) Any other objection to the evidence.