Hearsay

Question 1

When is hearsay evidence admissible, and under what statute?

Answer 1

Section 114 CJA 2003:

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

1. Any provision of this chapter makes it admissible.
2. Any rule of law preserved by S118 makes it admissible
3. All parties agree to it being admissible or
4. The court is satisfied that it is in interest of justice for it to be admissible.

Question 2

What amounts to hearsay?

Answer 2

• CJA 2003:
  
  • S114
  • S115(2)
  • S115(3) (a) and (b)

Question 3

What is hearsay limited to?

Answer 3

Point 1 - it is limited to statements made out of court by a person

If the statement is made automatically by a machine the rule against hearsay does not apply

If the machine evidence is a result of human input, hearsay rule still applies.

Question 4

To count as hearsay, what must the statement constitute to?

Answer 4

Point 2: The statement must constitute a “representation of fact or opinion”.

It must be an assertion that something is so, or an assertion of something that the speaker believes e.g. it does not cover promises or threats.

It does not matter how the statement was made.

Question 5

What is the third requirement for a statement to count as hearsay?

Answer 5

Point 3 - “the statement must have been meant as an assertion.”

If the statement was not meant, it is now admissible without restriction.

Question 6

What is the general guidance on whether texts and phonecalls are admissible as hearsay?

Answer 6

Twist 2011:

1. Identify what the relevant fact is sought to prove
2. Ask whether there is a statement of that matter in the communication. If no, then no question of hearsay arises.
3. If yes, ask whether one of the purposes of the maker of the communication that the recipient, should believe that matter or act upon it as true? If yes, it is hearsay.

Question 7

What is the fourth requirement for a statement to be classed as hearsay?

Answer 7

Point 4 - It is directed only against the use of an out of court statement “as evidence of any matter stated in it”.

So if the statement is being adduced for any purpose other than its truth, it is not hearsay and therefore original evidence.

Question 8

Is hearsay evidence admissible for statements of witnesses who are unavailable?

Answer 8

S116(1) CJA 2003:

1. In criminal proceedings a statement not made in oral evidence is admissible as evidence of any matter stated if -
   
   1. Oral evidence given by the person who made the statement would be admissible as evidence of matter
   2. The person who made the statement is identified to court’s satisfaction and
   3. any of the five conditions mentioned in (2) are satisfied.

Question 9

What are the five conditions is S116(2) which must be satisfied for the hearsay evidence to be admissible?

Answer 9

1. The relevant person is dead
2. The relevant person is unfit to be a witness (physical/mental)
3. Person is outside the UK and not reasonably practicable to secure attendance;
4. The relevant person cannot be found although such steps as is reasonably practicable to find him have been taken;
5. Through fear the relevant person does not give oral evidence in the proceedings

Question 10

How does case law establish whether someone is “unfit” to give evidence?

Answer 10

• Witness is unfit not only when bedridden but also where he could get there but there was a high risk it would make him ill.
• His mental condition; not only where he is insane but also where, though sane, he is unable to give evidence because of supervening amnesia.
• If condition is serious enough to prevent attendance now - but he is likely to get better, sensible solution will be to adjourn.
• Ferdinand 2014 - Special measures may be necessary.
• Proof will be required.

Question 11

When is it not reasonably practicable to secure attendance (S116(2)(C))?

Answer 11

• No power to force a witness to travel from abroad to UK to give evidence if not prepared to do so; European Mutual Legal Assistance Convention 2000
• The question is not whether it is physically possible, but whether they can be persuaded to come voluntarily.
• Factors to consider:
  
  • Importance of evidence, expense and inconvenience of securing attendance, weight assigned to reasons for non-attendance, seriousness of the offence etc.

C [2006]

Question 12

How is it decided that reasonable steps have been undertaken to find a witness who’s location is unknown?

Answer 12

S116(2)(d): Person cannot be found although such steps as it is reasonably practicable have been taken

The key is deciding whether reasonably practicable steps have been taken - it is “open to the judge not only to consider the importance of the witness but also to consider the resources of the police”

It is ultimately a question of fact.

Coughlan 1999

Question 13

If the conditions of S116(a-d) are met, is the evidence admissible?

Answer 13

If the conditions of S116(a-d) are met, the evidence is automatically admissible.

The court still has a discretion to exclude under S126 of the act if the evidence is of insufficient weight to justify the trouble of hearing it.”

The defence could also try and exclude under Section 78.

Question 14

How is fear, mentioned in S(116)2e, defined?

Answer 14

Section 116(3): Fear is to be widely construed and includes fear of death or injury of another person or financial loss.

Question 15

When may leave from the court be given due to fear?

Answer 15

S116(4): Leave may be given under subsection 2(e) only if the court considers that the statement ought to be admitted, having regard -

1. to the statements contents
2. any risk that its admission or inclusion results in unfairness
3. In appropriate cases, special measures could be made in relation to the relevant person,
4. and to any other relevant circumstances

Question 16

If leave is required, what questions will be asked in the Voir Dire?

Answer 16

Fear of what: Death, injury, threats to the person/property

Fear - how grave? This is a subjective test which means that the characteristics of the witness will be taken into account.

Fear of whom? It does not matter - does not have to be the defendant directly or even indirectly. If the defendant is responsible then this will have a bearing on the Judge’s exercise of discretion

Authority: Martin 1996 Crim LR 589

Question 17

How is fear proved?

Answer 17

• Must be established through legally admissible evidence
• This can itself include hearsay evidence for example a police officer who has been told by a witness of their fear. This is because it is admissible as a “statement relating to a physical sensation or a mental state”
• Can also be proved by a written statement to police from witness in fear:
• Standard of proof - prosecution BRD, defence BoP

Question 18

When is documentary hearsay admissible?

Answer 18

S117(1) CJA: In criminal proceedings, a statement contained in a document is admissible as evidence of any matter stated if -

1. Oral evidence given in the proceedings would be admissible as evidence of that matter.
2. The requirements of S117(2) are satisfied, and
3. the requirements of S117(5) are satisfied, in a case where S117(4) requires them to be.

Question 19

What are the requirements of S117(2) in admissing documents?

Answer 19

1. The document was created or received by a person in the course of a trade, business, profession or other occupation
2. Person who supplied the information contained in the statement had or may reasonably be supposed to have had knowledge of the matters dealt with, and
3. Each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in course of trade, business etc.

Question 20

What are the extra conditions for the admissibility of police records?

Answer 20

S117(4) Additional requirements of S117(5) must be satisfied if the statement -

1. was prepared for purposes of pending criminal proceedings or for a criminal investigation

S117(5) - Satisfied if any of the 5 conditions in S116(2) is satisfied or the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to length of time since he supplied the information).

Question 21

What discretion does the Judge have to exclude hearsay evidence?

Answer 21

Section 117(6) and S117(7): may make a direction under this section if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of -

1. Its contents
2. The source of the information contained in it.
3. The way in which or the circumstances in which the information was supplied or received.
4. The way in which or the circumstances in which the document was created or received.

Question 22

What is the Common Law Exception for Expert evidence as hearsay?

Answer 22

S118(1):

8. Any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field.

Where an expert gives evidence, he or she is permitted to refer to experiments conducted by others which are part of his/her professional knowledge

Question 23

What is Res gestae?

Answer 23

Res Gestae: “An out of court statement so closely associated with the circumstances in which it was made as to guarantee a greater reliability than usual”

Howe v Malkin 1887:

“Though you can give in explanation a declaration per se, yet 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 must be given.”

Question 24

When is Res Gestae admissible as hearsay?

Answer 24

• Such a statement is admissible as evidence of a matter if:
  
  • The statement was made by a person so emotionally overpowered by an event that the possibility of concoction/distortion can be disregarded.
  • The statement accompanied by an act which can be properly evaluated as evidence only if considered in conjuction with the statement, or
  • The statement relates to a physical sensation or mental state (such as intention or emotion)

Question 25

What is the test for Res Gestae?

Answer 25

Andrews 1987

• Was the nature of the event such as to make what was said an instinctive reaction to it?
• How close in the time were the words of the event?
• Were there any special features to suggest the original speaker may have given a dishonest account of the event?
• Were there any special features apart from the fallibility of ordinary memory to suggest that the original speaker might have given a mistaken account of the event.

Question 26

Statements relating to the declarant’s performance of an act.

Answer 26

Edwards 1872

The accused faced a charge of having murdered his wife, evidence was admitted that the deceased had left a carving knife and axe with her neighbour a week before her death, stating that as her husband was always threatening her with those implements, she would feel safer if they were out of the way.

Question 27

Statements relating to the declarant’s state of mind.

Answer 27

Have seen this under the context of “fear” under S116.

Gilfoyle 1996

Kelly 2007

Question 28

Statements made by parties to a common enterprise?

Answer 28

A statement made by one party to a common enterprise is admissible against any other party to the enterprise, as evidence of the truth of the matters stated, so long as the statement was made in the course of furtherance of the enterprise and there is independent evidence of the enterprise and the other person’s involvement in it.

Jones 1997