Hearsay Evidence

Question 1

general rule of hearsay?

Answer 1

inadmissible

Question 2

what is hearsay?

Answer 2

any statement made out of court and not orally made in the proceedings

Question 3

rules of when hearsay is admissible: Section 114(1) CJA 2003

Answer 3

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—
(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 4

what is a statement?

Answer 4

Section 115 CJA 2003

(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.

Question 5

what is a matter stated?

Answer 5

Section 115 CJA 2003

(3) A matter stated is one to which this 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—
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.

Question 6

hearsay and previous statements of witnesses

Answer 6

• The previous statements of witnesses will not be tendered as hearsay if they are adduced with showing the previous consistency of the matters in which the witness is stating and therefore consistency in their accounts to the court
• This is also subjected to the self-serving statements rule – or the rule against narrative
• The allowance of consistent statements is within section 120 CJA 2003
• The use of a witnesses previous inconsistent statements is not hearsay when tendered to merely show that they have been inconsistent in their accounts
• This is allowed under section 119 CJA 2003
• This is allowed as an account of a witness which has been documented nearer to the tine of the incident is seen to be more accurate and reliable than statements made in court which are further subsequent to the incident.

Question 7

hearsay and mechanically produced evidence

Answer 7

• A statement which is the mechanical production of an image to give a fact or an opinion, such as CCTV is not to be seen as hearsay
• Juries are allowed to see still photographs or moving images of CCTV footage
• Juries are allowed to hear tape recordings
• E-fit images and sketches which are designed for the identification of individuals are now subject and allowed through the hearsay provisions
• It also becomes hearsay when it’s the information for which drove the hand to draw the image.

Question 8

Hearsay: Matter stated - Blackstone’s notes

Answer 8

• Evidence of matter stated is evidence which is to establish the truth of that matter
• It is easy bar when it is unclear whether the speaker wishes to make the listener believe what they are saying
• 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
• Even labels on items are seen as hearsay as to where they have come from
• Stamps on documents are also seen as hearsay, though they are relived rom being hearsay under the allowance of business documents
• A police officer stating an accused is a ‘known heroin’ user due to the reliance of information based on other peopled and therefore delivering a statement based on those facts
• Care must be taken when there are multiple facts stated and only some to be relied on

Question 9

Matters intended to be believed by others case

Answer 9

R v Twist

Question 10

R v Twist: Test for matters intended to be believed by others case

Answer 10

(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 11

are entries in a private diary hearsay?

Answer 11

No.

It follows from the definition of hearsay that anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. This is because there is no intention on the part of the maker of the statement that any other person should believe anything

Question 12

is CCTV hearsay?

Answer 12

No.

section 115(2) contains the words ‘… made by a person …’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device such as a CCTV system without any human input.

Question 13

Are Questions hearsay?

Answer 13

No.

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

Question 14

is showing the effect of words hearsay?

Answer 14

No.

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 15

are legally significant words hearsay?

Answer 15

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 16

are falsehoods hearsay?

Answer 16

No.

It follows from the definition of hearsay in s.114 that 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 17

hearsay and original evidence

Answer 17

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’.
Original evidence can also be adduced to show the state of mind of the maker of the statement.

it can be where the threats are adduced as evidence as they show that a threat was made, not what the threat actually was.

Question 18

Hearsay: Evidence with more than one purpose

Answer 18

o Multiple purposes for the hearsay can cause both admissibility and inadmissibility of the evidence depending on the purpose of its use.
o It can be difficult where it is admissible for one D but inadmissible for another when Ds are tried together.
o Careful direction from the judge is required when the purposes of the evidence differ for different reasons
o It can even pose difficulty when individuals are tried together

Question 19

Hearsay: Statements giving rise to inference of relevant state of mind or reason for acting

Answer 19

o Where the state of mind is given by the speaker with the intention of having the listener believe the statement, it is hearsay
o Such evidence may be allowed under Rea Gestae
o In Toussaint-Collins [2009] EWCA Crim 316, D was accused of the murder of V in revenge for the killing of S. For several months, D had kept a letter written by a third party, protesting that no one had avenged S’s death. The keeping of the letter provided non-hearsay evidence of D’s state of mind in relation to V.
o The hearsay rule does not apply where D gives a statement as to why he acted in a certain way
o Case identifies where D gave an explanation of him being under duress by terrorist organisation who were not present to give evidence
o The purpose of proving that D had been subjected to threats was not to establish that the threats were true but to show rather that, if they had been believed by D, they might have induced in him an apprehension of instant death if he failed to conform to the terrorists’ wishes.

Question 20

Purpose of section 125 CJA 2003

Answer 20

stopping superfluous hearsay exceptions. If there is other evidence allowed which proves the same thing then hearsay will not be excepted on the matter at hand

Question 21

Hearsay: where are the common law exceptions located?

Answer 21

Section 118 CJA 2003

• public information;
• evidence of reputation;
• res gestae;
• confessions;
• statements in furtherance of common enterprise; and
• body of expertise.

Question 22

Hearsay Exception: Public Information

Answer 22

Admissible public information includes:
* published works dealing with matters of a public nature such as dictionaries and maps;
* public documents such as public registers; and
* records such as court records and public treaties.
Also, a person may give evidence of their age and the place of their birth despite the fact that they will have been told these things by someone else

Question 23

Hearsay Exception: Evidence of Reputation

Answer 23

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

Question 24

Hearsay exception: Res Gestae

Answer 24

Requirements:
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 a mental state (such as intention or emotion).

R v Andrews [1978] AC 281- The leading case. The res gestae rule does not require that the statement is made as part of the action of the offence. What is required is that the possibility of concoction can be excluded. The court must be satisfied that the event to which the statement relates was so unusual or startling or dramatic as to dominate the thoughts of the victim so that the utterance was an instinctive reaction to that event. The statement must be made at a time when the mind of the person making the statement was still dominated by the event.

Where res gestae evidence 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 witnesses as to what had been said to them. They must be satisfied that there was no concoction on the part of the maker of the statement. Where there are special features that bear on the possibility of mistake, the attention of the jury must be drawn to them.

Question 25

Res Gestae: Domestic Violence

Answer 25

In domestic violence cases the res gestae exception provides the prosecution with an alternative to s.116(2)(e) as a way of admitting the evidence of a complainant who does not give evidence at trial. 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 much more important and reliable as a source of evidence now that most officers have body-worn cameras that record both audio and video. The prosecutor can play the footage from the body-worn device as evidence both of the demeanour of the complainant straight after the incident as of the truth of what the complainant says.

Question 26

Hearsay Exceptions: Confessions

Answer 26

The common law rule to the effect that evidence of confessions is admissible is preserved.

Question 27

Hearsay Exceptions: Statements in Furtherance of Common Enterprise

Answer 27

There is a broad common law rule that 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 particular significance in conspiracy cases.

Question 28

Hearsay Exceptions: Body of Expertise

Answer 28

The common law rule that an expert witness may draw on a body of expertise is preserved. 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 29

Res Gestae: Direction to the jury

Answer 29

Where a spontaneous statement has been admitted through the principle of res gestae, then the following must be made clear to the jury by the judge:
o That it is for them to decide what was said and be sure that the witnesses were not mistaken in what they believed had been said to them;
o That ‘they must be satisfied that the declarant did not concoct or distort to his advantage or to the disadvantage of the accused the statements relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will’;
o Where there are special features that bear on the possibility of mistake, then the jury’s attention must be invited to those matters.

Question 30

which section if CJA 2003 deals with unavailable witnesses?

Answer 30

Section 116 CJA 2003

Question 31

Section 116 CJ 2003

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

Conditions which can be satisfied for the purpose of admitting evidence where a witness is not available

Answer 32

(2) The conditions are—

(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

Question 33

Section 116 CJA 2003: Unfitness to be a witness

Answer 33

Unfitness of a person to be a witness because of their bodily or mental condition refers not to their fitness to physically attend court, but to their ability to give evidence once there. There is no requirement that the condition that makes a person unfit should be a medical condition. The trauma of having been the victim of a sexual assault can qualify.

Question 34

Section 116 CJA 2003: Witness outside the UK and it is not reasonably practicable to secure attendance (s.116(2)(c)) and Witness cannot be found (s.116(2)(d))

Answer 34

In deciding whether it is reasonably practicable for the witness to attend or whether steps taken to find the witness were reasonably practicable, the court has to consider the normal steps taken to secure the attendance of a witness. Cost is a relevant factor and it has to be balanced against the importance of the evidence that the witness would give. Subsection 116(2)(c) should be read as referring to the impracticability of securing the attendance of the witness either in person or by videolink.

Question 35

Section 116 CJA 2003: Fear

Answer 35

(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 (c. 23) (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.

Question 36

Section 116 CJA: Fear accused by intimidation by defendant

Answer 36

In Sellick [2005] EWCA Crim 651 the Court of Appeal made clear that where intimidation of a witness by a defendant is either clearly proved or the court believes to a high degree of probability that that is the case, the defendant cannot complain that the right to a fair trial has been infringed on the basis that the defence was not able to cross-examine the witness. See also s.116(5) of the CJA 2003.

Question 37

which section deals with allowing hearsay when considering it in the interest of justice?

Answer 37

Section 114(1)(d) CJA 2003

Question 38

factors to consider whiner the court is to decide to allow hearsay under in the interests of justice - Section 114(1)(d).

Answer 38

Factors found in s 114(2) CJA 2003
(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 39

caution when using section 114(1)(d) CJA 2003

Answer 39

The application of s.114(1)(d) should be approached with caution. It is not intended to be a way of getting round the failure of a particular piece of evidence to fit into any of the other exceptions to the exclusionary rule.

Question 40

which section is to allow business document to be admitted into court under hearsay?

Answer 40

Section 117 CJA 2003

Question 41

Section 117(1) CJA 2003: In criminal proceedings a statement contained in a document is admissible as evidence of any matter stated if—

Answer 41

(a) oral evidence given in the proceedings would be admissible as evidence of that matter,
(b) the requirements of subsection (2) are satisfied,

Question 42

Section 117(2) CJA 2003: the requirements required for documents to be admitted —

Answer 42

(a) the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) 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 the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

Question 43

what other types of documents can be covered by Section 117 CJA 2003?

Answer 43

• medical records; and
• any statement written down by a police officer in the course of duty.

Question 44

when can court exclude evidence admitted through section 117 CJA 2003?

Answer 44

if it is satisfied that the statement’s 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.

Question 45

Hearsay: Documents prepared for criminal proceedings

Answer 45

There are extra rules that apply to documents prepared for the purposes of pending or contemplated criminal proceedings.
Subsections (4) and (5) of s.117 require that for those documents to be admissible, either:
* one of the five conditions mentioned in s.116 is satisfied; 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 (having regard to the length of time since the information was supplied and all other circumstances).

The question of whether or not a document was prepared for the purposes of pending or contemplated criminal proceedings will usually be easy to answer once the circumstances in which the document was made are known.

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

Question 46

hearsay: Previous Consistent statements (Section 120 CJA 2003)

Answer 46

Sections 120(2) and 120(4) make admissible as evidence of any matter stated, previous consistent statements admitted to rebut a suggestion of recent fabrication or as recent complaint evidence.
Again, this is an exception to the rule against hearsay and was a novelty in the Act, before which such evidence was only evidence that the statements had been made.
An example of an oral hearsay statement would be that a witness (‘X’) testifies to what Y said. In contrast, an example of multiple hearsay would be X testifies to what Y said Z told Y.

Question 47

what statute allows hearsay to be admitted due to previous consistent statements?

Answer 47

Section 120 CJA 2003

Question 48

what statute allows hearsay to be admitted due to previous inconsistent statements?

Answer 48

Section 119 CJA 2003

Question 49

Hearsay: Previous Inconsistent Statements

Answer 49

Section 119 CJA 2003 provides that:
* a previous inconsistent statement that a witness admits to having made; or
* a previous inconsistent statement that the witness is proved to have made
is admissible as evidence of the matter stated.
This is an exception to the rule against hearsay. It was introduced by the CJA 2003. Prior to the Act, previous inconsistent statements were evidence only of inconsistency.

Question 50

when is a notice required for admitting hearsay evidence?

Answer 50

when hearsay is being admitted under the following provisions:
o S. 114(1)(d) (interets of justice)
o S. 116 (Witness unavailable)
o S. 117(1)(c)(documents prepared in contemplation of criminal proceedings)
o S. 121(multiple hearsay)

of CJA 2003

Question 51

what is required in a hearsay notice?

Answer 51

same as and character

Question 52

when is a hearsay notice to be served?

Answer 52

same as bad

Question 53

what must a party do if they are to oppose a hearsay notice?

Answer 53

Apply to the court to determine the objection;
Serve the application on the court officer and other parties;

Serve the application as soon as practicable, but in any event no later than 10 business days after:
- Service of notice to introduce evidence;
- Service of the evidence to which the party objects where the type did not require notice; or
- The defendant pleads not guilty
Whichever one of those happens last;

In the application explain:
 What is objected
 Why it is objected; and
 Any other objection to the evidence

Question 54

when must the prosecution serve notice for wanting to admit hearsay evidence?

Answer 54

The service of the notice must be, for a prosecutor:
o 20 business days after plea of not guilty in mags trial
o 10 business days after plea of NG for a CC trial

Question 55

when must the defence serve notice for wanting to admit hearsay evidence?

Answer 55

as soon as reasonably practicable

Question 56

who must the party serve the notice to admit hearsay and notice to object hearsay on?

Answer 56

The party must serve notice on the other parties and the court officer

Question 57

what must the notice to adduce hearsay contain?

Answer 57

The notice must:
o Identify the evidence
o Set out the fact son which the party relies to make the evidence admissible
o Explain how the party wishes to prove those facts if another party disputes them
o Explain why the evidence is admissible

Question 58

When opposing hearsay evidence, the court MAY —

Answer 58

o May Determine the application with or without a hearing, and in public or private;
o May adjourn the application
o May discharge or vary the application

Question 59

When opposing hearsay evidence, the court MUST —

Answer 59

not determine the application unless the party who served notice is present or they have had reasonable opportunity to respond

Question 60

what provision manages multiple hearsay?

Answer 60

Section 121 CJA 2003

Question 61

Hearsay: Section 121 CJA 2003

Answer 61

CJA 2003, s.121 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.

The effect of the rule is that multiple hearsay is never allowed through any of the exceptions in s.116 or through any of the preserved common law exceptions in s.118.

Question 62

Section 124 CJA 2003: Evidence affecting the credibility of admissible hearsay

Answer 62

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, s.124 allows an opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination. It goes further than that in allowing the admission of evidence as to matters on which the witness’s answers in cross-examination would have been final.

Question 63

which provision deals with unconvincing hearsay?

Answer 63

Section 125 CJA 2003

Question 64

Section 125 CJA 2003: Unconvincing hearsay

Answer 64

CJA 2003, s.125 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 65

hearsay: Evidence of ID

Answer 65

• Judicial directions should be given to jury in evaluating the reliability of the hearsay ID
• There are also ample ways of challenging the evidence.
• Especially allowed when it comes to hearsay ID

Question 66

hearsay: relationship Section 114(1)(d) has with other exceptions

Answer 66

• 114(d) should be used with caution and should not be used to circumvent other forms of gateways higher up the hierarchy
• 114(d) is a residual and limited power
• Rather, ‘the particular statutory and common law provisions relating to these two hostile witnesses rendered it in the interests of justice for their hearsay statements to be introduced into evidence under section 114(1)(d)’
• Where the prosecution have failed to take all reasonable steps to ensure the presence of the witness, then 114(d) cannot just be used as a back-up
• There is sometimes a balance between 114(d) and 116

A more difficult decision to justify is Burton [2011] EWCA Crim 1990, in which the prosecution was permitted to adduce the statement of a 14-year-old complainant that she had been involved in a sexual relationship with D under s. 114(1)(d). Although the circumstances would not have justified the use of s. 116, it may be that the case was exceptional in that the evidence was peripheral, not only in the sense that it was not the ‘sole or decisive’ evidence, but also that it merely served to confirm D’s admissions to the police.

However, in Tindle [2011] EWCA Crim 2341, a case of assault in which the prosecution sought in effect to circumvent their own failure to take ‘reasonable steps’ to secure the complainant’s attendance under s. 116 by tendering the evidence under s. 114(1)(d), it was held that considering, as the court was required to do by s. 114(2)(g), whether oral evidence of the matter could have been given was bound to lead back to the same inquiry as had led to exclusion under s. 116.