Hearsay Evidence Flashcards
What is the definition of hearsay?
A hearsay statement is ‘a statement, not made in oral evidence, that is relied on as evidence of a matter in it.’
- Can be seen as a statement which is not first-hand evidence.
Example – A tells the court that B told them that they had been given a bike by C, who has stolen it. The court will rely on the out of court statement by B to A, to show B knew the bike was stolen
One of the purposes of the person making the statement must appear to the court to have been to cause another person to believe that the matter is as stated
- Reading entries from a diary in court was not hearsay, as the author of the entries had not intended them to be read by others
Give some examples of hearsay evidence
(a) a witness repeating at trial what they had been told by another person;
(b) a statement from a witness being read out at trial instead of the witness attending court to give oral evidence;
(c) a police officer repeating at trial a confession made to them by the defendant;
(d) a business document being introduced in evidence at trial
What is the difference between first-hand and multiple hearsay?
First-hand hearsay = X repeats a statement that they directly heard Y say for example
Multiple hearsay = information passed between several people before it is recorded
- A tells B, who tells C, who records the amount of money in a safe, in a ledger
Hearsay evidence is generally not admissible unless it falls within 1 of 4 categories. What are these 4 categories?
Hearsay evidence will only be admissible if it falls within 1 of 4 categories:
- (a) any statutory provision makes it admissible,
- (b) any rule of law preserved by section 118 makes it admissible (common law exceptions)
- (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
There are various statutory provisions under which hearsay may be admissible, but what are the main 2 we focus on?
Cases where a witness is unavailable
Business and other documents
Where there is a case where a witness is unavailable to attend court, what are the requirements for hearsay evidence to be admissible?
1) The statement is first-hand hearsay; multiple hearsay not admissible under this provision
2) The person who made the statement (relevant person) is identified to court’s satisfaction
3) One of the five conditions is met:
- (a) Relevant person is dead
- (b) RP is unfit to be a witness due to physical or mental condition
- (c) RP is outside UK, and it is not reasonably practicable to secure attendance
- (d) RP cannot be found, after reasonably practicable steps to found them have been taken
- (e) RP is afraid to give oral evidence, and court gives leave for statement to be given in evidence
Give an example for each of the 5 conditions under the ‘witness unavailable to attend court’ statutory provision
Example (a) - A witnesses assault + gives police a statement but dies before trial. A’s statement is admissible, as the RP is dead.
Example (b) - B witnesses armed robbery + gives police a statement but ends up in a coma before trial. B’s statement is admissible, as they are unfit to be a witness
Example (c) - C is a serving solider and gives a signed statement to the police after witnessing a theft + is posted abroad before trial. C’s statement is admissible in evidence, as it is not reasonably practicable to secure attendance.
Example (d) - D is homeless and gives a witness statement to police about an RTA + they leave the homeless shelter before trial. D’s statement is admissible, as police cannot find D after extensive enquiries
Example (e) - E witnesses a murder and gives a signed statement to police. E receives threats that her son will be killed if she gives evidence at court. May be admissible but the trial judge needs to give leave for statement to be admitted
- Judge will give leave only if it considers that the statement ought to be admitted in the interests of justice having regard to the contents, to any risk of unfairness (how difficult it would be to challenge the statement) and the fact that (in appropriate cases) a special measures direction could be made
Where the ‘business and other documents’ statutory provision is considered, what are the requirements for hearsay evidence to be admissible?
1) Statement is first-hand or multiple hearsay
2) Requirements of subsection (2) are satisfied:
- (a) Document or part of it with statement must have been created or received by a person during trade, business, profession
- (b) RP had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
- (i) Only the RP needs personal knowledge
- (ii) If A makes a deposit in a safe and tells B to tell C to record it in a ledger, this would be admissible
- (c) Anyone else who received the information from the RP did so during trade, business, profession etc
3) Requirements of subsection 5 are satisfied, where the statement is prepared for the purposes of pending or contemplated criminal proceedings:
- (a) Any of the 5 conditions relating to a case where witness is unable to attend is met; or
- (b) RP cannot reasonably be expected to have any recollection of matters dealt with in the statement (consider length of time since information supplied)
Give an example of where hearsay evidence would be admitted in relation to a business document prepared in contemplation of criminal proceedings
A prepares a list of items stolen in a burglary for the police. 2 years later, the case goes to trial and A cannot remember all the items on the list. The document will be admissible under this provision
When will hearsay evidence be admissible under a common law exception? What are the main 2 we consider (with details)?
Main common law exceptions under s118(1) are evidence of a confession by D and evidence admitted as part of the res gestae
1) Confession evidence
- A confession made by the defendant will be admissible against them, even if the confession is hearsay
2) Evidence admitted as part of the **res gestae **
- Statement made contemporaneously with an event will be admissible, as there is no possibility it could have been made up
- Example would be a witness that hears someone shout ‘Don’t shoot me Jordan,’ just before gunfire.
How does hearsay evidence become admissible by agreement?
If all parties agree, any form of hearsay evidence may be admissible in evidence
The 4th category of allowing hearsay evidence allows the court to admit hearsay evidence that would not otherwise be admissible, if it is in the interests of justice to do so.
What factors will the court consider when deciding if it is in the interests of justice to admit hearsay evidence?
- (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 para (a);
- (c) how important the matter or evidence mentioned in para (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 not;
- (h) the amount of difficulty involved in challenging the statement; and
- (i) the extent to which that difficulty would be likely to prejudice the party facing it
- D’s right to fair trial is an important consideration too
What are the procedural rules in relation to hearsay evidence and, broadly, when do they apply?
The procedural rules to be followed for relying on hearsay or challenging its admissibility at trial are found in Part 20 Criminal Procedure Rules
They only apply to cases where:
- (a) it is in the interests of justice for the hearsay evidence to be admissible;
- (b) the witness is unavailable to attend court;
- (c) the evidence is multiple hearsay; or
- (d) either the prosecution or the defence rely on s 117 for the admission of a written witness statement prepared for use in criminal proceedings
Rules don’t apply to hearsay evidence admissible on other grounds (confession evidence)
- This means they wouldn’t need to serve notice of their intention to rely on such evidence
When the Part 20 Rules apply, what process is followed? Give details for both courts
1) Where Part 20 applies, a party wishing to use hearsay evidence or challenge it, must give notice of its intention to do so, to the court and all other parties, using prescribed forms
- Standard directions will provide the relevant time limits
2) If a party wants to use hearsay evidence and the other side challenges it, a pre-trial hearing to determine the admissibility is usually held
- MC – this will happen at the case management hearing/pre-trial review or specific pre-trial hearing
- CC – this will happen at plea and trial preparation hearing or specific pre-trial hearing
