Hearsay Evidence and Confession Evidence Flashcards
What is the statutory definition of hearsay evidence?
Defined in s114(1) CJA 2003 as ‘as statement, not made in oral evidence, that is relied on as evidence of a matter in it’.
How is statement defined for the purposes of hearsay evidence definition?
Any representation fact or opinion made by a person by whatever means including a representation made in a sketch, photofit or other pictorial form.
List some examples of hearsay evidence that commonly arise in criminal proceedings.
1) Witness repeating at trial something they were told by someone else;
2) Statement from a witness being read out at trial instead of the witness attending to give oral evidence;
3) Police officer repeating at trial a confession made to them by the defendant;
4) A business document being introduced as evidence at trial.
What are the two types of hearsay evidence?
1) First hand hearsay; and
2) Multiple hearsay.
What is first hand hearsay evidence?
Evidence given by someone about something they were told directly (eg a confession made to a police officer by the defendant, which the police officer then reports at trial).
Give the four grounds where hearsay evidence will be admissible (s114 of CJA 2003).
1) Any provision of the act (CJA 2003), or any other statutory provision makes it admissible;
2) Any rule of law preserved by s118 CJA makes it admissible;
3) All parties to the proceedings agree to it being admissible; or
4) The court is ratified it is in the interests of justice for it to be admissible.
What is multiple hearsay evidence?
Where then information in question has passed through numerous sources (ie people) to the person who is going to give the evidence.
List some of the statutory provisions (under the CJA) which provide some of the grounds whereby hearsay evidence will be admissible.
Number of statutory provisions in the CJA which permit hearsay evidence, including:
1) cases where witness is unavailable;
2) business and other documents;
3) previous inconsistent statements by a witness;
4) previous consistent statements by a witness;
5) statements from a witness which are not in dispute;
6) formal admissions.
Explain the requirements for hearsay evidence to be admissible in court due to the witness not being able to attend.
Statements not made in oral evidence are admissible if:
1) Oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter (ie the statement is first hand hearsay);
2) Person who made the statement (relevant person) is identified to the court’s satisfaction; and
3) Any of the 5 conditions in of s116(2) CJA 2003 are satisfied.
Explain the following ground for hearsay evidence being admissible: Hearsay evidence is admissible under a statuary provision (s114(1)(a)).
Main two ground are:
1) where a witness is unable to attend court; and
2) business and other documents.
What are the conditions set out in s116(2) CJA 2003?
1) The relevant person is dead;
2) Relevant person is unfit to be a witness because of bodily/ mental condition;
3) Relevant person is outside UK and its not reasonably practicable to bring them back for the trial;
4) Relevant person cannot be found (but reasonable steps have been taken to find them);
5) Relevant person does not give evidence orally due to fear, and the court gives leave for the statement to be given in evidence.
Define the provision of s117 CJA 2003.
In criminal proceedings a statement contained in a document is admissible as
evidence of any matter stated if:
(a) oral evidence given in the proceedings would be evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection
(4) requires them to be.
What are the requirements of s117(2)?
1) The document (or part of it containing the statement) must have been created or received by a person in course of a trade business profession or other occupation, or as the holder of a paid or unpaid office;
2) The person who supplied the info contained in the statement (relevant person) had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
3) Each person (if any) through whom the info was supplied from the relevant person to the person who created or received the document (in accordance with 1 above), received the info in the course of a trade, business, profession, or other occupation or as the holder of a paid or unpaid office.
What is the practical effect of s117?
To make both first hand and multiple hearsay in certain documents, admissible evidence.
Define confession evidence for the purposes of the common law exceptions preserved under s118.
In any proceedings a confession made by an accused person may be given in evidence against him, insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the courts in pursuance of this section (s76(1) PACE 1984).
Effectively, confessions made by a defendant will be admissible evidence even if the confession is hearsay evidence.
Explain the further layer of requirements which apply where a business document has been prepared for the purpose of criminal proceedings.
If statement was prepared for ‘ the purposes of pending or contemplated criminal proceedings, or for a criminal investigation’ (s117(4)), then one of the requirements of 117(5) must be satisfied. These are as follows:
1) Any of the 5 conditions in s116(2) are satisfied; or
2) Relevant person cannot be reasonably expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since he supplied the information and all other circumstances).
Explain when hearsay evidence is admissible under a common law exception.
S118(1) CJA 2003 provides some common law exceptions to the rule excluding hearsay evidence. The main two are:
1) Evidence of a confession or mixed statement made by the defendant; and
2) Evidence admitted as part of the res gestae
Define evidence admitted as part of the res gestae.
- This exception provides that a statement made at the time of an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded.
- This is known as the exception of res gestae.
- However there are criteria that need to be met arising from R v Andrews.
Explain the criteria which need to be met in order to rely on the res gestae exception to the hearsay rule (arising from the case of R v Andrews).
Statements preserved by res gestae include the following:
1) Statements made when a person is so emotionally overpowered by the event that the possibility of conception or distortion can be disregarded;
2) Statements accompanying an act which can only be properly evaluated in conjunction with the statement; and
3) Statements relating to a physical or mental state.
List the situations where hearsay evidence is admissible by the rule of law.
1) confessions or mixed statements by D;
2) statements made contemporaneously to the offence (eg if a witness to an attack shouts to D ‘break his neck’ this could be adduced as hearsay evidence that D had intention to cause GBH);
3) Statements preserved by res gestae;
Explain the provision of evidence being admissible because it is in the interest of justice.
Safety net provision giving courts discretion to admit evidence which would otherwise be inadmissible.
Where deciding whether something is in the interests of justice the court must consider the following factors:
1) Probative value of the statement to a matter in issue;
2) What other evidence could be given;
3) How important the evidence is in relation to the case as a whole;
4) The circumstances in which the statement was made;
5) Reliability of the person making the statement;
6) Reliability of the evidence itself;
7) Whether oral evidence of the matter stated can be given;
8) The difficulties involved in challenging the statement; and
9) The extent of any likely prejudice caused by admitting the evidence.
When is a witness considered unavailable for the purposes of giving evidence?
When the witness is:
- Dead;
- Unfit (due to bodily or mental condition);
- Outside of UK (and not practicable to secure their attendance);
- Unable to be found despite reasonable efforts to find them;
- Fear (witness refuses t attend court out of fear and court gives leave for their evidence to be given in written form).
In which cases ONLY, do the procedural rules in part 20 of the Criminal Procedure Rules apply?
Where the evidence is admissible because:
1) It is in the interests of justice (s114(1)(d));
2) The evidence is multiple hearsay evidence (s121);
3) The witness is unable/unavailable to attend court (s116);
4) Either the prosecution or the defence rely on s117 (admission of a written witness statement prepared for use in criminal proceedings).
Explain the main procedural rules for admitting hearsay evidence (20.2 -20.5).
- Party wishing to adduce hearsay evidence, or wishing to oppose it, must give notice of its intention to do this both to the court and to the other parties in the case (CrimePR, r20.2);
- Notice must be given using a set of prescribed forms, and the time limits for such notice to be given are set out in rule 20.2(3) for the CPS and 20.2(4) for the defendant.
- Rule 20.5 allows the court to dispose with requirement to give notice of hearsay evidence, to allow notice to be given orally (instead of in writing) and to shorten or extend the time limits for giving notice.