Hearsay Evidence and Confession Evidence

Question 1

What is the statutory definition of hearsay evidence?

Answer 1

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’.

Question 2

How is statement defined for the purposes of hearsay evidence definition?

Answer 2

Any representation fact or opinion made by a person by whatever means including a representation made in a sketch, photofit or other pictorial form.

Question 3

List some examples of hearsay evidence that commonly arise in criminal proceedings.

Answer 3

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.

Question 4

What are the two types of hearsay evidence?

Answer 4

1) First hand hearsay; and
2) Multiple hearsay.

Question 5

What is first hand hearsay evidence?

Answer 5

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).

Question 6

Give the four grounds where hearsay evidence will be admissible (s114 of CJA 2003).

Answer 6

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.

Question 6

What is multiple hearsay evidence?

Answer 6

Where then information in question has passed through numerous sources (ie people) to the person who is going to give the evidence.

Question 7

List some of the statutory provisions (under the CJA) which provide some of the grounds whereby hearsay evidence will be admissible.

Answer 7

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.

Question 8

Explain the requirements for hearsay evidence to be admissible in court due to the witness not being able to attend.

Answer 8

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.

Question 8

Explain the following ground for hearsay evidence being admissible: Hearsay evidence is admissible under a statuary provision (s114(1)(a)).

Answer 8

Main two ground are:
1) where a witness is unable to attend court; and
2) business and other documents.

Question 9

What are the conditions set out in s116(2) CJA 2003?

Answer 9

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.

Question 10

Define the provision of s117 CJA 2003.

Answer 10

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.

Question 11

What are the requirements of s117(2)?

Answer 11

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.

Question 12

What is the practical effect of s117?

Answer 12

To make both first hand and multiple hearsay in certain documents, admissible evidence.

Question 13

Define confession evidence for the purposes of the common law exceptions preserved under s118.

Answer 13

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.

Question 13

Explain the further layer of requirements which apply where a business document has been prepared for the purpose of criminal proceedings.

Answer 13

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).

Question 14

Explain when hearsay evidence is admissible under a common law exception.

Answer 14

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

Question 15

Define evidence admitted as part of the res gestae.

Answer 15

• 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.

Question 16

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).

Answer 16

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.

Question 17

List the situations where hearsay evidence is admissible by the rule of law.

Answer 17

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;

Question 18

Explain the provision of evidence being admissible because it is in the interest of justice.

Answer 18

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.

Question 19

When is a witness considered unavailable for the purposes of giving evidence?

Answer 19

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).

Question 20

In which cases ONLY, do the procedural rules in part 20 of the Criminal Procedure Rules apply?

Answer 20

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).

Question 20

Explain the main procedural rules for admitting hearsay evidence (20.2 -20.5).

Answer 20

• 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.

Question 21

What is the procedure for challenging the admissibility of hearsay evidence?

Answer 21

It will be challenged:

• In the case management hearing/ pre trial review (for the magistrates court); and
• At the PTPH or a specific pre-trial hearing (for the crown court).

Question 21

Will part 20 rules apply to hearsay evidence admissible under a common law exception (ie the rule of law)?

Answer 21

No.

Question 22

Define confessions for the purposes of confession evidence.

Answer 22

• Includes any statement wholly or partly adverse to the person who made it, whether or not made to a person in authority, and whether made in words or otherwise.
• Mixed statements (which are partly incriminating and partly not incriminating) are also confessions.

Question 23

When are confessions admissible?

Answer 23

• Confessions are admissible if they are relevant to a matter in issue.
• For the purposes of the evidence rules, something is relevant if it goes to proving or disproving some fact in issue in the prosecution.

Question 24

How can the admissibility of confession evidence be challenged by the defence?

Answer 24

Under s76 PACE 1984, the admissibility of the defence can be challenged either:

1) On the basis of mistake; or
2) On the basis of untruth.

Question 25

Explain how the defence would challenge the admissibility of confession evidence on the basis of untruth.

Answer 25

• Untruth includes confessions obtained by oppression or by things said or done likely to render the confession unreliable.
• If a challenge is based on oppression or likely unreliability (due to things said or done) the defence must show a casual link between the oppression or the things said or done, and the confession made.
• If confession was made independently of the things said or done/ oppression, it will not be excluded.

Question 26

Explain the burden of proof in relation to challenging the admissibility of confession evidence (on grounds of oppression/things said or done).

Answer 26

• Burden is on prosecution to show beyond a reasonable doubt that the oppression or unreliability do NOT render the confession unreliable.
• If the prosecution cannot prove this, the evidence MUST be excluded.

Question 27

What does oppression include (for the purposes of challenging confession evidence)?

Answer 27

Includes torture, inhumane treatment and the use or threat of violence.

Question 27

Explain the process for deciding the admissibility of confession evidence in the Crown Court.

Answer 27

• It is decided by a judge in the absence of the jury, as it is a matter of law not fact.
• This hearing is known as a vior dire (a trial within a trial).
• The person to whom the confession was made will give evidence and then D will give their version of events. Audio recording is likely to be played if the confession was given in an interview.
• Prosecution and defence will then make their submissions to the judge as to why they feel confession should/should not be admitted and then the judge will make their ruling.
• Jury will not know the nature of the matter being discussed , and will not be informed of the outcome.

Question 27

What does ‘things said or done’ include for the purposes of challenging the admissibility of confession evidence?

Answer 27

Includes inducements, misrepresenting the strength of the case, or questioning a suspect when unfit.

Question 28

Explain the procedure for deciding the admissibility of confession evidence in the magistrates court.

Answer 28

• The bench decides matters of both law and fact.
• If they decide it is inadmissible, it must not be considered by them for the remainder of the trial.
• If D seeks to rely on s76(2) a vior dire must be held. If both s76(2) and s78 are relied on by D, they will be dealt with in the same vior dire.
• If D only relies on s78 there is no obligation to hold a voir dire. IN such cases a challenge to the admissibility of the confession will be left either to the end of the prosecution submission (if defence makes submission of no case to answer) or to the end of the trial when D’s solicitor makes closing argument.

Question 29

When considering oppression/ things said o done which has lead to a confession, what conduct (on the part of the police) could amount to such oppression?

Answer 29

Conduct which breaches code C of the codes of Practice to PACE 1984, such as:

1) Denying D refreshments or rest breaks between interviews;

2) Offering suspect inducements to confess (eg telling them they will receive a lesser sentence/ be able to leave the station if they confess etc);

3) Misrepresenting strength of the evidence against them;

4) Questioning the suspect in an inappropriate way (eg badgering them until D gives an answer then police want);

5) Questioning suspects who the police should have known (r did know) was not in a fit state to be interviewed (eg because under influence of drink/ drugs or suffering from some form of medical condition).

6) Threatening a suspect (eg telling them they will be held indefinitely until they confess etc).

Question 30

Does denial of legal advice automatically make a confession inadmissible?

Answer 30

No. It must be determined whether the D still would have made the confession if they had received legal advice. As such, the casual link between the denial of legal advice and the confession must be established.

Question 31

Explain the provision of s76(1) of PACE 1984.

Answer 31

D can adduce evidence that a co-defendant has made a confession where both D’s plead not guilty and are tried jointly.

s72(2) provides that if co-D who made confession states his confession was obtained as a result of oppression the court must exclude the evidence of the confession unless it can be satisfied it was not obtained in such a way. The court need only be satisfied it was not obtained in such a way on the balance of probabilities in situations where a co-defendant is relying on it (not the prosecution).

Question 31

Explain the operation of s78 PACE 1984.

Answer 31

• Court has general discretion to exclude evidence adduces by the prosecution.
• This includes confession evidence.
• s78 therefore provides the court with the power to exclude confession evidence adduced by the prosecution where the admission of the confession would be considered to have adverse effects on the fairness of the proceedings.
• s78 may be relied upon either if D admits making the confession and claims it is untrue, or when D denies making the confession at all.

Question 31

Where there is an alleged breach of PACE code C in obtaining the confession, what will the court do?

Answer 31

• They will use s78 PACE to exclude the evidence provides they are satisfied the breach of Code C is substantial and significant (as in R v Keenan).
• The most common example is clear and obvious actions by the police to deny the client access to legal advice (as reliance on such evidence would adversely affect the fairness of the proceedings).
• There is therefore some overlap between s78 and s76(2)(b) (duty of the court to deny confession evidence because it is unreliable).

Question 32

Explain the operation of s76(2)(b) PACE 1984.

Answer 32

Confession evidence can be excluded if deemed unreliable. This is commonly used where D was denied access to legal advice (although this won’t automatically satisfy the requirement for s76(2)(b)).

Question 33

Explain the procedure when D denies making the confession.

Answer 33

• Typically applies to confessions made to officers outside the police station and D denies the confession.
• s78 may be used if D denies making the confession and the police breached code C of PACE by doing one or more of the following:

1) Not making accurate record of D’s comments;
2) Failure to give D an opportunity to view record of his comments and sign these off as being accurate/ dispute the accuracy;
3) Failure to mention the confession to D at start of his interview at police station.

Question 34

Does the inadmissibility of confession evidence affect the admissibility of any facts discovered as a result of the confession?

Answer 34

No. S76(4) PACE 1984 states such facts are still admissible, however the CPS cannot tell the court the facts were discovered and a result of a confession made by the defendant (which has been deemed inadmissible).