Hearsay I

Question 1

1. Hearsay and previous statements of witnesses

Answer 1

• The use of a witnesses out of court statement will not be hearsay if tendered as evidence of consistency rather than of a matter stated
  
  • The use of previous statements to show consistency is, however, frequently prohibited by the rule against self-serving statements, also known as the rule against narrative
• The use of a witness’s previous inconsistent statement is not hearsay when tendered merely to show inconsistency.
  
  • However, the CJA 2003, s. 119, permits such a statement, properly proved, to be evidence of any matter stated.

Question 2

2. Hearsay and mechanically produced evidence

Answer 2

• just as a video recording of the commission of an offence is admissible, so also a witness who has seen the recording may give evidence of what was seen, as such a person is in effect in the same position as a witness with a ‘direct view of the action’

Question 3

3. Examples of hearsay evidence

Answer 3

• Recall of number plate from A-B, B cannot give evidence of what the number is
• If goods are imported in bags marked ‘Produce of Morocco’, the marks are hearsay evidence of the country of origin
• a party to a conversation conducted through an interpreter infringes the hearsay rule by seeking to prove what the other party said by relating to the court what the interpreter said
• a police officer who testifies that a person is a ‘known heroin user’ is giving hearsay evidence if the basis of that knowledge is information supplied by others, including the person in question

Question 4

4. Evidence with more than one purpose

Answer 4

• Hearsay rule is not infringed where a statement is tendered for some other reason than to establish the matter stated, but such evidence may be difficult to distinguish from hearsay
  
  • Evidence can be hearsay for one purpose but admissible for a different purpose
  • Where it happens that the evidence is admissible in relation to one count in an indictment but not another, the inadmissibility is relevant to whether the counts should be tried together

Question 5

5. Lies as hearsay

Answer 5

• Lie cannot be hearsay evidence of matter that it is not intended to assert

Question 6

6. Other hearsay safeguards

Answer 6

• s. 124, which provides for the testing of credibility where the maker of a hearsay statement does not attend to testify
• s. 125, which deals with the power to stop a case where evidence is unconvincing
• s. 126, which provides a specific discretion to exclude hearsay evidence

Question 7

7. Hearsay exception 1 - unavailable witnesses

Answer 7

• Hearsay admissible as evidence of any matter stated if
  
  • Oral evidence would have been admissible
  • Person who made the statement is identified to the courts satisfaction
  • Any of the five conditions below are satisfied
• This section only applies to first hand hearsay

Question 8

8. Five conditions for s.116

Answer 8

• Person is dead
• Person is unfit to be witness
• Person is outside UK and its not reasonable practicable to secure their attendance
• Person cannot be found
• Through fear the relevant person does not give or continue to give oral evidence in the proceedings and the court gives leave for the statement to be given in evidence
  
  • Leave only given if the court considers that the statement ought to be admitted in the interests of justice

Question 9

9. Absence caused by the party tendering the statement

Answer 9

• s.116(5) prevents a person from relying on hearsay statement if that person or the person acting on their behalf is responsible for the absence of the witness to stop them from testifying
  
  • The threat does not have to be the main or primary cause of the witness’s absence, provided it was at least one of the effective causes

Question 10

10. Death and unfitness to plead

Answer 10

• Where the witness has died, the court may move straight to the consideration of whether the principles of trial fairness permit the witnesses statement to be adduced
• In the case of a witness who is said to be unfit, further investigation is required to ensure that the condition is satisfied.
  
  • Judge is entitled when determining unfitness to take account of likely future consequences such as the risk that giving evidence will precipitate the witnesses’s suicide
• where the defence can point to proper grounds for wishing to cross-examine a doctor who testifies to the unfitness of a patient, it is right to make an opportunity available for them to do so.
• An application to admit an accused’s hearsay statement may succeed in the (very rare) case where the accused is fit to stand trial, but unfit to give sworn evidence for the defence.

Question 11

11. Outside the UK … /cannot be found

Answer 11

• It is appropriate to provide evidence of whether the witness’s account could have been secured by video link or by some other method that permits a degree of challenge by the defense
• ‘[i]f the witness is lost, all reasonably practicable steps must have been taken to get him before the court: this will include not only looking for him if he disappears but also keeping in touch with him to avoid him disappearing’.

Question 12

12. Deciding whether to grant leave for hearsay evidence of a fearful witness

Answer 12

• In deciding whether to give leave under the CJA 2003, s. 116(4), to admit the statement of a fearful witness, the court is expressly directed to take into account, along with any other circumstances it regards as relevant,
  
  • the content of the statement
  • the risk that its admission or exclusion will result in unfairness having regard to the difficulty of challenging the statement if the relevant person does not give oral evidence
  • the possibility that a special measures direction under the YJCEA 1999 could be made in relation to that person.

Question 13

13. Business and other document - hearsay exception

Answer 13

• S.117
  
  • a statement contained in a document is admissible as evidence of any matter stated if—
    
    • oral evidence given in the proceedings would be admissible as evidence of that matter,
    • the requirements of subsection (2) are satisfied, and
    • the requirements of subsection (5) are satisfied, in a case where subsection (4) requires them to be.
  • Statement is not admissible under this section if court is satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of —
    
    • its contents,
    • the source of the information contained in it,
    • the way in which or the circumstances in which the information was supplied or received, or
    • the way in which or the circumstances in which the document concerned was created or received.

Question 14

14. Requirements for s.117

Answer 14

• 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,
• the person who supplied the information contained in the statement had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
• 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.
• The additional requirements of subsection (5) must be satisfied if the statement—
• was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but
• was not obtained pursuant to a request under section 7 of the Crime (International Co-operation) Act 2003 or an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988 (which relate to overseas evidence).
• The requirements of ss (5) are satisfied if—
• any of the five conditions mentioned in section 116(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 the length of time since he supplied the information and all other circumstances).

Question 15

15. Hearsay exception - admissible in interests of justice

Answer 15

• S.114(d) - A statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if …
  
  • the court is satisfied that it is in the interests of justice for it to be admissible

Question 16

16. Factors for s.114(d) admissibility

Answer 16

• Court must have regard to the following factors - among any others it considers relevant
  
  • 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;
  • what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
  • how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
  • the circumstances in which the statement was made;
  • how reliable the maker of the statement appears to be;
  • how reliable the evidence of the making of the statement appears to be;
  • whether oral evidence of the matter stated can be given and, if not, why it cannot;
  • the amount of difficulty involved in challenging the statement;
  • the extent to which that difficulty would be likely to prejudice the party facing it.
• Not a questionnaire to be answered, but a list of principles to be taken into account

Question 17

17. Relationship of s.114(d) with other hearsay exceptions

Answer 17

• Has been referred to as a limited residual power
  
  • Suggests the other gateways should be assessed first
    
    • For example - s. 114(1)(d) should not be used as a ‘short cut’ to admissibility where the prosecution had failed to take all proper steps to secure the presence of an important witness under s. 116.

Question 18

18. Preserved common law hearsay exception - public documents

Answer 18

• Any rule of law under which in criminal proceedings—
  
  • (a) published works dealing with matters of a public nature (such as histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,
  • (b) public documents (such as public registers, and returns made under public authority with respect to matters of public interest) are admissible as evidence of facts stated in them,
  • (c) records (such as the records of certain courts, treaties, Crown grants, pardons and commissions) are admissible as evidence of facts stated in them, or
  • (d) evidence relating to a person’s age or date or place of birth may be given by a person without personal knowledge of the matter.

Question 19

19. Preserved common law hearsay exception - statements forming part of res gestae

Answer 19

• Any rule of law under which in criminal proceedings a statement is admissible as evidence of any matter stated if—
  
  • (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)
• In relation to the first factor the court needs to consider whether its possible for it to have been distorted

Question 20

20. Res getae and domestic abuse cases

Answer 20

• the question of special measures was held not to be of great significance where the application is made under the res gestae exception.

Question 21

21. Direction to jury when evidence admitted under res gestae ‘spontaneous statement’

Answer 21

• Where a ‘spontaneous’ statement has been admitted in evidence as part of the res gestae, the judge must make it clear to the jury:
  
  • that it is for them to decide what was said and to be sure that the witnesses were not mistaken in what they believed had been said to them;
  • that ‘they must be satisfied that the declarant did not concoct or distort to his advantage or to the disadvantage of the accused the statement relied upon and where there is material to raise the issue, that he was not activated by any malice or ill-will’ (at p. 302);
  • where there are special features that bear on the possibility of mistake, then the jury’s attention must be invited to those matters.

Question 22

22. Statement in furtherance of common enterprise

Answer 22

• S.118 preserved any rule of law under which in criminal proceedings a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated.

Question 23

23. Admissibility of body of expertise

Answer 23

• S.118 preserves any rule of law under which in criminal proceedings an expert witness may draw on the body of expertise relevant to his field.

Question 24

24. Additional requirements for multiple hearsay

Answer 24

• S.121 - hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless
  
  • either of the statements is admissible under section 117(business), 119 or 120,
  • all parties to the proceedings so agree, or
  • 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.

Question 25

25. Evidence affecting the credibility of admissible hearsay

Answer 25

* S.124, governs the admissibility of evidence directed towards the discrediting of a hearsay statement where the maker of the statement does not give oral evidence in connection with the subject-matter of the statement. * The opposing party is entitled to put in evidence anything which would have been admissible if the witness had been present * evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible * evidence may with the court’s leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party

Question 26

26. S.125

Answer 26

* Power to stop a case that, ultimately, proves to be based wholly or partly on hearsay is unconvincing to the point where a conviction based on it would be unsafe.

Question 27

27. S.126

Answer 27

* S.126 confers a power on any court trying a criminal case to exclude hearsay evidence where, ‘taking account of the danger that to admit it would result in undue waste of time’ * creates a general discretion under which a court can exclude evidence that ‘lacks significant probative value’ * The wider use of the s. 126 discretion is of great significance in relation to the possible exclusion of defence evidence, which is not otherwise covered by the court’s discretionary powers.

Question 28

28. Ways in which hearsay can be admissible

Answer 28

* Statutory provision allows it * Rule of law allows * All parties agree * Court is satisfied it is in interests of justice

Question 29

29. Meaning of a matter stated

Answer 29

* restricts the application of hearsay rules to cases where, the maker of the statement has a purpose to cause another to believe the matter, or to cause the other, or a machine, to act as though it were as stated