Hearsay: The Inclusionary Provision

Question 1

What is the inclusionary discretion for hearsay?

Answer 1

Section 114(1)(d): …“The court is satisfied that it is in the interests of justice for the evidence to be admissible.”

Question 2

Under the inclusionary discretion, what must the court consider (1)?

Answer 2

S114(2): the court must have regard to the following factors -

1. How much probative value the statement has in relation to a matter in issue in proceedings or other evidence in the case
2. What other evidence has been, or can be, given on the matter or evidence mentioned in (a)
3. How important the matter or evidence mentioned in (a) is in the context of the case as a whole;
4. The circumstances in which the statement was made

Question 3

Under the inclusionary discretion, what must the court consider (2)?

Answer 3

S114(2) continued:

1. How reliable the maker of the statement appears to be;
2. How reliable the evidence on the making of the statement appears to be;
3. Whether oral evidence of matter stated can be given, if not, why it cannot
4. Amount of difficulty in challenging the statement
5. Extent to which that difficulty would prejudice the party facing it.

Question 4

According to Maher v DPP, what does the interest of justice mean?

Answer 4

Principles that come from the Overriding Objective in the CPR (Rule 1.1. CPR) to deal with cases ‘justly’

• Whether the evidence has sufficient cogency
• Ensuring that the defendant’s trial is fair.

Question 5

What safeguards are implemented against hearsay evidence?

Answer 5

• S116(2)(e) is safeguarded by S116(4): Where the person cannot appear in court due to fear, leave may be given to that witness.
• S117(1) safeguarded by S117(6) and (7): the document will not be admissible if deemed untruthful in its contents etc.
• S114(1)(d) safeguarded by S114(2): it will not be admissible in interest of justice if there is a lack of probative value etc.
• All others can be excluded by S78 PACE or S126(1) CJA

Question 6

Under S126(1) CJA, what is the discretion to exclude hearsay evidence?

Answer 6

1. In criminal proceedings, court may refuse to admit a statement if-
   
   1. Statement was made otherwise than in oral evidence in proceedings, and
   2. Court is satisfied that the case for excluding the statement, takng account of the danger that to admit it would result in undue waste of time, substantially outweighs case for admitting it, taking account value of the evidence.

Question 7

What happens if the case against a defendant is based wholly on oral evidence not made in court?

Answer 7

S125(1): If on a defendant’s trial the court is satisfied at any time after the prosecution case that-

1. the case against the defendant is based wholly or partly on statements not made in oral evidence in court, and
2. evidence provided by the statement is so unconvincing that, considering its importance to the case, D’s conviction of the offence would be unsafe,

court must direct jury to acquit defendant or have a retrial.

Question 8

Does hearsay go against Article 6?

Answer 8

Art 6(3) provides ‘everyone charged with a criminal offence has the following minimum rights:

(d) to have examined witnesses against him.

Is admission of hearsay evidence compatible with Art6(3)?

Luca v Italy 2001: where a conviction is based solely or to a decisive degree on hearsay, the evidence is incompatible with Article 6.

Question 9

As defined in Ibrahim 2012, what four questions should be answered when deciding whether the hearsay evidence is compatible with article 6?

Answer 9

1. Was there proper justification for admitting the untested hearsay evidence? Such justification will be provided in CJA 2003
2. How important were the untested hearsay statements in relation to the prosecution case?
3. How ‘demonstrably reliable’ were those statements?
4. Were the ‘counter-balancing safeguards’ of CJA and PACE S78 properly applied to ensure the defendant had a fair trial?