Hearsay (W13)

Question 1

F16.1 - Admissibility of hearsay evidence (s.114 CJA 2003)

Answer 1

‘(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if–

(a) any provision of this chapter or other statutory provision makes it admissible,
(b) any rule of law preserved by section 118 makes it admissible,
(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.’

Question 2

F16.1 - Use of hearsay evidence in criminal trials

Answer 2

• Hearsay evidence may pose a threat to the fairness of a criminal trial.
• Courts must be vigilant that hearsay is recognised and treated as such, and that it is received in evidence only where appropriate safeguards are in place.

Question 3

F16.2 - Concept of hearsay evidence

Answer 3

• ‘it is ordinarily essential that evidence of the truth of a matter be given in person by a witness who speaks from his own observation or knowledge.’
• ‘hearsay’ is evidence ‘not so given, but rather is given second hand, whether related by a person to whom the absent witness has spoken, contained in a written statement of the absent witness, given in the form of a document or record created by him, or otherwise.’

Question 4

F16.7 - Definition of ‘statement’

Answer 4

CJA 2003, s.115: ‘A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.’

This is to be read in combination with the definition of ‘matter stated’ in s.115(3) which restricts the application of hearsay rule to cases where the maker of the statement had a purpose to cause another to believe the matter, or to cause the other, or a machine, to act as though it were stated.

Question 5

F16.10 - Hearsay and previous statements of witnesses

Answer 5

• The use of a witness’ out of court statement will not be hearsay if tendered as evidence of consistency rather than of a matter stated.
• However, the use of previous statements to show consistency are often prohibited by the rule against self-serving statements. Where they are admissible, s.120 CJA 2003 may apply so as to render the statement admissible as evidence of any matter of which the maker’s oral evidence would have been admissible.
• The use of a witness’ previous inconsistent statement is not hearsay when tendered merely to show inconsistency.
• However, s.119 permits such a statement to be evidence of any matter stated.
• The reasons typically given for the exclusion of hearsay do not apply with the same force to the out of court statements of those who are witnesses in the proceedings. In many cases a statement while events were fresher in the witness’ mind might provide evidence of better quality than subsequent evidence in court.

Question 6

F16.11 - Hearsay and mechanically produced evidence

Answer 6

• The definition of statement in s.115(1) clarifies that a representation of fact or opinion must be made by a person, so a purely mechanically generated image, e.g. by CCTV, is not hearsay.
• 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.’
• An image generated by human agency such as a representation in a ‘sketch, photofit or other pictorial form’ is a ‘statement’ for the purposes of s.115(1), as such images are entirely dependent on the recollection of the person directing the hand of the artist.
• A mechanically generated representation that depends for its accuracy on human input cannot be used in the absence of proof that the input was accurate.

Question 7

F16.14 - Definition of ‘matter stated’

Answer 7

CJA 2003, s.115(3)
‘A matter stated is one…if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been–
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.’

Question 8

F16.15 - Reliance on matter stated

Answer 8

• Evidence is hearsay under s.114(1) CJA 2003 only where it is relied upon as ‘evidence of any matter stated’ i.e. where it is sought to establish the truth of the matter.
• A common instance of reliance is where it is sought to establish the reg number of a car involved in an incident, and an eyewitness, A, who has seen the incident, relates the number to B, who has not. It is hearsay for B to tell the court what the number was for the purpose of proving the truth of A’s statement. However, where B makes a note of the number, A may refresh their memory from B’s note.
• The labelling of items is another frequent instance of hearsay. If goods are imported in bags labelled ‘Produce of Morocco’, the marks are hearsay evidence of the country of origin.
• In many instances, the evidence is likely to be reliable and admissible under the widely drawn exception in s.117 for business documents.
• Another example is when a party to a conversation conducted through an interpreter infringes the hearsay rule when attempting 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.
• Care must be taken to ascertain the ‘matter stated’, as there may be more than one matter in issue, e.g. in Williams, the defence to murder was that the crime was committed by S, who did not testify. It was said that S had confessed in a telephone call to E, which E had recorded. The decision not to call E led to hearsay problems both as to the content of the recording, and also the need to prove that the voice heard on the recording was that of S, which could not be proved simply by reliance on E’s out of court statement that it was.

Question 9

F16.17 - Matters intended to be believed or acted upon

Answer 9

• Where the person giving the statement believes that the recipient already knows the matter in question, and is therefore not speaking with one of the hearsay purposes, the evidence is original, non-hearsay evidence.
• Clear 3 stage test to ascertain whether communications are hearsay under CJA 2003:
  (1) Ascertain the matter sought to be proved.
  (2) Provided that the matter sought to be proved is a relevant one, the next question is whether there is a statement of that matter in the communication. If not, no question of hearsay arises.
  (3) If the communication does state the matter, was it one of the purposes (not necessarily the dominant or only purpose) that the recipient, or any other person, should believe that matter or act upon the basis that it is stated? If yes, it is hearsay; if no, it is not.

Question 10

F16.18 - Examples

Answer 10

• Prosecution relying on text messages received by D to establish intent to supply drugs. The messages, being mere requests for drugs, did not contain any statement that T was a drug dealer. Even if such a statement could be inferred, the purpose of the senders did not include any intention to cause anyone to believe he was, so it was not hearsay.
• In Doyle, the prosecution sought to prove that D had been in possession of a a package of drugs by reference to text messages from the recipient of the package. These asserted that D had stolen drugs from it, and demanded that D act on the accusation. It was held that the messages were hearsay.

Question 11

F16.19 - Common understanding between parties

Answer 11

It may not be hearsay where there is a ‘common understanding’ between the parties to the communication.
- e.g. D was alleged to be an accomplice to a rape of A. A received two messages from D asking if she was mad at him and saying sorry. It would seem that the texts are not hearsay, D’s purpose being to apologise for the rape, something which both he and the complainant knew to have happened. The absence of any purpose on D’s part to convince A that it happened prevents the evidence from being hearsay.

Question 12

F16.21 - Difficulty determining whether the statement is directed at another person

Answer 12

• A statement in a complainant’s diary regarding her sexual relationship with her uncle would have been hearsay had the statement been intended for another, but it had been intended for the writer’s sole use so it was not.
• A diary in another case however was held to be hearsay as it was more in the nature of a record, with some entries being made by a third party.

Question 13

F16.22 - Evidence with more than one purpose

Answer 13

• The hearsay rule is not infringed where a statement is tendered for some reason other than to establish the matter stated.
• It is perfectly possible that it might be admissible, original evidence for one purpose, but inadmissible hearsay for another.
• Such cases require a careful judicial direction as to how the evidence should be used by the jury.
• 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 14

F16.23 - Statements giving rise to inference of relevant state of mind or reason for acting

Answer 14

• Where a state of mind is asserted by the speaker, with the purpose of causing another to believe it, the evidence is hearsay.
• A statement from which a state of mind may be inferred, on the other hand, may fall outside the definition of ‘matter stated’ and be classified as original evidence.
• e.g. D was accused of the murder of V in revenge for killing S. For several months, D had kept a letter written by a third party, protesting that no one had avenged S’s death. The keeping of the letter was non-hearsay evidence of D’s state of mind in relation to V.
• The hearsay rule does not apply where the statement is relevant because it provides a reason why a person took a relevant course of action.
• e.g. the hearsay rule was not infringed where D, in support of the defence of duress, sought to give evidence of threats made to him by terrorists who were not called to give evidence. The purpose of proving that D had been subjected to threats was not to establish that the threats were true, but to show that, if they had been believed by D, they might have induced in him an apprehension of death if he failed to conform to their wishes.

Question 15

F16.24 - Repeating what has been said to them by a solicitor

Answer 15

e.g. D, on being interviewed in connection with theft, failed to reveal facts upon which he afterwards sought to rely in his defence. At trial he wanted to give evidence of what his solicitor had said to him prior to the interview, but was prevented from doing so on the grounds that it would infringe the hearsay rule. CoA said this was not necessarily the case: if D’s purpose in repeating the solicitor’s words was to show the impact on him of the advice given, the hearsay rule would not have been infringed. It would have been otherwise if D had sought to prove the truth of anything said.

Question 16

F16.24 - May be used to prove the knowledge of the statement maker without infringing the rule

Answer 16

e.g. D denied knowledge that certain premises were being used as a brothel. An advertisement that he had sought to place referring to the premises and containing a reference to ‘many stunning masseuses’ was admissible to show that he did know.

Question 17

F16.25 - Making of statement having significance in law

Answer 17

• In some cases the mere making of the statement may have significance in law, aside from any question of its truth.
• e.g. the question to be decided was whether a massage parlour was being run as a brothel. Having defined a brothel as ‘an establishment at which two or more women were offering sexual services’, the court held that it was open to police officers who had attended the premises posing as customers to prove that the women employed had offered them sexual services. There was no question of hearsay: the relevant issue was simply whether such offers had been made.
• e.g. in one case, diaries and notebook entries made by an individual who did not give evidence were relevant and admissible because his statements represented the directing mind and will of a company under the identification principle at law. There was therefore no hearsay issue, which there would have been if the statement were tendered for other reasons.

Question 18

F16.26 - Lies and other untrue statements

Answer 18

• A statement that is demonstrably false may show a consciousness of guilt.
• Under the CJA 2003, a lie cannot be hearsay evidence of a matter that it is not intended to assert, e.g. a statement containing details of an alibi alleged to be false could be tendered by the prosecution without breaching the hearsay rule - what matters is the fact it was said.

Question 19

F17.1 - Exceptions to the rule against hearsay (excluding confessions)

Answer 19

• Provisions of the CJA 2003, Part II ch 2 are designed to ensure that relevant hearsay evidence should be admitted where it is in the interests of justice.
• The CJA 2003 applies to trials and other hearings to which the strict rules of evidence apply, and also to proceedings under the Criminal Procedure (Insanity) Act 1964, s.4A, the purpose of which is to mirror the fact-finding process at a criminal trial.

Question 20

F17.2 - Four exceptions

Answer 20

Set out in s.114 CJA 2003 as:

(1) Statutory exceptions
(2) Common law exceptions (but only as preserved by s.118)
(3) Agreement of all parties
(4) Cases where it is in the ‘interests of justice’ to admit hearsay

Question 21

F17.4 - The Four Exceptions and additional safeguards for hearsay evidence

Answer 21

• It is important that safeguards be applied when admitting hearsay evidence.
• There are three related provisions within the CJA 2003 itself:
• s.124: provides for the testing of credibility where the maker of a hearsay statement does not attend to testify
• s.125: deals with the power to stop a case where evidence is unconvincing
• s.126: provides a specific discretion to exclude hearsay evidence that is in addition to the court’s existing range of discretions at common law and under s.78 PACE 1984
• In addition, all prosecution evidence is subject to the court’s general powers of discretionary exclusion, of which s.78 is the most important.
• The judge is also obliged to direct the jury as to the dangers of acting upon hearsay evidence.
• The main concern of the court is the risk of unreliability, and the extent to which the reliability of the evidence can safely be assessed.

Question 22

F17.4 - Steps in the statutory framework of admitting hearsay evidence

Answer 22

(1) Is there a specific statutory justification (or gateway) permitting the admission of hearsay evidence (ss.116 to 118)?
(2) What material is there which can help to test or assess the hearsay (s.124)?
(3) Is there a specific ‘interests of justice’ test at the admissibility stage?
(4) If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite difficulties, in the interests of justice (s.114(1)(d))?
(5) Even if prima facie admissible, ought the evidence to be ruled inadmissible (PACE 1984 s.78 or CJA 2003, s.126)?
(6) If the evidence is admitted, should the case subsequently be stopped under s.125?

Question 23

F17.4 - Detail behind ruling should be given

Answer 23

• If a judge permits hearsay evidence to be adduced, the detail behind the ruling should be given before speeches, so that counsel may tailor their speeches to the ruling and where appropriate, make submissions in respect of the content of the proposed hearsay direction.
• A hearsay direction should be given before the evidence is heard, and repeated in the summing up.

Question 24

F17.8 - s.116 CJA 2003

Answer 24

(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible of evidence of any matter stated if–
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions in subsection (2) are satisfied.

(2) The conditions are–
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the UK and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.

(3) For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard–
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
(c) in appropriate cases, to the fact that a direction under s.19 YJCEA 1999 (special measures) could be made in relation to the relevant person.

(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied it is shown that the circumstances described in that paragraph are caused–
(a) by the person in support of whose case it is sought to give the statement in evidence, or
(b) by a person acting on his behalf,
in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).

Question 25

F17.9 - First-hand hearsay from identifiable witness

Answer 25

• s.116 CJA 2003 only applies to first hand hearsay.
• where a person makes a statement, but it is unclear as to whether the statement is based on personal knowledge or to something the maker has been told, the s.116 statement should not be admitted
• multiple hearsay may be admissible under s.121 and documents admissible under s.117 may contain more than one degree of hearsay.
• The requirement that the oral evidence of a person who made the statement would have been admissible serves to ensure that hearsay cannot be received if the evidence would have been inadmissible for some other reason, e.g. that it is evidence of inadmissible bad character
• The person who made the s.116 statement must be identifiable so that those seeking to challenge its credibility must be able to ascertain who made it, and be able where appropriate to invoke s.124, which is provided by way of substitute to cross-exam.
• A statement by a witness whose identity is not known might be received instead under the common law rule of res gestae or under the interests of justice exception in s.114(1)(d), but neither of these exceptions can be invoked so as to allow witnesses to choose to provide evidence anonymously. This applies only to witnesses where the witness has expressed a preference to remain anonymous, not to witnesses that are untraceable.

Question 26

F17.10 - Oral and documentary statements admissible

Answer 26

• Applications under s.116 most frequently concern statements in documents, but oral hearsay statements may also be tendered, as may statements made by conduct.
• e.g. a man who had been stabbed was asked ‘what’s happened, mate?’ and replied ‘D’s just stabbed me’. The statement was admitted at D’s trial for murder under s.116. A gesture or sign language similarly identifying the guilty party could be received.

Question 27

F17.11 - absence caused by party tendering the statement

Answer 27

• s.116(5) prevents a person from being able to rely on any hearsay statement by a potential witness where that person, or someone acting on that person’s behalf, is responsible for the absence of the witness in order to prevent the witness from testifying.
• e.g. if the witness has been threatened by D and subsequently fled abroad
• The threat did not have to be the main or primary cause of the witness’ absence, provided it was at least one of the effective causes.
• s.116(5) is directed against a party to the proceedings, and does not apply to evidence of a complainant who had ‘caused’ her own absence by committing suicide.

Question 28

F17.13 - Death and unfitness to be a witness

Answer 28

• Where a witness has died, the court may move straight to the consideration of whether the principles of trial fairness permit the witness’ statement to be adduced.
• In the case of a witness said to be unfit, further investigation is required to ensure that the condition is satisfied.
• The provision focuses not on the physical act of attending court, but the fitness of the witness when there to give evidence, and includes unfitness through any mental condition.
• Evidence indicating a medical condition made worse by stress, but not indicating clearly that the witness is unfit, is not sufficient.
• However, the judge is entitled when determining unfitness to take account of likely future consequences such as the risk that giving evidence will precipitate the witness’ suicide.
• It is not necessary to prove mental illness: unfitness caused by the trauma of being a victim of sexual assault may qualify.
• 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.
• Being unfit to trial and unfit to testify are different tests which can lead to different results.
• The sudden unfitness of a witness who is hospitalised may be good reason for refusing an adjournment, but not for refusing to consider an application under s.116.
• 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. This is very rare because less extreme measures for a defendant who is unwell are available, e.g. allowing sworn evidence to be given from a place other than the witness box, permitting frequent breaks, or restricting the duration or terms of cross-exam.

Question 29

F17.14 - Outside the UK and not reasonably practicable to secure attendance or cannot be found after reasonable steps

Answer 29

• The evidence that must be provided to lay a foundation in either of these cases is essentially what is ‘reasonable’ to expect a party to do, whether that involves taking steps to secure the attendance of someone abroad, or to find a person whose whereabouts are unknown.
• It is important that the prosecution should be in a position to provide a sufficiently compelling and detailed reason for the absence of any witness to satisfy the requirements of a fair trial.
• While the absence of good reason is not conclusive on the question whether a trial has been fair, it is an important factor.

Question 30

F17.15 - Keeping track of witnesses and their preparedness to testify

Answer 30

• e.g. where a key prosecution witness who was in South Africa had a last minute change of heart about attending, it was said that what was reasonably practicable must be judged in the light of steps taken by the party seeking to secure attendance and that further inquiries as to the reasons for the witness’ refusal should have been made. It was also said to be appropriate to provide evidence of whether the witness’ account could have been secured by video link or by some other method that permits a degree of challenge by the defence.
• Absence abroad will satisfy the condition in s.116(2)(c) ‘only if it is not reasonably practicable to bring the witness to court, either in person or by video link.’
• e.g. the evidence of two German university students was ‘pivotal’ to the case, but no efforts had been made by German police to contact them via their home or university addresses in the two months before trial, and so their evidence should not have been read.

Question 31

F17.15 - Witnesses who cannot be found

Answer 31

• ‘if 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.’
• e.g. no evidence that the police had made steps to keep contact with an important witness, e.g. through the Witness Care Programme, to explain her civic duty to her or to try and find where she had gone in the months before trial. To tell a judge that a witness cannot be traced implies that efforts have been made to trace them. If no such efforts have been made, the judge is being misled.
• e.g. reasonable steps had not been taken in relation to a witness with whom there had been no contact with for four months, when a message was left on his phone to which he did not respond. This ‘fell a long way short’ of what was required.
• contrast with another case where the prosecution lost touch with a witness just before trial, but made efforts to ensure his attendance, including seeking a witness summons. This was taking reasonable steps.

Question 32

F17.17 - Fear

Answer 32

• The terms of the CJA 2003 do not require that the fear must be attributable to the accused.
• e.g. an accused cannot complain of the use of an absent witness’ statement where it is fear of the co-accused that has caused a prosecution witness to take flight.
• A causal link between the fear and the failure or refusal to give evidence must be proved.
• While it is possible for the jury to be told the reasons for a witness’ absence, this cannot generally be done in cases involving fear.
• The previous statement of a hostile prosecution witness who is motivated simply by the desire to protect the accused, rather than by fear, is not covered by s.116.
• Where fear appears to be only one reason for refusal to testify, it is necessary to evaluate other possible reasons.
• Every effort must be made to get the witness to court to test the issue of ‘fear’ with a view to persuading the witness to give evidence.
• There may also be justification needed for why special measures would not work to alleviate fear.

Question 33

F17.20 - Intimidation in fear cases

Answer 33

If the reason for the witness’ failure to give evidence in person is that the witness was intimidated by or on behalf of the accused, who then contests the admissibility of the statement for the prosecution, the accused is in a weak position to claim the infringement of the right to a fair trial.

Question 34

F17.21 - Leave in fear cases

Answer 34

• All possible efforts should be made to get the witness to court.
• It is incumbent on the judge to investigate all possibilities by which the witness may give oral evidence.
• Witnesses should never be assured in advance that their evidence will be read.
• In deciding whether to admit the statement of a fearful witness, the court must take into account:
  (a) the difficulty of challenging the statement if the witness does not give oral evidence
  (b) the possibility that a special measures direction under the YJCEA 1999 could be made in relation to that person
  (c) the content of the statement
  (d) the risk that its admission or exclusion will result in unfairness
  (e) the possibility that fear in some cases may be assuaged by the application of special measures e.g. use of screens, live link or video recorded evidence.

Question 35

F17.25 - Business and other documents (s.117 CJA 2003)

Answer 35

(1) 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 admissible as 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.

(2) The requirements of this subsection are satisfied if–
(a) 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,
(b) the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and
(c) 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.

(3) The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.

(4) The additional requirements of subsection (5) must be satisfied if the statement–
(a) was prepared for the purposes of pending or contemplated criminal proceedings, or for a criminal investigation, but
(b) was not obtained pursuant to a request under s.7 Crime (International Co-operation) Act 2003 or an order under para 6 sch 13 CJA 1988 relating to overseas evidence.

(5) The requirements of this subsection are satisfied if–
(a) any of the five conditions mentioned in s.116(2) is satisfied, or
(b) the 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 that information and all other circumstances).

(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection (7).

(7) The court may make a direction under this subsection if satisfied that the statement’s reliability as evidence for the purpose for which it is tendered is doubtful in view of–
(a) its contents,
(b) the source of the information contained in it,
(c) the way in which or the circumstances in which the information was supplied or received, or
(d) the way in which or the circumstances in which the document concerned was created or received.

Question 36

F17.26 - Business and other documents: further info

Answer 36

• ‘Business records are made admissible…because, in the ordinary way, they are compiled by people who are disinterested and, in the ordinary course of events, such statements are likely to be accurate…they are prima facie reliable’
• s.117(7) directs the exclusion of evidence that is not.
• documents of a non-commercial nature such as NHS hospital records are admissible, as is the transcript of the evidence given by a witness at an earlier trial. So is a police custody record.
• The compiler of the document for use in criminal proceedings who leaves out important details of information obtained from others cannot supplement the record with additional oral hearsay testimony. Nor can an entry in a record be proved simply by calling someone who has checked the record.

Question 37

F17.88 - Discretionary exclusion of hearsay

Answer 37

• The residual mechanism for exclusion of prosecution evidence that poses a threat to the interests of justice remains s.78 PACE 1984, although there are many inbuilt provisions in the CJA 2003 itself
• There is no corresponding mechanism for the exclusion of unfair defence evidence.
• A narrower discretion does however exist in the form of s.126 under which defence evidence may be excluded where it is lacking in true probative value.

Question 38

F17.89 - Hearsay, loss of right to cross-examine and fair trial provisions

Answer 38

• Fairness-based arguments for the exclusion of hearsay evidence emphasise the loss of the important right to cross-examine a witness.
• Where a conviction is based ‘solely or to a decisive degree’ on statements made by a person whom the accused has had no opportunity to examine or have examined, the rights of the defence are restricted to the extent that it is incompatible with Art.6.
• CJA 2003 includes a rigorous scheme for testing the reliability and credibility of hearsay evidence (s.124) and an overriding safeguard to stop a case based on unreliable evidence (s.125).
• Where the untested hearsay evidence is ‘critical’, the question of whether the trial is fair depends on three principal factors:
  (1) good reason to admit the evidence
  (2) whether the evidence can be shown to be reliable
  (3) the extent to which counterbalancing methods exist and have been properly applied (this involves considering all the statutory safeguards in CJA 2003,, as well as common law safeguards such as proper directions on summing up).
• ‘it is also necessary to keep in mind the public interest in securing the conviction of the guilty, as indeed it is always imperative to have regard to the acquittal of the innocent and the avoidance of miscarriages of justice.’

Question 39

F17.90 - Illustrations of the courts’ approach

Answer 39

• Horncastle: victim of a serious beating gave a statement about how his injuries had been incurred, which was received following his death from an alcohol-related illness. Although the statements was critical evidence linking D to the attack, there was also substantial independent evidence of presence at the scene, D had ample opportunity to challenge V’s credibility, and the judge gave a full and clear direction about the disadvantages of challenging V on his memory and other relevant matters.
• Ibrahim: the evidence of V (the deceased victim of an alleged rape), though technically admissible, could not be shown to be reliable given V’s heroin addiction, the fact that she had admittedly made a false formal statement to police on a similar matter, and a long and unexplained delay in reporting the rape. The supporting evidence did not overcome doubts raised about V’s reliability, and her evidence should either have been excluded under s.78 PACE 1984 or the trial stopped under s.125 CJA 2003.

Question 40

F17.92 - Hearsay evidence of ID

Answer 40

• Right to challenge hearsay evidence especially important in cases where the weakness of the evidence is acknowledged, e.g. ID or recognition evidence.
• Where such evidence is hearsay and constitutes the principal prosecution case, courts should be reluctant to receive the evidence.
• Where hearsay ID evidence is admitted, an appropriate warning of the dangers of relying on it should be given.

Question 41

F17.34 - Hearsay admissible in the interests of justice (s.114 CJA 2003)

Answer 41

(1) [a] statement made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if–
(d) the court is satisfied that it is in the interests of justice for it to be admissible.

(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)–
(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 paragraph (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 it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

Question 42

F17.35 - Factors to be taken into account in the interests of justice evaluation under s.114

Answer 42

Where s.114(2) directs the court to have regard to certain factors, it does not follow that the judge has to reach a conclusion on all of them. All that is required is the exercise of judgment in light of the factors identified, together with anything else the judge considers to be relevant.

Question 43

F17.37 - Relationship of s.114(1)(d) with other hearsay exceptions

Answer 43

• Difficulty in balancing using it where the evidence ought to be admitted but no other exception applies, and using it to circumvent legitimate constraints of other provisions.
• Hierarchy of provisions: i.e. s.114(1)(d) should not be used to circumvent requirements of provisions higher up in the hierarchy

Question 44

F17.42 - Preserved common law exceptions

Answer 44

s.118 CJA 2003 saves the common law regarding the issue of public documents and information.

‘Any rule of law under which in criminal proceedings—

(a) published works dealing with matters of a public nature (e.g. histories, scientific works, dictionaries and maps) are admissible as evidence of facts of a public nature stated in them,
(b) public documents (e.g. 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 (e.g. 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 45

F17.48 - Evidence of reputation

Answer 45

CJA 2003 s.118(1) makes provision for saving the common law rules of admitting evidence of reputation to prove character, and the use of reputation or family tradition to prove or disprove pedigree, the existence of a marriage, or any public or general right, or the existence of a person or thing. With the exception of the rules concerning character, such evidence is rarely resorted to at common law. Such evidence is only admissible to the extent that it proves the matter concerned.

Question 46

F17.49 - Res gestae

Answer 46

CJA 2003 s.118(1) preserves the common law rules on res gestae.

4. 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 (e.g. intention or emotion)

Question 47

F17.50-52 - Res gestae statements in response to emotionally overpowering events

Answer 47

• ‘if the drama, leading up to the climax, has commenced and assumed such intensity and pressure that the utterance can safely be regarded as a true reflection of what was unrolling or actually happening, it ought to be received.’

(1) Primary question: can the possibility of concoction or distortion be disregarded?
(2) Consider the circumstances: was the event so unusual or startling as to dominate the thoughts of the victim, so that the statement was an instinctive response?
(3) For a statement to be sufficiently ‘spontaneous’, it must be so closely associated with the event which has caused the statement, that it can be fairly said that the event dominated the mind of the declarant.
(4) No possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused
(5) If only the ordinary fallibility of human recollection is an issue, this goes to the weight and not the admissibility of the evidence and is a matter for the jury.

Question 48

F17.60 - Res gestae Direction to jury

Answer 48

Where a spontaneous statement has been admitted as part of the res gestae, the judge must make it clear to the jury:

(a) 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;
(b) 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
(c) where there are special features that bear on the possibility of mistake, then the jury’s attention must be invited to those matters.

Question 49

F17.66 - Common law confessions and admissions

Answer 49

s. 118(1) preserves common law rules on confessions and admissions:
- any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings
- an admission made by an agent of a defendant is admissible against a defendant as evidence of any matter stated
- an statement made by a person to whom a defendant refers a person for information is admissible against the defendant as evidence of any matter stated.

• Used rarely now the CJA 2003 has taken effect. Confessions tendered by the prosecution are currently governed by s.76 PACE 1976, as are confessions adduced by a co-accused.

Question 50

F17.70 - Statements in furtherance of common enterprise

Answer 50

s.118 preserves
‘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 51

F17.71 - Scope of the rule for statements in furtherance of common enterprise

Answer 51

• Particularly associated with charges of conspiracy.
• e.g. D was charged with the murder of V, with whom he had entered into a suicide pact to die by taking poison. The plan miscarried and D survived. The purchase of poison by V was an act done in furtherance of common purpose, and so was admissible against D.

Question 52

F17.78 - Common law admissibility of body of expertise

Answer 52

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’

• However, an expert witness is not immune from all inhibition on hearsay. In some cases, the dividing line is between evidence of opinion, which may be informed by hearsay, and specific evidence of observable fact, which must be proved in accordance with the normal rules of evidence.

Question 53

F17.84-5 - Multiple hearsay

Answer 53

s. 121 CJA 2003
- only limited use can be made of multiple hearsay

(1) A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless–
(a) either of the statements is admissible under s.117, 119 or 120,
(b) all parties to the proceedings agree, or
(c) 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.

e. g. multiple hearsay such as ‘A told me that B told him that D shot V’ is not admissible even if both the statement by A and the statement by B fit into one or more of the hearsay exceptions (e.g. B’s is res gestae and A’s is admissible under s.116 because A has died since making it)
- The only exception is where one of the statements is admissible as a business document or as a previous statement by a witness in the case.
- e.g. test in s.121 was satisfied in relation to a complaint of false imprisonment which was relayed by two friends of the victim to a police officer. The complainant and the police officer (though not the two friends) were available for cross-exam.
- seems to be wrong to jump straight to s.121 without considering the other hearsay provisions first
- e.g. s.121(1)(c) satisfied where statements were taken from witnesses in Cyprus that they had heard D1 confess to three murders and related offences and implicate D2. The accounts contained details of the crimes that could only have been known to a participant so there was striking evidence of their reliability.
- e.g. confession of sexual touching of V, an 8 year old, allegedly made 50 years previously to D’s wife and reported by her to the mother of V, who told V. The mother had since died, and the wife denied that any such confession had been made. It was held that the evidence ‘could not possibly pass the test’ in s.121(1)(c).

Question 54

F17.86 - Evidence affecting the credibility of admissible hearsay

Answer 54

• CJA 2003 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 were present, but in addition, may also with the leave of the court give evidence of matters as to which the witness’ answers would have been final had the witness given evidence in person.
• s.124 cannot be deployed so as to admit bad character evidence to discredit hearsay witnesses where the evidence is not of substantial probative value.

Question 55

F17.87 - s.124 CJA 2003

Answer 55

(1) This section applies if in criminal proceedings–
(a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and
(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.
(2) In such a case–
(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;
(b) 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;
(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.

(3) If as a result of evidence admitted under this section an allegation is made against the maker of the statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.

Question 55

F17.87 - s.124 CJA 2003

Answer 55

(1) This section applies if in criminal proceedings–
(a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and
(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.
(2) In such a case–
(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;
(b) 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;
(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself.

(3) If as a result of evidence admitted under this section an allegation is made against the maker of the statement, the court may permit a party to lead additional evidence of such description as the court may specify for the purposes of denying or answering the allegation.

Question 56

F17.94 - Unconvincing and superfluous hearsay (s.126 CJA 2003)

Answer 56

(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if–
(a) the statement was made otherwise than in oral evidence in the proceedings, and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence.

Question 57

F17.98 - Power to stop trial where case based on hearsay (s.125 CJA 2003)

Answer 57

(1) If on a defendant’s trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that–
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of that offence, or, if it considers that there ought to be a retrial, dismiss the jury.

(2) Where–
(a) a jury is directed under subsection (1) to acquit a defendant of an offence, and
(b) the circumstances are such that, apart from this subsection, the defendant could if acquitted of the offence be found guilty of another offence,
the defendant may not be found guilty of that other offence if the court is satisfied as mentioned in subsection (1) in respect of it.

Question 58

F17.99 - Clarification of s.125 CJA 2003

Answer 58

‘at the close of all the evidence the judge is required, in a case where there is a legitimate argument that the hearsay is unconvincing and important to the case, to make up his own mind, not as a fact-finder (which is the jury’s function) but whether a conviction would be safe. That involves assessing the reliability of the hearsay evidence, its place in the evidence as a whole, the issues in the case as they have emerged and all the other individual circumstances of the case.’

• this is different from the principles of a submission of no case to answer contained in Galbraith, where the judge does not assess the reliability of the evidence. In hearsay cases, the judge is not only entitled but required to do so.

Question 59

CrimPR 20.2 - Notice to introduce hearsay evidence

Answer 59

(1) This rule applies where a party wants to introduce hearsay evidence for admission under any of the following sections of the Criminal Justice Act 2003—
(a) section 114(1)(d) (evidence admissible in the interests of justice);
(b) section 116 (evidence where a witness is unavailable);
(c) section 117(1)(c)439 (evidence in a statement prepared for the purposes of criminal proceedings);
(d) section 121 (multiple hearsay).

(2) That party must—
(a) serve notice on—
(i) the court officer, and
(ii) each other party;
(b) in the notice—
(i) identify the evidence that is hearsay,
(ii) set out any facts on which that party relies to make the evidence admissible,
(iii) explain how that party will prove those facts if another party disputes them, and
(iv) explain why the evidence is admissible; and
(c) attach to the notice any statement or other document containing the evidence that has not already been served.

(3) A prosecutor who wants to introduce such evidence must serve the notice not more than—
(a) 20 business days after the defendant pleads not guilty, in a magistrates’ court; or
(b) 10 business days after the defendant pleads not guilty, in the Crown Court.

(4) A defendant who wants to introduce such evidence must serve the notice as soon as reasonably practicable.

(5) A party entitled to receive a notice under this rule may waive that entitlement by so informing—
(a) the party who would have served it; and
(b) the court.

If notice is not given as this rule requires, then under section 132(5) of the 2003 Act—

(a) the evidence is not admissible without the court’s permission;
(b) if the court gives permission, it may draw such inferences as appear proper from the failure to give notice; and
(c) the court may take the failure into account in exercising its powers to order costs.

This rule does not require notice of hearsay evidence that is admissible under any of the following sections of the 2003 Act—

(a) section 117 (business and other documents), otherwise than as required by rule 20.2(1)(c);
(b) section 118 (preservation of certain common law categories of admissibility);
(c) section 119 (inconsistent statements);
(d) section 120 (other previous statements of witness); or
(e) section 127 (expert evidence: preparatory work)

Question 60

CrimPR 20.3 - Opposing the introduction of hearsay evidence

Answer 60

(2) That party must—
(a) apply to the court to determine the objection;
(b) serve the application on—
(i) the court officer, and
(ii) each other party;
(c) serve the application as soon as reasonably practicable, and in any event not more than 10 business days after—
(i) service of notice to introduce the evidence under rule 20.2,
(ii) service of the evidence to which that party objects, if no notice is required by that rule, or
(iii) the defendant pleads not guilty
whichever of those events happens last; and
(d) in the application, explain—
(i) which, if any, facts set out in a notice under rule 20.2 that party disputes,
(ii) why the evidence is not admissible, and
(iii) any other objection to the evidence.

(3) The court—
(a) may determine an application—
(i) at a hearing, in public or in private, or
(ii) without a hearing;
(b) must not determine the application unless the party who served the notice—
(i) is present, or
(ii) has had a reasonable opportunity to respond;
(c) may adjourn the application; and
(d) may discharge or vary a determination where it can do so under—
(i) section 8B of the Magistrates’ Courts Act 1980442 (ruling at pre-trial hearing in a magistrates’ court), or
(ii) section 9 of the Criminal Justice Act 1987443, or section 31 or 40 of the Criminal Procedure and Investigations Act 1996444 (ruling at preparatory or other pre-trial hearing in the Crown Court).

Question 61

CrimPR 20.4 - Unopposed hearsay evidence

Answer 61

(1) This rule applies where—
(a) a party has served notice to introduce hearsay evidence under rule 20.2; and
(b) no other party has applied to the court to determine an objection to the introduction of the evidence.

(2) The court must treat the evidence as if it were admissible by agreement.

Question 62

CrimPR 20.5 - Court’s power to vary rules

Answer 62

(1) The court may—
(a) shorten or extend (even after it has expired) a time limit under this Part;
(b) allow an application or notice to be in a different form to one set out in the Practice Direction, or to be made or given orally; and
(c) dispense with the requirement for notice to introduce hearsay evidence.

(2) A party who wants an extension of time must—
(a) apply when serving the application or notice for which it is needed; and
(b) explain the delay.

Question 63

F17.5 - Notice

Answer 63

• Notice required under CrimPR 20 for s.114(1)(d) evidence (admissible in the interests of justice), s.116 (where witness is unavailable), s.117(1)(c) (statement prepared for the purpose of criminal proceedings) and s.121 (multiple hearsay).
• Other forms of hearsay, including the common law exceptions and documents under s.117 other than those prepared for criminal proceedings do not require notice.
• The court may give leave to admit hearsay where notice has not been served, and the party entitled to notice may also waive the right.