Unit 17&18 Hearsay

Question 1

S114(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—

Answer 1

a. any provision of this Chapter or any 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

What should the court take into consideration in considering the interests of justice under s114(1)(d)

Answer 2

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 paragraph (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 3

Can Hearsay evidence still be excluded in the usual ways?

Answer 3

Yes, if applicable. (s114(3) Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.)

Question 4

What is a Statement for the purposes of s115 Hearsay?

Answer 4

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.

Question 5

What is a Matter Stated for the purposes of s115 Hearsay?

Answer 5

A matter stated is one to which this Chapter applies 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 6

If a witness is not available to make oral evidence in the proceedings, what 3 conditions must be met for the court to consider it admissible?
S116(1)

Answer 6

116(1)In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as 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 mentioned in subsection (2) is satisfied.

Question 7

What are the “conditions” referred to in s116(1) that, if present, a court can then allow the evidence of an absent witness? (s116(2))

Answer 7

116(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 United Kingdom and it is not reasonably practicable to secure his attendance;
d. that the relevant person cannot be found although such steps as it 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.

Question 8

What does fear mean for the purposes of 116(2)(e)

Answer 8

116(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.
116 (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 to 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 section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
d. to any other relevant circumstances.

Question 9

What will the court have regard to in deciding whether “fear” under s116(2)(e) is appropriate for an absent witness’s evidence to be admissible?

Answer 9

116 (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 to 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 section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
d. to any other relevant circumstances.

Question 10

What are the limitations on s116(2) gateways for hearsay evidence with an absent witness?

Answer 10

116(5)A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if 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 11

When is a document admissible as Hearsay evidence?

s117(1)&(2)

Answer 11

S117(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.
117(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.

Question 12

What are the additional requirements for a document to pass as hearsay evidence if s117(4) applies and therefore s117(5)?

Answer 12

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—
I. a request under section 7 of the Crime (International Co-operation) Act 2003,
II. an order under paragraph 6 of Schedule 13 to the Criminal Justice Act 1988,
III. an order under Part 2 of the Criminal Justice (European Investigation Order) Regulations 2017, or
IV. an overseas production order under the Crime (Overseas Production Orders) Act 2019,
(all of which relate to overseas evidence)
117(5) The requirements of this subsection are satisfied if—
a. any of the five conditions mentioned in section 116(2) is satisfied (absence of relevant person etc), or
b. 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 13

Under s117(2) can the person who received the document in the course of business and the “relevant person” reasonably supposed to have personal knowledge of the matters dealt with in the statement, be the same person?

Answer 13

Yes, Under s117(3). The persons mentioned in paragraphs (a) and (b) of subsection (2) may be the same person.

Question 14

Can the court disallow documentary hearsay evidence even if it satisfies the criteria? If so, on what grounds?

Answer 14

S117(6) A statement is not admissible under this section if the court makes a direction to that effect under subsection (7).
S117(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 15

Under s118 what common law categories of admissibility are protected?

Answer 15

• Public information
• Reputation as to character
• Reputation or family tradition
• Res gestae
• Confessions
• Admissions by agents
• Common enterprise
• Expert evidence

Question 16

What does it mean under s118 that Public information is preserved in admissibility of hearsay?

Answer 16

118(1) 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 17

What does it mean under s118 that Reputation as to character is preserved in admissibility of hearsay?

Answer 17

118(2) Any rule of law under which in criminal proceedings evidence of a person’s reputation is admissible for the purpose of proving his good or bad character.
Note: The rule is preserved only so far as it allows the court to treat such evidence as proving the matter concerned.

Question 18

What does it mean under s118 that Reputation or family tradition is preserved in admissibility of hearsay?

Answer 18

118(3) Any rule of law under which in criminal proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving—
a) pedigree or the existence of a marriage,
b) the existence of any public or general right, or
c) the identity of any person or thing.
Note: The rule is preserved only so far as it allows the court to treat such evidence as proving or disproving the matter concerned.

Question 19

What does it mean under s118 that Res Gestae is preserved in admissibility of hearsay?

Answer 19

S118(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 (such as intention or emotion).

Question 20

What does it mean under s118 that “confessions” is preserved in admissibility of hearsay?

Answer 20

118(5) Any rule of law relating to the admissibility of confessions or mixed statements in criminal proceedings.

Question 21

What does it mean under s118 that Admissions by agents is preserved in admissibility of hearsay?

Answer 21

S118(6) Any rule of law under which in criminal proceedings—

a. an admission made by an agent of a defendant is admissible against the defendant as evidence of any matter stated, or
b. a 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.

Question 22

What does it mean under s118 that “Common Enterprise” is preserved in admissibility of hearsay?

Answer 22

S118(7) 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

What does it mean under s118 that Expert Evidence is preserved in admissibility of hearsay?

Answer 23

S118(8) 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

What is the impact of previous inconsistent statements on hearsay under s119?

Answer 24

119(1)If in criminal proceedings a person gives oral evidence and—
a. he admits making a previous inconsistent statement, or
b. a previous inconsistent statement made by him is proved by virtue of section 3, 4 or 5 of the Criminal Procedure Act 1865 (c. 18),
the statement is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
119(2) If in criminal proceedings evidence of an inconsistent statement by any person is given under section 124(2)(c), the statement is admissible as evidence of any matter stated in it of which oral evidence by that person would be admissible.

Question 25

What are the rules regarding the other statements of witnesses under s120?

Answer 25

ONLY IF THE WITNESS IS CALLED TO GIVE EVIDENCE.
2.If a previous statement by the witness is admitted as evidence to rebut a suggestion that his oral evidence has been fabricated, that statement is admissible as evidence of any matter stated of which oral evidence by the witness would be admissible.
3.A statement made by the witness in a document—
a. which is used by him to refresh his memory while giving evidence,
b. on which he is cross-examined, and
c. which as a consequence is received in evidence in the proceedings,
is admissible as evidence of any matter stated of which oral evidence by him would be admissible.
4.A previous statement by the witness is admissible as evidence of any matter stated of which oral evidence by him would be admissible, if—
a. any of the following three conditions is satisfied, and
b. while giving evidence the witness indicates that to the best of his belief he made the statement, and that to the best of his belief it states the truth.
5.The first condition is that the statement identifies or describes a person, object or place.
6.The second condition is that the statement was made by the witness when the matters stated were fresh in his memory but he does not remember them, and cannot reasonably be expected to remember them, well enough to give oral evidence of them in the proceedings.
7.The third condition is that—
a. the witness claims to be a person against whom an offence has been committed,
b. the offence is one to which the proceedings relate,
c. the statement consists of a complaint made by the witness (whether to a person in authority or not) about conduct which would, if proved, constitute the offence or part of the offence,
d. [omitted]
e. the complaint was not made as a result of a threat or a promise, and
f. before the statement is adduced the witness gives oral evidence in connection with its subject matter.
8.For the purposes of subsection (7) the fact that the complaint was elicited (for example, by a leading question) is irrelevant unless a threat or a promise was involved.

Question 26

What are the additional requirements for multiple hearsay under section 121?

Answer 26

(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 section 117, 119 or 120,
b. all parties to the proceedings so 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.
(2) In this section “hearsay statement” means a statement, not made in oral evidence, that is relied on as evidence of a matter stated in it.

Question 27

If a document containing a hearsay statement is admitted in evidence under 119 or 120 (inconsistent or previous statement) as an exhibit, what are the rules?

Answer 27

S122(2)the exhibit must not accompany the jury when they retire to consider their verdict unless—

a. the court considers it appropriate, or
b. all the parties to the proceedings agree that it should accompany the jury.

Question 28

Is the maker of a hearsay statement required to have capability to make a statement?

Answer 28

Yes, under s123.

1. Nothing in section 116, 119 or 120 makes a statement admissible as evidence if it was made by a person who did not have the required capability at the time when he made the statement.
2. Nothing in section 117 makes a statement admissible as evidence if any person who, in order for the requirements of section 117(2) to be satisfied, must at any time have supplied or received the information concerned or created or received the document or part concerned—
   a. did not have the required capability at that time, or
   b. cannot be identified but cannot reasonably be assumed to have had the required capability at that time.

Question 29

What is a person with the “required capability” under s123?

Answer 29

(3) For the purposes of this section a person has the required capability if he is capable of—
a. understanding questions put to him about the matters stated, and
b. giving answers to such questions which can be understood.

Question 30

What is the procedure where there is an issue as to the capability of a maker of a hearsay statement under s123?

Answer 30

(4) Where, by reason of this section, there is an issue as to whether a person had the required capability when he made a statement—
a. proceedings held for the determination of the issue must take place in the absence of the jury (if there is one);
b. in determining the issue, the court may receive expert evidence and evidence from any person to whom the statement in question was made;
c. the burden of proof on the issue lies on the party seeking to adduce the statement, and the standard of proof is the balance of probabilities.

Question 31

On what two grounds must a court direct a jury that the evidence is unconvincing? (s125)

Answer 31

125(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 the offence or, if it considers that there ought to be a retrial, discharge the jury.

Question 32

What is the court’s general discretion to exclude evidence?

Answer 32

126(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.
(also powers such as s78 available)

Question 33

Can an expert witness base an opinion on their statement?

Answer 33

127(2) In evidence given in the proceedings the expert may base an opinion or inference on the statement.
127(3) If evidence based on the statement is given, the statement is to be treated as evidence of what it states.

Question 34

Can confessions be used in evidence of a co-accused?

Answer 34

In any proceedings a confession made by an accused person may be given in evidence for another person charged in the same proceedings (a co-accused) in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
Unless it is represented to the court that the confession was or may have been obtained by oppression etc, then the court will not allow it, notwithstanding that it may be true.

Question 35

What are the rules regarding representations other than by a person?

Answer 35

129(1) Where a representation of any fact—
a. is made otherwise than by a person, but
b. depends for its accuracy on information supplied (directly or indirectly) by a person,
the representation is not admissible in criminal proceedings as evidence of the fact unless it is proved that the information was accurate.
129(2) Subsection (1) does not affect the operation of the presumption that a mechanical device has been properly set or calibrated.

Question 36

What types of evidence does Hearsay cover?

Answer 36

The hearsay rule is far-reaching, applying to both prosecution and defence. It covers not only the statements of non-witnesses, but also past statements made by a witness who is called to give oral evidence and who could therefore be cross-examined about what the witness has said previously (Horncastle). It applies to all statements, not simply to those made in anticipation of the trial itself and includes documents as well as oral statements. It follows that the rule catches some evidence, such as records of routine business dealings, that is intrinsically reliable, but this does not prevent it being hearsay: the reliability or otherwise of the evidence is relevant only to whether it may be received through an exception to the rule.

Question 37

Hearsay and Mechanically produced evidence (read)

Answer 37

Hearsay must be made by a person, but juries can still see CCTV etc. 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 38

Can a sketch be regarded as a statement for the purposes of hearsay?

Answer 38

Yes. Section 115(1) makes it clear that 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 the hearsay rule.

Question 39

Reliance on a matter stated except where the speaker doesn’t intend to cause the listener to believe the relevant matter

Answer 39

A common instance of reliance is where it is sought to establish the registration number of a car involved in an incident, and an eye-witness, 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.

Question 40

Is labelling products hearsay evidence of matters stated?

Answer 40

Yes. The labelling of items provides another frequent instance of hearsay. If goods are imported in bags marked ‘Produce of Morocco’, the marks are hearsay evidence of the country of origin.
The same result follows even where the information is indelibly stamped into the goods. Similarly, information stamped on to a document is hearsay evidence of the matters stated. In many instances the evidence is likely to be perfectly reliable, and admissible under the widely-drawn exception for business documents in s. 117, but the hearsay point should still be taken to ensure that the dangers can be properly assessed and that hearsay is not ‘nodded through.’

Question 41

What is the three-stage test for ascertaining whether communications are hearsay established in Twist?

Answer 41

1. Ascertain the matter sought to be proved. (concerned only with what it is that a party is seeking to prove. The purpose of the party in adducing a communication has therefore first to be ascertained.)
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 (perhaps because the communication is not a statement at all, but a question such as a request for drugs), no question of hearsay arises.
3. If the communication does state the matter, was it one of the purposes (not necessarily the only or dominant purpose) that the recipient, or any other person, should believe that matter or that a person should act upon the basis that it is as stated (or that a machine should operate on that basis)? If yes, it is hearsay; if no, it is not.
   In all the appeals heard in Twist, it could be said that there was a ‘common understanding’ between the parties to the communication that rendered it non-hearsay.

Question 42

Can text messages be hearsay? (read)

Answer 42

Yes but, messages cannot be hearsay if they are not trying to convince someone of something – e.g. text messages following a rape.
In Andrade [2015], the complainant, shortly after an alleged rape by A, received two text messages from D, an acquaintance who, according to the complainant, had aided A to commit the offence. The messages read ‘Sorry about that’ and ‘RU mad at me?’ The Court of Appeal, having allowed the appeal on other grounds, commented that it was not necessary to decide the ‘difficult point’ of whether the texts were hearsay, and, if so, whether they were admissible under the res gestae provisions of s. 118, because, whatever their proper classification, the texts should have been excluded under the PACE 1984, s. 78. There would have been difficulty for the defence in calling D as a witness and, in his absence, there was no realistic way for A to challenge the interpretation that D was apologising for colluding in the rape committed by A. Had it been necessary to decide the point, it would seem that neither text is hearsay, D’s purpose being to apologise for something that both he and the complainant know to have happened (inferentially the rape). As it is the rape that is the matter in issue, the absence of any purpose on D’s part to cause the complainant to believe that it occurred prevents the evidence from being hearsay.

Question 43

Is a diary entry admissible as hearsay?

Answer 43

No, because it is not intended for another to read. Exceptions have been made where diaries are shared for reason of record.

Question 44

What are the rules if, evidence has more than one purpose? (i.e. one being hearsay)

Answer 44

The hearsay rule is not infringed where a statement is tendered for some reason other than to establish the matter stated, but such evidence may be difficult to distinguish from hearsay. Upon application of the hearsay test, it is perfectly possible that evidence may be admissible, original evidence for one purpose, and inadmissible hearsay for another. Such cases require a very careful judicial direction as to the use to which the evidence may properly be put. 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 45

Is evidence relevant to state of mind admissible as hearsay or in its own right?

Answer 45

Where a state of mind is asserted by the speaker, with the purpose of causing another to believe it, the evidence is hearsay under the CJA 2003, s. 115(3). Such evidence may be admissible under the preserved res gestae exception in s. 118(1). A statement from which a state of mind may be inferred, on the other hand, may fall outside the definition of ‘matter stated’ in s. 115(3) and be classified as original evidence. This approach is consistent with authorities at common law.

Question 46

Are lies Hearsay?

Answer 46

No. A statement that is demonstrably false may show a consciousness of guilt. Under the CJA 2003, it would seem that a lie cannot be hearsay evidence of a matter that it is not intended to assert. In Minchin [2013] the Court of Appeal accepted that a statement containing the details of an alibi alleged to be false could be tendered by the prosecution without breaching the hearsay rule. ‘What mattered was the fact that it was said.’

Question 47

What are the additional safeguards for hearsay evidence?

Answer 47

They are 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; and s. 126, which 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 the PACE 1984, s. 78. In addition, all prosecution evidence is subject to the court’s general powers of discretionary exclusion, of which the PACE 1984, s. 78, is the most important. The judge is also obliged to direct the jury, where hearsay evidence is received, as to the dangers of acting upon it.

Question 48

What is the statutory framework for hearsay evidence?

Answer 48

The statutory framework can therefore usefully be considered in these successive steps.

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

Question 49

Where the judge permits hearsay evidence, when should such ruling be given?

Answer 49

Where 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 in light of the ruling. The direction should be given before the evidence is heard, and repeated in the summing-up.

Question 50

Does s116 apply to statements the maker has been told?

Answer 50

No. s116 (unavailable witness) only applies too statements based on personal knowledge. Multiple hearsay may be admitted under 121 (or 117 if documentary).

Question 51

If evidence is inadmissible for one reason (say bad character) can it be admitted if it satisfied the hearsay gateway?

Answer 51

No. The requirement that the oral evidence of the person who made the statement would have been admissible as evidence of the matter (s. 116(1)(a)) also 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 bad character that is not admissible)

Question 52

Can s116 apply to anonymous witnesses?

Answer 52

No. The witness must be identifiable, equally so the other party have the right to cross examination or invoke s124 (question credibility)

Question 53

Will absence abroad satisfy an absent witness under s116(c)?

Answer 53

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’.

Question 54

If a witness is “lost” what steps does the court expect to be taken?

Answer 54

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.

Question 55

To rely on s116(2)(e) must it be the accused that the witness is in fear of?

Answer 55

No. Can be a co-accused, other witness etc. However, a causal link between the fear and the failure or refusal to give evidence must be proved, and how it is proved depends upon the background together with the history and circumstances of the particular case. While it is in many cases possible for the jury to be told the reasons for a witness’s absence, this cannot generally be done in cases involving fear.

Question 56

If a witness is absent due to intimidation by or on behalf of the accused, can the evidence be admitted as hearsay or does this effect the fairness of the trial?

Answer 56

If the reason for the witness’s 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 infringement of the right to a fair trial. 
To allow the accused to engender the fear and then to benefit from it would be incompatible with the rights of victims and ‘no court could be expected to allow the integrity of its proceedings to be subverted in this way’.
But the problem posed by intimidation of witnesses, for example by organised criminals, does not provide a licence to prosecutors to resort to proof by hearsay, same way and to the same extent as in other cases where a witness is in fear.

Question 57

Why are business documents admissible as hearsay?

Answer 57

(Horncastle) ‘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 therefore admissible as evidence because prima facie they are reliable’

Question 58

Is the bad character of an absent witness a reason to exclude their evidence?

Answer 58

No. The bad character of an absent witness is not necessarily a reason for exclusion, even if it provides a basis for an inference of preparedness to lie, provided that the evidence available to the jury is such that they can properly assess the risk of the witness having done so.

Question 59

What measures can be put in place where vulnerable victims are required to give evidence, using the hearsay rules but ensuring reliability testing is available?

Answer 59

In AC [2014], the account of a child victim of rape was presented in hearsay form where she was too traumatised to testify. The tools to test the reliability of her description included the cross-examination of her mother, who had supported her through the disclosure process, and there was supporting evidence of DNA and indecent images of the child on AC’s computer.

Question 60

What does res gestae admissibility depend on?

Answer 60

A ‘close and intimate connection’ between the exciting events in issue and the making of the statement, the theory being that the spontaneity of the utterance is some guarantee against concoction.

Question 61

What must the judge ask themselves if deciding on res gestae for the admissibility of evidence? (read)

Answer 61

1. The primary question which the judge must ask himself is — can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.
3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. In the instant appeal the defence relied on evidence to support the contention that the deceased had a motive of his own to fabricate or concoct, namely, a malice which resided in him against O’Neill and the appellant because, so he believed, O’Neill had attacked and damaged his house and was accompanied by the appellant, who ran away on a previous occasion. The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not the admissibility of the statement and is therefore a matter for the jury. However, here again there may be special features that may give rise to the possibility of error. In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car. Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight. In such circumstances the trial judge must consider whether he can exclude the possibility of error.

Question 62

Upon admissibility of a res gestae “spontaneous” statement, what direction should be given to the jury?

Answer 62

Where a ‘spontaneous’ statement has been admitted in evidence 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 63

Must a direction be given to the jury as to the risk of mistaken identification?

Answer 63

In Mills v The Queen, the Privy Council rejected an argument that a specific direction must always be given as to the risk of mistaken identification by a dying man in a res gestae statement. The jury in that case had been adequately directed about the risks of mistaken identification in relation to the evidence of other witnesses, and fairness did not require a repetition.

Question 64

What is the scope of the rule preserving evidence of common enterprise?

Answer 64

The rule that the acts and statements of one party to a common purpose may be evidence against another is particularly associated with charges of conspiracy. However, it is not confined to such cases, and applies to other offences where complicity is alleged.
Thus, in Jessop (1877) 16 Cox CC 204, for example, 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. Field J held that evidence of the purchase of poison by V, being an act done in furtherance of the common purpose, was admissible against D. Another illustration is Jones [1997] 2 Cr App R 119, in which it was held that the rule applied to a joint enterprise to evade the prohibition on the importation of drugs, despite the fact that no charge of conspiracy was brought.

Question 65

Does the common law preservation of admissibility of Body of Expertise mean that expert evidence is not subject to the hearsay rule?

Answer 65

Technically speaking, where an expert draws on the work of others in order to form an opinion, an element of hearsay is necessarily involved. Whether this is objectionable or not depends on the nature of the work referred to. In Abadom [1983], it was accepted that ‘the process of taking account of information stemming from the work of others in the same field is an essential ingredient of the nature of expert evidence’, and as such is not subject to the hearsay rule.
Where, however, an expert relies on the existence or non-existence of some fact which is basic to the question on which the expert is asked to give an opinion, that fact must be proved by admissible evidence.

Question 66

What gateway MUST evidence be admissible under to then be admitted as multiple hearsay?

Answer 66

121 or 117.
Under this provision, 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 within one or more of the various exceptions to the hearsay rule (e.g., B’s statement is a spontaneous statement made as part of the res gestae, and A’s statement is admissible under s. 116 because A has died since making it). The only exceptions to this principle are where one of the statements is admissible as a business document (s117) or a previous statement by a witness in the case, or where the court is so convinced by the value of the evidence that it can invoke the special ‘safety valve’ in s. 121(1)(c).

Question 67

What is the opposing party entitled to do if it

Answer 67

The opposing party is entitled to put in evidence anything which would have been admissible if the witness had been present, but in addition, and in order to counterbalance the absence of cross-examination, may also with the leave of the court give evidence of matters as to which the witness’s answers would have been final had the witness given evidence in person

Question 68

Does section 124 (credibility) only apply to hearsay evidence?

Answer 68

Appears to have general effect.

Question 69

What is the scope of s126 to exclude unconvincing or superfluous hearsay?

Answer 69

Section 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’, the case for exclusion outweighs the case for admission. Section 126 operates without prejudice to the common-law power to exclude evidence on the ground that its prejudicial effect outweighs its probative value, or the general discretion to exclude prosecution evidence under the PACE 1984, s. 78.

Question 70

What test should the court apply in deciding whether to exclude unconvincing or superfluous hearsay under s126?

Answer 70

The Court also indicated a ‘strong preliminary view’ that s. 126 is not limited to cases in which the reception of the hearsay would generate undue waste of time on satellite issues. Rather it creates a general discretion under which a court can exclude evidence that ‘lacks significant probative value’.

Question 71

What is the difference between excluding unconvincing or superfluous hearsay under s126 and the Galbraith test for a submission of no case to answer?

Answer 71

Galbraith does not require the judge to look at the reliability of the evidence?
A judge should have uppermost in his or her mind the question of whether an untested hearsay statement has been shown to be reliable in light of all the other evidence adduced. If not, and the statement is ‘part of the central corpus of evidence without which the case on the relevant count cannot proceed’, the statement is ‘almost bound to be “unconvincing” such that a conviction based on it will be unsafe’.
The difference between cases subject to s. 125 and the general principles on submission of no case to answer contained in Galbraith, where it is no part of the function of the judge to assess the reliability of the evidence. In hearsay cases the judge is not only entitled but is required to see whether the hearsay evidence is so unconvincing that any conviction would be unsafe. ‘That means looking at its strengths and weaknesses, at the tools available to the jury for testing it, and at its importance to the case as a whole.’

Question 72

Which hearsay gateways require notice under CrimPR Part 20?

Answer 72

A party proposing to tender a hearsay statement in evidence under the CJA 2003, ss. 114(1)(d) (evidence admissible in the interests of justice), 116 (evidence where a witness is unavailable), 117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings) and 121 (multiple hearsay).

Question 73

What hearsay gateways do not require notice?

Answer 73

Other forms of hearsay, including common-law exceptions and documents admissible under s. 117 other than those prepared specifically for criminal proceedings, do not require notice.
(114(1)(d), 116 and 117(1)(c) require notice)

Question 74

Can the court give leave to admit hearsay evidence where notice has not been served?

Answer 74

The court may give leave to admit hearsay where notice has not been served, and; the party entitled to notice may also waive the entitlement. (The court is not obliged to give leave to a co-accused who has failed to comply with the notice procedure)