Unit 17 - Hearsay

Question 1

Under s114 CJA, what are the four grounds in which a statement not made in oral evidence is admissible as evidence of any matter stated?

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

TRUE or FALSE. Hearsay only applies to evidence adduced by the prosecution.

Answer 2

FALSE. Applies to evidence of both parties.

Question 3

TRUE or FALSE. Hearsay can apply to documents.

Answer 3

TRUE.

Question 4

Define ‘statement’ as per s115 CJA.

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

TRUE or FALSE. Out-of-court statements are hearsay if tendered as evidence of consistency.

Answer 5

FALSE. That relates to the rule against self-serving statements.

Question 6

TRUE or FALSE. Statements must be made by a person.

Answer 6

TRUE.

Question 7

Define ‘matter stated’ under s115.

Answer 7

A matter stated is one to which the 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;
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.

Question 8

TRUE or FALSE. Evidence is only hearsay where it is sought to establish the truth of the matter.

Answer 8

TRUE.

Question 9

Outline the three stage test, in Twist, for ascertaining whether communications are hearsay.

Answer 9

(1) Ascertain the matter sought to be proved. The purpose of the party adducing the communication has to be ascertained.
(2) Is there a statement of that matter in the communication?
(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)?

Question 10

Are statements found in diarys hearsay?

Answer 10

Usually not - they weren’t written for the purpose of making anyone believe!

Question 11

Can hearsay evidence be admitted where it also has another purpose beyond establishing the matter stated?

Answer 11

Yes.

Question 12

Section 124 CJA covers:

Answer 12

The testing of credibility where the maker of a hearsay statement does not attend to testify.

Question 13

Section 125 CJA covers:

Answer 13

The power to stop a case where evidence is unconvincing

Question 14

Section 126 covers:

Answer 14

Specific discretion to exclude hearsay evidence that is in addition to the court’s existing range of discretions at common law and under PACE s78.

Question 15

What is the order of steps for admitting hearsay evidence, as per Riat?

Answer 15

Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (ss. 116 to 118)?

What material is there which can help to test or assess the hearsay (s. 124)?

Is there a specific ‘interests of justice’ test at the admissibility stage?

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))?

Even if prima facie admissible, ought the evidence to be ruled inadmissible (PACE 1984, s. 78, and/or CJA 2003, s. 126)?

If the evidence is admitted, should the case subsequently be stopped under s. 125 ?

Question 16

What are the five conditions for admitting hearsay evidence under s116?

Answer 16

the relevant person is dead;

the relevant person is unfit to be a witness because of his bodily or mental condition;

the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;

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 17

Leave under the fear ground in s116 will only be given if:

Answer 17

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 (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 18

A ground for admittance under s116 is to be treated as unsatisfied if the circumstances are caused:

Answer 18

(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 19

TRUE or FALSE. S116 only applies to first-hand hearsay.

Answer 19

TRUE.

Question 20

The requirements of s117(2) CJA are satisfied where:

Answer 20

the document or the part containing the statement was created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,

the person who supplied the information contained in the statement (the relevant person) had or may reasonably be supposed to have had personal knowledge of the matters dealt with, and

each person (if any) through whom the information was supplied from the relevant person to the person mentioned in paragraph (a) received the information in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

Question 21

On what basis can a court hold evidence admissible under s117 inadmissible?

Answer 21

If satified that the statement’s reliability as evidence for the purpose for which it was 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 22

What factors must the court consider in relation to admitting hearsay evidence in the interests of justice?

Answer 22

(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 23

TRUE or FALSE. S118 preserves the common law rule regarding the issue of certain public documents and information.

Answer 23

TRUE.

Question 24

TRUE or FALSE. S118 abolished the common law rules on admitting evidence of reputation to prove character.

Answer 24

FALSE. It saved them.

Question 25

What is res gestae under s118?

Answer 25

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 26

Res gestae admissibility depends on what, according to Lord Ackner in Andrews?

Answer 26

The close and intimate connection between the exciting events in issue nad the making of the statement, the theory being that the spintaneity of the utterance is a guarantee against concoction.

Question 27

According to Andrews, what must be considered in relation to a res gestae case?

Answer 27

Can the possibility of concotion be disregarded?

Consider circumstances in which the statement was made;

Was V’s mind still dominated by the event;

Any possibility of malice in the statement?

Possibility of error

Question 28

What must a judge make clear to a jury where a ‘spontaneous’ statement has been admitted in evidence as part of the res gestae?

Answer 28

(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 29

Section 121 concerns what?

Answer 29

Multiple hearsay

Question 30

A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless -

Answer 30

(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.

Question 31

Section 124 governs

Answer 31

The admissibility of evidence directed towards discrediting earsay statement, where the maker of the statement does not give oral evidence in connection with the subject-matter of the statement.

Question 32

Under section 126, the court may refuse to admit statements as evidence of matters stated if

Answer 32

(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 33

Under s125, when can the court direct the jury to acquite D or discharge the jury?

Answer 33

If satisfied after close of the prosecution’s case 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,