W7

Question 1

What is the definition of hearsay?

Answer 1

Hearsay is a statement made out of court (either in writing or orally) and repeated in court to prove the truth of that statement. The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents.

Question 2

What is the general rule regarding the admissibility of hearsay evidence?

Answer 2

The general rule is that hearsay is inadmissible, but there are exceptions to this

Question 3

What is the significance of the ECHR Article 6 right to a fair trial in relation to hearsay evidence?

Answer 3

The ECHR Article 6 right to a fair trial may be engaged where hearsay evidence is admitted.

Question 4

What are some potential problems associated with hearsay evidence?

Answer 4

Some potential problems associated with hearsay evidence include: the lack of opportunity for cross-examination, the risk of unfairness to the defendant, and the potential for unreliable or untested evidence.

Question 5

What are some circumstances where evidence of words spoken out of court is not considered hearsay?

Answer 5

Evidence of words spoken out of court is not considered hearsay when: 1) The purpose of adducing the evidence is to show the effect that the words had on the person to whom they were said, rather than to prove the truth of what was said. 2) The words have significance as a matter of law. 3) The evidence is being adduced to show that the words were spoken, rather than that they were true. 4) The evidence is being adduced to show the state of mind of the maker of the statement. 5) The evidence is being adduced to show falsehoods or lies.

Question 6

What are the three principal factors that determine whether there can be a fair trial when hearsay evidence is critical to the case?

Answer 6

When hearsay evidence is critical to the case, whether there can be a fair trial depends on three principal factors: 1) Whether there is a good reason to admit the evidence pursuant to the Criminal Justice Act 2003. 2) Whether the evidence can be shown to be reliable. 3) The extent to which counterbalancing measures have been properly applied, such as exclusionary discretion and proper directions to the jury in summing up.

Question 7

What is the test used to determine whether a communication is hearsay?

Answer 7

The test used to determine whether a communication is hearsay is a three-part test: 1) Identify what relevant fact (matter) it is sought to prove. 2) Ask whether there is a statement of that matter in the communication. - If yes, ask whether it was one of the purposes of the maker of the communication that the recipient should believe or act upon the matter as true. - If yes, it is hearsay. - If no, it is not.

Question 8

What are some examples of evidence that are not considered hearsay?

Answer 8

Examples of evidence that are not considered hearsay include: private diary entries where the writer did not intend for anyone else to read it, CCTV footage created without human input, questions asked in a communication, evidence of words spoken out of court to show the effect of the words or the state of mind of the speaker, and evidence of falsehoods or lies.

Question 9

What is the definition of unfitness to be a witness?

Answer 9

Unfitness to be a witness refers to a person’s inability to give evidence due to their bodily or mental condition. It does not refer to their physical ability to attend court, but rather their ability to provide testimony once there. The condition that makes a person unfit does not have to be a medical condition.

Question 10

How is fear defined in the context of witness testimony?

Answer 10

n the context of witness testimony, ‘fear’ is widely construed and includes fear of the death or injury of another person or of financial loss. Leave may be given to admit a statement made out of fear only if the court considers that it is in the interests of justice, taking into account the statement’s contents, the risk of unfairness to any party, the difficulty of challenging the statement without oral evidence, and any other relevant circumstances.

Question 11

How does intimidation of a witness affect the admissibility of evidence?

Answer 11

If intimidation of a witness by a defendant is clearly proved or believed to a high degree of probability, the defendant cannot complain that their right to a fair trial has been infringed due to the inability to cross-examine the witness. This is stated in Section 116(5) of the Criminal Justice Act 2003.

Question 12

What are the requirements for admitting a statement contained in a document as evidence?

Answer 12

A statement contained in a document is admissible as evidence if oral evidence given in the proceedings would be admissible as evidence of that matter and if 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. The person who supplied the information in the statement must have had personal knowledge of the matters dealt with, and each person through whom the information was supplied must have received it in the course of a trade, business, profession, or other occupation.

Question 13

What are the procedural requirements for introducing hearsay evidence?

Answer 13

If any of the exceptions to the rule against hearsay apply, the court has the discretion to exclude otherwise admissible hearsay evidence if: (1) a business document or the statement’s reliability is doubtful; (2) the case depends wholly or partly on unconvincing hearsay evidence; (3) the hearsay evidence is superfluous; or (4) the hearsay evidence is unfair prosecution evidence. If the exceptions do not apply and the parties do not agree, the court has discretion to admit hearsay evidence if it is in the interests of justice to do so.

Question 14

Hearsay may be admissible if:

Answer 14

· the witness is unavailable (s.116);
· it is a business document (s.117)- however, the court has the discretion to exclude such a business document if it is satisfied that the statement’s reliability is doubtful (s.117(6) and(7))
· it is in the interests of justice to admit it (s.114(1)(d)).

Question 15

What are some common law exceptions to the rule against hearsay?

Answer 15

Some common law exceptions to the rule against hearsay include public information, evidence of reputation, res gestae, confessions, statements in furtherance of a common enterprise, and the body of expertise. These exceptions allow certain statements to be admissible as evidence under specific circumstances.

Question 16

What is the res gestae exception to the rule against hearsay?

Answer 16

The res gestae exception allows a statement to be admissible as evidence if it was made by a person who was emotionally overpowered by an event, if the statement accompanied an act that can only be properly evaluated in conjunction with the statement, or if the statement relates to a physical sensation or mental state. The res gestae exception requires that the possibility of concoction or distortion can be disregarded and that the statement was made when the person’s mind was still dominated by the event.

Question 17

What are the requirements for admitting previous inconsistent statements as evidence?

Answer 17

Under Section 119 of the Criminal Justice Act 2003, a previous inconsistent statement that a witness admits to having made or that is proved to have been made by the witness is admissible as evidence of the matter stated. This is an exception to the rule against hearsay and allows such statements to be used as evidence.

Question 18

What are the requirements for admitting previous consistent statements as evidence?

Answer 18

Sections 120(2) and 120(4) of the Criminal Justice Act 2003 make previous consistent statements admissible as evidence if they were admitted to rebut a suggestion of recent fabrication or as recent complaint evidence. This is an exception to the rule against hearsay and allows such statements to be used as evidence.

Question 19

What factors should the court consider when deciding whether to admit evidence in the interests of justice?

Answer 19

When deciding whether to admit evidence in the interests of justice, the court should consider factors such as the probative value of the statement, the availability of other evidence on the matter, the importance of the matter in the context of the case, the circumstances in which the statement was made, the reliability of the maker of the statement, the difficulty in challenging the statement, and any other relevant circumstances.

Question 20

What are the requirements for admitting business documents as evidence?

Answer 20

Under Section 117 of the Criminal Justice Act 2003, a statement contained in a document is admissible as evidence if 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. The person who supplied the information in the statement must have had personal knowledge of the matters dealt with, and each person through whom the information was supplied must have received it in the course of a trade, business, profession, or other occupation.

Question 21

What are the extra rules that apply to documents prepared for criminal proceedings?

Answer 21

Documents prepared for the purposes of pending or contemplated criminal proceedings are subject to additional rules. These rules require that either one of the conditions mentioned in Section 116 is satisfied or that the person who supplied the information in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement, considering the length of time since the information was supplied and all other circumstances. The determination of whether a document was prepared for the purposes of pending or contemplated criminal proceedings depends on the circumstances in which the document was made.

Question 22

Under what circumstances can the court exclude evidence that would otherwise be admissible under Section 117?

Answer 22

The court can exclude evidence that would otherwise be admissible under Section 117 if it is satisfied that the statement’s reliability is doubtful in view of its contents, the source of the information, the way in which the information was supplied or received, or the way in which the document concerned was created or received. The court should consider the factors listed in Section 114(2) that are relevant to decisions on the admission of evidence in the interests of justice.

Question 23

Under what circumstances is a hearsay statement admissible to prove an earlier hearsay statement?

Answer 23

A hearsay statement is admissible to prove an earlier hearsay statement if either of the statements is admissible under specific sections of the CJA 2003, all parties to the proceedings agree, or the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose.

Question 24

What is the effect of the rule regarding multiple hearsay?

Answer 24

The effect of the rule is that multiple hearsay is never allowed through any of the exceptions in section 116 or through any of the preserved common law exceptions in section 118.

Question 25

How can the credibility of a hearsay statement be challenged?

Answer 25

The credibility of a hearsay statement can be challenged by allowing the opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination. This includes matters on which the witness’s answers in cross-examination would have been final.

Question 26

Under what circumstances can a case be stopped if it depends on unconvincing hearsay evidence?

Answer 26

A case can be stopped if it depends wholly or partly on hearsay evidence and that evidence is so unconvincing that, considering its importance to the case against the defendant, the defendant’s conviction of the offence would be unsafe. In such cases, the judge must either discharge the jury and order a retrial or direct the jury to acquit the defendant.

Question 27

What provision allows the court to exclude hearsay evidence that would result in undue waste of time?

Answer 27

Section 126 of the CJA 2003 allows the court to exclude hearsay evidence that would otherwise be admissible if the admission of the evidence would result in undue waste of time. This provision can be used to exclude hearsay evidence proffered by either the prosecution or the defense.

Question 28

What should the jury be reminded of regarding hearsay statements that have been admitted at trial?

Answer 28

The jury must be reminded that a hearsay statement that has been admitted at the trial was not given on oath and was not tested in cross-examination. The risks of relying on hearsay evidence should be pointed out, and the jury should be warned to scrutinize it with particular care. If there are concerns about the quality of a particular piece of hearsay evidence, the attention of the jury should be drawn to the limitations on the usefulness of that piece of evidence.

Question 29

When is notice required for introducing hearsay evidence?

Answer 29

Notice is required when a party intends to introduce hearsay evidence under specific sections of the CJA 2003. The notice must identify the hearsay evidence, set out the facts relied on that make the evidence admissible, explain how those facts will be proved if they are disputed, and explain why the evidence is admissible. The evidence must be attached to the notice if it has not already been served.

Question 30

What are the time limits for serving notice of hearsay evidence?

Answer 30

The prosecution must serve notice not more than 20 business days after a not guilty plea in the magistrates’ court or 10 business days after a not guilty plea in the Crown Court. A defendant must serve notice as soon as reasonably practicable.

Question 31

What should a party do if they object to the introduction of hearsay evidence?

Answer 31

A party objecting to the introduction of hearsay evidence must serve an application on the court and every other party as soon as reasonably practicable and not more than 10 business days after either the service of the notice to introduce the evidence, the service of the evidence objected to (if no notice is required), or the defendant pleads not guilty. The application must explain which facts set out in the notice to introduce the evidence are disputed, why the evidence is not admissible, and any other objection to the evidence.

Question 32

What are the preliminary issues relating to witnesses?

Answer 32

The preliminary issues relating to witnesses include competence and compellability. Competence refers to whether a witness is permitted to give evidence to the court, while compellability refers to whether a witness can be compelled to give evidence.

Question 33

What is the rule regarding expert evidence?

Answer 33

The rule regarding expert evidence is that witnesses are generally called upon only to be witnesses of fact. However, opinions from witnesses are received if the opinion is given in relation to commonplace occurrences about which the witness’s perception appears relevant and proper, or if the witness is an expert.

Question 34

What is the general principle regarding privilege against self-incrimination?

Answer 34

The general principle is that courts will uphold a witness’s right to refuse to answer questions or disclose documents if doing so would make that person liable to incriminate themselves. However, this privilege cannot be claimed to protect another person or to protect against possible liability in a civil court.

Question 35

What is the difference between litigation privilege and advice privilege?

Answer 35

Litigation privilege applies when the purpose of communication with a lawyer is to advance or act in a process of litigation. Advice privilege applies when the purpose is to obtain advice more generally. Different rules apply to these two purposes/privileges.

Question 36

Under what circumstances can legal professional privilege be waived?

Answer 36

Legal professional privilege can be waived either explicitly or by conduct. However, as a rule, a person cannot waive privilege partially. Only the person entitled to claim privilege can waive it.

Question 37

What are some of the issues considered in the examination of witnesses?

Answer 37

Some of the issues considered in the examination of witnesses include oaths and affirmations, examination in chief, form of questioning, memory refreshing, hostile witnesses, previous consistent statements, res gestae, suspect’s response to police allegation, complaints, recent fabrication, cross-examination, and re-examination.

Question 38

What is the purpose of an oath or affirmation in court?

Answer 38

As a general rule, all witnesses must either take an oath before giving evidence or make an affirmation. The purpose is to ensure that witnesses understand the solemnity of the occasion and the responsibility to tell the truth.

Question 39

When can leading questions be asked during cross-examination?

Answer 39

Leading questions, which contain factual statements indicating the desired answer, can be asked during cross-examination if the witness’s account is challenged on a particular point or if the witness has been deemed hostile.

Question 40

What is the purpose of memory refreshing during examination in chief?

Answer 40

During examination in chief, witnesses are allowed to refresh their memory by referring to their earlier written statement. This is done to provide a better recollection of events and ensure accurate testimony.

Question 41

What is the significance of a witness being treated as hostile?

Answer 41

If a witness is treated as hostile, the party calling that witness can cross-examine them and put their previous statement to them as the truth of the matter. Any inconsistent statement presented to a witness can be used to prove the truth of its contents.

Question 42

What is the general rule regarding the use of previous consistent statements as evidence?

Answer 42

As a general principle, an allegation made by a witness does not become more reliable simply because the witness repeated the allegation on numerous occasions. However, there are exceptions where the court will hear evidence of an earlier consistent complaint or statement.

Question 43

What is the doctrine of res gestae?

Answer 43

The doctrine of res gestae allows for the admissibility of a statement made as an immediate reaction to a crime being committed against the statement maker. It is admissible to prove the truth of the implied allegation.

Question 44

What types of statements made by suspects to the police are admissible in court?

Answer 44

Statements made by suspects in response to police allegations, whether confessional or involving self-serving denials of guilt, are admissible in court. The use and purpose of these statements may vary.

Question 45

What is the ‘doctrine of recent complaint’?

Answer 45

The ‘doctrine of recent complaint’ is a common law principle that states the quicker someone complains about an allegation, the more likely the complaint is to be reliable. The Criminal Justice Act 2003 made complaints admissible when the complainant testifies that the earlier complaint was made and was true.

Question 46

When can a witness rebut an allegation of ‘recent fabrication’?

Answer 46

A witness can rebut an allegation of ‘recent fabrication’ by showing that an earlier statement was made to the same effect as the statement being challenged. The court must consider the provisions of the Criminal Justice Act 2003 in deciding whether there is an earlier complaint that can rebut the allegation.

Question 47

What are some of the issues to consider during cross-examination?

Answer 47

During cross-examination, issues to consider include the form of questioning, previous inconsistent statements, restrictions on collateral matters, and re-examination.

Question 48

What can major changes in a witness’s account indicate?

Answer 48

Major changes in a witness’s account can provide valuable insights into the credibility of the witness.

Question 49

Who determines if questions in cross-examination ‘cross the line’?

Answer 49

The judge determines if the questions in cross-examination ‘cross the line’. They can also determine if a matter has been sufficiently explored and can put time limits on peripheral or already covered issues.

Question 50

What restrictions exist on questions that can be put to victims/complainants of sexual offences?

Answer 50

Questions about the victim’s general promiscuity or other sexual behavior are not allowed without leave of the court. The law carefully guards what questions can be put to victims/complainants of sexual offenses.

Question 51

What is the rule of finality to collateral matters in trials?

Answer 51

The rule of finality to collateral matters prevents trials from splintering into multiple insignificant disputes about credibility-related matters that are collateral to the issues in the case.

Question 52

What is re-examination and what are the rules for asking questions during re-examination?

Answer 52

Re-examination is a stage in a trial where the party calling the witness may ask further questions after cross-examination. The questions in re-examination should follow the same rules as examination in chief, which means no leading questions unless the matter is not in dispute, and witnesses can refresh their memory if necessary.

Question 53

What is a hostile witness?

Answer 53

A hostile witness is a witness called by a party who gives evidence not in accordance with their statement, which is damaging to the party calling them.

Question 54

What factors determine whether a witness statement can be read in court?

Answer 54

If the court accepts that the witness will not give evidence through fear, then it will consider whether admission of the statement will result in unfairness to the defendant as they will be unable to challenge the statement. The court may also consider using special measures to alleviate the witness’s fears.

Question 55

What determines the admissibility of a written statement from an unfit witness?

Answer 55

The admissibility of a written statement from an unfit witness depends on whether the court accepts that the witness is unfit to give evidence. If accepted, the statement may be admitted as hearsay, but the court will consider whether its admission will result in unfairness to the defendant and whether special measures can be used to alleviate the witness’s fears.

Question 56

What questions should be challenged during cross-examination in a trial for assault?

Answer 56

The question ‘Did you fall over when hit?’ should be challenged during cross-examination in a trial for assault. This is a leading question that assumes the defendant was hit.

Question 57

Under what circumstances can evidence of a threat be admissible as hearsay?

Answer 57

Evidence of a threat can be admissible as hearsay if it is in the interests of justice to admit it and the threat is not corroborated.

Question 58

What happens if a witness is unfit to give evidence in a trial?

Answer 58

If a witness is unfit to give evidence in a trial, their written statement may be admissible as hearsay if there is evidence to establish their unfitness. The defence can challenge the admission on the basis that it would have an adverse effect on the fairness of the case.

Question 59

What determines the admissibility of a written statement from a witness who is unavailable to give evidence?

Answer 59

The admissibility of a written statement from a witness who is unavailable to give evidence depends on whether the court accepts that the witness is unfit to be a witness. If accepted, the statement will be admissible as the witness is unavailable.

Question 60

• Spouse/ civil partner?

Answer 60

competent for any party. Can only be compelled for the prosecution in specified cases of domestic violence (if the victim is themselves) and/ or child sexual abuse (under 16). Can be compelled to give evidence for their spouse/ civil partner.