14. Hearsay evidence Flashcards

Question

Can a statement be subject to multiple gateways to admissibility where it is hearsay?

Answer 1

Yes, such as res gestae and first-hand hearsay in which a person cannot attend the court.

Answer 2

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. 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, in respect of which it is particularly noteworthy that the criteria for admitting evidence in the 'interests of justice' under s. 114(2) have become central to the discretionary exclusion of evidence otherwise admissible under the Act's other hearsay exceptions The judge is also obliged to direct the jury, where hearsay evidence is received, as to the dangers of acting upon it

Answer 3

the main concern of the court, particularly in the more controversial cases of hearsay covered by s. 116(2) (death, illness, absence abroad, the lost witness, and fear) or by the interests of justice exception in s. 114(1)(d), is the risk of unreliability, and the extent to which the reliability of the evidence can safely be tested and assessed. Riat renders the statutory framework in six successive steps, an approach recently commended in Spraggon [2022] EWCA Crim 128 as being of particular benefit to the criminal justice system. (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? Although there is no rule to the effect that where the hearsay evidence is the 'sole or decisive' evidence in the case it can never be admitted, the importance of the evidence to the case against the accused is central to these various decisions.

Answer 4

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.

Answer 5

it was said that the direction should be given before the evidence is heard, and repeated in the summing-up.

Answer 6

For prosecution, S126 CJA, s78 PACE, and common law (Sang, prejudicial outweighing probative) For defence, s126(1)(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. Although capable of being narrowly construed as applicable only to 'superfluous' hearsay, s. 126(1)(b) may have a wider application, specifically in relation to hearsay that lacks probative value The starting point for any assessment of admissibility is that 'the necessity for resort to second-hand evidence must be demonstrated' and that this has implications not only for the question whether it is fair to admit a statement which satisfies one of the conditions laid down in s. 116(2), but also for the need for rigorous assessment of whether the condition is itself made out, in particular in relation to absent witnesses who may be fearful or who have absented themselves.

Answer 7

(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. (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. (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 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. (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). IN SUMMARY: A. Would it be admissible if given orally and do we know the person; AND B. Are they: a. dead, b. unfit, c. outside the UK and its not reasonably practicable, d. cannot be found despite reasonably practicable steps, e. through fear (either giving no evidence or just that contained in the statement, but the court must give leave) C. Fear is to be construed widely, including for death or injury of another or financial loss D. Leave for fear is only to be given after considering: a. the statement’s contents, b. risk of unfairness for its admission/exclusion and how hard it will be to challenge the statemnt if no oral evidence is given, c. what special measures may be given, and d. any other relevant circumstances E. any condition mentioned in B are to be treated as not satisfied (even if it is) if it is shown that the circumstances described are caused by: a. the person in support of whose case it is sought to give the statement or b. by a person acting on his behalf in order to prevent the relevant person giving oral evidence in the proceedings

Answer 8

Fear is to be construed widely, including for death or injury of another or financial loss

Answer 9

a. the statement’s contents, b. risk of unfairness for its admission/exclusion and how hard it will be to challenge the statement if no oral evidence is given, c. what special measures may be given, and d. any other relevant circumstances

Answer 10

A. any condition mentioned in B are to be treated as not satisfied (even if it is) if it is shown that the circumstances described are caused by: a. the person in support of whose case it is sought to give the statement or b. by a person acting on his behalf in order to prevent the relevant person giving oral evidence in the proceedings

Answer 11

Only for first-hand hearsay. Also where it would not be otherwise admissible (such as bad character). And the person must be identifiable so that s124 (subsitute of XX) can be invoked. Cannot be applied to anonymous witnesses (may be instead admissible under res gestae or interests of justice exception, but these exceptions cannot be invoked so as to allow witnesses to choose to provide evidence anonymously – can only be for untraceable witneses). Where a person makes a statement, but it is not clear whether the statement is based on personal knowledge or on something the maker has been told, the s. 116 statement should not be admitted. However, it may be admissible as multiple hearsay (such as in business documents). Applications under s. 116 most frequently concern statements in documents, but oral hearsay statements may also be tendered, as may statements made by conduct (for the meaning of 'statement' see s. 115(2) at F16.7). In Musone [2007] EWCA Crim 1237, a man who had been stabbed was asked 'what's happened, mate?' and replied 'Musone's just stabbed me'. The statement was admitted at D's trial for murder under s. 116. By the same token, a gesture or sign language similarly identifying the guilty party could be received.

Answer 12

Section 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. the defence was prevented from adducing the record of interview with T, who had been threatened by D and had subsequently fled abroad. D subsequently wished to refer to aspects of T's statement that were favourable to the defence, after the prosecution had decided not to adduce it. Section 116(5) prevented him from doing so. The threat did not have to be the main or primary cause of the witness's absence, provided it was at least one of the effective causes. To hold otherwise would significantly undermine the policy of the legislation. Further, the provision was not limited to steps taken by the accused after the commencement of proceedings, provided they were taken with the intent of preventing the attendance of the witness at the proceedings. 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.

Answer 13

It may move straight to the consideration of whether the principles of trial fairness permit the witness’ statement to be adduced.

Answer 14

Further investigation of the witness’ supposed condition is required to ensure the condition is satisfied. Provision focuses on the physical act of attending court AND the fitness of the witness when there to give evidence (including unfitness through a mental condition) Evidence of a mental condition, not clearly indicating unfitness, exacerbated by stress is not sufficient. However, a judge is entitled to take into account any future consequences giving evidence may precipitate (such as suicide). Trauma from a sexual assault, in absence of a mental condition, may suffice. Under the previous legislation, which was in similar terms, when a witness was unable to recollect relevant events, and medical evidence established that the cause was a mental disorder giving rise to great anxiety and failure of recall when under stress, the conditions of admissibility were satisfied (Setz-Dempsey (1994) 98 Cr App R 23). Other pertinent authorities under the 1988 Act include Elliott [2003] EWCA Crim 1695, where it was held that, 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. The effect of the witness's mental condition at the time the statement was made is, of course, a factor relevant to whether it should be excluded under s. 123 for lack of capability (see F17.23). In Eljack [2019] EWCA Crim 1038, V, the victim of an assault, had serious long-term mental health issues and suffered from delusions. His doctor's evidence was that giving evidence in person would exacerbate his condition, but that he was capable of giving a witness statement: if affected by delusion when doing so, this would have been readily apparent. It was held that V's statement was rightly admitted as hearsay. A further argument that, because V had himself been found fit to stand trial on a previous occasion, he could not be unfit to testify, was rejected: 'They are different tests which can self-evidently lead to different results'.

Answer 15

No. When deciding whether a trial would be unfair after a witness becomes unfit during XX, the judge is entitled to bear in mind that the whole of the evidence could have been received under s116.

Answer 16

Yes. However, it is rare and exceptional as there could be other ways of getting around it, such as: video link, allowing sworn evidence to be given from somewhere other than the witness box, frequent breaks, or restricting duration or terms of XX.

Answer 17

The evidence that must be provided to lay a foundation in these two cases is essentially what it is 'reasonable' to expect a party to do, whether that involves taking steps to secure the attendance of a person who is known to be abroad, or to find a person whose whereabouts are unknown. Depends on the circumstances, but pros 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. In Price v UK (2017) 64 EHRR 17, while the authorities had made 'significant efforts' to persuade a reluctant witness based in Antwerp to testify, the ECtHR said that it could reach 'no firm conclusion' as to whether all reasonable steps had been taken in the absence of more detailed submissions as to the reasons why the prosecution had not had recourse to further measures which may have been available (in that case, by virtue of the EU Convention on Mutual Assistance in Criminal Matters). While the absence of good reason is not (and was not in Price v UK) conclusive on the question whether a trial has been fair, it is an important factor. The courts emphasise the importance about keeping track of witnesses and their preparedness to testify. Thus, where a key prosecution witness who was in South Africa had a last-minute change of heart about attending the trial, it was said that what was reasonably practicable must be judged in the light of the steps taken by the party seeking to secure the attendance of the witness and that further inquiries as to the reasons for the witness's refusal should have been made. It was also said to be appropriate to provide evidence of whether the witness's account could have been secured by video link or by some other method that permits a degree of challenge by the defence. In McEvoy [2016] EWCA Crim 1654, the evidence of two German university students should not have been read where it was 'pivotal' to whether a child had been indecently assaulted, but no efforts had been made to contact them via their home or university addresses in the two months before the trial. Therefore, the prosecution’s keeping track of witnesses and preparedness is a vital matter for whether ‘reasonable steps’ have been taken. Similar considerations apply to witnesses who cannot be found. In Riat, Hughes LJ said, '[i]f 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'. the court expressed concern that trials should not proceed without formal inquiry (or at least an agreed statement of facts) on which to base a decision on admissibility if a person tells a witness cannot be traced, then that carries the implication that efforts had been made. If they have not been, the judge is being misled. In Adams [2007] EWCA Crim 3025, it was held that reasonable steps had not been taken in relation to a witness with whom there was no contact from the time when the trial date was fixed until the week before it started, when a message was left on his mobile phone to which he did not respond. This 'fell a long way short of what was, in practice, needed to get witnesses to attend court', although in that case, exceptionally, the evidence was admitted under s. 114(1)(d) Adams was considered in Murphy [2014] EWCA Crim 1457, where the prosecution had lost touch with the witness until just before the trial, but then made efforts to ensure his attendance, including seeking a witness summons which was served on him before he disappeared leaving no address. It was held that the judge was entitled to conclude that the prosecution had taken reasonable steps. To similar effect is Barnes [2020] EWCA Crim 959, where the witness appeared to be prepared to give evidence, albeit with special measures, until just before the re-arranged trial date, at which point steps were taken to serve a witness summons and to track down the witness, who had moved away. The Court of Appeal observed (at [18]) that 'there is a limit in any given case as to what is or is not “reasonably practicable”'. In Jones (Kane) [2015] EWCA Crim 1317, the complainant in an incident of significant domestic violence had disappeared, and no steps had been taken to secure her attendance despite concerns about her welfare, and indications that she might not appear. It was held that the process by which her evidence had been admitted at trial had not complied with the safeguards anticipated by the CJA 2003. The application had been made erroneously under s. 114(1)(d) (see F17.34) instead of s. 116, but both provisions required an investigation into the reasons why the witness could not attend the trial. As a matter of due diligence there were practical measures that could have been adopted to ensure the attendance and protection of the complainant, and while this might have involved delay this did not provide a sufficient basis upon which to admit the evidence in hearsay form.

Answer 18

the court expressed concern that trials should not proceed without formal inquiry (or at least an agreed statement of facts) on which to base a decision on admissibility on the reasonable steps.

Answer 19

Does not require such fear be attributable to the accused. Therefore, a co-accused creating the fear does not rise to a defence challenge. However, a causal link between the fear and failure/refusal to give evidence must be proved in a way decided on a case-by-case basis. Particular care is needed to tell the jury that the Defendant is the cause of the absence of the witness.

Answer 20

That clearly to allow the accused to benefit would be wrong and therefore is in a weak position to claim infringement of the right to a fair trial. However, still needs to be admitted under the same process – cannot skirt around that process just because it is intimidation. Fear needs to be proven in the same way. If they can be brought to court as hostile witnesses, then that is fine (i.e. they were unwilling, but not through fear). Where there has been intimidation, absence of any steps to get the accused to court is not fatal to the accused’s argument. All possible efforts should be undertaken to get her them to court, including giving evidence via all possibilities such as screens, though if it can be said the judge is entitled to take the view that no steps would help then they may not need to. One factor to take into account is existence of evidence, such as cctv, of the person directing a violent attack against C. The fact a complainant is not in court to tell the court their reason for the intimidation is not fatal. The witnesses should not be assured that the evidence will be read. Court should take into account the circumstances the statement was given in, any unfairness likely to be created, any difficulty in challenging the statement, and possibility of special measures. Not strictly a discretion but something akin to it. Issues of trial fairness, including an alleged infringement of the ECHR, Article 6(3)(d), can conveniently be subsumed within the s. 116(4) inquiry, but ultimately the issues are the same in fear cases as in other cases of challenge for unfairness based on Horncastle

Answer 21

It is admissible of any matter stated if: (a) oral evidence on it would have been admissible as evidence of that matter (b) it: a. was created in the course of a trade, business, profession, or occupation, or as the holder of office; b. the person who had supplied the information had or may reasonably have had personal knowledge of those matters, and c. each person through whom the information was supplied by the person who had personal knowledge received it in the course of a trade, business, profession, or occupation, or office (this could be the same person as b above) (c) and where it is prepared for the purposes of pending or contemplated criminal proceedings but not obtained pursuant to a request/order for overseas evidence, it must also: a. satisfy s116(2) (death of the person, unfit, not reasonably practicable, not found, through fear), or b. they cannot be reasonably expected to have any recollection of the matters in the statement. ALSO MUST BE NO DIRECTION STATING IT IS UNADMISSIBLE BECAUSE ITS RELIABILITY IS DOUBTFUL IN VIEW OF: (a) Its contents (b) The source of the info (c) The way in which or the circumstances in which the information was supplied, or (d) The way in which or the circumstances in which the information was created or received SUMMARY IS THIS: A. Would it be admissible if oral? If yes, B. Is it a business document? If yes, C. If not an overseas document: a. is the person supplying the info unavailable under s116(2)? If yes, Or b. will the person supplying the info reasonably be expected to have recollection of it, if no D. is it unreliable? If no, admit.

Answer 22

Documents for business, from liquidators, the NHS, transcript of evidence from a witness at and earlier trial, a police custody record, medical records

Answer 23

Not through s117 as it only applies to documentary evidence. Not can they confirm it by simply calling someone who has checked it.

Answer 24

(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 (i.e. what alternatives there are); (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. Does not need to reach a conclusion on all factors, but merely express a judgment in light of them and any other relevant ones. They are not a questionnaire to be answered. It follows that an appeal will only interfere if incorrect principles have been applied or it is outside the discretion. For an example of wrong application, for factors e-f the judge needs to express an opinion. It is not good enough to merely say the jury will express an opinion. In assessing potential defence interest, the judge should consider only the interest of arriving at the right conclusion, not merely the interests of the defence. A hearing for this cannot take account of material hearing on an ex parte application that was not available to the defence.

Answer 25

No. it is a safety valve exception. Thus, consideration needs to be given as to why any evidence did not qualify under the other gateway. Cannot be used to circumvent the regime. Thus, it should not be used to short cut s116 where the victim is available but merely does not wish to go through the evidence (not through fear) and where the prosecution had failed to take all proper steps to secure attendance. It obviously can’t be used where the normal hearsay route is barred because it is not in the interests of justice.

Answer 26

The rule for which: (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. Are preserved from hearsay.

Answer 27

yes. The CJA 2003, s. 118(1), makes specific provision for saving the common-law rules 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, any public or general right, or the existence of any person or thing. With the exception of the rules concerning character, such evidence is rarely resorted to at common law and is not dealt with in this work. Notice for such evidence is not required.

Answer 28

Where: (a) a person makes a statement when they are 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 if considered in conjunction with the statement (this exception is limited to cases where the words spoken are truly 'part and parcel' of an act such as identification; or (c) the statement relates to a physical sensation or a mental state this could be admissible as hearsay under res gestae

Answer 29

Needs to be proof of a close and intimate connection between the exciting events and making of the statement. Now mainly used in cases of violent assault where the complainant is reluctant to testify The test should be not the uncertain one, whether the making of the statement should be regarded as part of the event or transaction. This may often be difficult to show. But 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. The test is this: 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. An admissible res gestae statement may be derived from the accounts of two eye-witnesses, one (who later gave evidence) making an emergency call having witnessed a stabbing, in which she read a car registration number written down by the other (who was unable to be traced after the incident). Both witnesses were reacting spontaneously to the same shocking event.

Answer 30

Could be received under res gestae where there had been phone calls to the emergency services and the complainant later does not wish to testify through fear (though it may also go in through s116, the difference being under s116 special measures/other ways of getting her to court ought to be considered). Special measures are not of great significance for res gestae. Res gestae can also be used where the complainant fears reliving the events, as the prosecutor is entitled to have regard for the well-being of the complainant However, where the complainant does not wish to testify through fear, it is important that res gestae is not used to skirt round s116. Where the complainant has other reasons for not wanting to attend, such as through a wish to reconcile, then there may be some other equally difficult public interest issues in using res gestae statements. Where a complainant fails to turn up, the court should first consider why rather than just immediately going to res gestae. If fear was involving, consideration should be given as to what they could do to dispel that. The reasons for non-attendance are relevant to the exercise of discretion under s78 The criteria for the interests of justice hearsay exception is likely to be of some help. May also be admitted under s114(1)(d) where appropriate. Should consider supporting evidence of the statement (i.e. whether it was made on bodycam e.c.t.), whether the complainant could have been called, and whether the court could call them. All circumstances relevant to exercise of s78 and res gestae.

Answer 31

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' (at p. 302); (c) where there are special features that bear on the possibility of mistake, then the jury's attention must be invited to those matters. In Mills v The Queen [1995] 3 All ER 865, 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.

Answer 32

Yes, any rule of law relating to that admissibility is retained. However, mainly regulated by s76. The most important rule that is retained is the implied acceptance by the accused of a statement made in their presence, even where they are silent. To the extent that the admissibility of the self-serving parts of a mixed statement depends on factors not dealt with in the PACE 1984, s. 76, the common law is also preserved by s. 118(1).

Answer 33

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. IS PRESERVED

Answer 34

Yes. Any rule of law under which a statement made by a party to a common enterprise is admissible against another party to the enterprise as evidence of any matter stated is preserved. 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 (Brian) [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. Should be careful not to confuse this rule with the ‘identification principle’ for the controlling will and mind of a company, as evidence of a controlling mind is admissible as the company’s mind, not as a common enterprise.

Answer 35

Yes. The process of taking account of the work of other in the same field is an essential ingredient of the nature of expert evidence and as such is not subject to the hearsay rule. However, where an expert relies on the existence or non-existence of one fact which is basic to the question they are asked to give an opinion on, this fact must be proved by admissible evidence (of course, this is qualified by the fact that evidence can be given of preparatory findings without the need to call those who made the findings as witnesses). The common-law rule was considered by the Privy Council in Myers v The Queen [2015] UKPC 40. A police officer who had expertise in gang culture and had made a special study of the various gangs alleged to have been concerned in a series of shootings had given expert evidence relating to intra-gang loyalty with a view to demonstrating the motive of the accused. Having considered authorities, including Abadom and the decision of the Court of Criminal Appeal for South Australia in Cluse [2014] 120 SASR 268 (which also concerned evidence of gang culture), Lord Hughes said that it was clear that an expert witness was not immune from all inhibition on hearsay. In some cases, the dividing line was 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. But, as Lord Hughes said (at [65]): “… experts often give evidence of observable fact and such evidence may legitimately be, and very often is, informed by the accumulated body of knowledge collected by others as well as by the witness' own experience.” After giving relevant examples, Lord Hughes continued (at [66]): “The test of whether evidence based upon hearsay material can be given is better seen to be WHETHER IT CEASES TO BE THE EXPOUNDING OF GENERAL STUDY (whether by the witness or others) AND BECOMES THE ASSERTION OF A PARTICULAR FACT IN ISSUE IN THE CASE. The first is expert evidence, grounded on a body of learning or study; the second is not, even if it may be given by someone who is also an expert. The line between the two is case-specific, but it will usually be possible to discern it.”

Answer 36

Yes. (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. Therefore, multiple hearsay is not admissible unless: (a) it is a business document (b) a previous statement by a witness in the case (c) all parties agree (d) where the court is so convinced by the value of the evidence that it can invoe the ‘safety valve’ to admit it. In Walker [2007] EWCA Crim 1698, where it was held to be wrong to 'jump straight' to s. 121 without first locating a hearsay exception for each statement separately. The Court of Appeal noted the similarity of the wording of the two 'interests of justice' provisions. The difference is that under s. 121(1)(c) the value of the evidence must be 'so high' that its admission is required. In Thakrar [2010] EWCA Crim 1505, the Court approved of the use of s. 121 to admit statements taken in Northern Cyprus from witnesses who claimed to have heard D1 confess to three murders and related offences, and to implicate his co-accused D2. The fact that the accounts contained details of the crimes that could only have been known to a participant was held to provide striking evidence of their reliability. In Xhabri [2005] EWCA Crim 3135 (considered at F17.40), the 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 officer (though not the two friends) were available for cross-examination. The Court of Appeal considered that both s. 121(1)(a) (admissibility under other provisions) and s. 121(1)(c) (admissibility in the interests of justice) were satisfied. In A'Hearne [2022] EWCA Crim 1784, D had confessed to N that he had 'battered a girl', and N related the confession to C, a police officer. N did not give evidence through fear and C was too ill to attend the trial. The condition required by s. 121(1)(c), that the value of the evidence was so high that the interests of justice require admissibility, was satisfied, and the use of the criteria in s. 114(2) as a guide was commended.

Answer 37

The admissibility of evidence: (a) which would have been admissible as to credibility of a witness if he had given oral evidence (b) matters which would have been final had they given evidence in the proceedings (collateral matters?) (c) evidence of inconsistent statements admissible for the purpose ofshowing he contradicted himself if such evidence leads to an allegation being made against the maker of a statement, the court may permit a party to lead additional evidence as the court sees fit for the purposes of denying or answering the allegation. For the purposes of this section, where it is admitted under s117 each person who must have supplied or received the statement is treated as the maker of the statement and so the court can do any of the above.

Answer 38

They must undertake very full inquiries, in the case of important hearsay evidence for the prosecution. A mere check of the PNC would not suffice.

Answer 39

Yes, but subject to s100. It cannot be admitted just to smear their character where it is otherwise irrelevant.

Answer 40

For pros, S78, some of the provisions themselves (such as s116) have inbuilt parts. Should be ruled upon in advance. The existence of s125 (duty to stop a case) doers not mean that such a ruling should be delayed.

Answer 41

Generally no. there is no bar to a conviction being obtained solely or to a decisive degree on untested hearsay evidence as the regime parliament created was principled and full of safeguards. The ECHR later agreed with the UK on this. The court must be satisfied that there is good reason fort absence of the witness, as well as that a fair trial will be possible despite the opportunity to XX. This latter condition is harder to satisfy where the hearsay evidence is the main evidence. The Grand Chamber drew attention to a judge’s duty to stop a case where any such conviction would be unsafe. the core principle to be deduced is that, where the untested hearsay evidence is 'critical', the question of whether the trial is fair depends on three principal factors: (a) there is good reason to admit the evidence (b) whether the evidence can be shown to be reliable (c) the extend to which counterbalancing measures exist and have been properly applied. This includes the safeguards in the CJA 2003 and the application of common law safeguards and the summing up directions. There is no need for sole or decisive evidence to be independently verified. He just needs to ensure the evidence can safely be held to be reliable. Complainants suffering from mental health issues may dampen the reliability if crucial elements are not supported. Generally seems to be a direct proportional relationship between the importance of the evidence and the ned for it to be seen to be reliable. The bad character of an accused is not necessarily a reason for exclusion, even if it seems they are prepared to lie, provided the evidence available to the jury is that they can properly assess the risk of the witness having done so. The fact of there being vulnerable witness does not absolve domestic courts of their responsibility to ensure fairness when allowing witness statements to be read. If the prosecutor has delayed proceedings and, as a consequence, a witness is unable to testify, the court may exclude the witness’ statement on the basis that they should have proceeded earlier. Where the witness goes missing in circumstances which raise doubts about their reliability, it is unlikely it will be admitted. Two witnesses having statements in identical terms with some questions being unclear, the court should not admit the statement as the unfairness of not being able to cross-examine is particularly acute.

Answer 42

The right to challenge becomes particular important. The court should be very reluctant to receive such evidence. If it is received, an appropriate warning of the dangers of relying on it should be given.

Answer 43

S126: (a) it may refuse to admit it as evidence of a matter stated if: (b) the court is satisfied 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. Does not affect any other power the court may have. In addition to being concerned with stopping an undue waste of time on satellite issues, the court is given by this section a general discretion to exclude evidence which lacks significant probative value. CAN BE INVOKED TO EXCLUDE DEFENCE EVIDENCE

Answer 44

Where it finds it so unconvincing that the defendant’s conviction would be unsafe, the court must direct the jury to acquit or, if considering a retrial should be ordered, discharge the jury. This equally applies to offences where a jury can find an alternative if they are also satisfied that this case is also wholly or partly on unconvincing hearsay. This also applies to trials of fact for insanity cases. The point is not to be a fact-finder but to consider whether a conviction would be safe. Needs to consider the reliability of the hearsay, its place in the evidence, the issues in the case, and all the other individual circumstances. If it has not been shown to be reliable, the statement is ‘almost bound to be “unconvincing” in the way that a conviction would be unsafe”. This is a different test than Galbraith as here the judge needs to assess the strengths and weaknesses, the tools available to the jury for testing it, and its importance to the case as a whole.

Answer 45

Yes, for: S114(1)(d) interests of justice S116 (unavailability) S117(1)(c) (evidence in a statement prepared for the purposes of criminal proceedings) S121 (multiple hearsay) The OTHER forms of hearsay are EXEMPTED from the notice requirements. However, evidence admissible by agreement of the parties is not specifically exempted. We do not know it specifically applies. Notice must be served on the court officer and each other party, identifying the evidence that tis hearsay, any facts on which the party relies to make the evidence admissible, how that party will prove them, why the evidence is admissible, and attach the notice to any statement or other document containing the evidence that has not already been served.

Answer 46

The court may still give leave to admit it, and the party entitled to the notice may also waive the entitlement. The rules are not purely decorative and can be enforced. The court is not obliged to give leave to a co-accused who has failed to comply with the notice procedure.

Answer 47

For prosecutors, 20 business days after not guilty plea in the mags or 10 business days after not guilty in the crown. For defendants, as soon as reasonably practicable.

Answer 48

The party must apply to the court to determine the objection and serve the application on the court officer and each and every other party. Also serve the application asap and not more than 10 business days after service of notice to introduce, service of evidence if no notice is required, or the defendant pleads not guilty And explain why they object

Answer 49

At a hearing, in public or private or without a hearing Must not determine unless the party who served the notice is present or has a reasonable opportunity to respond. May also adjourn the application.

Answer 50

Potentially yes.

Answer 51

It must treat it as if it were admissible by agreement

Answer 52

It may: (a) shorten or extend even after expiry (b) allow notice to be in a different form or given orally; and (c) dispense with the requirement of notice

Answer 53

(a) Apply when serving the app or notice and explain the delay.

Answer 54

3 – statement/person/out of court 2 – intention of maker AND party adducing 4 – statute (s116/s117), common law (s118), agree, IOJ 5 – death, can’t be found, fear, unfit, outside UK

Answer 55

Beyond reasonable doubt for pros, BOP for defence

14. Hearsay evidence Flashcards

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