Trial and Hearsay

Question 1

Pre-trial matters in the Crown Court

Answer 1

There are no more hearings in the magistrates’ court for:

• indictable only matters; or
• triable either way matters where:
• the defendant is sent for trial by the magistrates’ court; or
• the defendant elects Crown Court trial.

There will be a Plea and Trial Preparation Hearing (PTPH) and there may be other hearings. The possible further applications and hearings are the focus of this element.

· PTPH (must happen in all cases)

· Further applications (possible further hearings)

· Trial

Question 2

Further applications

Answer 2

Some cases require no further hearings post PTPH. That’s either because there is nothing to determine or because the PTPH judge decided that the trial judge could deal with any outstanding matters on the day of trial, usually before the trial begins.

What follows is an examination of some of these further applications. As you read them, please bear in mind that they could be made:

• in either the magistrates’ court or Crown Court;
• at the PTPH, or another pre-trial hearing (with the exception of a change of plea); or
• on the day of trial, before the trial starts or at some convenient point during the trial.

Question 3

Applications to exclude evidence or introduce otherwise inadmissible evidence

Answer 3

The defence may wish to exclude evidence that the prosecution proposes to adduce using s.78 of the Police and Criminal Evidence (PACE) Act 1984; either party may want to introduce otherwise inadmissible evidence such as bad character or hearsay (which are covered in separate elements).

This can be dealt with at:

• the PTPH (rare as the judge would not usually have time)
• at a hearing on a day at some point between PTPH and trial (less common); or
• on the day of trial before the trial starts (most common).

Question 4

Special measures

Answer 4

Special measures are the arrangements put in place to assist witnesses in giving evidence before a court. The purpose behind them is to allow children, the vulnerable and those in fear or distress about testifying, to testify in an environment that best enables them to give their evidence. The court must consider which measures will maximise the quality of the evidence.

A screen, for example, is not a slight on the defendant or a presumption of their guilt (and a jury must be told this if one is used) but a measure to enable the witness to give their best evidence.

Question 5

Special measures- types

Answer 5

In order to assist witnesses to give evidence in the criminal courts a number of ‘special measures’ are available. The Youth Justice and Criminal Evidence Act (YJCEA) 1999 sets out the range of special measures available. These are as follows:

• The use of screens (the witness will be screened from the defendant and the public gallery) (s.23 YJCEA)
• Live TV link (where the witness sits in a room away from the courtroom) (s.24)
• Giving evidence in private (public gallery cleared) (s.25)
• Removing wigs and gowns by barristers and judges (s.26)
• Video recording of evidence in chief (s.27)
• Pre-recording cross-examination and re-examination (s.28 – partially in force)
• Questioning of a witness through an intermediary (s.29)
• Aids to communication (s.30)

Please note that testifying through an intermediary and aids to communication are not available for witnesses who are eligible for special measures due to being in fear but the other special measures will be available for such witnesses.

Question 6

Special measures- eligibility

Answer 6

Eligibility for special measures is dealt with by s.16 to s.18 of the YJCEA. The following categories of witness are eligible for special measures:

• All witnesses aged under 18 at the time of trial (or video recording) are automatically eligible (s.16 YJCEA).
• Witnesses who have a mental disorder, or a significant impairment of intelligence and social functioning, or a physical disability/disorder are eligible where the court considers that due to any such matter the quality of their evidence is likely to be diminished (s.16 YJCEA).
• Witnesses who are in fear or distress about giving evidence and the court is satisfied that the quality of their evidence will be diminished because of this (s.17 YJCEA).
• All adult complainants of sexual offences (s.17 YJCEA).
• All adult complainants in certain offences under the Modern Slavery Act 2015 (including forced labour and human trafficking).
• All witnesses in a case involving a ‘relevant offence’, namely serious offences, including offences of homicide or involving firearms or knives (s.17 and Sch 1A YJCEA).

Question 7

Special measures- additional types

Answer 7

In addition to the special measures available to witnesses mentioned already, other measures exist or can be put in place to protect witnesses. These include:

• Witness Anonymity Orders (Coroners and Justice Act 2009 Part 3 Chapter 2)
• Automatic anonymity of complainants in sex cases (Sexual Offences (Amendment) Act 1992)
• Prohibition of cross-examination by defendants in person of complainants in sex cases and of child witnesses in certain cases involving violent and sexual offences (YJCEA ss.34 to 38)
• Restricting the reporting of witnesses’ identity (YJCEA s.46)

Question 8

Vulnerable defendants

Answer 8

In certain circumstances the defence can apply for measures to assist particularly vulnerable defendants in order to facilitate their effective participation in the trial process.

An application can be made for the defendant to give their evidence via a ‘live link’.

The court must be satisfied that it would be in the interests of justice and the ‘live link’ would improve the quality of accused’s evidence because either:

• the accused is under 18 and the accused’s ability to participate effectively as a witness giving oral evidence is compromised by their ‘level of intellectual ability or social functioning’ (s.33A(4) YJCEA 1999), or
• the accused is 18 or over and the accused is unable to participate effectively as a witness giving oral evidence because the accused has a mental disorder or a ‘significant impairment of intelligence and social function’ (s.33A(5) YJCEA 1999).

The court also has the power to direct that a vulnerable defendant be assisted by an intermediary to help the defendant understand what is going on. But only those defendant’s most in need, such as those with comprehension or communication difficulties, will be entitled to one.

The role of an intermediary is to assist communication of evidence. They are independent and owe their duty to the court. An intermediary might be used to assist a disabled defendant with communication difficulties, for example.

Intermediaries can also be used to assist witnesses, such as very young witnesses or those with learning difficulties, for example. Before questioning of the witness begins, the intermediary can assist the judge and counsel to understand what types of questions are likely to confuse so that the advocates can carefully prepare their questioning. When the witness or defendant is being questioned by counsel, the intermediary will usually stand near to the witness and can help by explaining the questions and answers. In practice, advocates will usually question the witness directly and the intermediary will only step in if there is some kind of miscommunication.

Question 9

Witness summons and warrants

Answer 9

In the majority of cases, the police are responsible for securing the attendance of prosecution witnesses and defence solicitors are responsible for ensuring that defence witnesses attend court when required to do so.

However some witnesses are not keen to be witnesses and try to avoid attending court. They may be giving evidence against a notorious and dangerous criminal, or a friend or relative of theirs, or they might hold information that they think should be confidential. In those cases, either the prosecution or defence can ask the court to issue a witness summons.

The summons can either be for the person to attend on the day of trial to give live evidence, or for the witness to produce a document. Both the Crown Court and magistrates’ court has the power to issue a witness summons.

The test for the party seeking the summons is that:

• the witness is likely to be able to give evidence that is likely to be material evidence (or to produce a material document); and
• it is in the interests of justice to issue a summons.

If a witness disobeys a witness summons and does not attend without a ‘just excuse’ then the courts can issue a warrant for the arrest of the witness. Failure to act as required to do so by the summons can be punishable as a contempt of court.

Question 10

Applications to change plea

Answer 10

From not guilty to guilty

Defendants can change their mind and choose to change their plea from not guilty to guilty.

A defendant who has pleaded not guilty can, at any time before the jury return their verdict, ask through their Counsel that the ‘indictment be put again’ (or charge sheet in the magistrates’ court). The clerk will read the indictment and the defendant can plead guilty. This usually happens before trial but from time to time a defendant might decide midway through a trial that they want to end the process by pleading guilty. It is rare, but it can and does (occasionally) happen. Usually though, defendants change their minds on the day of trial either for tactical reasons or because they were hoping that prosecution witnesses would not attend to give evidence, but realise they now have. Strictly speaking, you need the leave of the judge/magistrates to have the indictment/charge sheet put again, but asking that it be put again is sufficient. If the trial is taking place in the Crown Court and the jury have already been put in charge of the case, they should be directed to return a formal verdict of guilty.

From guilty to not guilty

This is significantly more difficult! Defendants who plead guilty can, at any time before they are sentenced, apply to the court for leave to change their plea from guilty to not guilty, but judges should exercise their discretion judicially and sparingly, although even where the plea was unequivocal the discretion to allow it to be changed still exists.

Where a defendant has been represented properly a court would invariably reject the application to vacate their guilty plea and allow them to enter a fresh not guilty plea.

Represented properly means:

• proper advice has been given to the defendant;
• no undue pressure has been exerted on the defendant; and
• the defendant’s plea was clearly unequivocal.

An application of this nature will frequently feature a defendant waiving privilege (considered in another element) to establish matters such as the nature of the advice they acted upon.

In practice, then, although it is always a matter for the court, the two most common scenarios in which the rarely exercised discretion will properly be applied are where either:

• The defence can show that the prosecution has no evidence of an essential ingredient of the offence; or
• The defendant was improperly placed under undue pressure to plead guilty or was materially misadvised by D’s legal team.

Both of those scenarios are likely to result in criticism of Counsel who appeared when the defendant pleaded guilty and perhaps the solicitor too. It is therefore usual practice that Counsel or both Counsel and the solicitor withdraw from the case and the defendant seeks fresh representation. Where that happens, defendants may want to give evidence of their conference with Counsel or seek that Counsel explain how and why they advised the defendant to plead guilty. Both require the defendant to waive legal privilege.

Question 11

Hearsay

Answer 11

Relevance

Subject to the exclusionary rules, all evidence, which is sufficiently relevant to the facts in issue, is admissible. All evidence which is irrelevant to the facts in issue should be excluded.

Excluding evidence

It does not follow that all relevant evidence is admissible. If an exclusionary rule applies it does not matter how relevant the evidence in question may be, it will be inadmissible.

Hearsay

The rule against hearsay states that a statement made out of court may not be presented in evidence as proof of its contents.

The general rule is that hearsay is inadmissible which is an example of an exclusionary rule.

Question 12

Tackling potential hearsay

Answer 12

The exclusionary rule as it relates to hearsay evidence is one that causes problems for many practitioners of criminal law, even those who are very experienced.

It is important to address possible hearsay evidence in a structured manner.

There are two questions to be asked and they must be kept separate. Any attempt to tackle both questions at once will lead to confusion.

Does the evidence fall within the definition of hearsay evidence? If the answer to this question is ‘yes’, then it is prima facie inadmissible.

Does it fall within one of the exceptions to the general exclusionary rule?

Question 13

Fair trial

Answer 13

The UK Supreme Court and the European Court of Human Rights have considered the effect of hearsay evidence on the fairness of trials. The principles that emerge from the decided cases are:

• The UK statutory framework for the admission of the evidence of absent witnesses is sufficient, properly applied, to provide for a fair trial.
• The court must always be satisfied that there is a sufficient basis for the absence of the witness and that a fair trial will be possible.
• It will be harder for the court to be satisfied that a fair trial will be possible if the evidence of the absent witness is the sole or decisive evidence against the accused.
• Where the hearsay evidence is critical to the case, the question of whether there can be a fair trial depends on three principal factors:
• Whether there is a good reason to admit the evidence pursuant to the CJA 2003;
• Whether the evidence can be shown to be reliable; and
• The extent to which counterbalancing measures have been properly applied, eg exclusionary discretion, proper directions to the jury in summing up.

Question 14

The Criminal Justice Act (CJA) 2003

Answer 14

There is a general rule that hearsay evidence is inadmissible.

Section 114 CJA 2003 provides that hearsay is admissible if, but only if, it falls within one of the exceptions in s.114(1).

Section 114(1) CJA 2003 reads:

‘114 Admissibility of hearsay evidence

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

(a) any provision of this Chapter or 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 15

Statements and matters stated

Answer 15

Section 115 CJA 2003 reads:

‘115 Statements and matters stated

(1) In this Chapter references to a statement or to a matter stated are to be read as follows.

(2) 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.

(3) 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 16

Is it hearsay?

Answer 16

The effect of s.114(1) and s.115 taken together was considered in R v Twist [2011] EWCA Crim 1143.

The Court of Appeal reformulated the sections as a test that determines whether or not a communication is hearsay. It is in three parts:

Identify what relevant fact (matter) it is sought to prove.

Ask whether there is a statement of that matter in the communication.

· If no, then no question of hearsay arises (whatever other matters may be contained in the communication).

If yes, ask whether it was one of the purposes (not necessarily the only or dominant purpose) of the maker of the communication that the recipient, or any other person, should believe that matter or act upon it as true.

· If yes, it is hearsay.

· If no, it is not.

Question 17

Not hearsay

Answer 17

• Private diary- It follows from the definition of hearsay that anything written in a private diary where the writer did not intend that anyone else should ever read it cannot be hearsay. This is because there is no intention on the part of the maker of the statement that any other person should believe anything.
• CCTV- section 115(2) contains the words ‘… made by a person …’, so no issue of hearsay arises where the piece of evidence in question was created entirely by a device such as a CCTV system without any human input.
• Questions- Where there is no statement of a matter, eg where the communication consists only of the asking of a question, the court in Twist thought that no issue of hearsay could arise.

In Twist the communications in question were text messages received by the defendant asking for drugs. There was no statement that he was a drug dealer (which was the matter that the prosecution sought to prove), so the messages were not hearsay and were admissible. The court went on to say that even if on these facts there was an implied statement that the recipient of the messages was a drug dealer, it was certainly not the intention of the sender of the message to make the recipient believe that fact. Applying s.115(3) means that on that interpretation the messages are still not hearsay.

Question 18

Hearsay and original evidence

Answer 18

Very often evidence of words spoken out of court will be admissible as original evidence. In many cases the purpose of the party adducing the evidence will be to show that the words were spoken, rather than that they were true. If that is the case, the evidence is not hearsay because it is not being admitted as ‘evidence of any matter stated’.

Examples of original evidence include evidence of threats made to a person. Where the threat is along the lines of, ‘if you don’t do what I say, I shall harm you’, the evidence is usually being adduced to show that the threat was made, not that the maker of the threat would indeed cause harm to the person addressed.

Original evidence can also be adduced to show the state of mind of the maker of the statement.

In Ratten v R [1972] AC 378 the defence to an allegation that D murdered his wife was that the gun had gone off by accident. Evidence of a 999 call made by the deceased shortly before the killing was admitted to show that she was in a distressed state at that time.

Question 19

Not hearsay

Answer 19

• To show the effect of words - In general, if the purpose of adducing evidence of words spoken out of court is to show the effect that the words had on the person to whom they were said, rather than to show the truth of what was said, the evidence is not hearsay. Therefore, where a defendant wants to reveal solicitor’s advice to show why a “no comment” interview was given, that evidence is not hearsay.
• Legally significant words - Where the words spoken have significance as a matter of law, they are not hearsay. Therefore, an offer of sexual services in exchange for money is admissible to show that the premises on which the words were spoken is a brothel. In this example the making of the offer is itself part of the definition of “brothel”.
• Falsehoods - It follows from the definition of hearsay in s.114 that there can be no hearsay where a party adduces evidence of what was said out of court while asserting that it is not true. Therefore, the prosecution can give evidence of the defendant giving a false alibi to show that the defendant was trying to avoid being convicted of the offence.

Question 20

Exceptions to the exclusionary rule

Answer 20

A statement is hearsay if:

• it is made out of court; and
• the person that made it intended another person to believe it; and
• it is adduced as evidence of the matter stated (s.114(1) and s.115 Criminal Justice Act 2003).

Section 114(1) provides that hearsay is not admissible unless it falls into one of the four exceptions to the general exclusionary rule:

• any of the statutory exceptions in the CJA 2003 apply;
• any of the common law exceptions preserved under the CJA 2003 apply (s.118 will be covering in detail in a separate element);
• all the parties agree; or
• the court uses its statutory discretion to admit the hearsay, in the interests of justice.

Question 21

Admissible hearsay

Answer 21

Hearsay may be admissible if:

• 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)); or
• it is in the interests of justice to admit it (s.114(1)(d)).

Note the court has discretion to exclude unfair prosecution evidence (s.78 PACE).

Separate elements discuss s.78 PACE.

Question 22

Unavailable witnesses

Answer 22

Section 116 reads:

‘116 Cases where a witness is unavailable

(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.’

Section 116 requires that the maker of the statement is identified, so it cannot be used to introduce anonymous hearsay. It does not allow in evidence that would have been inadmissible in live evidence, such as evidence of bad character that is not admissible through one of the gateways in ss.100 or 101.

Question 23

Unfitness to be a witness (s.116(2)(b))

Answer 23

Unfitness of a person to be a witness because of their bodily or mental condition refers not to their fitness to physically attend court, but to their ability to give evidence once there. There is no requirement that the condition that makes a person unfit should be a medical condition. The trauma of having been the victim of a sexual assault can qualify.

Question 24

Unavailable witnesses

Answer 24

Witness outside the UK and it is not reasonably practicable to secure attendance (s.116(2)(c))

Witness cannot be found (s.116(2)(d))

In deciding whether it is reasonably practicable for the witness to attend or whether steps taken to find the witness were reasonably practicable, the court has to consider the normal steps taken to secure the attendance of a witness. Cost is a relevant factor and it has to be balanced against the importance of the evidence that the witness would give. Subsection 116(2)(c) should be read as referring to the impracticability of securing the attendance of the witness either in person or by videolink.

Question 25

Fear

Answer 25

‘Section 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.

(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.’

There is no requirement that the fear that is felt by the witness should have been caused by the defendant.

Authorities differ as to how the court should approach an enquiry as to whether the reason for the absence of a witness is fear.

In Davies [2007] 2 All ER 1070 it was said that courts are ill-advised to seek to test the basis of fear by calling witnesses before them.

In later cases, especially Shabir [2012] EWCA Crim 2564 the Court of Appeal took the view that every effort should be made to get the witness to court to test the issue of ‘fear’.

It is very important that when police officers seek to persuade a witness to attend court to give evidence, they do not give the witness any assurance that their witness statement can be read to the court if they are afraid to attend. This would provide the witness with an obvious incentive to say that they are in fear.

The court has to be satisfied to the criminal standard that the witness does not give evidence through fear. A causative link between the fear and the failure to give evidence must be established.

Question 26

Intimidation

Answer 26

In Sellick [2005] EWCA Crim 651 the Court of Appeal made clear that where intimidation of a witness by a defendant is either clearly proved or the court believes to a high degree of probability that that is the case, the defendant cannot complain that the right to a fair trial has been infringed on the basis that the defence was not able to cross-examine the witness. See also s.116(5) of the CJA 2003.

Question 27

Business documents, etc

Answer 27

The wording of s.117(2)(a) is wide enough to ensure that the section covers a lot of documents that are not in any sense business documents.

It covers, for example:

• medical records; and
• any statement written down by a police officer in the course of duty.

Question 28

Documents prepared for criminal proceedings

Answer 28

There are extra rules that apply to documents prepared for the purposes of pending or contemplated criminal proceedings.

Subsections (4) and (5) of s.117 require that for those documents to be admissible, either:

• one of the five conditions mentioned in s.116 is satisfied; or
• the person who supplied the information contained in the statement cannot reasonably be expected to have any recollection of the matters dealt with in the statement (having regard to the length of time since the information was supplied and all other circumstances).

The question of whether or not a document was prepared for the purposes of pending or contemplated criminal proceedings will usually be easy to answer once the circumstances in which the document was made are known.

Generally all witness statements and all entries in police notebooks made in the course of an investigation into an alleged offence will fall within the definition.

Question 29

Exclusion

Answer 29

Sections 117(6) and(7) add to the general exclusionary discretion in s.78 PACE 1984 in that they allow the court to exclude evidence that would otherwise be admissible under s.117 if it is satisfied that the statement’s reliability 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.

When considering whether to admit or exclude evidence through the gateways created by ss.116 and 117, the court should take into account the factors listed in s.114(2) that are relevant to decisions on admission of evidence in the interests of justice.

Question 30

Interests of justice

Answer 30

CJA 2003, s.114(1)(d) allows the admission of hearsay evidence where the court is satisfied that it is in the interests of justice to admit it.

Section 114(2) requires the court when deciding whether it is in the interests of justice to admit evidence of the following (and anything else it considers relevant):

(a) How much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case

(b) What other evidence has been, or can be, given on the matter or evidence mentioned in 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

The application of s.114(1)(d) should be approached with caution. It is not intended to be a way of getting round the failure of a particular piece of evidence to fit into any of the other exceptions to the exclusionary rule.

For example, an attempt to use s.114(1)(d) failed in a case where a witness was reluctant to come to court to give evidence because she did not want to relive the trauma of the sexual assaults that would have been the subject of her evidence. The Court of Appeal held that the prosecution was trying to circumvent s.116, which does not recognise that reason for admitting hearsay evidence.

Section 114(1)(d) certainly cannot be used to repair failings on the part of the party seeking to adduce the evidence.

Where the Crown has failed to take reasonable steps to find a witness or to secure the witness’s attendance, so that s.116(2)(c) or(d) cannot be used, they cannot fall back on s.114(1)(d) and say that the evidence should be admitted in the interests of justice.

Question 31

Public information

Answer 31

Admissible public information includes:

• published works dealing with matters of a public nature such as dictionaries and maps;
• public documents such as public registers; and
• records such as court records and public treaties.

Also, a person may give evidence of their age and the place of their birth despite the fact that they will have been told these things by someone else.

Question 32

Evidence of reputation

Answer 32

The common law rule allowing the admission of evidence of reputation as to character, to prove character, is preserved.

Question 33

Res gestae

Answer 33

Section 118 also preserves the common law rule that 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).

R v Andrews [1978] AC 281- The leading case. The res gestae rule does not require that the statement is made as part of the action of the offence. What is required is that the possibility of concoction can be excluded. The court must be satisfied that the event to which the statement relates was so unusual or startling or dramatic as to dominate the thoughts of the victim so that the utterance was an instinctive reaction to that event. The statement must be made at a time when the mind of the person making the statement was still dominated by the event.

Where res gestae evidence is admitted, it must be made clear to the jury that they must be satisfied that there was no mistake on the part of the witnesses as to what had been said to them. They must be satisfied that there was no concoction on the part of the maker of the statement. Where there are special features that bear on the possibility of mistake, the attention of the jury must be drawn to them.

In domestic violence cases the res gestae exception provides the prosecution with an alternative to s.116(2)(e) as a way of admitting the evidence of a complainant who does not give evidence at trial. What is said by the complainant in a 999 call or to officers immediately after the alleged incident will usually be admissible as res gestae evidence. The latter is becoming much more important and reliable as a source of evidence now that most officers have body-worn cameras that record both audio and video. The prosecutor can play the footage from the body-worn device as evidence both of the demeanour of the complainant straight after the incident as of the truth of what the complainant says.

Question 34

Confessions

Answer 34

The common law rule to the effect that evidence of confessions is admissible is preserved.

See other elements for detailed rules on the admissibility of confessions.

There is a broad common law rule that the statements of one party to a common criminal enterprise in furtherance of that enterprise are admissible against all the parties to the joint enterprise. This is of particular significance in conspiracy cases.

The common law rule that an expert witness may draw on a body of expertise is preserved. Without this rule, it would be impossible for experts to give evidence of any of the learning within their field, except that which they themselves had contributed to the field.

Question 35

Previous inconsistent statements

Answer 35

Section 119 CJA 2003 provides that:

• a previous inconsistent statement that a witness admits to having made; or
• a previous inconsistent statement that the witness is proved to have made

is admissible as evidence of the matter stated.

This is an exception to the rule against hearsay. It was introduced by the CJA 2003. Prior to the Act, previous inconsistent statements were evidence only of inconsistency.

Previous consistent statements

Sections 120(2) and 120(4) make admissible as evidence of any matter stated, previous consistent statements admitted to rebut a suggestion of recent fabrication or as recent complaint evidence.

Again, this is an exception to the rule against hearsay and was a novelty in the Act, before which such evidence was only evidence that the statements had been made.

An example of an oral hearsay statement would be that a witness (‘X’) testifies to what Y said. In contrast, an example of multiple hearsay would be X testifies to what Y said Z told Y.

Question 36

Multiple hearsay

Answer 36

CJA 2003, s.121 provides that 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 ss.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.

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

Question 37

Evidence affecting the credibility of admissible hearsay

Answer 37

Because the maker of a hearsay statement is not present in court to be cross-examined, it is necessary to allow the person’s credibility to be challenged in other ways.

CJA 2003, s.124 allows an opposing party to put into evidence anything that could have been put to the witness to challenge credibility in cross-examination. It goes further than that in allowing the admission of evidence as to matters on which the witness’s answers in cross-examination would have been final.

Question 38

Unconvincing hearsay

Answer 38

CJA 2003, s.125 allows the judge to stop a case where the case 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.

Under those circumstances, the judge must either discharge the jury and order a retrial, or direct the jury to acquit the defendant.

Question 39

Superfluous hearsay

Answer 39

CJA 2003, s.126 allows the court to exclude hearsay evidence that would otherwise be admissible where the admission of the evidence would result in undue waste of time.

This is a provision that can be used to exclude hearsay evidence proffered by either the prosecution or the defence. It is intended to avoid time being wasted on peripheral issues.

Question 40

Directing the jury

Answer 40

The jury must be reminded that a hearsay statement that has been admitted at the trial was not given on oath and that it was not tested in cross-examination.

The risks of relying on hearsay evidence should be pointed out and the jury should be warned to scrutinise it with particular care.

Where the court has 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 41

Notice

Answer 41

Notice is required where a party intends to introduce hearsay evidence under:

• s.114(1)(d) (interests of justice);
• s.116 (witness unavailable);
• s.117(1)(c) (document prepared in contemplation of criminal proceedings); or
• s.121 (multiple hearsay).

The notice must be served on the court and on every other party. It must:

a) Identify the hearsay evidence

b) Set out the facts relied on that make the evidence admissible

c) Explain how those facts will be proved if they are disputed

d) Explain why the evidence is admissible

The evidence must be attached to the notice if it has not already been served.

The prosecution must serve notice not more than:

a) 20 business days after a not guilty plea in the magistrates’ court; or

b) 10 business days after a not guilty plea in the Crown Court.

A defendant must serve notice as soon as reasonably practicable.

Question 42

Opposing the introduction of hearsay evidence

Answer 42

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 in any event not more than 10 business days after either of the following, whichever of those happens last:

a) Service of the notice to introduce the evidence;

b) Service of the evidence objected to, if that is evidence for which no notice is required; or

c) The defendant pleads not guilty.

The application must explain:

a) Which, if any, facts set out in the notice to introduce the evidence the party disputes;

b) Why the evidence is not admissible; and

c) Any other objection to the evidence.

Question 43

Competence

Answer 43

When we talk about the competence of a witness, we simply mean whether the witness is permitted to give evidence to the court.

In more formal language, a witness is competent if a person ‘may lawfully be called to testify’.

Generally speaking, anyone is a competent witness.

There are a few exceptions, ie a few instances where a witness, even if willing, is simply not competent to give evidence for one party or another.

Competence

• The defendant/accused - The defendant is not competent to be a prosecution witness. Where there are multiple defendants, none of them can be prosecution witnesses for the other. The proceedings must be completed against any one of them so that they are no longer defendants in the case before they can be competent as witnesses for the prosecution. Defendants are, of course, competent to give evidence on their own behalf, and are competent to give evidence on behalf of a co-defendant.
• Children and persons with a disorder or disability - Age is not the determining factor of whether a child is competent; the only test is whether the child can (1) understand questions, and (2) can give comprehensible answers. The test is the same for those operating with a disorder or disability.
• Spouse/civil partner - A spouse or civil partner of a defendant is competent to give evidence for any party in the case.
• Deaf or speech impaired witness - These witnesses are competent so long as they understand the solemnity of taking the oath or affirmation. They can give evidence using interpreters, handwriting, sign language or any combination of these.

Question 44

Compellability

Answer 44

The defendant- The defendant is not competent for the prosecution and so clearly can’t be compelled by the prosecution. The defendant may give evidence on D’s own behalf, but cannot be compelled to do so.

Children and persons with a disorder or disability- If competent, these witnesses are compellable.

Spouses/civil partners- Spouses and civil partners can be compelled to give evidence for their spouse or civil partner (ie for the defence) but only for the prosecution if the offence charged against their partner is (PACE s 80):

a) Assault on, or injury, or threat of injury to that spouse or partner (ie domestic violence)

b) Assault on, or injury, or threat of injury, to a child under 16

c) A sexual offence against someone under the age of 16

d) Attempts, conspiring, aiding and abetting any of the above

The logic is clear. Spouses and civil partners should not normally have to act against the interests of their partners, and this is generally accepted, unless the partner is inflicting domestic violence or abusing children. At that point, the courts can require spouses to attend to give evidence even if they do not want to do so. If they refuse to attend, they can be arrested, and if they refuse to answer questions they can be held in contempt.

There are also rules for diplomats, sovereigns and bankers, but these are most unlikely to be examined.

Question 45

Opinion evidence and experts

Answer 45

There is a rule which is simple in expression (but quite hard in practice) which is that witnesses are, generally speaking, called upon only to be witnesses of fact. Analysis of those facts is argued by advocates, and it is for the jury to ultimately decide on what inferences they draw and what conclusions they should come to from the factual evidence provided. The courts will receive opinions from witnesses, but only 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 46

Opinion evidence

Answer 46

There are so many different types of opinion that might be given by a witness, that it is not possible to have a list of matters that require (or do not require) an expert.

A good example of an admissible perception of a non-expert is an opinion as to drunkenness. Many people involved in crime or who are witnesses to it have consumed alcohol. A witness could give factual evidence to indicate that a relevant person’s speech was slurred, pupils were dilated, or was walking unsteadily. In reality, though, witnesses would tend to simply say ‘the man was drunk’. This is, strictly, an opinion, and so would normally not be admissible.

However, the law does not restrict such a statement in court on the basis that it is a way of expressing in summary the factual observations that the witness had made, and that the assessment of drunkenness is sufficiently commonplace a task that the witness’s perception would be received by the court.

It remains best practice to focus questions in examination on the observable facts rather than only eliciting the opinion.

The list of other permissible non-expert opinions would be a truly huge list.

Many of the items on the list would be under the heading of ‘identification’ as witnesses tend to combine facts (eg ‘the attacker wore a blue cardigan’) with opinion based on observations (eg ‘he was young and male’).

Similarly, recognition of voice and handwriting are examples of opinions which are acceptable as having been derived from observed facts and represent an inference, the like of which is commonplace and will be received as admissible perceptions.

Question 47

Expert evidence

Answer 47

Issues that would require expertise include more technical matters of science, medicine, psychology etc. Doctors who have tended to a victim’s injuries may be tempted to give an opinion as to whether the injury presented could have been caused in the way that was described by the victim.

Occasionally the law specifies what level of expertise would be required before the court would receive such an opinion. In this case (ie the opinion as to the likely cause of injury) it is clear that a doctor, and specifically not a nurse, would be the only person with sufficient expertise to give such evidence. Expertise can be acquired either through a course of study or by practical experience (or a combination of both). It is for the party seeking to rely on the expert evidence to establish that the expert has sufficient expertise.

Witnesses that are deemed as experts are treated slightly differently to other witnesses. They are regarded more as independent consultants than partisan witnesses, and experts are asked to consider their role as being neutral and objective. Where there are multiple experts in a case, they are encouraged to meet to establish the matters on which they agree and disagree, and to narrow the issues between them and to explain the basis on which any disagreement is founded.

Experts should always be clear in defining the boundaries of their expertise and to indicate if the questioning is straying into areas in which their expertise may be less clearly relevant.

As a matter of good practice, an advocate should not ask an expert to give an opinion directly on the ‘final’ issue in the case. So if, for example, the question for the jury is whether the defendant caused death by dangerous driving, one should not ask (without prior leave) the witness ‘Is it your opinion that the defendant caused this death by dangerous driving?’. Opinions as to the component parts of the driving would be better (eg giving an opinion as to the speed of the car by reference to skid marks). The jury would then conclude the final question for itself.

The jury is not obliged to accept expert evidence, even if it is not contradicted. In every case where there is an opinion that has not been directly contradicted, the judge has to decide how to sum the case up to the jury and, if there is other evidence that tends to a conclusion which is not the conclusion of the expert, the jury would still be empowered to prefer the alternative conclusion. Only in cases where the expert’s opinion and all the other evidence leads inevitably to only one conclusion should the jury be directed to accept the opinion as correct.

Question 48

Against self-incrimination

Answer 48

There is a general principle (under the common law) that courts will uphold a witness’s right (and we are talking about witnesses other than the defendant) to refuse to answer questions or disclose documents if to do so would make that person liable to incriminate themselves. It is important to note that the person cannot claim privilege to protect another person, even a spouse, and cannot be invoked in order to protect against possible liability in a civil court.

A defendant’s (ie someone ‘charged in criminal proceedings’)right to refuse to answer questions was removed from the common law by the Criminal Evidence Act 1898, and is now governed by the rules on ‘adverse inferences’, dealt with in separate elements.

If a person claims privilege against self-incrimination to protect information, the person cannot prevent the same information being acquired by other routes. The privilege only extends to that person, and any investigatory body is entitled to consider how else to access the information.

Question 49

Legal professional privilege

Answer 49

Legal professional privilege is the privilege that exists when a client communicates with a lawyer. There are two sub-divisions at play, and are whether:

(i) the purpose of the communication with a lawyer is to advance or act in a process of litigation (litigation privilege); or

(ii) to obtain advice more generally (advice privilege).

There are slightly different rules in relation to these two purposes/privileges. Clearly there is a lot of communication with lawyers which is not effected with litigation in mind. All the direct communication between lawyer and client is privileged, but the distinction comes into play in relation to third parties. If the third-party communication is generated during, or in contemplation of, litigation, then privilege is likely to attract, but if there is no litigation involved, then documents supplied to a lawyer from a third party for more general advice is usually not protected by privilege.

The privilege can be waived either explicitly or by conduct, and as a rule a person cannot waive privilege partially. Only the person entitled to claim privilege can waive it. In the case of legal professional privilege, the right to waive privilege is the right of the client rather than the law firm.

Question 50

Oaths and affirmations- overview

Answer 50

As a general rule, all witnesses must either take an oath before giving evidence, or make an affirmation. There is no difference between the two in the eyes of the law. The only real exception where evidence may be received unsworn is in the case of children and those of ‘unsound mind’. In these cases, the courts can receive evidence, but it would be wrong to make the witness take the oath. The test for children and those with unsound mind is whether they ‘have sufficient appreciation of the solemnity of the occasion and of the particular responsibility to tell the truth which is involved in taking an oath,’ Youth Justice and Criminal Evidence Act, s.55.

The court usher should have to hand a number of oath cards to cover all main religions. The ultimate issue is not whether the words on the card perfectly match the variant of the religion that the witness might adhere to, but rather to assess if the oath is one that the witness would find ‘binding on one’s conscience’. Following this principle, a Muslim witness was deemed properly sworn after swearing on the New Testament.

Refusal to take an oath or affirmation can be punished as a contempt of court.

Question 51

Form of questioning

Answer 51

For examination in chief, the questions should be non-leading.

Evidence adduced from a leading question may be considered to be inadmissible or to carry less weight.

The big exceptions are that leading may be allowed on issues that are not in dispute, or where the witness has been deemed hostile.

Question 52

Memory refreshing

Answer 52

Statements made out of court are considered to be hearsay (if they seek to prove the truth of their contents etc). There are three ways in which an out of court written witness statement may be used in court:

The statement may be read out if the contents of the statement are agreed. The hearsay objection is overcome by saying that the jury should regard the evidence read out in the statements as if the witness had come into court and given the evidence from the witness box. The witness can to ask to ‘refresh their memory’ from their statement. This is normally uncontroversial, and witnesses are generally free to spend a moment reminding themselves of their evidence from their statements. There are a few points of best practice, though:

• Try to observe the statute that says that refreshing memory is permissible where the earlier written account provides a ‘significantly better’ recollection than could be achieved without it, Criminal Justice Act, s.139.
• Allow witnesses to read the statements back to themselves and then ensure that the evidence is given apparently from a recovered memory rather than by simply reading out the statements.

In cross-examination on a previous inconsistent statement (see later).

A witness does not have to read their statement in the witness box where it would be undesirable, for example, a dyslexic witness may wish to withdraw to a quiet room so to do.

When a witness refreshes their memory they may be cross examined on the contents of the statement used to refresh their memory without the statement coming into evidence. Where material other than that which the witness used to refresh their memory is raised in questioning, this entitled the other side to apply to put the statement into evidence so the jury can form their own view about the basis for the cross examination.

Question 53

Hostile witnesses

Answer 53

It is occasionally the case that a witness known to have evidence that could assist the prosecution then indicates they are not going to give that evidence in court.

This is most common in domestic violence cases, where a partner reports having been assaulted, but then some time before the trial retracts that statement. This is often under pressure from the offending partner who has been promising to change and regains the partner’s affection.

If the witness is then called to give evidence and gives an account inconsistent with their original statement to the point the Judge forms the view the witness is not “desirous of telling the truth”, the party calling that witness may apply to the Judge to treat them as hostile. A party is free to cross examine a hostile witness 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 notwithstanding that the statement was (or might have been) deemed as inadmissible hearsay before the witness contradicted it in evidence.

Question 54

The use of previous consistent statements

Answer 54

As a general principle of evidence, it is thought that an allegation made by a witness does not become more reliable simply because the witness repeated the allegation on numerous occasions. It is therefore the general rule that the court hears the witness make the allegation in court, and it is not generally admissible to elicit evidence that the witness made earlier consistent allegations or statements. This has been substantially altered by s.120 of the Criminal Justice Act 2003.

There are some exceptions, i.e. where the court will hear the evidence of an earlier consistent complaint or statement.

Where an exception exists, one needs to consider if the earlier consistent statement can be used to prove the statement itself is true, or only to prove the consistency of the person who made the earlier statement. We will note what use the consistent statement can be put to under each section. The main exceptions are as follows:

• Res gestae
• Suspect’s response to police allegation
• Complaints
• Recent fabrication

Question 55

Res gestae

Answer 55

A statement made as an immediate reaction to a crime being committed against the statement maker (res gestae)

This is covered in the hearsay elements in more detail. In short, however, if a victim of a crime reacts instantaneously or in the immediate heat of the incident, that reaction is admissible.

This is because the person would not have had any time to conjure up a false response if you only look at what was said in the immediate aftermath of an incident.

So, for example, if someone suddenly jumps up and shouts out on the tube ‘what are your hands doing there you pervert!?’, that would seem to be an immediate response to a potential sexual assault, and would be admissible. This would be admissible to prove the truth of the (implied) allegation.

Question 56

Statements made by suspects on accusation by the police

Answer 56

The police, as a matter of course, will ‘accuse’ all suspects of an offence when they arrest, interview and charge a suspect. The responses to all police allegations are admissible, whether they are confessional or involve self-serving denials of guilt.

The only difference is the use to which they are put. If a suspect wholly denies an offence to the police, it may be useful to the jury to assess the overall conduct of the defence, and the consistency of the defendant’s denials. It cannot go further and prove the truth of the denials.

Question 57

Complaints

Answer 57

There is a common law principle that the quicker that someone complains about an allegation, the more likely the complaint is to be reliable. The common law therefore developed a doctrine called the ‘doctrine of recent complaint’. The Criminal Justice Act 2003 took the principle a lot further and simply made complaints admissible where the complainant testifies that the earlier complaint was made and was true. This statutory provision (s.120) does not replace the common law, but as it is much wider it makes the common law somewhat redundant. The Act also allows the earlier complaint to show consistency in complaining and to prove the truth of the complaint.

Question 58

Rebuttal of ‘recent fabrication’ allegation

Answer 58

If a witness is challenged in the box, and it is suggested that something that the witness has just said has only just been made up, then the witness is permitted to try to prove that this is not the case.

The witness is therefore allowed to negate the allegation of ‘recent fabrication’ by showing that earlier statement was made to the same effect as the statement impugned as being a recent fabrication.

Again, the court must consider s.120 CJA 2003 in deciding whether there is an earlier complaint that can rebut the allegation of recent fabrication.

Question 59

Form of questioning

Answer 59

In cross-examination, advocates may ask leading questions, ie questions that contain factual statements that indicate what answer the advocate wants the witness to make.

Indeed, there is a principle that is part of the Code of Conduct for barristers that states that unless a witness’s account is challenged on a particular point, it is deemed to have been tacitly accepted.

This rule applies to both factual challenges, where the advocate has to promote the alternative factual case to the one being expressed by the witness, and to imputations on the witness’s character which must be done plainly to the witness’s face.

The case that first set up this principle is the ancient and famous case of Browne v Dunn [1893] 6 R 67, HL. There has been case law in many ex-UK jurisdictions about just how fully and meticulously it is necessary to convey every minute disagreement between the witness and the party for the other side, but the broad principle of ‘putting’ your case where it is in conflict with the witness remains fundamental.

Witnesses should generally only deal in facts.

Witnesses should not be encouraged to give opinions unless they are on very ‘everyday’ matters such as giving the opinion that someone was drunk.

A practice that has been seen regularly in courts, but which is deemed to be improper, is the question type that asks one witness to comment on another witness, particularly when they have given inconsistent evidence. So one shouldn’t say something like ‘Well, you can’t both be right, so are you calling X a liar?’ That is comment, not a question, and should be reserved for your closing speech.

Question 60

Previous inconsistent statements

Answer 60

The courts do not generally admit into evidence a police witness statement. It classifies as hearsay.

It can become admissible, under s.119 Criminal Justice Act 2003 however, if the witness in the box giving live evidence departs materially from the statement, either by contradicting the statement or adding something to it which was not there originally.

In either case, the original statement can be produced and shown to the witness in order to challenge the discrepancy in the accounts provided.

The party using the statement in cross-examination can refer to the fact that the original statement was made much closer to the incident and it is a signed and sworn statement (as is the live evidence). Given how readily memories fade, and how easy it is for witnesses to get flustered and make mistakes, it is quite common for inconsistencies to arise between the evidence in the box and the evidence in the statement.

Minor discrepancies should be expected and would not normally lead to an advocate picking them up and cross-examining upon them, but more major changes in an account can provide valuable insights into the credibility of the witness.

Question 61

Restrictions on cross-examination

Answer 61

Cross-examination can be robust, and it can lead to a witness being upset, vilified or annoyed.

For example, the Bar Standards Board Handbook for professional practice is clear, however, that upsetting a witness should never be done gratuitously, for its own sake, and it should never be done unless it serves a clear and useful purpose. The judge will determine if the questions ‘cross the line’.

The judge can also determine if a matter has been sufficiently explored and can put time limits on time dedicated to issues that are peripheral or already covered sufficiently.

The law in relation to what questions can be put to victims/complainants of sexual offences is quite carefully guarded by law. Questions about the victim’s general promiscuity or other sexual behaviour are not allowed without leave of the court (Youth Justice and Criminal Evidence Act 1999, s.41).

Question 62

Finality on collateral matters

Answer 62

The rule of finality to collateral matters prevents trials from splintering into multiple insignificant disputes about credibility related matters collateral to the issues in the case. Therefore, if a witness to a bank robbery is asked in cross examination whether they once lied on a mortgage application and they say no (imagining that to be (i) relevant and (ii) to have passed the necessary bad character hurdles), the defence would be prohibited from adducing evidence of the mortgage application because the matter was collateral to main issues and the answer “no” was final in the eyes of the law.

The courts are more lenient in allowing evidence to be admitted on the ‘collateral’ issue of a witness being ‘biased or partial’ and even when a witness denies such, counter-evidence will be admissible.

Question 63

Re-examination

Answer 63

In any case, if matters are raised in cross-examination which could not reasonably have been covered in examination in chief, then the party calling the witness may ask further questions after the cross-examination in re-examination.

These questions should follow the same rules as examination in chief – namely no leading questions unless the matter is not in dispute, and witnesses can refresh their memory if necessary.