4. Principles and Procedures to Admit and Exclude Evidence - Part 2

Question 1

What is hearsay?

Answer 1

A statement, not made in oral evidence (out of court), repeated in court and is relied on as evidence of a matter in it.

Question 2

What are examples of hearsay evidence that commonly arise in criminal proceedings?

Answer 2

(a) a witness repeating at trial what they had been told by another person;
(b) a statement from a witness being read out at trial instead of the witness attending court
to give oral evidence;
(c) a police officer repeating at trial a confession made to them by the defendant;
(d) a business document being introduced in evidence at trial.

Question 3

What is first-hand hearsay?

Answer 3

Evidence that is repeated directly and did not pass through anyone else before getting to the person who repeated it.

Question 4

What is multiple hearsay?

Answer 4

Evidence that passes through multiple people until it is repeated.

Question 5

When is hearsay evidence admissible?

Answer 5

If it falls within one of the four categories, 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 6

What are the statutory provisions of s114(1)(a) CJA which make hearsay evidence admissible?

Answer 6

1. cases where a witness is unavailable - s116
2. business and other documents - s117
3. previous inconsistent statements of a witness - s119
4. previous consistent statements by a witness - s120
5. statements from a witness which are not in dispute - s9
6. formal admissions - s10

Question 7

What does Section 116 of the CJA 2003 allow in criminal proceedings and on what conditions?

Answer 7

Admission of a non-orally made statement as evidence under specific conditions if:
1. first-hand hearsay
2. relevant person is identified to court’s satisfaction
3. one of five conditions are met under s116(2)

Question 8

Name the five conditions outlined in Section 116(2) for admissibility of hearsay evidence where a witness is unavailable to attend court.

Answer 8

Relevant person is:
1. dead
2. unfit to be a witness (physical/mental condition)
3. outside UK
4. cannot be found
5. afraid (fear so court gives leave)

Question 9

Under Section 116(4), when does the court grant leave for the admission of a statement, and what factors does it consider?

Answer 9

The court grants leave if it deems the statement should be admitted in the interests of justice, considering factors such as the statement’s contents, the risk of unfairness, and the potential for a special measures direction.

Question 10

What restriction does Section 116 impose on the type of hearsay it applies to?

Answer 10

Section 116 applies exclusively to ‘first-hand’ hearsay.

A statement is admissible under this section only if the person who made it would have been permitted to give oral evidence at trial regarding the statement’s contents.

Question 11

Under Section 117 of the CJA 2003, when is a statement contained in a document admissible as evidence in criminal proceedings?

Answer 11

A statement in a document is admissible if
(a) oral evidence in the proceedings would be evidence of that matter,
(b) the requirements of ss(2) are satisfied, and
(c) the requirements of ss(5) are satisfied, where required by ss(4).

Question 12

What are the requirements outlined in Section 117(2) for the admissibility of a statement in a document?

Answer 12

The document must
(a) have been created or received in the course of a trade, business, profession, or other occupation, or as the holder of a paid or unpaid office; (b) the relevant person supplying the information had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with; and
(c) each person through whom the information was supplied received it in the course of a trade, business, profession, or other occupation.

Question 13

What is the effect of s117 CJA 2003?

Answer 13

To make both first-hand and multiple hearsay in certain documents admissible in evidence.

Question 14

When is s117 commonly used?

Answer 14

To allow the admissibility in evidence of:
1. business records;
2. statements prepared for use in criminal proceedings.

Question 15

What are the conditions that must be satisfied for admissibility of statements prepared for use in criminal proceedings as evidence?

Answer 15

1. any of the five conditions in s116(2); OR
2. relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement.

Question 16

What is the effect of s118(1) CJA 2003?

Answer 16

Preserves several common law exceptions to the rule excluding hearsay evidence.

Question 17

What are the two most important exceptions preserved by s118(1)?

Answer 17

1. Confession evidence or mixed statement made by D; and
2. Evidence admitted as part oft he res gestae.

Question 18

What is the effect of s118 on confessions?

Answer 18

Preserved the common law rule that a confession made by a defendant will be admissible in evidence against the defendant, even if the confession is hearsay evidence.

Question 19

What is the common law principle of evidence being admitted as part of the res gestae?

Answer 19

Provides that a statement made contemporaneously with an event will be admissible as an exception to the hearsay rule because the spontaneity of the statement meant that any possibility of concoction can be disregarded.

Question 20

What is hearsay admissible by agreement - s114(1)(c)?

Answer 20

If all the parties in the case agree, any form of hearsay evidence may be admissible in
evidence.

Question 20

What is the procedure for admitting hearsay?

Answer 20

The procedural rules to be followed should a party seek to rely on hearsay evidence at trial (or to challenge the admissibility of hearsay evidence on which another party seeks to rely) are contained in Part 20 of the CrimPR.

Question 21

What is hearsay admissible in the interests of justice – s 114(1)(d)?

Answer 21

allowing the court to admit hearsay evidence that would not otherwise be admissible if it is in the interests of justice to do so.

Question 21

What situations of hearsay do the procedural rules in Part 20 apply to?

Answer 21

s114(1)(d) - interests of justice

s116 - witness unavailable to attend court

s121 - evidence is multiple hearsay

CrimPR r 20.2 - prosecution or
defence rely on s117 for the admission of a written witness statement prepared for use in criminal proceedings.

Question 22

What is real evidence?

Answer 22

Tangible item presented to court as evidence (e.g. murder weapon/gun)

Question 23

When introducing hearsay in criminal proceedings does the prosecution have to give notice to the defence?

What is the exception?

Answer 23

The prosecution are required to give notice to the defence of their intention to rely on the hearsay evidence

exception: confession evidence

Question 24

What is the exception to the rule of notice when introducing hearsay evidence?

Answer 24

The prosecution will not be required to give notice to the defence of their intention to rely on confession evidence.

Question 25

what is the general rule of s58?

Answer 25

everyone has the right to legal advice