3.2 Hearsay - introduction

Question 1

What is hearsay evidence?

Answer 1

A written or oral statement made otherwise than by a witness giving their own first-hand evidence in proceedings, which is tendered as evidence of the matters stated and which is relied on in court to prove the truth of the matters stated.

Question 2

What is the general rule on the admissibility of evidence?

Answer 2

All evidence that is relevant to the facts in issue is admissible.* All irrelevant evidence should be excluded.

[*Subject to the exclusionary rules.]

Question 3

R v Riat and others [2012] EWCA Crim 1509

Answer 3

The common law prohibition on the admission of hearsay evidence remains the default rule.

Question 4

What is the general rule on the admissibility of hearsay?

Answer 4

The general rule is that hearsay evidence may not be used in court as proof of its contents.

Question 5

What are the two questions you must always ask when assessing possible hearsay evidence?

Answer 5

1. Is it hearsay evidence?

2. If so, it is admissible?

Question 6

Why is hearsay generally excluded?

Answer 6

Because unlike oral evidence given in court it cannot be tested / challenged in cross-examination.

Question 7

Which statutory provisions deal with hearsay?

Answer 7

Chapter 2 Criminal Justice Act 2003

Question 8

What is the relevance of hearsay evidence in human rights law?

Answer 8

ECHR 6

Admitting hearsay evidence may impact on D’s right to a fair trial because it cannot be challenged in court.

Question 9

When can hearsay be admitted as evidence?

Answer 9

Section 114(1) Criminal Justice Act 2003
if—
(a)any provision of this Chapter or any other statutory provision makes it admissible,
(b)any rule of [common] 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 10

What are the three criteria that must be satisfied for a trial relying on hearsay to be fair?

Answer 10

1. Is there a good reason to admit hearsay in line with s.114 CJA 2003?
2. Can the evidence be shown to be reliable?
3. The application of counter-balancing measures, eg, directions to the jury in summing up.

Question 11

Which statutory provision sets out the exception to the general rule on hearsay?

Answer 11

Section 114(1) Criminal Justice Act 2003

Question 12

In which statutory provisions is hearsay defined?

Answer 12

Sections 114(1) and 115 Criminal Justice Act 2003

Question 13

What is the statutory definition of hearsay?

Answer 13

Section 114 Criminal Justice Act 2003
(1)
A statement not made in oral evidence
[that statement is…]

Section 115 CJA 2003
(2)
A representation of fact or opinion made by any means
(3)
which was made with the intention to -
(a) cause another to believe it was true; or
(b) cause a person to act or a machine to operate as if it were true

Question 14

What is the leading case on identifying hearsay?

Answer 14

R v Twist [2011] EWCA 1143

Question 15

R v Twist [2011] EWCA 1143

Answer 15

Applying ss.114(1) and 115 CJA 2003

1. Identify the relevant matter to be proved;
2. Is there a statement of that matter in the communication?
3. Was it the purpose of the person making it to cause another to believe it was true?

Facts: The court had to decide whether text messages asking for drugs were hearsay.

Held: The text messages were not hearsay because they were not trying to convince anyone of the relevant matter (that D was a dealer).

Question 16

Give three examples of out-of-court communications that are not hearsay.

Answer 16

1. Private diary - no attempt to make someone else believe;
2. CCTV - not made by a person (s.115 CJA);
3. Questions - no attempt to make someone believe.

Question 17

What is the difference between using hearsay evidence and using out-of-court statements as original evidence?

Answer 17

Hearsay evidence (where it can be used) is used to show that the thing alleged out-of-court is true.

Using out-of-court statements as original evidence merely show that the statement was made. eg, D threatened to kill C.