3.2 Hearsay exceptions 1

Question 1

What is hearsay?

Answer 1

Section 114(1) Criminal Justice Act 2003
A statement made out of court
Adduced as evidence of the matter stated

Section 115 CJA 2003

(2) by a person and by any means
(3) with the intention to
(a) cause another person to believe it to be true; or
(b) cause another person to act or a machine to operate as if the statement were true.

Question 2

When is hearsay evidence admissible?

Answer 2

Section 114(1) Criminal Justice Act 2003
Where -
(a) Any of the statutory exceptions apply;
(b) Where any of the common law exceptions preserved in s.118 apply;
(c) where both sides agree;
(d) where it is in the interests of justice.

Question 3

What are the statutory exceptions to the exclusionary rule against hearsay evidence?

Answer 3

Section 114(1)(d) CJA
In the interests of justice.

Section 116 Criminal Justice Act 2003
Where the witness is unavailable.

Section 117 CJA
Where the evidence is a business document -
unless the court doubts its reliability - s.117(6) and (7) CJA.

Section 78 PACE
Nevertheless the court has a general power to exclude unfair evidence.

Question 4

Which statutory provision deals with the hearsay evidence of unavailable witnesses?

Answer 4

Section 116 Criminal Justice Act 2003

Question 5

Which three conditions must be present to admit hearsay evidence from unavailable witnesses?

Answer 5

Section 116(1) Criminal Justice Act 2003

(a) oral evidence given in proceedings by the person who made the statement would have been admissible;
(b) the relevant person is identified to the court’s satisfaction;
(c) any of the conditions in subsection (2) is satisfied.

Question 6

What are the conditions one or more of which must be satisfied to admit hearsay evidence from unavailable witnesses?

Answer 6

Section 116(2) Criminal Justice Act 2003

(a) the relevant person is dead
(b) they are unfit to be a witness because of bodily or mental condition
(c) the relevant person is outside the UK and it is not reasonably practicable to get them to attend
(d) the relevant person cannot be found and such steps as are reasonably practicable have been taken to find her
(e) the relevant person is in fear and the court gives leave.

Question 7

What does it mean for someone to be unfit to be a witness because of a bodily or mental condition, as per Section 116(2)(b) CJA?

Answer 7

This refers not to the inability to attend court but to give evidence.

It need not be a recognised medical condition.

Question 8

How does the court determine whether it is reasonably practicable to locate a witness, as per Section 116(2)(c) and (d)?

Answer 8

The court considers the normal steps taken to locate a witness.

Cost is a factor.

Section 116(2)(c) should be taken as including the impracticability of giving evidence via video link.

Question 9

How is “fear” defined as per Section 116(2)(e) Criminal Justice Act 2003?

Answer 9

Section 116(3) CJA
... fear is to be widely construed and (for example) includes fear of death or injury of another person or financial loss.

Question 10

When may the court give leave for hearsay evidence where the witness is in fear?

Answer 10

Section 116(4) CJA
... only if the court considers that the statement ought to be admitted in the interests of justice ...

Question 11

What should the court have regard to in assessing whether it would be in the interests of justice to admit a hearsay statement taken from a witness in fear?

Answer 11

Section 116(4) CJA

(a) the statement’s contents;
(b) any risk that its admission will result in unfairness;
(c) in appropriate cases, the fact that a direction could be made in relation to the relevant person under Section 19 Youth Justice and Criminal Evidence Act 1999;
(d) any other relevant circumstances.

Question 12

What is the standard of proof to show that a witness is in fear?

Answer 12

The criminal standard.

Question 13

Must fear felt by the witness be caused by D for the Section 116(2)(e) exception to apply?

Answer 13

No.

Question 14

Should the courts seek to test whether a witness is genuinely in fear?

Answer 14

Davies [2007] 2 All ER 1070
Courts are “ill-advised” to try to make witnesses in fear come to court.

Shabir [2012] EWCA Crim 2564
“Every effort” should be made to get witnesses to come to court to test their fear.

Question 15

Sellick [2005] EWCA Crim 651

Answer 15

Applying Section 116(5) Criminal Justice Act 2003:

Where intimidation of a witness is proved or the court considers it a high probability, D cannot complain that the right to a fair trial has been infringed by allowing hearsay.

Question 16

Which statutory provision deals with hearsay in business documents?

Answer 16

Section 117 Criminal Justice Act 2003

Question 17

What is a business document for the purposes of the hearsay exceptions?

Answer 17

Section 117(2) Criminal Justice Act 2003
(a)
… created or received by a person in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office,
(b)
the person who supplied the information … had or may reasonably be supposed to have had personal knowledge … and
(c)
… the [supplier of the document received it] in the course of a trade, business, profession or other occupation, or as the holder of a paid or unpaid office.

Question 18

What is the basic position regarding the admissibility of business documents?

Answer 18

Section 117(1) Criminal Justice Act 2003
A document is admissible if -
(a)
oral evidence in the proceedings would be admissible regarding the matter, and
(b)
The document is a business document as defined in s. 117(2), and
(c)
Where applicable because the document was prepared for the court, the requirements of s.117(5) are satisfied.

Question 19

What are the requirements for admissibility of business documents prepared for the hearing?

Answer 19

Section 117(5) Criminal Justice Act 2003
(a)
any of the five conditions mentioned in section 116(2) is satisfied (absence of relevant person etc), or
(b)
the relevant person cannot reasonably be expected to have any recollection of the matters dealt with in the statement…

Question 20

On what grounds may business documents be excluded?

Answer 20

Section 117 CJA
(6)
The court can exclude business documents if s.117(7) is satisfied
(7)
If the court is satisfied that the statement’s reliability as evidence … is doubtful …

Section 78 PACE
adverse effect on the fairness of proceedings

Question 21

What must the court take into account when deciding whether it is in the interests of justice to admit hearsay evidence, as per Section 114(1)(d) Criminal Justice Act 2003?

Answer 21

Section 114(2) CJA
The court must take into account
(a) the probative value of the statement or how much it helps understand the other evidence
(b) what is the other evidence on the matter
(c) importance of the matter or evidence
(d) the circumstances in which the statement was made
(e) reliability of the maker
(f) reliability that the statement was made
(g) whether oral evidence of the matter stated can be given and, if not, why not
(h) the difficulty in challenging the statement
(i) the extent to which that difficulty would be likely to prejudice the party facing it.

Question 22

What must the court have regard to in considering whether a business document is of doubtful reliability?

Answer 22

Section 117(7) CJA

(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.